Statehood and the Law of Self-Determination
Developments in International Law VOLUME 43
Statehood and the Law of Self-Determination
David Raic
Kluwer Law International The Hague / London / New York
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Table of Contents
Table of Abbreviations Acknowledgements
INTRODUCTION
xiii xix
1
PART I: STATEHOOD CHAPTER 1 THE CONCEPTS OF 'SUBJECT OF LAW' AND 'PERSONALITY' IN INTERNATIONAL LAW § 1. Introduction § 2. The meaning of 'subject of international law' and 'international personality' § 3. Conclusion
CHAPTER 2
9 10 18
THE STATE AS AN INTERNATIONAL LEGAL PERSON
§ 1. Introduction § 2. The notion of the State § 2.1. The State as a political and social organization § 2.2. The State as a legal concept under international law: legal personality, attributes and legal criteria for statehood § 2.3. Sovereignty § 3. Recognition of States and the acquisition of international personality §3.1. The constitutive theory § 3.2. The declaratory theory § 4. The theories on recognition revisited § 4.1. Evaluation of the constitutive theory
19 20
21 25 28 29 32 33 33
vi
Table of Contents
§ 4.2. Evaluation of the declaratory theory § 5. Collective, implied, constitutive and obligatory recognition of statehood and admission to membership in the United Nations § 6. Conclusions
CHAPTER 3
39 48
THE TRADITIONAL CRITERIA FOR STATEHOOD AND THE CONCEPT OF EFFECTIVENESS
§ 1. Introduction § 2. Statehood and the notion of effectiveness in international law § 2.1. Raison d'être and function of effectiveness § 2.1.1. Absence of a central organ with general powers of attribution and enforcement of rights and obligations § 2.1.2. Legal order § 2.1.3. Legal security § 2.2. Legal effects of effectiveness § 2.3. The meaning of effectiveness in the context of the formation of States § 3. The traditional criteria for statehood §3.1. Permanent population § 3.2. Defined territory § 3.3. Government § 3.4. The capacity to enter into relations with other States § 3.5. Independence § 3.5.1. Formal independence § 3.5.2. Actual independence § 4. Recognition and the traditional criteria for statehood § 5. Retroactivity of recognition of statehood §6. The moment of the commencement of statehood § 7. Conclusions
CHAPTER 4
38
49 50 50
50 52 53 53 57 58 58 59 62 73 74 76 78 82 83 85 86
THE OBLIGATION OF NON-RECOGNITION AND ADDITIONAL CRITERIA FOR STATEHOOD BASED ON LEGALITY
§ 1. Introduction § 2. The prohibition of premature recognition § 2.1. No recognition without 'permissive' recognition?
89 92 93
Table of Contents 5 2.2.
vii
Non-fulfilment of the traditional criteria for statehood and recognition 95 § 2.2.1. Colonialism and state formation through national liberation wars: the requirement of effective government and the operation of the right of self-determination 95 (a) Algeria 96 (b) Guinea Bissau 98 (c) Angola 99 (d) The Congo 100 § 2.2.2. The formation of States and ineffective government in the post-colonial era 101 § 2.3. Observations 101 § 3. The meaning of the doctrine of obligatory non-recognition 105 § 4. The origin and development of the doctrine of obligatory non-recognition in practice 113 § 5. State practice in the field of non-recognition of claims to statehood 116 § 5.1. The era of the League of Nations 116 § 5.2. The era of the United Nations 122 § 5.2.1. Violation of the prohibition of the use of force, in particular the prohibition of aggression 122 § 5.2.2. Violation of the right of peoples to self-determination 128 (a) The case of Southern Rhodesia 128 (b) The South African Homeland territories 134 § 5.2.3. Violation of the prohibition of systematic racial discrimination including the prohibition of Apartheid 140 § 6. The character of the legal norms involved 141 §7. The legal basis of the obligation of non-recognition 150 § 8. Modern criteria for statehood based on legality 151 § 9. Limits to the obligation of non-recognition 158 § 10. Non-recognition and the European Community Declaration on the Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union 165 §11. Conclusions and observations 167
viii
Table of Contents
PART II: SELF-DETERMINATION CHAPTER 5
THE EMERGENCE AND DEVELOPMENT OF THE PRINCIPLE OF SELF-DETERMINATION: FROM THE AMERICAN AND FRENCH REVOLUTIONS TO THE ERA OF DECOLONIZATION
§ 1. Introduction § 2. Political and philosophical foundations § 2.1. The American and French Revolutions: democratic political theory § 2.2. Nationalism § 3. From a political principle to a legal right § 3.1. Woodrow Wilson and 'Wilsonian self-determination' § 3.2. Vladimir Ilyich Lenin and self-determination § 3.3. Self-determination in the aftermath of World War I § 3.3.1. Versailles § 3.3.2. The League of Nations § 3.3.3. National self-determination as a gift § 3.4. The United Nations and decolonization § 3.4.1. The liberation of colonial peoples and territories: towards a right of selfdetermination § 3.4.2. The subject of the right of self-determination and the principle of territorial integrity § 3.4.3. Implementation and legal status of self-determination § 3.4.4. Decolonization and statehood § 4. Reflections and conclusions: raison d'être and core meaning of political self-determination
CHAPTER 6
171 172 172 176 177 177 184 188 188 193 196 199
199 206 210 219 220
THE POST-COLONIAL ERA: INTERNAL AND EXTERNAL SELF-DETERMINATION
§ 1. Introduction § 2. Self-determination beyond decolonization § 2.1. The continuing character of self-determination and its internal dimension § 2.2. The meaning of internal self-determination and its surplus value § 3. The subject of internal self-determination
226 227 228 237 242
Table of Contents
§ 4. § 5. § 6. § 7.
§ 3.1. The territorial definition: the entire population of existing States § 3.2. The 'ethnic' definition: subgroups within existing States § 3.3. Minorities Internal self-determination as a right under international law The right of external self-determination: meaning and exercise The principles of territorial integrity and uti possidetis Conclusions and observations
CHAPTER 7
ix
244 247 265 272 289 293 305
SECESSION
§ 1. Introduction § 2. Theoretical approaches to a right of secession § 3. Acknowledgment of a right of secession § 3.1. Recognition of a right of secession under national law or approval by the central government § 3.2. International instruments, doctrine and judicial decisions § 3.2.1. International instruments § 3.2.2. Doctrine § 3.2.3. Judicial decisions and opinions § 3.2.4. Observations § 3.3. Successful secessions and international practice § 3.3.1. Bangladesh § 3.3.2. Croatia (a) History (b) Secession and/or dissolution of the SFRY? (c) Entitlement to unilateral secession? § 3.3.3. Acknowledgement of the existence of a qualified right of unilateral secession under international law § 4. Cumulative criteria for a right of unilateral secession § 4.1. Minority-people § 4.2. Territorial bond § 4.3. A direct or indirect violation of the right of internal self-determination
308 309 313 313 316 316 324 328 332 332 335 342 342 356 361
362 366 366 367 367
x
Table of Contents
§ 4.4. Exhaustion of all effective judicial remedies and realistic political arrangements for the purpose of realizing the right of internal self-determination § 4.4.1. The catalytic agent: widespread and serious violations of individual human rights § 5. Unsuccessful unilateral secessions: the cases of the Chechen Republic of Ichkeria, the Republic of Abkhazia and the Republic of Serbian Krajina § 5.1. The Chechen Republic of Ichkeria § 5.2. The Republic of Abkhazia § 5.3. The Republic of Serbian Krajina § 6. Conclusion: the norms of territorial integrity and secession revisited
370 372
372 373 379 386 394
PART III: STATEHOOD AND SELF-DETERMINATION CHAPTER 8
THE FORMATION OF STATES AND THE OPERATION OF THE LAW OF SELF-DETERMINATION
§ 1. Introduction § 2. Recognition of statehood despite the existence of an ineffective government: modern state practice and the role of the right of self-determination § 2.1. The cases of Georgia and Moldova § 2.1.1. The Republic of Georgia § 2.1.2. The Republic of Moldova § 2.2. Observations § 2.3. External self-determination and the statehood criterion of 'government': juridical and empirical statehood § 2.4. The special case of the Republic of BosniaHerzegovina § 3. The law of self-determination and the criteria for statehood: the unlawful proclamation of independence § 3.1. The prohibition of abuse of the right of selfdetermination: the requirement of fulfilment of the conditions of the qualified right of secession § 3.2. Respect for the right of internal self-determination of peoples
401
402 402 402 405 406
408 414 418
419 423
Table of Contents § 4. The proper subject of the right of unilateral secession as a criterion for statehood § 5. The formation of States, self-determination and recognition § 6. Conclusions
xi
425 426 437
PRECIS § 1. The formation of States, traditional criteria for statehood and recognition § 2. The obligation of non-recognition of statehood: the introduction of the notion of legality in the law of statehood and additional criteria for statehood § 3. The law of self-determination § 4. Statehood and self-determination § 5. The modern law of statehood
Bibliography Table and Index of Cases Index
439
441 443 449 451
453 481 485
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Table of Abbreviations
Add. African JICL Am. U. Int'l L. Rev.
Ann. AJIL AFDI APSR AP App(s). Art(s). ASIL Aust. YIL Blaustein and Flanz (Eds.),
CONSTITUTIONS Buchheit, SECESSION
Addendum African Journal of International and Comparative Law American University International Law Review Annex(es) American Journal of International Law Annuaire Français de Droit International American Political Science Review The Associated Press Appendi(x, ces) Article(s) The American Society of International Law Australian Yearbook of International Law A.P. Blaustein and G.H. Flanz (Eds.),
CONSTITUTIONS OF THE COUNTRIES OF THE WORLD, multiple vols. L.C. Buchheit, SECESSION, THE LEGITIMACY
OF SELF-DETERMINATION, 1978 B. Univ. ILJ Brownlie, PRINCIPLES
Boston University International Law Journal I. Brownlie, PRINCIPLES OF PUBLIC
INTERNATIONAL LAW, 1998 BYIL Case W. Res. JIL Cassese, SELFDETERMINATION cert.
Chen, RECOGNITION CERD
British Yearbook of International Law Case Western Reserve Journal of International Law A. Cassese, SELF-DETERMINATION OF
PEOPLES, A LEGAL REAPPRAISAL, 1995 certiorari T.C. Chen, THE INTERNATIONAL LAW OF RECOGNITION, (L.C. Green, Ed.), 1951 Committee on the Elimination of Racial Discrimination
xiv
Table of Abbreviations
cf. ch (s). cmt. Colum. J. Transnat'l L. Colum. L. Rev Comm. Cornell ILJ Crawford, CREATION
OF STATES CoE CSCE Daito Bunka Univ. Bull. De Visscher,
EFFECTIVITÉS
Doc. Dugard, RECOGNITION Duke JCIL EC EC Guidelines
ECHR ECHR Ybk. ECOSOC Ed(s). ed. e.g. Emory Int'l L. Rev. ff.EC Rep. EJIL EPIL et al. et seq.
compare chapter(s) comment Columbia Journal of Transnational Law Columbia Law Review Committee Cornell International Law Journal J. Crawford, THE CREATION OF
STATES IN INTERNATIONAL LAW, 1979 Council of Europe Conference on Security and Co-operation in Europe Daito Bunka University Bulletin C. De Visscher, LES EFFECTIVITÉS
DU DROIT INTERNATIONAL PUBLIC, 1967 Document J. Dugard, RECOGNITION AND THE
UNITED NATIONS, 1987 Duke Journal of Comparative and International Law European Communities Guidelines on the Recognition of New States in on Recognition Eastern Europe and the Soviet Union, adopted by the member States of the European Community on 16 December 1991 European Convention on Human Rights Yearbook of the European Convention on Human Rights Economic and Social Council Editor(s) edition example given Emory International Law Review and following European Court Reports European Journal of International Law Encyclopedia of Public International Law and others and following
Table of Abbreviations
F. Finnish YIL FLN Fordham L. Rev. Friendly Relations Declaration
FRY Ga. J. Int'l & Comp. L. GAOR Gowlland-Debbas,
xv
Federal Reporter Finnish Yearbook of International Law Front Liberation Nationale Fordham Law Review Declaration on Principles of International Law Concerning Friendly Relations and CoOperation Among States in Accordance With the Charter of the United Nations (General Assembly Resolution 2625 (XXV), 1970) Federal Republic of Yugoslavia (Serbia and Montenegro) Georgia Journal of International and Comparative Law General Assembly Official Records V. Gowlland-Debbas, COLLECTIVE RESPONSES
THE QUESTION OF SOUTHERN RHODESIA
TO ILLEGAL ACTS IN INTERNATIONAL LAW: UNITED NATIONS ACTION IN THE QUESTION OF SOUTHERN RHODESIA, 1990
Hague Y.B. Int'l L. Harv. ILJ HDZ HR
Hague Yearbook of International Law Harvard International Law Journal Croatian Democratic Union Hague Recueil (Recueil des Cours de 1'Académic de Droit International de La Haye) Human Rights Committee Human Rights Quarterly International Covenant on Civil and Political Rights International Covenant on Economic, Social and Cultural Rights International Court of Justice Reports of Judgments, Advisory Opinions and Orders of the International Court of Justice International and Comparative Law Quarterly the same that is International Herald Tribune Indian Journal of International Law International Law Commission
HRC HRQ ICCPR ICESCR
ICJ ICJ Rep. ICLQ id.
i.e. IHT Indian JIL ILC
xvi
Table of Abbreviations
ILC Ybk. ILM ILR Int. Aff. Israel L. Rev. IYHR JIA JNA JO Lauterpacht,
RECOGNITION Law & Contemp. Probs. LQR LJIL LN LNOJ LNTS Marek, IDENTITY
Yearbook of the International Law Commission International Legal Materials International Law Reports International Affairs Israel Law Review Israeli Yearbook of Human Rights Journal of International Affairs Yugoslav National Army Journal Officiel H. Lauterpacht, RECOGNITION IN
INTERNATIONAL LAW, 1947. Law and Contemporary Problems Law Quarterly Review Leiden Journal of International Law League of Nations League of Nations Official Journal League of Nations Treaty Series K. Marek, IDENTITY AND CONTINUITY
OF STATES IN PUBLIC INTERNATIONAL LAW, 1954 Mich. JIL Mod. L. Rev. Montevideo Convention mtg. NATO New Engl. L. Rev. NILR n(n). Nord. JIL Notre Dame L. Rev. No(s). NQHR NYIL NYT OAS OAU ONUC
Michigan Journal of International Law Modern Law Review Montevideo Convention on Rights and Duties of States of 1933 meeting North Atlantic Treaty Organization New England Law Review Netherlands International Law Review footnote(s) Nordic Journal of International Law Notre Dame Law Review Number(s) Netherlands Quarterly of Human Rights Netherlands Yearbook of International Law New York Times Organization of American States Organization of African Unity Opération des Nations Unies au Congo
Table of Abbreviations
OPPENHEIM'S INT'L LAW
xvii
OPPENHEIM'S INTERNATIONAL LAW,
RGDIP RIA s(s). SCOR sess. SFRY
Vol. I, Peace, (R. Jennings and A. Watts Eds.), 1992 Organization on Security and Co-operation in Europe African Independence Party of Guinea and the Cape Verde Islands Paragraph(s) Proceedings of the American Society of International Law Permanent Court of International Justice Publications of the Permanent Court of International Justice, Series A, B and C Statement by the President of the Security Council Resolution(s) Revised Revue de Droit International, de Sciences Diplomatiques et Politiques (The International Law Review) Revue Général de Droit International Public Review of International Affairs section(s) Security Council Official Records session Socialist Federal Republic of Yugoslavia
Shaw, INTERNATIONAL
M.N. Shaw, INTERNATIONAL LAW, 1997
OSCE PAIGC Para(s). PASIL PCIJ PCIJ Ser. PRST Res (s). Rev. RDISDP
LAW SRBH Stanford JIL STL Rev. Supp. Syr. JIL & Com.
Temple ICLJ Trans. TRNC UDI UHLR
The Socialist Republic of Bosnia-Herzegovina Stanford Journal of International Law Suffolk Transnational Law Review Supplement Syracuse Journal of International Law and Commerce Temple International and Comparative Law Journal Translated Turkish Republic of Northern Cyprus Unilateral declaration of independence University of Hawaii Law Review
xviii
Table of Abbreviations
UN UNESCO UNCIO UNDP UNFICYP UNTS UNRIAA
US USLW v.
Va. JIL Vand. J. Transnat'l L Vol(s). WEU Wis. ILJ Yale LJ ZaöRV
United Nations United Nations Educational, Scientific and Cultural Organization United Nations Conference on International Organisation United Nations Development Programme United Nations Force in Cyprus United Nations Treaty Series United Nations Reports of International Arbitral Awards United States Law Reports (Supreme Court) United States Law Week against Virginia Journal of International Law Vanderbilt Journal of Transnational Law Volume(s) West European Union Wisconsin International Law Journal Yale Law Journal Zeitschrift für ausländisches öffentliches Recht und Völkerrecht
Acknowledgements
This book was written as a thesis for the Doctorate of Laws, Leiden University. I am most grateful, first of all, to my supervisor, Professor Peter Kooijmans. Throughout my working at this study he allowed me to make use of his wisdom while at the same time affording inspiration and freedom. He never permitted his demanding task as a Judge at the International Court of Justice to stand in the way of discussing my thesis with me for many hours. I also wish to express my profound gratitude to Professor John Dugard, who acted as referent. I benefited very much from his wise suggestions and advice. The process of writing a thesis cannot be gone through without the support of many people. This book is no exception to that rule. I thank my mother, Amy Raic-van Es, and my sister, Romana Raic, both of whom, despite so many difficulties, have always kept faith in me as well as in the fact that this work would be completed. I thank my late father Mise Raic, who motivated me to interpret the facts of life as objectively as possible. I thank Stella Zerbo for her love, warmth, patience and impatience. I thank Marianne Jonker for supporting me and this project for so many years. I am fully aware that this was not an easy task. Special thanks are owed to René Lefeber, without whom this work would never have seen the light of the day in its present form and with whom I have discussed almost every issue in it. I also, and in particular, wish to thank Mrs. A. Broekers-Knol, Head of the Moot Court Department of Leiden University, who believed in my scientific skills and realized the funds for the research. I thank Niels Blokker for his advice and inspiration. I thank Guido Biessen who always tried to (and eventually did) convince me that I could cut a few pages or sections (if possible a chapter) and who always kept on motivating me to finish the work. The Hague, May 2002 DR
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Introduction
Standing on the moon, watching the earth from a different perspective, one sees water and land, and, if one would take a closer look, one might see mountains, rivers, forests and deserts. If one would get even closer to the surface of the earth, one would be able to distinguish cities, lakes and roads. One would, however, search in vain if one would wish to identify a 'State'. The reason is obvious: the State is primarily a legal concept, that is to say, it is a fictitious concept, created by man for certain purposes. From the perspective of international law it is therefore relevant to know exactly what kind of entities qualify as a State and, in particular, when they do so. As has been observed by one scholar: [g]enerally, international lawyers proceeded from the assumption that since the end of the decolonization process the surface of the globe was covered by a given number of entities which almost all bore the characteristics of a sovereign State. In this respect, with the exception of small corrections here and there, history seemed to have come to its irreversible end. The distribution of the land surface of the earth not only between any States, but between the currently existing States was considered more or less final.
The dissolution of the Soviet Union and Czechoslovakia as well as the violent disintegration of the Socialist Federal Republic of Yugoslavia have disproved this assumption, however. The communities of the new entities which have sprung up from the aforementioned States have achieved that for which they were striving, eventually, namely the establishment of a State. A growing number of communities within existing States are attempting, by pacific or by violent means, to attain the same goal. To legitimize their claim they refer to the right of self-determination of peoples - and especially to a 'right of unilateral secession' which is claimed to be encompassed by the aforementioned right. In this context, one may refer to the declarations of independence of, or the aspirations to secession of, amongst others, Transdniestr and the Republic of Gagauzia (of Moldova), Abkhazia (of Georgia), Kosovo (of the Federal
1.
C. Tomuschat, Self-Determination in a Post-Colonial World, in: C. Tomuschat (Ed.), MODERN
LAW OF SELF-DETERMINATION, 1993, p. 1, at p. 5.
2
Introduction
Republic of Yugoslavia), the Turkish Republic of Northern Cyprus (of Cyprus), Chechnya (of the Russian Federation), the Republic of Serbian Krajina (of Croatia), the Serb Republic of Bosnia-Herzegovina (of Bosnia-Herzegovina) and Somaliland (of Somalia). Although several of these entities existed, or still do exist, as completely effective territorial entities, none of them have been recognized as a State by the international community. The striving of communities for statehood is, of course, an old phenomenon. For instance, against the background of nationalism, the Versailles peace settlement led to the (re-)birth of numerous States in Europe. To that effect, Butler observes, the Versailles Treaties have been described as the "balkanisation of Europe".2 But there were others, apart from the nationalities who were allowed to establish their own State, who favoured the peace settlement and considered it right and inevitable.3 Whether or not one agrees with this conclusion, the same forces of national feeling have certainly not ceased to operate, nor have they become weaker in the course of the twentieth and twenty-first century. Indeed, to speak with Cobban, "[w]e may approve them, or we may condemn them, but we cannot ignore them".4 For an international lawyer at least, the challenge is thus to find out whether international law contains rules and principles regulating these forces and their outcomes. The problem of the right of self-determination, particularly in the postcolonial era, is formed in essence by the fact that this right can have a tense relationship with the principle of state sovereignty. The right of a State to having its territorial integrity respected, is a corollary of State sovereignty. On the basis of this principle, States possess the right to uphold their borders if these are threatened either from the outside or from the inside. On the other hand, the right of self-determination was, in the aftermath of World War I and during the period of decolonization at least, primarily seen as a concept which could justify the separation of a part of the territory of an existing State for the purpose of establishing a new State. Thus, the right of self-determination is at least potentially aimed at territorial change. Consequently, the aspiration of communities within existing States to the creation of their own State on the basis of an alleged right of self-determination, and the attempts of the parent States to preserve their territorial status quo, is the source of the majority of conflicts with which the international community finds itself confronted almost daily. It is sometimes argued that these claims to self-determination as well as the situations which arise as a result of an alleged exercise of that right, must 2. 3. 4.
H. Butler, THE LOST PEACE, 1941, p. 124. Id. A. Cobban, THE NATION STATE AND NATIONAL SELF-DETERMINATION, 1969, p. 21.
Introduction
3
simply be ignored, that these matters are not regulated by international law or that they are unsuitable for legal regulation. In addition, it has been suggested that the recognition of the new States which were formed within the boundaries of the former Yugoslavia and the former Soviet Union must mainly be explained in terms of politics.5 In other words, the creation and recognition of these new States should be seen to have taken place mainly outside the domain of international law. These situations and these contentions thus raise the following question: does international law contain any rules and principles on the basis of which the formation and recognition of some entities, and the ignoring and non-recognition of others, can be explained? In the light of the aforementioned developments, the main question of this study is: when does an entity qualify as a State under international law, and what, if any, is the role of the law of self-determination in the process of the formation of States in international law? This question raises a number of sub-questions: does international law contain objective, that is, legal, criteria for statehood on the basis of which it is possible to determine whether or not an entity qualifies as a State? What is the role of (non-)recognition in the creation of States? Is the formation of a State solely a 'matter of fact' or is it (also) a 'matter of law'? That is to say, does the law of statehood contain rules barring the acquisition of statehood of a territorial entity if the said entity has been established in violation of international law? What is the role of the right of self-determination in this regard? If self-determination may justify and legitimize the formation of a State, in what instances does such a justification and legitimation exist? And what is the legal status of an entity if it has been established without such a legal basis? This last question is intimately related to another one: does a right of unilateral secession exist in the post-colonial era? If so, when does it exist and who is the holder of such a right? How does this right relate to the principle of territorial integrity, and how does it relate to the principle of uti possidetis? Finally, if a right to unilateral secession does exist under certain circumstances (that is, under certain conditions), what is the legal status of an entity which is created whilst the conditions for the existence of a right to unilateral secession were not (yet) satisfied? To this end, this study is divided into three parts. Part I, entitled 'Statehood', consists of four chapters. This part will focus primarily on the concept of 'State' in international law, first from the perspective of the more or less generally accepted law of statehood, and thereafter in the light of additional
5.
See, e.g., R.G.C, Thomas, Self-Determination and International Recognition Policy: An Alternative Interpretation of Why Yugoslavia Disintegrated, World Affairs, Vol. 160, 1997, p. 17.
4
Introduction
criteria for statehood which may be suggested on the basis of modern state practice. In that respect, some basic legal concepts, such as 'subject of international law' and 'personality', will be examined in Chapter 1. Chapter 2 addresses the general characteristics and attributes of statehood, as well as the role of recognition in the process of the formation of States. Chapter 3 analyses the content and status of the so-called 'traditional' criteria for statehood, which are factual criteria based on the pre-condition of effectiveness. Some suggested additional criteria for statehood which are based on legality rather than effectiveness are discussed in Chapter 4, against the background of the doctrine of non-recognition of illegal acts and situations. It will be seen that a number of question relating to statehood and the status of certain entities remain unanswered on the basis of the discussion as it has developed thus far. It is submitted that these questions may be answered from the perspective of the law of self-determination. Part II of the study, entitled 'Self-Determination', consists of three chapters focusing on the rules and principles of the law of self-determination. Chapter 5 charts the development of the concept of self-determination from its first international appearance during World War I up to and until its role in the context of decolonization. This analysis leads to a formulation of the raison d'être and main objective of the principle of self-determination insofar as this may be deduced from the development of the concept in the said period. In Chapter 6, the analysis of the law of self-determination is taken a step further. In this Chapter, the question of whether or not the right of self-determination extends beyond decolonization and if so, in what form is examined. In this respect both the 'internal' and the 'external' aspect of the right of selfdetermination will be addressed. Also, the legal status of (internal and external) self-determination in the post-colonial era is analysed, as well as the (potential) holder of that right. It will be shown that the right of self-determination does extend beyond the colonial context as a continuing right, primarily in the form of 'internal' self-determination. However, in certain aspects external selfdetermination is also a continuing right, in the sense that the entire population of a State is always free to choose integration in, or association with, another existing State. The exercise of the external aspect of self-determination leads to a change in the external boundaries of a State. It has been suggested that the right of self-determination, particularly in its 'external' form, conflicts outright with two other principles of international law: the principle of territorial integrity and the principle of uti possidetis. The content of these two principles as well as their relation to the right of self-determination is addressed in the final part of Chapter 6. The question of the existence of a right of unilateral secession is dealt with in Chapter 7 on the basis of a number of case
Introduction
5
studies, including the birth of Bangladesh, the crisis in the former Yugoslavia and attempts at secession within the territory of the former Soviet Union. Part III is entitled 'Statehood and Self-Determination' and consists of Chapter 8. The purpose of this Chapter is to identify the precise role of the law of self-determination in the process of the formation of States under contemporary international law. In the Precis, the conclusions reached in the previous chapters will be used to formulate the applicable rules and principles of the modern law of statehood.
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Part I Statehood
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Chapter 1
The Concepts of 'Subject of Law' and 'Personality' in International Law
§ 1.
INTRODUCTION
The belief that a separate and independent political existence within a territorially defined unit ('statehood') was the ultimate, only and therefore necessary guarantee for the effective protection, maintenance and development of the collective identity of a community and the human rights of its members, as well as for the progressive development of the common good of that community, can be traced back to the early beginnings of social and political organization of individual human beings. Whether or not this belief is correct is beyond the scope of this study. It is, however, difficult to deny that this belief underlies many of today's intraState conflicts. Often, the communities which are involved in these conflicts are not satisfied with anything less than separate statehood as a solution to the conflict. In those cases, justifiable or no, statehood is made indistinguishable from the idea of being one's own master, that is, of greater apparent control over one's own affairs. This idea is subsequently linked to the belief that forming part of a State would by definition result in a politically, legally, socially, culturally and/or economically subordinate and, therefore, inferior position in comparison to being a separate and independent political entity in the form of a State. In short, the communities involved in many of today's intra-State conflicts claim the right to govern themselves and repudiate the right of an 'alien' people to determine for them their political fate and future. It is therefore not surprising that in an increasing number of today's cases of secession, these communities seek to justify their quest for separate statehood on the basis of a supposed universal right of peoples to self-determination. Although, arguably, some collectivities have attained a certain degree of international legal status, they are not States, nor do they possess the rights which are enjoyed by States under international law. This issue is thus related to the concepts of 'subject of law' and 'personality' in international law.
10
Chapter 1
Accordingly, before such questions as what is a 'State' and how does a 'State' become a 'subject of international law', can be addressed in the subsequent chapters, it is necessary first to examine the meaning of the notions of 'subject of law' and 'personality'.
§ 2.
THE MEANING OF 'SUBJECT OF INTERNATIONAL LAW' AND 'INTERNATIONAL PERSONALITY'
The concepts 'subject of international law' and 'international (legal) personality' are used widely in legal doctrine. However, the definition of these concepts is not devoid of controversy and confusion. In most national legal systems subjects of law are those entities who are the bearers of legal rights and/or who are subjected to legal duties. While it is not possible to make a priori qualifications about who is a subject of a system of law and who is not - because that might differ from system to system individual human beings on the one hand, and organizations and groups of human beings on the other, are considered subjects of most national legal systems. In addition to the notion of subject of law most national legal systems also recognize the notion of 'personality' and in that respect differentiate between a natural person and a legal person. In the legal system of most countries, the status of 'natural person' refers to an individual human being who possesses - in addition to the rights common to all other individual human beings under the legal system - the competence to make a claim on his or her behalf before a judicial or quasijudicial institution for the purpose of enforcing his or her right(s). Generally, an essential factor for this competence is the (presumed) ability to have and to be able to express a mature will.1 The latter ability is also determinative for the other aspect of 'personality', namely accountability: a natural person can be held directly accountable for his or her acts under national law. Thus, the competence to bring a claim and accountability for one's own actions are two sides of the same coin: 'personality'. The same features apply with respect to the 'legal person' or 'corporate person', which term refers to an organization or group of human beings (for instance, a municipality, a company or a foundation), which possesses the competence under national law to bring before a national court or tribunal a claim on behalf of the organization or group as such, in cases when the rights 1.
See also A. Meijknecht, TOWARDS INTERNATIONAL PERSONALITY: THE POSITION OF
MINORITIES AND INDIGENOUS PEOPLES IN INTERNATIONAL LAW, 2001, p. 39.
'Subject of Law' and 'Personality' in International Law
11
of the organization or group of human beings as such have been violated. In addition, as in the case of natural persons, a legal person is an entity which can be held directly accountable for its acts. It is clear that the legal person is a legal fiction. It is seen as a separate entity with a will of its own. In that respect it has organs and representatives representing the will and the interests of the legal person. But the personal will of the persons constituting these organs and representing the group is legally irrelevant. In other words, the legal person has a personality and will separate from the individual personality and will of its members. It follows that under national law natural or legal persons are normally always subjects of law, but subjects of law are not necessarily either a natural or a legal person. Because it is common to most national legal systems to distinguish between a subject of law and (natural/legal) personality it is surprising that in international legal doctrine a 'subject of international law' is often equated with an 'international person' or even with an 'international legal person'.2 Several writers, while equating a subject of international law and an international (legal) person, define a subject of international law as an entity capable of possessing international rights and duties, and having the capacity to maintain its rights by bringing international claims.3 In this respect two critical remarks must be made. First, the term 'capacity' or 'capability' is unfortunate, and leads to unnecessary confusion. Any individual human being or aggregate of human beings (whether it is a State, a company, a non-governmental organization, a national minority or a soccer club) presumably has the capacity to bear rights and duties under international law.4 But it is equally true that not all aggregates of human beings do bear rights and duties under international law. Therefore, the existence of a capacity to bear rights and duties is not as such conclusive evidence for the existence of the legal status of 'subject of international law'. Secondly, it cannot be maintained that an entity can only be considered a subject of international law if, and only if, this entity possesses the right to 2.
3.
See, e.g., OPPENHEIM'slNT'L LAW, p. 119 ("[a]n international person is one who possesses legal personality in international law, meaning one who is a subject of international law [...]"); P. Malanczuk, AKEHURST'S MODERN INTRODUCTION TO INTERNATIONAL LAW, 1997, p. 91; B. Cheng, Introduction to Subjects of International Law, in: M. Bedjaoui (Ed.), INTERNATIONAL LAW: ACHIEVEMENTS AND PROSPECTS, 1991, p. 23, at p. 24; J.H.W. Verzijl, INTERNATIONAL LAW IN HISTORICAL PERSPECTIVE, Part II, 1969, p. 3. See Verzijl, id., at pp. 3-4; Brownlie, PRINCIPLES, p. 57. But see I. Seidl-Hohenveldern and G. Loibl, DAS RECHT DER INTERNATIONALEN ORGANISATIONEN EINSCHIESSLICHDER SUPRANATIONALEN GEMEINSCHAFTEN, 1991, p. 35.
4.
Reference re Secession of Quebec, Supreme Court of Canada, ILM, Vol. 37, p. 1340, at p. 1367 (para. 106); Crawford, CREATION OF STATES, p. 25.
12
Chapter 1
make an international claim for the purpose of enforcing its rights.5 This conclusion is supported by the observations of the International Court of Justice in the Reparations for Injuries Suffered in the Service of the United Nations case6 - the leading case concerning personality under international law. In this case the International Court of Justice was asked to give an Advisory Opinion with respect to the question whether the United Nations had the capacity to bring an international claim against a non-Member State of the Organization. The Court was thus forced to analyze the concept of 'personality' in international law. In doing so the Court did not limit its observations to the status of the United Nations. After having stated that the questions which the Court was asked to address related to the "capacity to bring an international claim", the Court observed that it was therefore necessary to define that 'capacity' first: [c]ompetence to bring an international claim is, for those possessing it, the capacity to resort to the customary methods recognized by international law for the establishment, the presentation and the settlement of claims. Among these methods may be mentioned protest, request for an enquiry, negotiation, and request for submission to an arbitral tribunal or to the Court in so far as this may be authorized by the Statute. This capacity certainly belongs to the State [...].' The Court continued by stating that the question was thus centred around the fact "whether the Charter has given the Organization such a position that it possesses, in regard to its Members, rights which it is entitled to ask them to respect. In other words, does the Organization possess international personality?" After it had stated that the exercise by the United Nations of functions, rights, duties and responsibilities could only be explained on the basis of the possession of a large measure of international personality, the Court came to the conclusion that the Organization is an international person. But, the Court noted, [t]hat is not the same thing as saying that it is a State, which it certainly is not, or that its legal personality and rights and duties are the same as those of a State.
5.
6. 7. 8.
Cf. Verzijl, supra note 2, at p. 3 ("[t]he true test of 'personality' in a given legal order would seem to be not whether an individual or composite entity derives rights from that order, but whether he or it is in a position to pursue or/and enforce them within it"). Advisory Opinion, ICJ Rep. 1949, p. 174 (hereinafter 'Reparations for Injuries case'). As regards the international personality of the European Community, see European Court of Justice, Case 22/70 Commission v. Council (ERTA case), EC Rep. 1971, p. 263. Reparations for Injuries case, supra note 6, at p. 177.
'Subject of Law' and 'Personality' in International Law
13
[...] What it does mean is that it is a subject of international law and capable of possessing international rights and duties, and that it has capacity to maintain its rights by bringing international claims.
The use of the word 'and' in the final part of the last sentence is significant. In effect, it is submitted, the Court thereby distinguished between 'a subject of international law' and an 'international (legal) person' and thus followed the common distinction made in national legal systems between the two concepts. It must therefore be concluded that a subject of international law is any entity which bears rights and/or duties under international law.10 This does not mean, however, that such an entity is an international person. According to the Court's remarks an international (natural or legal) person is any subject of international law that - in addition to other rights under international law - has the capacity or right to make an international claim. Moreover, it must be noted, under international law such an entity can normally 11 be held directly accountable for its acts.12 The validity of the distinction between the quality of subject of international law and international personality is also implicitly affirmed in the Case Concerning East Timor.13 In that case, the International Court of Justice held
9. Id., at p. 178 (emphasis added). 10. See also R. Ranjeva, Peoples and National Liberation Movements, in: Bedjaoui (Ed.), supra note 2, pp. 101-112, at p. 102 ("subjects of law are not entities possessing a personality but entities possessing a right"); C.N. Okeke, CONTROVERSIAL SUBJECTS OF CONTEMPORARY INTERNATIONAL LAW: AN EXAMINATION OF THE NEW ENTITIES OF INTERNATIONAL LAW AND THEIR TREATY-MAKING CAPACITY, 1973, p. 9; J. Spiropolous, L'INDIVIDU EN DROIT INTERNATIONAL, 1928, p. 32. 11. The matter is less complex with regard to States and individuals than with regard to international governmental organizations. If an international organization has a legal personality distinct from that of the member States, and functions which in the hands of member States may create responsibility, it is in principle reasonable to impute responsibility to the organization. See WHO Regional Office case, ICJ Rep. 1980, p. 73. The main problem arises concerning the determination of whether the act has been committed by or on behalf of the international organization or by or on behalf of a member State. The law in this field is still undeveloped and note must be taken of each specific set of circumstances. Brownlie, PRINCIPLES, p. 686. See, generally, C. Eagleton, International Organisation and the Law of Responsibility, HR, Vol. 76, 1950 I, p. 319; H. Schermers and N.M. Blokker, INTERNATIONAL INSTITUTIONAL, 1995, pp. 1166 et seq.; R.A. Lawson, HET EVRM EN DE EUROPESE GEMEENSCHAPPEN, 1999. 12. Brownlie, PRINCIPLES, pp. 435, 584-585 ("[i]nternational responsibility is commonly considered in relation to states as the normal subjects of the law, but it is in essence a broader question inseparable from that of legal personality in all its forms [...]. The individual does not bear normal responsibility for breaches of obligations imposed by the customary law of nations because most of these obligations can only rest on states and governments [...]. Yet there is no rule that the individual cannot have some degree of legal personality, and he has such personality for certain purposes"). See also H.Kelsen, PRINCIPLES OF INTERNATIONAL LAW, 1966, pp. 194220. 13. Case Concerning East Timor, (Portugal v. Australia), Judgment, ICJ Rep. 1995, p. 90, at p. 102. See also Reference re Secession of Quebec, supra note 4, at p. 1369 ("[w]hile international law generally regulates the conduct of nation states, it does, in some specific circumstances, also
14
Chapter 1
that peoples, not States or other entities, possess a right of self-determination. Although the Court noted that the entitlement to respect for this right has an erga omnes character, it did not wish to go so far as to conclude that the possession of a right erga omnes entitles a people as such to bring an international claim when its right of self-determination has been violated.14 The Court thus confirmed that the absence of the possibility to make an international claim does not preclude an entity like a people from being the bearer of an international legal right. In short, this means that such an entity is a subject of international law, but not however an international person.15 Consequently, insofar as the distinction between 'subject of law' and 'personality' is concerned, there does not seem to be any essential difference between national law and international law, nor is there a valid reason why there should be. The equation (and hence, the confusion) of the two concepts, as well as the assertion that an entity, to be a subject of international law, must have the right to make an international claim, is closely bound up with the whole concept of international law itself, as the traditional view on international law maintains that international law must be defined as law which is applicable to relations between States only.16 States (or groups of States) are therefore said
recognize the 'rights' of entities other than nation states - such as the right of a people to selfdetermination" (emphasis in original)). 14. See also Human Rights Committee, Ominayak and the Lubicon Lake Band v. Canada, Communication No. 167/1984 (26 March 1990), UN Doc. A/45/40 (1990), where the Committee did not question the existence of a right of peoples to self-determination (because that right is explicitly mentioned in Article 1 of the ICCPR). However, notwithstanding the existence of this right under the ICCPR, the Committee observed that peoples as such cannot, under the Optional Protocol of the ICCPR, make an international claim, because the Optional Protocol provides for a procedure under which only individuals can claim that their individual rights have been violated. 15. In this respect the question arises as to the enforcement of legal rights which must be respected erga omnes in cases where the holder of the right lacks all legal means to enforce his or her right. In such a case the legal position and legal competences of third States to bring an international claim on behalf of the direct holder of the right or to enforce that right otherwise becomes important. This matter is, however, beyond the scope of this study. See ILC Draft Articles on Responsibility of States for International Wrongful Acts, adopted by the Drafting Committee on second reading, UN Doc. A/CN.4/L.602/Rev.l, 26 July 2001, Arts. 48 and 54. And see, e.g., B. Simma, Does the UN Charter Provide an Adequate Legal Basis for Individual or Collective Responses to Violations of Obligations Erga Omnes?, in: J. Delbrück (Ed.), THE FUTURE OF INTERNATIONAL LAW ENFORCEMENT: NEW SCENARIOS-NEW LAW?, 1993, p. 125; B. Simma, From Bilateralism to Community Interest in International Law, HR, 1994 VI, p. 229; A. de Hoogh,
OBLIGATIONS ERGA OMNES AND INTERNATIONAL CRIMES, 1996; R. Lefeber and D. Raic, Frontiers of International Law, Part One: the Chechen People, LJIL, Vol. 9 , 1996, p. 1. See also the Dissenting Opinion of Judge Weeramantry, East Timor case, supra note 13, at pp. 142-223. 16. In this respect, the 'traditional' view formed, so to speak, a breaking point with respect to the classical Law of Nations which did recognize both States and non-State entities (in particular individuals) as subjects of that law.
'Subject of Law' and 'Personality' in International Law
15
to be the sole subjects of international law.17 According to this positivistic view, in situations in which entities other than States (but within the jurisdiction of States) derive benefits under international law, such benefits are enjoyed not by virtue of a right which the entity itself holds under international law, but by reason of a right appertaining to the State which exercises jurisdiction over the entity.18 Indeed, when one proceeds from the assumption that the State is the exclusive subject of international law, there is no need for a distinction between a subject of international law and an international (legal) person, because it is beyond doubt that the State is both subject and person par excellence under international law. This traditional view, however, has been challenged strongly. Quite correctly, it has been pointed out by several scholars who reject this view that it is not based upon practice but upon erroneous premises regarding the nature of international law. Frederick Dunn qualifies the traditional approach as a highly misleading "legal fossil" and a "remnant of legal animism". And according to Lauterpacht [t]here is no rule of international law which precludes individuals and bodies other than states from acquiring directly rights under customary or conventional international law and, to that extent, becoming subjects of the law of nations. Modern writers refute the classical view as being outdated as well.
Moreover,
17. See, e.g., D. Anzilotti, COURS DE DROIT INTERNATIONAL, 1929, p. 134; J. de Louter, HET STELLIG VOLKENRECHT, 1910, p. 11. And see R. Higgins, Conceptual Thinking About the Individual in International Law, in: R. Falk et al. (Eds.), INTERNATIONAL LAW, A CONTEMPORARY PERSPECTIVE, 1985, p. 476, at p. 478 (summarizing this view as follows: "under the existing rules of international law there is no evidence that individuals are permitted to be bearers of duties and responsibilities. They are like 'boundaries', or 'rivers', or 'territory' or any of the other chapter headings found in the traditional textbooks"). 18. P.K. Menon, The Subjects of Modern International Law, Hague Y.B. Int'l L., Vol. 3, 1990, p. 30, at p. 61. 19. F.S. Dunn, The International Rights of Individuals, PASIL, 1941, p. 14. 20. H. Lauterpacht, The Subjects of the Law of Nations, LQR, 1947, p. 438, at p. 444. 21. See, e.g., Crawford, CREATION OF STATES, p. 25; Okeke, supra note 10, at pp. 9-19; Y. Dinstein, International Criminal Law, IYHR, Vol. 5, 1975, p. 55; L. Henkin, International Law: Politics, Values and Functions, HR, 1989 IV, p. 9, at pp. 34-35; Menon, supra note 18, at pp. 32, 85; P.H. Kooijmans, The Security Council and Non-State Entities as Partiesto Conflicts, in: K. Wellens (Ed.),
INTERNATIONAL LAW:THEORY AND PRACTICE, p. 333, at p. 338; B.Broms, Subjects: Entitlement in the International Legal System, in: R.St.J. Macdonald and
D.M. Johnston (Eds.), THE
STRUCTURE AND PROCESS OF INTERNATIONAL LAW: ESSAYS IN LEGAL PHILOSOPHY, DOCTRINE AND THEORY, 1983, p. 383, at pp. 418-419; D.P. O'Connell, INTERNATIONAL LAW, 1970, p. 83. Higgins, supra note 17, at p. 478 ("[t]hese views - and the reasoning on which they are based - carry with them so many assumptions that, in disagreeing with them, it is hard to know where to begin"). It is hard to find any modern legal author advocating the traditional view proper. It would seem that the problem is not longer centred around the question of whether non State-entities can be international persons, but around the questions of whether
16
Chapter 1
in the aforementioned Reparation for Injuries case the Court, after having noted that "the State is the direct subject of international law", observed [t]he subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights, and their nature depends upon the needs of the community.
It follows that the status of 'subject of international law' does not mean that an entity has to be a State, nor that it must possess all the rights of States under general international law, including the right to make an international claim. Any other view would mean that the legal concept of 'subject of international law' is inflexible. This position was explicitly rejected by the International Court of Justice in the Reparation for Injuries case.23 Moreover, as has been pointed out by Cheng: [i]t is important to bear in mind, in the light of legal history and comparative law, that this capacity of being able to bear rights and duties under a legal system is not a status that is pre-ordained. On whom it is conferred depends on each individual legal system and those who make its laws.24
As international life develops and international relations become more complex, new subjects of international law are recognized. This may be a result of, for example, transboundary problems that need a cooperative rather than an individualistic approach by the existing States and/or the need for (additional) regulation of the conduct of (new) entities that assert themselves upon the international plane (either by imposing obligations on or conferring rights to them). From a law of inter-State relations at a time when States were the principal if not sole subjects of international law, international law has developed into a law that aims at regulating the conduct of all members of international society.25 Among these members one will find entities that bear rights and duties under international law but do not (yet) possess international personality, or
an international person is always an international legal person, and whether an international person must be equated with a subject of international law. As has been stated above, both questions must be answered in the negative. 22. Supra note 6, at p. 177. See also P.H. Kooijmans, Provisional Measures of the UN Security Council, in:E.Denters and N. Schrijver (Eds.), REFLECTIONSON INTERNATIONAL LAW FR()M THE LOW COUNTRIES, 1998, p. 289, at p. 295. 23. Supra note 6, at p. 178. 24. Cheng, supra note 2, at p. 24. 25. Ranjeva, supra note 10, at p. 102.
'Subject of Law' and 'Personality' in International Law
17
possess it only to a limited extent, such as, for instance, under a specific treaty regime. The fact that the traditional view is rejected in doctrine as well as in practice is not surprising, because "there is something offensive to reason that international law addresses itself only to States, leaving human beings who compose them [...] to fulfill no more significant role in the legal process than stocks and shares and ships".26 There is no rule of international law that precludes non-State entities from having their rights under international law respected, solely on the basis of the fact that these entities do not possess a right to enforce these rights on the international plane. As was observed above, a lack of personal capacity is not particular to international law. In most national legal systems there are certain entities that lack standing to bring actions. In most countries minors and persons under wardship are deemed to lack the ability to have and express a mature will, and are thus not considered as natural persons under law. But this does not mean that they are without rights or duties. The extent of their rights might be limited, especially rights affecting legal relations with others, but they are without question subjects, and not objects of law.27 In general, the lack of international legal remedies for violations of international rights of non-State entities may be the result of, on the one hand, the unwillingness of the parent-State to provide the entities within its jurisdiction with the right to make an international claim on their own, or, on the other, the unwillingness of the international community of States to create (legal) mechanisms for the enforcement of certain rights. The absence of enforcement mechanisms in certain fields of international law results in the fact that some entities cannot bring a claim before, for instance, an international tribunal for the purpose of enforcing and safeguarding a right the respect for which that same international law does entitle them to. This position is unfortunate, but does not annul the existence of the relevant legal right, for the existence of a legal right and the entitlement to respect for that right does not necessarily need to be accompanied by a competence to enforce said right on the international plane (or on the national plane, for that matter).28
26. O'Connell, supra note 21, at p. 83. 27. Meijknecht, supra note 1, at p. 39. See also Menon, supra note 18, at pp. 84-85. 28. P.H. Kooijmans, Zelfbeschikkingsrecht: Naar een Nieuwe Interpretatie?, in: N. Sybesma-Knol and J. van Bellingen (Eds.), NAAR EEN NIEUWE INTERPRETATIE VAN HET RECHT OP ZELFBESCHIKKING, 1995, p. 157, at pp. 159-160.
18
§ 3.
Chapter 1
CONCLUSION
It has been seen that, in addition to States, international law recognizes other subjects of law, such as 'peoples', as well as other international persons, such as international organizations and individual human beings. From a legal point of view, those entities bearing rights and/or duties under international law but lacking the capacity to make an international claim if their rights have been violated, are obviously in a more vulnerable position than States and other international persons. Although it has been suggested that 'peoples' are entitled to secede unilaterally from the parent State if they lack any (national and international) judicial and/or other realistic remedies to enforce or realize their right of self-determination within that State,29 this does not, of course, detract from the fact that 'peoples' have a completely different legal position under international law than States. For, notwithstanding other subjects and international persons, the State is still the principal subject and person in international law. The next Chapter addresses the legal notion of the State, its characteristics and the role of recognition in the acquisition of its legal personality under international law.
29. See Chapter 7, infra.
Chapter 2
The State as an International Legal Person
§ 1.
INTRODUCTION
If the State is a legal concept in international law, objective, that is, legal criteria on the basis of which it would be possible (for, for instance, any judicial body) to determine whether an entity is State or not must also exist. Although the traditional and modern criteria for statehood are dealt with in more detail in the subsequent chapters,1 a number of preliminary issues related to the legal notion of the 'State' as well as to the question of whether or not an entity is a State under international law will be dealt with in this Chapter. As was observed in the previous Chapter, it is generally accepted that the State is the principal legal person on the international scene. Therefore, in Section 2 it will be examined if, and to what extent, this characteristic might be helpful in identifying the 'State' as a legal notion under international law. Also, attention will be given to certain general and exclusive attributes of statehood since that may be useful for understanding the legal notion of statehood. In addition, because States are considered to be sovereign entities under international law, this distinct characteristic of States will also be explored briefly in this Section. The normal procedure by which existing States declare that they regard an entity as a State is through individual recognition. In that respect it has been suggested that the very act of recognition attributes international personality to the recognized State, which means that, according to this view, a State does not exist in international law unless it has been recognized by the already existing States. Thus, this point does not only concern the determinative character of recognition but also, and even primarily, the question of how international personality is acquired by an entity claiming statehood. The latter question forms the core of the analysis in Sections 3 and 4. Section 3 outlines the main propositions of the two principal theories regarding the recognition
1.
For the traditional criteria for statehood see Chapter 3, infra. The modern criteria for statehood are discussed in Chapters 4 and 8, infra.
20
Chapter 2
of States: the constitutive theory and the declaratory theory. In Section 4, the two theories will be examined on their merits. Against the background of the legal character and legal effect of recognition that still leaves another point that must be addressed. It has been suggested by some scholars that the admission of an entity to membership in a universal international organization which is open for States only (such as the United Nations), amounts to the recognition of the statehood of the entity concerned. In other words, it is maintained that in such cases admission as a member implies collective recognition of statehood. In addition, it is argued that such collective recognition may have a constitutive character. The correctness of this proposition will be examined in Section 5. Finally, in Section 6, some conclusions will be drawn.
§ 2.
THE NOTION OF THE STATE
§ 2.1.
The State as a political and social organization
The term 'State' appeared rather late in human history.2 Only at the turn of the fifteenth century, the term began to be used in a sense that may be compared to its contemporary use. Throughout the ages, States have been changing their appearance and structure, reflecting a great variety of forms and substance. Nonetheless, as a form of social and political organization of individual human beings and aggregates of human beings, the State was, from the outset, a rationalized abstraction. In the words of Brierly: [t]he truth is that states are not persons, however convenient it may be to personify them; they are merely institutions, that is to say organizations which men establish among themselves for certain objects, of which the most fundamental is a system of order within which the activities of their common life can be carried on.
2. 3.
P.L. Weinacht, STAAT, STUDIEN ZUR BEDEUTUNGSGESCHICHTE DES WORTES VON DEN ANFÄNGEN BIS INS 19. JAHRHUNDERT, 1968. J.L. Brierly, THE LAW OF NATIONS: AN INTRODUCTION TO THE INTERNATIONAL LAW OF PEACE, 1963, pp. 54-55 and 126 (emphasis in original); R.B. Bilder, Perspectives on Sovereignty in the Current Context: An American Viewpoint, Canada-United States Law Journal, Vol. 20, 1994, p. 9, at p. 15: "[a]fter all, the state, like any system of political organization or governance, is just a tool - a social invention we have devised to help us to coexist and achieve our common purposes". Admittedly, the view that the State is a man-made institution intended to serve the common interests of the human beings composing it, was not always followed, as is evidenced by Hegel's theory which - by separating the community ("die bürgerliche Gesellschaft") from the State - led to the exaltation of the State. The State became an end in itself. However, the progressive development of international law, and human rights law in particular, have, to a certain extent, contributed to the 'revival' of the original purpose of the State. See, generally, W.M. Reisman, Sovereignty and Human Rights in Contemporary International Law, AJIL, Vol.
The State as an International Legal Person
21
Indeed, States are institutions and, more specifically, they are territorially defined institutions of authority. 4 In the context of this study, there is no need to enter into the philosophical discussion concerning the possible distinguishing elements between the State as a political and social organization and other political or social organizations. Nor is it necessary to deal with the question of whether the State is the ultimate and most effective form of social and political organization for the realization of the interests of its citizens and the protection of their rights. For this study it is relevant, however, to address the question how the 'State' is defined in international law. In other words, what are the legal characteristics of the entity which is qualified as a 'State'? The next Section deals with that question. § 2.2.
The State as a legal concept under international law: legal personality, attributes and legal criteria for statehood
An important aspect of the 1648 Peace of Westphalia was that, in accordance with the marking of the advent of the system of .sovereign States, it was recognized that States were equal legal persons under international law.5 What, however, is meant by the notion 'legal personality' in this context? On the basis of expediency, national as well as international law established the legal or 'corporate' person. History shows that, in an attempt to realize different objects and interests, individual human beings decide to cooperate when they realize that they cannot accomplish some or all of these objects and interests on their own. Where the cooperation needed concerns a limited number of individuals, it may be possible to keep one's legal individuality as regards the outside world intact. This becomes impossible, however, when the level of cooperation concerns hundreds of thousands or even millions of individuals, as is the case with composite entities like States. As an organization of human beings, the State would be a useless and unworkable entity in law if it would be necessary for each and every individual composing the State to be obliged to sign any contract concluded with another State. In order to be able to act in law as an organization of individual human beings and groups - that is to say, as a singular entity - international law maintains the concept of legal personality and qualifies the State as a legal
4. 5.
84, 1990, p. 866. P.H. Kooijmans, INTERNATIONAAL PUBLIEKRECHT IN VOGELVLUCHT, 2000, p. 20. See, generally, L. Gross, The Peace of Westphalia (1648-1948), in: L. Gross (Ed.), INTERNATIONAL LAW IN THE TWENTIETH CENTURY, 1969, p. 25; A. De Zayas, Peace of Westphalia, EPIL, Vol. 7, 1984, p. 536.
22
Chapter 2
person. The 'realness' of legal personality formed the core of the discussion between the so-called 'realists' and 'fictionalists' regarding the question whether legal persons as such can have rights and duties under international law. In essence, both schools of thought aimed at describing 'personality' for the purpose of isolating the notion from other ideas and notions. The 'realists', like Anzilotti, maintained that the State was a separate person for and under international law, and as such possessed legal personality. According to them "the State was legally distinguishable from the human beings composing the State, because its organic composition separated it from them in fact".6 Moreover, the State had to be considered 'real' in the sense that it was a juristic entity which could be identified, and distinguished, from other 'real' entities, on the basis of facts. The State as a person in law was not a metaphysical body, but a living organism, a personification of personality. This view formed the basis for the thesis that only States or entities comparable to States could be international persons. The 'fictionalists', led by Kelsen, rejected the doctrine that only States, and not individuals, are the subjects of international law. They argued that law is essentially the regulation of human conduct regardless of whether it concerns national or international law. According to the 'fictionalists' law can impose duties and responsibilities or confer rights on human beings only. Therefore, it is to men that the norms of international law apply and it is thus concluded that, ultimately, the subject of international law must be the human being. Consequently, the State as a legal entity is no more than a legal fiction, which cannot be distinguished legally from the individual human beings composing it.7 Thus, under international law, the legal personality of the State could not be considered to be 'real'. In sum, the 'fictionalists' assert that while a norm of international law may be directly addressed to the State as an entity, this norm is in fact indirectly addressed to individuals in their capacity of organs of the State, because only individuals are 'real' and capable of possessing rights and obligations under any system of law. The debate between the 'realists' and the 'fictionalists' is, however, misdirected because, it is submitted, both schools of thought fail to acknowledge that international law does not define its actors on the basis of 'realness' or 'unrealness'. Many legal concepts in international law have to be considered
6. 7.
D.P. O'Connell, INTERNATIONAL LAW, Vol. 1, 1970, p. 81. Kelsen speaks of "an auxiliary concept of juristic thinking, an instrument of legal theory, the purpose of which is to simplify the description of legal phenomena". H. Kelsen, PRINCIPLES
OF INTERNATIONAL LAW, 1966, p. 181.
The State as an International Legal Person
23
'unreal' - they constitute legal fictions. In fact, law itself is an intellectual construct. International law (and indeed any other system of law) defines its subjects on the basis of legal rules. These legal rules refer to physical persons and legal concepts alike. Thus, whether or not an individual human being or an organization of human beings is regarded as a subject of international law depends on the existing legal rules identifying the individual or the organization as subjects of the law. And, indeed, according to these rules, and on the basis of expediency, the State as such has a distinct legal position under international law. Thus, in general, the State has to be treated in international law as a subject separate from the individuals comprising it, that is, as a legal construct: a legal person. However, whereas the possession of legal personality is necessary evidence of statehood it is not sufficient evidence of that legal status, because other entities are recognized as legal persons under international law as well. In its Advisory Opinion in the Reparations for Injuries case, the International Court of Justice made it clear that an essential difference exists between the State as an international legal person and other international legal persons like international organizations. Although the Court concluded that the United Nations is an international person, it emphasized that this legal status does not mean that the United Nations is a State. The latter, according to the Court, possesses "the totality of international rights and duties recognized by international law",9 which means that the State possesses full or unlimited international legal personality.10 It follows that other international (legal) persons not constituting States possess a relatively limited amount of international rights and duties only and are therefore generally referred to as entities which possess limited international personality. However, it must be noted that the term 'totality' is relative, as it does not refer to a fixed or static situation but rather comprises a flexible number of international rights and duties. Therefore, the concept of 'full' or 'unlimited' international personality does not signify the totality of international rights and duties which all States have, but the totality of international rights and duties which all States may, under international law, have."
8. 9. 10. 11.
See also Y. Dinstein, International Criminal Law, IYHR, Vol. 5, 1975, p. 55, at p. 56. ICJ Rep. 1949, p. 174, at p. 180. Kooijmans, supra note 4, at p. 32. Cf. Crawford, CREATION OF STATES, p. 27 (discussing this distinction in the light of the concept of sovereignty). Moreover, strictly speaking the expression "totality of international rights and duties recognized by international law" is inaccurate because it suggests that States may be the bearer of rights which they cannot enjoy because of their very nature of being States, for which human rights may serve as a pertinent example. See also M. Rama-Montaldo, International Legal Personality and Implied Powers of International Organizations, BYIL, 1970, p. III, at p. 138.
24
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As has been observed by Crawford, it is possible to distinguish certain general and exclusive attributes of a State as a full international legal person. These attributes are responsible for the special position of the State under customary international law and in legal terms constitute the hard core of the concept of statehood:12 -
[i]n principle, States have plenary competence to perform acts, make treaties and so on in the international sphere; - in principle States are exclusively competent with respect to their internal affairs; - in principle States are not subject to compulsory international process, jurisdiction, or settlement, unless they consent, either in specific cases or generally, to such exercise; - States are formally regarded in international law as 'equal'.13
However, because these characteristics are applicable only if an entity is already a State, they must be regarded as consequences of statehood rather than constitutive elements of it. Therefore, the principal question what conditions must be met before an entity can be considered a State in the sense of international law has not yet been answered. The most authoritative description of the constitutive elements of statehood is contained in Article 1 of the 1933 Montevideo Convention on the Rights and Duties of States.14 It is generally agreed that Article 1 of the Montevideo Convention lays down the so-called 'traditional' criteria for statehood. These criteria are: a permanent population, a defined territory, a government, and the capacity to enter into relations with other States.15 The meaning and content of these criteria will be discussed in Chapter 3. According to traditional international law an entity which would satisfy these factual criteria would qualify as a State. However, in Chapters 4 and 8 it will be argued that in addition to these factual criteria for statehood, contemporary international law recognizes the existence of yet other, so-called 'modern' criteria for statehood which are based not on effectiveness but on the lawfulness of the process as
12. Crawford, CREATION OF STATES, p. 32 (footnotes omitted). 13. In this respect a distinction must be made between equality in law and equality in fact. As there are considerable differences between States with respect to, for instance, their economic or military strength, it is clear that this attribute refers to the quality of being equal in law. 14. Inter-American Convention on the Rights and Duties of States, LNTS, Vol. 165, p. 19 (hereinafter 'Montevideo Convention'). 15. Article 1 of the Montevideo Convention is often regarded as a general codification of already existing international customary law. In that respect, note that as early as 1868, in the United States case of Texas v. White, it was stated that "[a] State, [...] is a political community of free citizens, occupying a territory of defined boundaries, and organized under a government sanctioned and limited by a written constitution, and established by the consent of the governed". See US, Vol 74, 1868, p. 700.
The State as an International Legal Person
25
a result of which this factual reality came into being. In sum, an entity thus needs to satisfy certain criteria before it becomes a State in international law, that is, a sovereign territorial entity. There is general agreement that statehood and 'sovereignty' are inseparable phenomena. But what is meant by the notion of 'sovereignty' in this context? § 2.3.
Sovereignty
Although a relatively modern concept of Western political thought, the notion of 'sovereignty' as elaborated by Jean Bodin 16 created a stir amongst students of international relations and international law. Since the notion has been, and still remains filled with many different, sometimes even mythological contents, 'sovereignty' is an ambiguous term. 17 In the Corfu Channel case, Judge Alvarez pointed out that [b]y sovereignty, we understand the whole body of rules and attributes which a state possesses in its territory, to the exclusion of all other states, and also in its relations with other states.
Or, as observed by Crawford: [i]n its most common modern usage, sovereignty is the term for the 'totality of international rights and duties recognized by international law' as residing in an independent territorial unit - the State.19
These descriptions refer to the State's attributes - many of which are indeed commonly described by the term 'sovereignty'.20 In fact, what these descriptions correctly suggest, is that, under international law, the content of the term 'sovereignty' denotes the totality of competences attributed to the State by the international legal system, that is, the State's status of full international legal 16. J. Bodin, LES SIX LlVRES DE LA RÉPUBLIQUE, 1576, esp. Livre I, chs. 8, 9 and 10. 17. See E. Lauterpacht, Sovereignty - Myth or Reality?, Int. Aff, Vol. 73, 1997, p. 137, at p. 137. On the diversity of the phenomenon see, e.g., L. Wildhaber, Sovereignty and International Law, in: R.St.J. Macdonald and D.M. Johnston (Eds.), THE STRUCTURE AND PROCESS OF INTERNATIONAL LAW: ESSAYS IN LEGAL PHILOSOPHY, DOCTRINE AND THEORY, 1983, p. 425. See also Brierly, supra note 3, at pp. 7-16, 45-49. For a critical view, see L. Henkin, That 'S Word: Sovereignty, and Globalization, and Human Rights et cetera, Fordham L. Rev., Vol. 68, 1999, p. 1. 18. Individual Opinion by Judge Alvarez, Corfu Channel case (UKv. Albania), Judgment, ICJ Rep. 1949, p. 39, at p. 43. 19. Crawford, CREATION OF STATES, p. 26 (referring to the Reparations for Injuries case). See also Brierly, supra note 3, at p. 47; C. Waldock, General Course on International Law, HR, 1962 II, p. 5, at p. 157. 20. Bilder, supra note 3, at p. 12.
26
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person.21 The term 'sovereignty' is, as Crawford observes "a brief term for the State's attribute of more-or-less plenary competence".22 At this point it must be noted that this is not the only meaning of sovereignty that is commonly used in international legal discourse. In the Island of Palmas case Judge Huber referred to another meaning. "Sovereignty between States", Huber observed, "signifies independence".23 And independence has been defined as no more than the normal condition of States according to international law; it may also be described as sovereignty (suprema potestas) or external sovereignty, by which is meant that the State has over it no other authority than that of international law. 24
The essence of these remarks is that, in addition to the meaning of sovereignty as a concept which denotes the State's totality of competences under international law, sovereignty also has another meaning, namely that States are the highest authorities on earth (suprema potestas). That is, the State's totality of competences is not derived from any other earthly authority. 25 Or, as has been expressed by Bartolus de Saxaferrato, "these entities are universitates quae non recognoscent superiorum", entities which do not require a higher authority. 26 This status of 'highest authority' does not mean, however, that a State is absolutely free to act, but rather that a State is free to act within the limits set by international law. These limits include respect for the competences of other States.27 The legal relationship between States on the international plane is 21. See also Brownlie, PRINCIPLES, p. 106. And see, e.g., Principle I of the CSCE Helsinki Final Act ("[t]he participating States will respect each other's sovereign equality as well as the rights inherent in and encompassed by its sovereignty, including in particular the right of every State to juridical equality, to territorial integrity and to freedom and political independence"), ILM, Vol. 14, 1975, p. 1292. 22. Crawford, CREATION OF STATES, p. 27. 23. Island of Palmas case (Netherlands v. USA), Permanent Court of Arbitration, RIAA, Vol. II, p. 829, at p. 838. 24. Individual Opinion of Judge Anzilotti, Customs Regime Between Germany and Austria, Advisory Opinion, PCIJ, Series A/B, No. 41, 1931, p. 57. 25. See, e.g., Kooijmans, supra note 4, at p. 2. 26. Quoted in: P.H. Kooijmans, THE DOCTRINE OF THE LEGAL EQUALITY OF STATES, 1964, p. 54. 27. See O. Schachter, Sovereignty - Then and Now, in: R.St.J. Macdonald (Ed.), ESSAYS IN HONOUR OF WANG TIEYA, 1994, p. 671, at pp. 675-679; M. Lachs, The Development and General Trends of International Law in Our Times, HR, 1980 IV, p. 13, at pp. 29-41 passim. See also Article 14 of the Draft Declaration on Rights and Duties of States adopted by the ILC in 1949, ILC Ybk., 1949, p. 286, at p. 287 ("[e]very state has the duty to conduct its relations with other states in accordance with international law and with the principle that the sovereignty of each state is subject to international law"). Also the 'founding father' of the doctrine of sovereignty, Jean Bodin, considered sovereignty (in its external dimension) as being subject to law. Referring to the sovereignty of the Prince he observed: "[t]ous les Princes de la terre sont subiects aux lois
The State as an International Legal Person
27
characterized by the fact that no State has supreme legal power and authority over other States, that is, their international legal relationship is characterized by their equality and autonomy. 29 Therefore, in this context, one must not confuse 'sovereignty' with the question which organ or entity is the plenipotentiary within the domestic plane. For, on the international plane, legal equality excludes legal supremacy. Another source of confusion is engendered by the fact that the term 'independence' is often used as a synonym for state sovereignty, ' whereas the word 'independence' is also employed to describe a criterion for statehood and vice versa: However, if only for reasons of juridical clarity, it must be deemed preferable to use the term 'independence' as a requirement for the acquisition of statehood, and sovereignty as the legal incident. In sum, when one refers to a State as a 'sovereign' entity, one in fact alludes to a full international legal person, that is to say, to an entity which possesses statehood. It has therefore correctly been observed that "[n]o further legal consequences attach to sovereignty than attach to statehood itself ". This study will deal with the question of when an entity qualifies as a State as well as with the question whether, and if so when, a 'people' is entitled to establish a State. Throughout this study the term 'State' is used to refer to a territorial entity which possesses full international legal personality or statehood. In other words, in this study we will be concerned with the State as a sovereign entity, as opposed to entities also called 'States', but within a specific context, such as parts of federal States (which may or may not be called 'sovereign' under domestic constitutional law), or entities labelled States for specific de Dieu, et de nature, et à plusieurs loix humaines communes à tous peuples". Bodin, supra note 16, Livre I, ch. 8, p. 131. 28. OPPENHEIM'S INT'L LAW, pp. 122 and 125. 29. Id. See also M.R. Fowler and J.M. Bunck, LAW, POWER AND THE SOVEREIGN STATE, 1995, p. 47. 30. Sovereignty at the domestic plane concerns the question of internal supremacy. For a discussion of this meaning of sovereignty, see Bodin, supra note 16; T. Hobbes, LEVIATHAN, 1651. For a modern, albeit less stringent, endorsement of this meaning of sovereignty, see H. Bull, THE
ANARCHICAL SOCIETY, 1977, pp. 8-9; F.H. Hinsley, SOVEREIGNTY, 1966, p. 26. Cf. also L.
31.
32. 33. 34.
Henkin, The Mythology of Sovereignty, in: Macdonald (Ed.), supra note 27, p. 351, at p. 352, who maintains that the only relevant stage upon which 'sovereignty' plays, or ought to play, a role is the national stage, and that 'sovereignty' as applied to States in their external relations is a mistake. See, e.g., L.F.L. Oppenheim, INTERNATIONAL LAW, 1955, pp. 118-119 ("[s]overeignty is supreme authority, an authority which is independent of any other earthly authority [...] independent all round, within and without the borders of the country"). See also Judge Huber's remark in the Island of Palmas case, supra note 23. On 'independence' as a criterion for statehood, see Chapter 3, Section 3.5., infra. Brownlie, PRINCIPLES, p. 76; Crawford, CREATION OF STATES, p. 71. Crawford, id, at p. 27.
28
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purposes, like the former Soviet Republics of Byelorussia and Ukraine which were original members of the United Nations for political reasons only.35 Although the State is, in summary, a political and social organizational form which possesses full international personality, this does not say anything about how this legal status is acquired by the entity concerned. The discussion about the acquisition of international legal personality of the State lies at the heart of the debate between the adherents of the constitutive and the declaratory theories on the recognition of States, to which we will now turn.
§ 3.
RECOGNITION OF STATES AND THE ACQUISITION OF INTERNATIONAL PERSONALITY
There is nothing to prevent the makers of international law from establishing a legal rule which holds that a certain entity, upon certain conditions having been met, automatically enjoys international personality "without any further formality, procedure or action from any quarter whatsoever".36 But the opposite thesis can be held as equally true. There is nothing to prevent the establishment of a legal rule that a certain entity, notwithstanding the fulfilment of certain conditions, needs to be recognized before enjoying international personality. As far as the legal nature and effect of recognition of States is concerned, it is exactly these two unreconcilable positions which divide the adherents of the declaratory and constitutive theory on recognition. To a large extent, the two positions mentioned above reflect the points of view of the declaratory and constitutive school, respectively. Although one may get the impression that this 'great debate' divides the international community each and every time an entity claims statehood, in the vast majority of cases recognition does not involve any problems. In most cases, the existence of a State is not questioned and recognition is granted as a matter of course without any discussion concerning whether recognition has attributed international personality to the recognized entity. The universal recognition of the statehood of both the Slovak Republic and the Czech Republic after the 'velvet' dissolution of Czechoslovakia in 1993 may serve as an example. 35. For a discussion of the international legal position of these republics see, e.g., H. Aufricht, Principles and Practices of Recognition by International Organizations, AJIL, Vol. 43, 1949, p. 679, at pp. 695-698; B. Broms, Subjects: Entitlement in the International Legal System, in: Macdonald and Johnston (Eds.), supra note 17, p. 383, at pp. 387-389. 36. B. Cheng, Introduction to Subjects of International Law, in: M. Bedjaoui (Ed.), INTERNATIONAL
LAW: ACHIEVEMENTS AND PROSPECTS, 1991, p. 23, at p. 35. 37. See Chapter 6, Section 5, infra.
The State as an International Legal Person
29
However, the discussion about the legal nature and effect of recognition is of particular relevance in certain situations, as in the case of premature recognition, that is, when recognition is granted while certain criteria for statehood have not (yet) been met by the recognized entity. The legal effect of recognition is equally relevant for situations in which an entity clearly meets the criteria for statehood but is not recognized at all, is recognized only by some States or is recognized only after a substantial period has lapsed. Finally, the legal nature of recognition is significant with respect to the right to selfdetermination of peoples. Whether a new State is created as a result of devolution, integration, dissolution, or secession, it is submitted that, in principle, in all of these cases, self-determination forms the legitimizing principle for the creation of the new State. If, as will be shown later in this study, the right of self-determination entitles a 'people' - under certain circumstances - to establish a State unilaterally, that is, without the approval of the parent State, this entitlement would be seriously compromised, if not effectively eliminated, if recognition would be regarded as mandatory for the international personality of the proclaimed State, and no recognition is granted. § 3.1.
The constitutive theory
The essence of the constitutive theory on the recognition of States is formulated by Oppenheim in the following way: [i]nternational Law does not say that a State is not in existence as long as it is not recognized, but it takes no notice of it before its recognition. Through recognition only and exclusively a State becomes an International Person and a subject of International Law.
Historically, the constitutive theory is older than the declaratory theory. The theory can be traced back to the ideas of Hegel who reduced legal positivism to State voluntarism and who emphasized the absolute sovereignty of the State.39 Because, according to the constitutivists, States cannot be bound to obey 38.
39.
L.F.L. Oppenheim, INTERNATIONAL LAW, Vol. I, (1st ed.), 1905, p. 110; id., (2nd ed.), 1912, p. 117; id., (3rd ed.), 1920, p. 135. The first sentence is omitted in the 7th and 8rh ed. (at p. 122 and p. 126, respectively). See also G. Schwartzenberger and E.D. Brown, A MANUAL OF INTERNATIONAL LAW, 1976, p. 58 ("[t]he normal method for a new State to acquire international personality is to obtain recognition from existing States"). And see OPPENHEIM'S INT'L LAW, p. 130 ("when certain conditions of fact [...] are shown to exist [...] recognition is accordingly declaratory of those facts [but] it is also constitutive of the rights and duties of the recognised community in its relations with the recognising State"). See G.W.F. Hegel, ENZYKLOPÄDIE DER PHILOSOHISCHEN WlSSENSCHAFTEN IM GRUNDRISSE:
ZUM GEBRAUCH SEINER VORLESUNGEN, 1870, para. 331.
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Chapter 2
international law in a relationship without their prior consent, the act of recognition, as an exclusive competence of existing States, must be seen as an expression of consent to observe the rules of international law with regard to the recognized State. Recognition thus attributes rights and duties to the recognized State, thereby creating the latter's international personality. It is therefore important to note that even the most ardent supporters of this view do not claim that recognition creates the State as is often suggested,40 since the State must, by way of necessity, exist prior to recognition.41 What is claimed, however, is that the act of recognition endows the already existing State with international personality. Thus, a distinction is made between a State and an international person. That is to say, before recognition the State is deemed to exist as a fact, but not under international law vis-a-vis existing States.42 The constitutivists maintain that because international law is a primitive legal system without a central institution which is competent to determine whether the criteria for statehood are met, the existing States have to fulfill this function by way of the act of recognition. Recognition is thus (necessarily) determinative with respect to the existence of a State, but only with respect to the recognizing State. Most constitutivists state that recognition may only be granted when the customary international law criteria for statehood are met. Otherwise recognition is premature and a violation of the principle of non-
40. See, e.g., Shaw, INTERNATIONAL LAW, p. 296. 41. See, e.g., Oppenheim, (1st ed.), supra note 38, at pp. 109-110 ("[a] State is, and becomes, an International Person through recognition only and exclusively [...]. There is no doubt that statehood itself is independent of recognition"); id., (8th ed.), supra note 31, at p. 261 ("a State acquires international personality through its recognition as a member [of the international community]") (emphasis added); H. Kelsen, Recognition in International Law, Theoretical Observations, AJIL, Vol. 35, 1941, p. 605, at pp. 605 and 608; G. Jellinek, DIE LEHRE VON DEN STAATENVERBINDUNGEN, 1882, pp. 92-99; F. von Liszt, DAS VÖLKERRECHT, 1925, p. 9. And although Lauterpacht was not an adherent of the orthodox constitutive view he maintained that "recognition is constitutive in the meaning that it is decisive for the creation of the international personality of the State and of the rights normally associated with it [...]. A State may exist as a physical fact. But it is a physical fact which is of no relevance for the commencement of particular international rights and duties until by recognition - and by nothing else - it has been lifted into the sphere of law". Lauterpacht, RECOGNITION, p. 75 (emphasis added). The fact that recognition presupposes the existence of a State is, for obvious reasons which will be explained below, also forwarded by adherents of the declaratory school. See, e.g., P.K. Menon, Some Aspects of the Law of Recognition, Part I: Theories of Recognition, RDISDP, 1989, No. 1, p. 161; A. James, SOVEREIGN STATEHOOD: THE BASIS OF INTERNATIONAL SOCIETY, 1986, p. 147; Cuculla Arbitration, Cuculla (US) v. Mexico, 1876, reprinted in: J.B. Moore (Ed.), INTERNATIONAL ARBITRATIONS, Vol. 3, p. 2873, at pp. 2876-2877 ("[r]ecognition is based upon pre-existing fact; does not create the fact. If it does not exist, the recognition is falsified"). 42. In Kelsen's words: "[o]nly [the State's] legal existence, its existence as judged by international law, not its 'natural' existence, is of importance in the province of international law". Kelsen, supra note 41, at p. 608. 43. Kelsen, id., at pp. 606-607; Lauterpacht, RECOGNITION, p. 55.
The State as an International Legal Person
31
intervention. Recognition is therefore "a matter of law", while the formation of a State is considered to be "a matter of fact". This also means that [a]s soon as recognition is given, the new State's territory is recognized as the territory of a subject of International Law, and it matters not how this territory is acquired before the recognition.45
Because all existing States are considered to be sovereign and legally equal, recognition of a State by an existing State, although determinative and final with respect to the fulfilment of the criteria for statehood, cannot, by definition, bind other existing States. A recognized State only possesses international personality quoad the recognizing State.46 As Kelsen put it "a State exists legally only in its relations to other States. There is no such thing as absolute existence " .47 Some adherents of the constitutive theory have proposed adjustments to the orthodox constitutive view. For instance, Lauterpacht maintained that there was an international legal obligation for States to recognize an entity which claimed statehood when the conditions for statehood were met. In that way, he sought to neutralize the criticism with regard to the relative legal existence of a recognized State.48 His view did not, however, find many supporters, nor was it thought to be in conformity with state practice.49 Others put forward the argument that recognition is declaratory of an existing fact, but constitutive in nature.50 This argument tries to overcome the criticism with respect to the existence of a legal vacuum prior to recognition by stating that recognition marks the beginning of the effective enjoyment of international rights and duties of a recognized State. In fact, however, the argument leads to the acceptance of the declaratory theory.
See, e.g., Lauterpacht, id., at pp. 7-9; Oppenheim, (8th ed.), supra note 31, at p. 128. Oppenheim, id., at p. 544. OPPENHEIM'S INT'L LAW, pp. 129-130. Kelsen, supra note 41, at p. 609. Lauterpacht, RECOGNITION, pp. 12-24, 73-75. See, e.g., Waldock, supra note 19, at p. 154. Moreover, Marek has correctly pointed out that "[a] theory which makes recognition obligatory in conformity with the objective facts of a State's existence defeats its own premise, since it ceases to be constitutive and in fact becomes declaratory however it may be described". Marek, IDENTITY, .p. 137. But see Section 5, infra, of this Chapter, for a modern version of the Lauterpacht doctrine. See also Chapter 8, Section 5, infra. 50. See, e.g., OPPENHEIM'S INT'L LAW, p. 133. Cf. also Lauterpacht, RECOGNITION, pp. 75-77 (where he forwards a variant of this argument in the context of his theory of the obligation of recognition).
44. 45. 46. 47. 48. 49.
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§ 3.2.
The declaratory theory
The declaratory theory, as formulated in its traditional form by, for instance, Vattel, Moore, Brierly, and Chen, holds that the State's existence as an international legal person is independent of its recognition by existing States. Thus, when an entity satisfies the traditional criteria for statehood under customary international law, that is as soon as it exists as a fact, this entity is a State in the sense of international law. As Chen observes, "whenever a State in fact exists, it is at once subject to international law, independently of the wills of other States".51 International personality thus acquired has erga omnes effect, or, in other words, it shall be considered effective vis-a-vis all existing and future States and other subjects of international law. According to the declaratory theory, recognition is merely a formal acknowledgement of an already existing fact. Recognition simply declares "as a fact something which has hitherto been uncertain",52 and it expresses the intention of the recognizing State that it is willing to enter into relations with the recognized State. But even prior to recognition, the State possesses all the rights and duties which customary international law normally attaches to statehood. As stated by Brierly: [t]he better view is that the granting of recognition to a new State is not a 'constitutive' act; it does not bring into legal existence a State which did not exist before. A State may exist without being recognized, and if it does exist in fact, then, whether or not it has been formally recognized by other States, it has a right to be treated as a State.
Therefore, in this manner, the declaratory theory removes at least some of the difficulties associated with the constitutive theory, such as the relative character of statehood and (consequently) the existence of a legal vacuum prior to the act of recognition. Furthermore, recognition must necessarily have a retroactive effect. The act of recognition is assumed to date back to the commencement of the State's existence, that is, when the criteria for statehood were satisfied. Otherwise, recognition would still be determinative for the moment of birth of the State as an international person and that would lead to the acceptance of the 51. 52. 53. 54.
Chen, RECOGNITION, p. 14. Brierly, supra note 3, at p. 139. Id. See also Kooijmans, supra note 4, at p. 22; Shaw, INTERNATIONAL LAW, p. 303. Brierly, supra note 3, at p. 139 (emphasis in original). See also, e.g., Brownlie, PRINCIPLES, pp. 88-89; Shaw, id. at p. 298; J.M. Ruda, Recognition of States and Governments, in: Bedjaoui (Ed.), supra note 36, p. 449, at p. 454. 55. Chen, RECOGNITION, pp. 177-178.
The State as an International Legal Person
33
constitutive theory. It is true, the declaratists observe, that a State that has not been recognized experiences difficulties in exercising and enforcing its rights, but this is entirely different from the assertion that a State does not possess international rights (and duties) vis-a-vis non-recognizing States.56 O'Connell states this as follows: non-recognition cannot touch the question of objective international personality, it merely implies a refusal to give effect to some of the consequences of it.57
And in the words of Chen: [i]t has been argued that in the absence of international relations, an international right, lacking means of enforcement, is abstract, like a ghost elusive to the grasp. In reply, it may be said that every system of law admits of certain types of rights not immediately enforceable. These may be 'imperfect rights', but they are none the less legal rights.58
It must be noted, however, that with respect to certain issues the declaratory theory and the constitutive theory do not conflict. For instance, the traditional declaratory view holds that, in principle, the existence of a State as an international person is independent of the legality of its creation, and that recognition "where the material conditions for statehood are absent" is unlawful/'" These views, as was seen above, are shared by the adherents of the orthodox constitutive theory.
§ 4.
THE THEORIES ON RECOGNITION REVISITED
§ 4.1.
Evaluation of the constitutive theory
It is often stated that the constitutive theory leads to substantial difficulties and legal curiosities, because, for instance, a new State is an international person with respect to recognizing States but not with respect to other States that have not (yet) recognized the new State. In addition, it has often been observed that it is unacceptable and astonishing that an unrecognized State would have no rights under international law and that consequently, for instance, its territory could lawfully be annexed by any State not recognizing it. There is no doubt 56. 57. 58. 59. 60.
Id., at p. 34. O'Connell, supra note 6, at p. 84. Chen, RECOGNITION, p. 34 (footnotes omitted). But see id., at pp. 8-9. Id., at p. 54.
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that these arguments are valid, but if they are intended as proof of the inaccuracy of the constitutive theory they must fail, for they are merely concerned with undesired effects which arise once the constitutive theory is applied. Indeed, some practical consequences of a theory may be absurd, but absurdity as such is not conclusive evidence for establishing the inaccuracy of a theory. There are, however, a number of arguments which do relate to the inaccuracy of the constitutive theory. For instance, from a legal point of view it is in comprehensible that a State may exist outside international law. As has been observed "a State is not a fact in the sense that a chair is a fact, it is a fact in the sense in which it may be said a treaty is a fact: that is, a legal status attaching to a certain state of affairs by virtue of certain rules".61 Indeed, there is, in law, no substance in the assertion that an entity is a State unless we attach to the fact of statehood rights and competencies, within the internal or international sphere, which international law is ready to recognize. Thus, it seems irrelevant to predicate that a community is a State unless such existence is treated as implying legal consequences.62 Secondly, the act of recognition by States has been compared by Kelsen with the function of a court under national law. A factual situation is only theft, Kelsen asserts, if a court which is competent to interpret the facts and capable of applying the law has pronounced that the relevant facts correspond to the description of theft under the applicable law. In other words, a situation is theft from the moment that is has been identified as such by a competent organ onwards. In the absence of the existence of a central organ or institution which is competent to determine with certainty and finality whether a State exists under international law, this function is fulfilled by States through the act of recognition. In doing so, States fulfill a function somewhat comparable to the one of a judge under national law.63 Kelsen's thesis is, however, inaccurate. Theft is not theft from the moment the court pronounces its judgment, but from the moment that the factual situation corresponded to the description of theft under national law, that is, from the moment the act was committed. The judgment of the court does not create the illegality of the act. It is merely declaratory of an already existing illegal situation.64 Thus, even though it is already seriously questionable to compare recognition with a judicial determination, insofar as this is done, this must lead to the conclusion that recognition is declaratory of a situation already 61. Crawford, CREATION OF STATES, p. 4. 62. Lauterpacht, RECOGNITION, p. 39. 63. Kelsen, supra note 41, at p. 606. 64. See also Chen, RECOGNITION, p. 48.
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existing in legal terms. A third point of critique concerns the following. States, the constitutivists argue, exist legally only in their relations to other States. Furthermore, it is stated that the act of recognition, which is a legal act in the sense that it is intended to create legal consequences, can be performed by States only, because it is an exclusive right of States.65 Therefore, if an 'old', that is, an existing State, recognizes a new State, it is incomprehensible that the new State is required to recognize the 'old' State as well for international law to become fully applicable to the relations between the two States.66 After all, if this should be necessary, this would mean that the 'old' State was not legally in existence with regard to the new State until the latter's recognition of the former. But if this were to hold true, and if the constitutive theory were to be applied consistently, it would mean that the 'old' State would not legally be able to perform a legal act vis-a-vis the new State unless and until the latter has recognized the former. But in order to be able to do that, the new State must possess international personality. In sum, this argumentation leads to a vicious circle and is therefore another reason why the constitutive theory must be rejected. Fourthly, according to Oppenheim and others recognition may be given formally, or implicitly by, for instance, exchanging diplomatic envoys or concluding a treaty.' However, if the virtue of recognition is to endow the new State with the right to, inter alia, make a treaty, and if the making of a treaty itself implies recognition, we are, again, in an endless circle and recognition has no legal effect. In addition, the argument that international law lacks a central institution competent to determine the subjects of international law, resulting in this competence being decentralized through the individual recognition by existing States, fails to appreciate that there is nothing determinative and conclusive with respect to the fulfilment of the criteria for statehood if each State may come to a different conclusion. 68 Moreover, the fact that the grant of recognition is said to reflect the individual opinion of the recognizing State that the new State has satisfied the criteria for statehood, which opinion is both determinative and final, cannot be brought into conformity with the statement that a premature grant of recognition is illegal, because the former position in fact excludes the possibility 65. This is apart from the fact, as agreed to by both constituvists and declaratists, that States may delegate this power to an international organization. 66. See Kelsen, supra note 41, at p. 609, To the same effect, see D. Anzilotti, COURS DE DROIT INTERNATIONAL, 1929, pp. 160 et seq.; R., Knubben,DlE SUBJEKTE DES VÖLKERRECHTS, 1928, pp. 317 et seq. 67. Oppenheim, (8'h ed.), supra note 31, at pp. 147-148. 68. Crawford, CREATION OF STATES, p. 18; Brierly, supra note 3, at p. 319.
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that the illegality can be determined objectively. Another fundamental point of criticism relates to the fact that the constitutive theory conflicts with the doctrine of self-determination insofar as the right of self-determination encompasses the right to create a State. As will be seen later in this study, situations, such as colonialism,69 exist wherein it is generally accepted that the collectivity concerned ('a people') is entitled to establish its own State. However, in most cases where independence is achieved against the wishes of the parent State (or colonial power), it is very likely that at least this parent State will withhold the recognition of the new entity's statehood. Therefore, if recognition would be considered constitutive for the international personality of the State in question little, if anything, would remain of the right to self-determination of peoples. This cannot be assumed in the light of the fundamental position of this right in international law.70 Finally, the fact that the theory is not in conformity with state practice must lead to a decisive rejection of the orthodox constitutive position. In this respect reference can be made to, for instance, Articles 3 and 6 of the Montevideo Convention, Articles 12 and 13 of the Charter of the Organization of American States of 1948 as amended in 1967,72 several statements by States, as well as several practical examples which clearly contradict the constitutive theory.73 Furthermore, the constitutive theory is rejected and the declaratory 69. See Chapter 5, infra. 70. For the discussion of the content, scope and status of the right of self-determination, see Chapters 5, 6 and 7, infra. 71. Article 3 states: "[t]he political existence of a State is independent of recognition by other States. Even before recognition, the State has the right to defend its .integrity and independence, to provide for its conservation and prosperity, and consequently to organize itself as it sees fit, to legislate upon its interests, administer its services, and to define the jurisdiction and competence of its courts". Article 6: [t]he recognition of a State merely signifies that the State which recognizes it accepts the personality of the other with all the rights and duties determined by international law". 72. Article 12 is a repetition of Article 3 of the Montevideo Convention. Article 13 states: "[r]ecognition implies that the State granting it accepts the personality of the new State, with all the rights and duties that international law prescribes for the two States". 73. For instance, the British government demanded compensation from Israel when Jewish airmen shot down British aeroplanes over Egypt in January 1949 when at that time the United Kingdom had not recognized Israel as a State. See Brierly, supra note 3, at p. 139. Another example is formed by the fact that several Arab States claimed repeatedly that Israel had violated the Charter of the United Nations when they explicitly refused to recognize Israel's statehood. See also the examples given by D.J. Harris, CASES AND MATERIALS ON INTERNATIONAL LAW, 1991, p. 140, n. 60. A recent example is formed by the former Yugoslav Republic of Macedonia (FYROM). On 2 May 1992 the member States of the EC declared that "[t]hey are willing to recognize that State as a sovereign and independent State, within its existing borders, and under a name that can be accepted by all parties concerned" (emphasis added). EPC Informal Meeting of Ministers for Foreign Affairs, Declaration on the Former Yugoslav Republic of Macedonia, Guimaraes, 1-2 May 1992, EPC Press Release 53/92. Still another recent example concerns the Federal Republic of Yugoslavia (Serbia and Montenegro). The State was established in 1992, but recognition was granted only in the course of 1996. However, there was general agreement that
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theory is supported in a number of (quasi-) judicial decisions and opinions, such as, for instance, Opinion 10 of the Arbitration Commission of the International Conference on Yugoslavia,74 the Deutsche Continental GasGesellschaft v. Polish State case, as well as a decision by the European Commission on Human Rights. ' In addition, several decisions by national courts have rejected the constitutive theory.77
74.
75.
76. 77.
the FRY was a State under international law, that is, a full international legal person, despite the absence of recognition. See, e.g., Committee of Senior Officials of the CSCE, Declaration Concerning the Need for Undertaking Urgent and Immediate Steps With Respect to Yugoslavia, 20 May 1992, RIA, Vol. XLIII, 1992, p. 22; Resolution 1/6-Ex on the Situation in Bosnia and Herzegovina, adopted at the 6th Extraordinary Session of the Islamic Conference of Foreign Ministers, 1-2 Dec. 1992; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Federal Republic of Yugoslavia (Serbia and Montenegro)), Provisional Measures, Order of 8 Apr. 1993, ICJ Rep. 1993, p. 11; The Prosecutor v. Dusko Tadic, Case IT-94-1-A, Judgment, 15 July 1999, paras. 146-162. The Tinoco Concessions Arbitration is sometimes referred to as a principal example of the application of the declaratory theory on the recognition of States. This is, however, not correct. In this case, the Tribunal referred to the declaratory theory in relation to the non-recognized government of the already recognized State of Costa Rica. See Tinoco Concessions Arbitration, RIAA i, 1923, p. 369, at p. 381. Grant has argued that the fact that the Turkish Republic of Northern Cyprus (TRNC) has "continued to enjoy freedom from external aggression" despite the universal (except for Turkey) non-recognition of its statehood, is supportive of the validity of the declaratory theory. See T.D. Grant, THE RECOGNITION OF STATES, 1999, p. 21. However, this argument cannot seriously be maintained. It is generally agreed that the TRNC is not a State and, therefore, it is clear that - even assuming that statehood as such is a guarantee for peaceful coexistence - the northern part of the island has enjoyed "freedom from external aggression" because the international community considers it to be an integral part of an existing State: the Republic of Cyprus. See, e.g., European Parliament resolution on Cyprus's application for membership of the European Union and the state of negotiations, 4 Oct. 2000, Preamble, Para. A ("whereas the Republic of Cyprus [...] the only State entitled to represent the island as a whole, has made considerable economic advances even though the richest part of its territory has been occupied for 26 years by Turkey [...]"). And see Chapter 4, Section 5.2.1., infra. The Commission stated: "recognition is not a prerequisite for the foundation of a State and is purely declaratory in its impact". ILM, Vol. 31, 1992, pp. 1525-1526, at p. 1526. See also Opinion 1, ILM, Vol. 31, 1992, pp. 1494-1496, at p. 1495. ILR, Vol. 5, No. 5, 1929, p. 11, at p. 15 ("[...] according to the opinion rightly admitted by the great majority of writers on international law, the recognition of a State is not constitutive but merely declaratory. The State exists by itself (par lui-même) and the recognition is nothing else than a declaration of this existence". Cyprus v. Turkey, ECHR Ybk., Vol. 18, 1975, p. 82, at pp. 112-116; Cyprus v. Turkey, ECHR Ybk., Vol. 21, 1978, p. 100, at pp. 224-230. Examples of decisions by American courts are given by J.L. Kunz, Critical Remarks on Lauterpacht's Recognition in International Law, AJIL, Vol. 44, 1950, p. 713, at p. 717. The Canadian Supreme Court rejected the constitutive theory in Reference re Secession of Quebec, ILM, Vol. 37, p. 1340, at p. 1374 (but the Court noted that the viability of a State depends, as a practical manner, upon recognition by other States). For a rejection of the constitutive theory by Dutch courts see Republic of the South Moluccas v. Netherlands New Guinea, District Court, The Hague, 10 Feb. 1954, ILR, Vol. 21, 1954, p. 48; NV Koninklijke Paketvaart Mn, v. de Repoeblik Maloekoe Selatan, Supreme Court, Amsterdam, 8 Feb. 1951; De Democratische Republiek Oost-Timor/'Fretilin' e.a. v. de Staat der Nederlanden, District Court, The Hague, 21 Feb. 1980.
38 § 4.2.
Chapter 2 Evaluation of the declaratory theory
It has already been observed that the declaratory theory seems to correspond best with customary international law in the field of the recognition of States. However, a major point of criticism with respect to the orthodox declaratory theory concerns the argument that "[i]f a State exists in fact, it must exist in law". In other words, the theory assumes that the mere factual situation, which is a result of the fulfilment of the criteria for statehood would lead ipso facto to international personality, which is incorrect. For, international personality is not the result of the mere existence of a factual situation. It is the result of the existence of an international legal rule which requires the existence of certain facts78 for the attribution of international personality to that factual situation. As observed by Lauterpacht, "[l]egal personality is a creature of law, not of nature".79 Thus, a State is not an international person because it satisfies the criteria for statehood, but because international law attributes full international personality to such a factual situation. Furthermore, under contemporary international law, the formation of a State in the sense of international law, that is, as an international legal person, is not only "a matter of fact" but also a matter of law. The orthodox declaratory theory, by emphasizing effectiveness as the only relevant legal concept in the field of the creation of States, excludes the applicability of other international norms and principles to this process. However, as will be seen later in this study, even if an entity satisfies all the traditional criteria for statehood and therefore exists as an effective entity, if this effective situation has been realized in violation of a fundamental international legal rule such a violation bars the acquisition of statehood. Another point of criticism relates to the thesis that recognition can never have constitutive effects. However, when recognition is granted to an entity created as a result of secession which does not satisfy the criteria for statehood, this unlawful act of recognition nevertheless obliges the recognizing State to treat the recognized entity as a State, which is unmistakably a constitutive 78. It will be shown later that international law requires that these facts are in themselves not contrary to fundamental rules of international law. See Chapters 4 and 8, infra. 79. Lauterpacht, RECOGNITION, p. 428. 80. See Chapter 4, Section 8; and Chapter 8, Section 3, infra. 81. See also Crawford, CREATION OF STATES, p. 24. As a result of the recognition and on the basis of the principle of good faith the recognized entity may rely on its specific legal status vis-a-vis the recognizing State, and by that it comes into being as a relatively existing 'State'-entity (that is, in relation to the recognizing State only). And see Schwarzenberger and Brown, supra note 38, at p. 56 ("the rules of good faith may create an estoppel and preclude a subject of international law from asserting that it has not recognised another entity as a subject of international law"). An example is formed by the recognition of the TRNC by Turkey. See
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effect of recognition. Finally, by qualifying recognition as a mere political act, the orthodox declaratory theory tends to depreciate the importance of recognition. As will be seen later, recognition has an important consolidating effect with respect to statehood, especially in situations where the government of the recognized State is not fully effective.82 Moreover, it is clear that the viability of a State does depend, as a practical matter, upon relations with other States for which recognition is usually a prerequisite. In sum, and with reference to the above-mentioned qualifications, it may be concluded that international law contains a legal rule which holds that a certain entity, upon certain conditions being met, is a State, as a result of which it automatically enjoys full international personality, that is, without any further formality, procedure or action from any quarter whatsoever.
§ 5.
COLLECTIVE, IMPLIED, CONSTITUTIVE AND OBLIGATORY RECOGNITION OF STATEHOOD AND ADMISSION TO MEMBERSHIP IN THE UNITED NATIONS
The position that admission to membership in a universal international organization open for States only, amounts to implied recognition of the entity as a State both under the law of the organization and under general international law, has been put forward by a number of scholars. With reference to the Advisory Opinion of the International Court of Justice on Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter),84 Shearer, for instance, maintains that it is clear that [...] admission [to the United Nations] is tantamount to recognition of the member admitted as a state.
Some of the aforementioned scholars, like Dugard, go even further by combining the Lauterpacht doctrine on the obligation of recognition with the admission policy of, in particular, the United Nations. By such scholars it is argued that admission to the United Nations not only implies the recognition
Chapter 4, Section 5.2.1., infra. 82. See Chapter 8, infra. 83. See, e.g., S. Rosenne, Recognition of States by The United Nations, BYIL, 1949, p. 437, at p. 445; H.W. Briggs, Community Interests in the Emergence of New States: the Problem of Recognition, PASIL, 1950, p. 169, at p. 178. 84. ICJ Rep. 1948, p. 57 et seq. (hereinafter 'Conditions of Admission case'). 85. LA. Shearer, STARKE'S INTERNATIONAL LAW, 1994, p. 124.
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of the statehood of the new member by those member States which voted in favour of the admission but also entails the obligation for other member States (including those members which voted against the admission) to recognize the statehood of the new member, not only under the United Nations Charter but also under general international law. As a result admission to United Nations membership constitutes collective (and, given the organization's nearly universal membership, also practically universal) recognition of statehood.86 As stated by Dugard with respect to United Nations admission practice regarding decolonized entities: [t]he unavoidable facts are that these entities have been admitted to membership in the United Nations and that such admission is today regarded as the definitive acknowledgement of their independence and statehood by the international community. States are not obliged to enter into bilateral or diplomatic relations with these new States [...]. The conclusion is inescapable that they have been recognized by the international community acting through the certification process of the United Nations. It is likewise impossible to avoid the conclusion that the international community has delegated the authority to recognize decolonized entities as States to the United Nations.87
And he adds that while there may be no duty to recognize a State that complies with the requirements of statehood under customary international law, there is an apparent duty on the part of members of the United Nations to recognize the existence of entities admitted to the United Nations as States subject to the benefits and burdens of both the law of the Charter and the general principles of customary law.88
In addition, it is suggested that admission to the United Nations "constitutes or confirms the existence of a State". Therefore, using the views of Lauterpacht's theory on the obligation of recognition as a foundation, the constitutive theory is both embraced and modernized. This view has also been referred to as the "constitutive-cum-collective
86. Dugard, RECOGNITION, pp. 78-80. It is sometimes suggested that the EC Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union of 16 December 1991 (ILM Vol. 31, 1992, pp. 1485-1487) amounted to collective recognition. However, because the EC member States granted recognition to these new States on an individual basis, the Guidelines must be interpreted as "a co-ordinated stand with regard to criteria for recognition by the Community and its member States rather than collective recognition as such". Shaw, INTERNATIONAL LAW, p. 313. See also A.V. Lowe and C. Warbrick, Recognition of States Part 2, ICLQ, Vol. 42, 1993, p. 433, at p. 441. 87. Dugard, RECOGNITION, pp. 73, and 78-80. 88. Id., at p. 80. 89. Id., at p. 79.
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recognition theory".90 Thus, the admission of an entity to the United Nations is suggested to imply the recognition of the statehood of the entity in question by at least those member States voting in favour of admission. Those member States either withholding their vote or voting against admission are nonetheless bound to recognize the statehood of the new member State not only under the Charter of the United Nations but also under general international law. Because each and every member of the United Nations is ultimately considered to be bound to recognize the statehood of any entity admitted to United Nations membership, admission in effect amounts to collective recognition of statehood and results in the fact that "serious weaknesses in the constitutive position are remedied, if not completely cured". This is so because given the near universal membership of the United Nations, once collective recognition is granted, the existence of the recognized State would effectively be absolute, that is, it would be an international legal person in relation to nearly the entire international community of States.91 However, despite the arguably usefulness of constitutive collective recognition with obligatory effects for all members of the United Nations, several aspects of the theory raise substantial legal problems which make its acceptance difficult. The theory can be, and has been, challenged on several grounds.92 Indeed, it is doubtful whether admission is always equivalent to implied recognition. Furthermore, it can be questioned whether it is correct to state that such implied recognition is binding for all members of the United Nations and doubts can also be raised as to the argument that (collective) recognition is constitutive of the international legal personality of the entity
90. J.D. van der Vyver, Statehood in International Law, Emory Int'l L. Rev., Vol. 5, 1991, p. 9, at p. 20. 91. Dugard, RECOGNITION, p. 80. However, apart from other arguments which will be discussed below, it is doubtful whether collective recognition through the admission to the United Nations remedies the shortcomings of the traditional constitutive theory and in particular the theory's consequence of the relative existence of States. For, one is still confronted with the legal status of the entity prior to admission. In almost all cases of new States a time gap exists between the proclamation of independence and the admission to the United Nations. This may vary from days to months, to even years (as in the cases of Bangladesh and FYROM). Should it be stated, however, that in such cases the entity is a State under international law if it had satisfied the customary law criteria for statehood prior to its admission to the United Nations, this would amount to the acceptance of the declaratory theory according to which the State's existence is absolute. In that case the subsequent admission to the United Nations would be nothing more than an acknowledgement of statehood. 92. See Shaw, INTERNATIONAL LAW, p. 313, who holds that the theory is not in accordance with state practice. To the same effect, see M.J. Peterson, RECOGNITION OF GOVERNMENTS: LEGAL DOCTRINE AND STATE PRACTICE, 1815-1995, 1997, p. 132; Ruda, supra note 54, at p. 453. See also H.G. Schermers and N.M. Blokker, INTERNATIONAL INSTITUTIONAL LAW, 1995, pp. 11591162 (" [r]ecognition by an international organization does not imply recognition by the members of the organization" and "[a]cceptance as a member does not however necessarily imply recognition as a state").
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concerned. As to the first point of criticism: is admission always equivalent to (implied) recognition of statehood? First, Article 4(1) of the Charter does indeed limit membership of the United Nations to "States".93 Nowadays, the vast majority of members of the United Nations are also States under general international law and because Article 4(1) of the Charter requires an entity to be a "State" in order to be qualified for United Nations membership, it cannot be denied that admission to the United Nations is strong evidence of statehood under general international law. However, even if the argument is limited to those member States voting in favour of admission, is it correct to state that their vote must always be interpreted as implying recognition of the statehood of the entity concerned? Given the drafting history of the Charter of the United Nations this point must be examined carefully. In this respect, it must be noted that it was not the intention of the authors of the Charter that admission to membership should automatically be equated with recognition by the individual members of the statehood of the entity concerned, not even for those voting in favour of admission. This is clear from the rejection of a proposed Norwegian amendment during the San Francisco Conference in 1945, designed to give the new organization the power of recommending collective recognition of new States. In addition, in 1950, the Secretary-General explicitly denied that the United Nations had the authority to recognize a new State and stated that collective recognition of statehood by the United Nations would require an amendment of the United Nations Charter.95 However, it would be incorrect to state that the opinion of member States as well as of organs of the Organization in 1945-1950 should be seen as valid for all times. Indeed, the Charter system must be interpreted in the light of the practice of the Organization and its members since its establishment. In that respect, there are at least four reasons why it is plausible that a vote in favour of admission of an entity to United Nations membership is, in principle, tantamount to recognition of the entity as a State. Firstly, in the present time, virtually all entities which are generally regarded as States under customary international law are also members of the United Nations. Secondly, there is no a priori reason why the 93. Article 4(1) states: "Membership in the United Nations is open to all peace-loving States which accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations". 94. See Amendments and Observations on the Dumbarton Oaks Proposals, submitted by the Norwegian Delegation, UNCIO Doc. 2, G/7, n. (1), p. 2, 3 May 1945; and see Aufricht, supra note 35, at p. 691. 95. Memorandum on the Legal Aspects of the Problem of Representation in the United Nations, UN Doc. S/1466, 1950, p. 2. The Memorandum was prepared at the Security Council's request and suggested furthermore that linking membership to recognition would be "unfortunate from a practical standpoint and wrong from the standpoint of legal theory".
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term State in Article 4(1) should be interpreted differently from the term 'State' under customary international law.96 Thirdly, the International Court of Justice recognized that statehood is a primary qualification for admission to the United Nations.97 And fourthly, practice indicates that States voting in favour of admission regard that vote as implying recognition of the statehood of the entity concerned. However, a number of important qualifications must be made in this regard. Firstly, in some cases the facts are such that the aforementioned conclusion cannot apply. This is true, for instance, for those member States which have recognized the entity as a State prior to its admission to the United Nations. Obviously, there is no logic in multiple recognitions of statehood by one and the same State of one and the same entity. Examples of such cases are, for instance, the admission to membership in the United Nations of the Republic of Estonia100 and the Republic of Croatia, in 1991 and 1992 respectively.101 Secondly, practice indicates that important exceptions to the abovementioned rule do exist. Although the admission to membership of the United Nations of the Byelorussian SSR and the Ukrainian SSR was strongly politically influenced, and should not in themselves be regarded as legal precedents, the 96. See also Crawford, CREATION OF STATES, p. 133. 97. Conditions of Admission case, supra note 84, at p. 62. The Court held that an entity formally should meet five conditions namely (1) be a State, (2) be peace-loving, (3) accept the obligations of the Charter, (4) be able to carry out these obligations, and (5) be willing to do so. 98. An example is formed by the position taken by several European States with respect to the admission of FYROM to the United Nations. Germany is reported to have stated that its vote in favour of admission should be regarded as "affirmative" recognition of Macedonia, and the Danish Minister for Foreign Affairs Niels Helveg Petersen is reported to have stated that from the point of view of Denmark its vote for admission should be regarded as recognition of Macedonia. This position was shared by the Netherlands, Belgium and Italy. See, e.g., Denmark Says Recognises Macedonia, The Reuter European Community Report, 15 Apr. 1993; Nine EC States Recognise Macedonia, The Reuter European Community Report, 19 Apr. 1993; Reeks EGLeden Zegt Macedonienë te Erkennen, De Volkskrant, 16 Apr. 1993. It must be noted, however, that the explicit statements by some European States that their votes for admission of FYROM had to be regarded as recognition of statehood were also made to bypass Greek opposition to recognition of FYROM within the EC itself. See also Chapter 4, Section 3, infra. 99. A way out of this dilemma may lie in saying that the 'first' recognition would mean an mere acknowledgement of the statehood of the relevant entity and the 'second' an intention to establish diplomatic relations. However, it is not argued by any of the supporters of the collective recognition doctrine that a vote in favour of admission to the United Nations implies the intention to establish diplomatic relations, nor is there any evidence that States interpret their vote in favour of admission as such. 100. The Republic of Estonia was admitted to United Nations membership on 17 Sept. 1991 (UN Doc. A/Res. 46/4) and was already recognized by seventy-four members of the United Nations prior to that date. See R. Pullat, The Restoration of the Independence of Estonia 1991, Finnish YIL, Vol. II, 1991, p. 512, at pp. 529-530. 101. Seventy-six member States voting in favour of Croatia's admission to membership in the United Nations on 22 May 1992 (UN Doc. A/Res. 46/238) had already recognized Croatia prior to the admission procedure. See Department for Foreign Affairs of the Republic of Croatia, Povratak na Vanjske Poslove, 1998.
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two federal parts of the former Soviet Union were admitted to membership. Not a single member of the international community of States argued that the two entities constituted States under general international law, nor that their admission to the United Nations had to be interpreted as a recognition of their statehood.102 Mention must also be made of the cases of the Philippines and India which became members of the United Nations in 1945, well before they became independent States (the Philippines on 4 July 1946 and India on 14 August 1947). Moreover, notwithstanding their original membership in the United Nations, Lebanon and Syria were still regarded as mandates by France at the time. In addition, the case of Namibia arguably forms another example, because the General Assembly recommended the admission of Namibia as a full member of the United Nations in 1976, notwithstanding that at that time, Namibia was not considered to be a State, which it.only became in 1990.103 Furthermore, Monaco is now a member of the United Nations despite the fact that it cannot be considered a State under general international law.104 The status of Monaco prior to its admission to the United Nations in 1993105 was sui generis because of a substantial lack of independence.106 It is difficult to maintain that Monaco is now regarded as a State under general international law because of its admission to the United Nations. Admission to the United Nations became feasible after the end of the Cold War. This event led to the termination of the opposition by the Soviet Union/Russia regarding the admission of micro-States such as Monaco. Admission used to be opposed because of their lack of independence (which meant that they did not qualify as States under general international law) and/or because it would lead to another 'Western vote' in the United Nations. After the end of the Cold War, the latter consideration did no longer apply, by which it became possible to extend the collective security system to entities like Monaco.107 Consequently, 102. The membership of the two republics was the outcome of a political compromise between the United States, Great Britain and the Soviet Union. The Soviet Union agreed with the proposed voting procedure in the Security Council and the admission of the two Soviet republics was accepted in return. See, e.g., R. Higgins, THE DEVELOPMENT OF INTERNATIONAL LAW THROUGH THE POLITICAL ORGANS OF THE UNITED NATIONS, 1963, p. 15, and the references mentioned there. 103. See UN Doc. A/Res/31/149, 20 Dec. 1976. See also UN Doc. A/Res/32/9E of 4 Nov. 1977. 104. The case of Monaco is discussed in more detail in Chapter 3, Section 3.5.1., infra. 105. UN Doc. A/Res/47/231, 28 July 1993. 106. On independence as a criterion for statehood, see Chapter 3, Section 3.5., infra. 107. Andorra has been regarded as sui generis as well, because of the ambiguous position of the French President as co-Prince of the Principality which led to serious doubt with respect to Andorra's (formal) independence from France. This situation has changed to a certain extent as a result of the new Constitution which entered into force in 1993 and according to which Andorra is represented on the international plane by the two co-Princes together. This, it has been submitted, excludes the hegemony and monopoly which the French co-Prince possessed priorto the 1993 Constitution(SeeJ.C.Duursma, SELF-DETERMINATION AND INTERNATIONAL
The State as an International Legal Person
45
these entities are considered to be States for United Nations purposes only. In sum, it is tenable that, as a general rule, a vote in favour of admission to the United Nations implies recognition of the statehood of the entity concerned. This does not, however, apply in cases where the State voting in favour of admission has already recognized the entity's statehood prior to the admission. Moreover, practice indicates that in some cases an entity may be admitted to membership of the United Nations notwithstanding the fact that it does not qualify as a State under general international law. In such cases, the entity is admitted for political reasons. Therefore, it would be incorrect to state that admission to the United Nations always implies recognition of the statehood of the entity concerned. Another objection to the collective recognition doctrine is related to the suggestion that once the entity is admitted to the United Nations, all member States, that is, including those States voting against the admission or withholding their vote, are obliged to recognize the statehood of the entity concerned both under the Charter of the United Nations and under general international law. In this regard, the first point of criticism relates to the fact that in the light of such a considerable limitation of the discretionary power of a State to recognize an entity as a State, one would at least expect to find some explicit statements to that effect by the majority, or at least part of the United Nations member States. However, no such statements exist. On the contrary, state practice indicates that States do not consider themselves bound to recognize an entity as a State under general international law subsequent to that entity's admission to the United Nations.109 For instance, although Israel was admitted to
RELATIONS OF MICRO-STATES, 1994, p. 350). Even if this would be correct (because it could be maintained that the necessity of the French President's agreement with respect to Andorra's international relations undermines Andorra's formal independence), the statehood of Andorra would be a result of the changes in the new Constitution and not due to its admission to the UN in 1993 (see UN Doc. A/Res/47/232, 28 July 1993). For a discussion of the status of Andorra, see, inter alia, Duursma, id., at pp. 343-411; J. Crawford, The International Legal Status of the Valleys of Andorra, RDISDP, Vol. 55, 1977, p. 258, at p. 266; D. Schindler, Andorra, EPIL, Vol. 1, 1992,p. 164; M.M. Whiteman, DIGEST OF INTERNATIONAL LAW, Vol. l, 1963, p. 277; Hams, supra note 73, at p. 104, n. 14; Massip v. Cruzel, ILR, 18, No. 23, 1951; Re Boedecker and Ronski, ILR, 44, p. 176; Courtiol v. Chappard, RGDIP, Vol. 88, 1984, p. 974. 108. It may be contended that there is no difference between the status of a United Nations member under the United Nations Charter and that of a State under general international law, and thus that an entity which is a member of the United Nations by necessary implication needs to be a State under general international law. However, this view is inaccurate. Although the Charter contains a considerable amount of, so to speak, core rights and obligations which are applicable to States, several rights and obligations attributed to States under general international law are not guaranteed in the Charter, such as the right of legation, the right to jurisdiction over all persons and things in the territory of the State, the right to conclude treaties, the right of coastal States to a territorial sea of twelve miles or the right to exercise diplomatic protection. 109. See also OPPENHEIM'S INT'L LAW, pp. 177-178; B. Broms, States, in: Bedjaoui (Ed.), supra note 36, pp. 41-66, at pp.45-48.
46
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membership of the United Nations on 11 May 1949, the Arab States did not consider themselves obliged to recognize Israel as a State under general international law as a result of that admission. 110 The same is true for the position of member States regarding the admission to membership of, for instance, India, the Philippines or Andorra, cases which were mentioned earlier. In this respect the following statement of the United States seems to reflect the general point of view of States with respect to the existence of any form of obligatory recognition of statehood: [i]n the view of the United States, international law does not require a state to recognise another entity as a state; it is a matter for the judgment of each state whether an entity merits recognition as a state. In reaching this judgment, the United States has traditionally looked for the establishment of certain facts. The United States has also taken into account whether the entity in question has attracted the recognition of the international community of states."111
In addition, the Arbitration Commission of the International Conference on Yugoslavia observed that recognition is a discretionary act that other states may perform when they choose and in a manner of their own choosing, subject only to compliance with the imperatives of general international law [...].
In the light of these statements and practice it cannot be maintained that admission to membership of the United Nations gives rise to an obligation for all member States to not only respect the provisions of the Charter vis-a-vis the entity concerned (which is certainly correct113), but also to recognize it as a State under general international law. The final objection relates to the statement that admission to the United
110. The refusal to recognize Israel's statehood was first and foremost related to the alleged illegitimacy of Israel's creation. However, the existence of Israel as a State was not denied and, consequently, Israel was repeatedly accused by the Arab States of having violated the provisions of the United Nations Charter and international customary law (in particular the rules relating to the use of force). See, generally, N. Feinberg, THE ARAB-ISRAELI CONFLICT IN INTERNATIONAL LAW, 1970. Israel was recognized by Egypt in 1979 and by Jordan in 1995. 111. Digest of United States' Practice in International Law, 1976, pp. 19-20, quoted in: Harris, supra note 73, at p. 143. This view is shared by the United Kingdom which states that as far as recognition of statehood is concerned United Nations resolutions may also be relevant for the decision whether or not recognition will be granted. See 102 HC Deb., col. 977, Written Answer, 23 Oct. 1986, and 169 HC Deb, cols. 449-450, Written Answer, 19 March 1990, cited in: Shaw, INTERNATIONAL LAW, p. 301. 112. Opinion 10, supra note 74, at p. 1526 (emphasis added). This is also the view of the United Kingdom. See Lowe and Warbrick, supra note 86, at pp. 433-434 and 440-441. 113. See also Ruda, supra note 54, at p. 453; H. Mosler, The International Society as a Legal Community, HR, Vol. 140, 1974, p. 3, at p. 60; Q. Wright, Some Thoughts About Recognition, AJIL, Vol. 44, 1950, p. 548, at p. 558.
The State as an International Legal Person
47
Nations may be constitutive of the statehood of the entity concerned.114 In the first place, because, as has been shown earlier, practice in the field of individual recognition supports the validity of the declaratory theory, it is hard to believe that the position of States with respect to the legal nature of the act of recognition would be entirely different when they act in concert. Seen in the light of the terms of Article 4(1) of the Charter as well as of the Advisory Opinion of the International Court of Justice on the conditions of membership in the United Nations 115 there can be no other conclusion than that admission to the United Nations normally constitutes an implied acknowledgement (by those States voting in favour of the admission) of the status of State already achieved under general international law by the entity concerned.116 Certainly, admission to the United Nations may consolidate or secure statehood, as in the cases of, for instance, the Congo, Guinea Bissau, Angola, Georgia and Croatia.117 Consolidation or support of a legal status should, however, be separated from constitutive recognition, that is, it should not be confused with the origin of the entity's international legal personality, which is acquired under general international law. In sum, there is no sufficient ground to conclude that the recognition process has been collectivized through the admission procedure of the United Nations. There is no such thing as 'collective recognition' if this term is used to describe (near) universal recognition. Such a notion would, in particular, require any member State of the United Nations to be obliged to recognize an entity as a State under general international law once the entity in question has been admitted to the United Nations. However, under contemporary international law such an obligation does not exist. Thus, although recognition may be granted (implicitly) by several States at the same time, this must be distinguished from collective recognition proper.
114. Thus, writing in 1987, Dugard states: "Namibia's statehood will be achieved only when it has an effective government in the territory that is acceptable to the United Nations and its independence has been certified by admission to the United Nations itself. Dugard, RECOGNITION, p. 120 (emphasis added). Namibia became a member of the United Nations in 1990. 115. Conditions of Admission case, supra note 84. 116. See also Shaw, INTERNATIONAL LAW, p. 313; Crawford, CREATION OF STATES, p. 319; Brownlie, PRINCIPLES, p. 95; Wright, supra note 113, at pp. 551-552. 117. As to the case of the Congo, see Chapter 3, Section 3.3., infra. For the cases of Guinea Bissau and Angola, see Chapter 4, Section 2.2.1 (b) and (c), infra. For the case of Croatia, see Chapter 7, Section 3.3.2., infra, and for Georgia, see Chapter 8, Section 2.1.1., infra.
48
§ 6.
Chapter 2
CONCLUSIONS
Under international law, the State is a territorially defined sovereign institution of authority which possesses full international legal personality. The international personality of the State is not acquired through recognition, but under rules of general international law. Once an entity satisfies the customary law criteria for statehood, international personality is, as it were, automatically attributed by the international legal system to the entity concerned. Recognition of statehood, therefore, is declaratory in nature, but, as will be discussed in more detail later,118 it may have a consolidating effect as far as the statehood of the entity is concerned. This means that when recognition is granted when the criteria for statehood are not (yet) satisfied, no international legal personality is attributed to the entity in question. Morever, in addition to the fact that recognition does not attribute international personality, recognition does not 'create' the State either, because recognition necessarily presupposes the existence of a State. It follows that if recognition is withheld by a State or a group of States with respect to an entity which does satisfy the customary law criteria for statehood, this does not affect the entity's legal status of State' under international law vis-a-vis the States in question. Furthermore, because recognition is declaratory with respect to the existence of the State under international law there is no conflict with the right of self-determination insofar as this right includes the right of a people to establish a State. Because the acquisition of statehood does not juridically depend upon recognition by other States, the crucial matter for becoming a State is for an entity to satisfy the customary law criteria for statehood. The next Chapter discusses the criteria for statehood, the fulfilment of which was necessary as well as sufficient for the acquisition of statehood under traditional international law.
118. See Chapter 8, Section 5, infra.
Chapter 3
The Traditional Criteria for Statehood and the Concept of Effectiveness
§ 1.
INTRODUCTION
As was stated in Chapter 2, the source most often quoted as containing the conditions for statehood is Article 1 of the Montevideo Convention of 1933.1 According to Article 1 a State as a person of international law should possess a permanent population, a defined territory, a government and the capacity to enter into relations with other States. These criteria are also referred to as the traditional criteria for statehood. They are all, in principle, based on the notion of 'effectiveness'. This Chapter will examine the contents of the traditional criteria (Section 3) and their relation with recognition (Section 4). In addition, because, according to the declaratory theory, recognition must necessarily have retroactive effect to the date of the formation of the State in international law, Section 5 discusses the question of retroactivity. This point is intimately related to the question of the moment of the commencement of the State, which is, in turn, connected to the question of the legal character of the criteria for statehood. These issues are addressed in Section 6. However, before the contents of the traditional criteria for statehood can be analysed, it is necessary to analyse the notion of 'effectiveness'. Effectiveness is said to play the leading role in the process of the formation of States. Thus, according to De Visscher, [l]es effectivités tiennent une place de premier plan dans la théorie de la personnalité des Etats et par consequent, dans les conditions d'établissement [...] de l'ordre étatique.
1.
2.
For an analysis of the historical background of the Montevideo criteria see T.D. Grant, Defining Statehood: The Montevideo Convention and its Discontents, Colum. J. Transnat'l L., Vol. 37, 1999, p. 403, in particular at pp. 414-418. De Visscher, EFFECTIVITÉS, p. 36.
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This observation, which was made some 40 years ago, is still valid today. Yet, despite its validity two important remarks must be made. Firstly, it will be shown that the role of effectiveness in the process of the formation of States is a relative one and that it must be interpreted in the light of modern developments in international law. As will be seen in Section 3.3., under certain circumstances the criterion of 'government' is deemed to be satisfied despite the lack of actual or effective control over the territory and its inhabitants by the authorities of the entity concerned. The point is important and will also be discussed in the light of premature recognition (Chapter 4) and statehood and the right of self-determination (Chapter 8). Secondly, under modern international law, statehood is denied to effective territorial entities which have been established in violation of certain norms of international law.3 However, apart from these two remarks, effectiveness does play the leading role with respect to questions regarding the fulfilment of the traditional criteria for statehood. As a consequence, any discussion of the contents of the traditional criteria for statehood first requires an analysis of the raison d'être and function, the legal effect, the scope of application as well as the meaning of 'effectiveness' under general international law and in particular within the context of the formation of States.
§ 2.
STATEHOOD AND THE NOTION OF EFFECTIVENESS IN INTERNATIONAL LAW
§ 2.1.
Raison d'être and function of effectiveness
§ 2. 1.1.
Absence of a central organ with general powers of attribution and enforcement of rights and obligations
Unlike the national legal system, the international legal order has no central organ that is empowered to attribute and enforce rights and obligations.4 Therefore, factual situations became and still are of greater importance for the
3. 4.
See Chapter 4, and Chapter 8, Section 3, infra. K. Doehring, Effectiveness, EPIL, Vol. 7, 1984, p. 70, at p. 70. Consequently, when rights are acquired under international law, the protection and enforcement of these rights rest primarily in the hands of the holder and not with a central authority. The.UN Security Council's position under the Charter as the central organ regarding the enforcement of rights and obligations of member States in the field of international peace and security is an exception to this general principle.
The Traditional Criteria for Statehood and Effectiveness
51
evaluation of legal positions than under national law. In the absence of such an attributive authority, it is the international legal system that contains rules which require the effectiveness of certain specific factual situations as a precondition for the attribution of a legal status (including statehood) and/or legal rights. Thus, on the international plane the acquisition of legal status and legal rights often needs to be realized through the materialization of a claim. In this respect, effectiveness operates to some extent as evidence of the ability to possess legal rights and to fulfill legal obligations. Thus - save for important exceptions which will be discussed later in this study - an entity wishing to acquire (full) international personality must show the effective existence of certain facts (that is, it must satisfy the traditional criteria for statehood) before the attribution of this status will take place by the international legal system. This 'procedure' applies with respect to the acquisition of international personality, but also to, for instance, the acquisition of terra nullius6 or the right to diplomatic protection when a person possesses more than one nationality.7 It follows that effectiveness as a pre-condition for the acquisition of a legal right is required only when this right is claimed or when it has to be proved. Thus, when the existence of a right can directly be based on, for instance, a treaty provision or another source of law, or when a right is inherent or implied in another right, power or competence, then the notion of effectiveness as a basis for the evaluation of the existence of the right becomes substantially less relevant and sometimes even irrelevant, at least from a theoretical point of view. Of course, effectiveness may reinforce the legal position of the entity, group or individual already holding the right. It may also result in, for instance, recognition of the existence of a right by other subjects of international law at an earlier point in time than without effectiveness. But that does not detract from the fact that in these cases, the pre-condition of effectiveness did not play a relevant legal role in the process of the acquisition of the right in question. It must thus be concluded that, on the one hand, the raison d'être of effectiveness under international law originates from the absence of an attributive authority, which is (in part) responsible for the imperfection of the 5.
6. 7.
Doehring, id. See also De Visscher, EFFECTIVITÉS, p. 20; J.P.A. François, GRONDLIJNEN VAN HET VOLKENREGHT, 1967, p. 351. Cf. also H. Krüger in: WÖRTERBUCH FÜR VÖLKERRECHT, 1960, p. 410, quoted in: W.H. Balekjian, DIE EFFEKTIVITÄT UND DIE STELLUNG NlCHTANERKANNTER STAATEN IM VÖLKERRECHT, 1970, p 12 ("[d]as Effektivitätsprinzip ist eine Begleiterscheinung, ein Komplement, ja eine Kompensation der unstaatlichen Natur des Völkerrechts"). Island of Palmas case (Netherlands v. United States of America), UNRIAA, Vol. 2, 1928, p. 829, at p. 838. Nottebohm case (Liechtenstein v. Guatemala), Second Phase, Judgment, ICJ Rep. 1955, p. 4, at p. 22.
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international legal order, and, on the other, that the essential function of effectiveness is therefore limited to overcoming this deficiency. § 2.7.2.
Legal order
It has been observed by Doehring that there is another reason for the relevance of effectiveness in international law: [a]s in municipal law, international law needs reliability of legal norms. In municipal law this requirement is guaranteed by the State authority [...]. In international law the required reliability is guaranteed - at least in part - mainly through the factual situation.
According to Grotius, the notion of effectiveness plays an important role regarding stability among the relations of the subjects of international law. It is this function of effectiveness which is emphasized by Grotius when he discusses the notion of property under international law. Without effectiveness property could be subject to infinite discussions and claims. In 1909, the Permanent Court of Arbitration held in the Grisbadarna case dans le droit des gens, c'est un principe bien établi qu'il faut s'abstenir autant que possible de modifier l'état de choses existant en fait et depuis longtemps.10
Although, the Court's remark is too absolute (because it suggests that the international legal system is more or less a static system of rules), the basic idea underlying the Court's statement is clear: for the sake of stability and in the absence of a central institution possessing general powers to enforce the rights and duties of the subjects of the legal system, long established factual situations should be respected. Indeed, a change of a factual situation to which international law has attributed a legal status and/or legal rights may involve a violation of the law, and by that lead to destabilization. But this should not lead to the conclusion that the factual situation as such requires respect; rather the rights attached to a legal status and attributed to that factual situation by the international legal system must be respected.
8. Doehring, supra note 4 at p. 70. 9. H. Grotius, DE IURE BELLI Ac PACIS LlBRI TRES, 1646, II, ch. IV, s. 1. 10. Grisbadarna case (Norway/Sweden), Judgement, Hague Court Reports, 1909, p. 121, at p. 130.
The Traditional Criteria for Statehood and Effectiveness § 2.1.3.
53
Legal security
Verdross emphasizes effectiveness as a notion that ultimately guarantees legal security. According to him the fiction of the non-existence of illegal situations cannot be maintained forever, since this would ultimately affect legal security. In the end, the prior situation will have to be restored or the factual effective situation will have to be recognized in order to fill the gap between reality and law." This view is also reflected in Verzijl's observation when he states "that there are cases in which a legal situation cannot be attributed continuing and indefinite validity in the face of long-standing factual evidence to the contrary".12 In both situations it is argued that it is the law which must be adapted to existing facts, that is, to an effective situation. Although the aforementioned suggestions are probably correct, the suggested function of 'legal security' of effectiveness is a dangerous one, because it may lead one to conclude that on the basis of effectiveness as such, specific legal situations are, or can be, reversed by the sole effect of external actions inconsistent with them.13 Therefore, this alleged function of effectiveness is closely related to the question whether effectiveness as such can produce legal consequences. This question will now be considered. § 2.2.
Legal effects of effectiveness
Under this heading several questions need to be addressed. The first concerns the problem of whether effectiveness can, in and of itself, create rights and duties under international law. Only a few authors have argued that rights are created as a result of the effectiveness of a factual situation. The problem with this line of thought is that it seems to confuse the character of a pre-condition with a source of law. It is not denied that effectiveness influences the acquisition of rights in international law, but it remains a legal notion that is coupled by international law to certain facts in defined situations. Effectiveness is only legally relevant as far as the legal system permits it.15 Therefore, effectiveness as such, as a result of a factual situation
11. 12. 13. 14.
A. Verdross, VÖLKERRECHT, 1964, p. 133. See also Balekjian, supra note 5, at p. 19. J.H.W. Verzijl, INTERNATIONAL LAW IN HISTORICAL PERSPECTIVE, Vol. 1, 1968, p. 293. Id., at p. 294. See, e.g., J.L. Kunz, Revolutionary Creation of Norms in International Law, AJIL, Vol. 41, 1947, p. 119, at pp. 121-122. 15. Doehring, supra note 4, at p. 70; Verdross, supra note 11, at p. .133.
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Chapter 3
does not lead to the creation of rights. According to De Visscher: [c]e qu'il faut bien voir, c'est que le rôle de 1'effectivité se borne dans les situations subjectives à donner ouverture à 1'application de certaines règles de droit international. L'effectivité [...] peut apparaître comme le condition de leur mise en application; mais le contenu des droits et devoirs est détermine non par 1'effectivité, mais par le droit international. 16
This is without prejudice to the accepted point of view that factual events may have substantial influence on the formation of international law, both with respect to the modification of an existing rule or the creation of a new one.17 The maintenance and strict application of a system of rules without having regard to changing realities will almost by definition result in the destabilization of the system and the disruption of society. Therefore, the international legal system (and in fact any legal system) has to pay attention to real developments and needs to adjust itself to changing realities. An exception to this principle is formed, however, by realities that have been brought about as a result of a violation of a peremptory norm of international law.18 This point is discussed in more detail in Chapter 4. The possibility of change of legal rules, be it as a result of changing moral values or a changing opinio juris and usus, or as a result of conventional (treaty) law-making is a conditio sine qua non for any lasting and stable legal regime. However, it is one thing to assert that established facts influence the formation and change of legal rules, but it is quite another to assert that effectiveness as such, that a mere factual development, changes the existing law.19 This proposition is simply inaccurate. For, even in a case where no interested State protests with respect to a new factual situation which has been established as a result of an act which has hitherto been regarded as unlawful, the possible modification of the relevant legal rule is not a result of the principle of
16. De Visscher, EFFECTIVITÉS, p. 16. Later he adds: "[l]es auteurs, a la vérité peu nombreux, qui ont fait effort pour analyser la nature et l'action de 1'effectivite dans le droit international inclinent souvent à présenter 1'effectivite [...] comme un principe général du droit international, parfois même comme un 'principe autonome' qui régirait l'ensemble des rapports entre le fait et le droit [...]. Cette vue nous paraît inexacte [...]. Il n'y a pas de principe général d'effectivité". Id., at pp. 19-20. 17. Id., at p. 65; Balekjian, supra note 5, at p. 19. 18. This does not mean that such norms cannot change. However, at least with respect to these norms the 'principle of peaceful change' applies. On this legal principle see, e.g., Article 19 of the Covenant of the League of Nations. See also M. Bos, Self-Determination by the Grace of History, NILR, Vol. XV, 1968, p. 362, at pp. 365-366. 19. The thesis amounts to the principle ex factis jus oritur. The validity of this principle and of the principle ex factius jus non oritur is discussed in more detail in Chapter 4, infra. 20. See also De Visscher, EFFECTIVITÉS, p. 17; F.A. v.d. Heydte, VÖLKERRECHT, 1958, p. 26; Verdross, supra note 11, at p. 133; Verzijl, supra note 12, at p. 295.
The Traditional Criteria for Statehood and Effectiveness
55
effectiveness but of a general accepted mode through which existing law can be modified: acquiescence. Another question which needs to be addressed, is the following: if international law requires certain factual situations (for instance, occupatio of terra nullius) to be effective for the attribution of rights, does that mean that the effectiveness of these factual situations will always lead the international legal system to attach rights to these facts? According to Dahm the answer to the question must be in the affirmative: [s]olange das Völkerrecht unfertig, seine Zwangsgewalt swach ist, muß es die Wirklichkeit weithin nehmen, so wie sie ist; es knüpft die Norm fur das, was sein soll, bis zu einem gewissen Grade an das an, was ist.21
The Kantian distinction between Sollen (ought) and Sein (is) formed the pillar of German constitutional thought that had to find a solution for the transfer of the factual power of the strongest (the State) into a legitimate power.22 Jellinek clarified this by pointing at the normativen Kraft des Faktischen, that is, the psychological quality of human nature by which might becomes right, through the fact that the constantly observed factual rule becomes the yardstick. Consequently, factual relations become legal relations.23 This theory about the consequences of effectiveness was transferred to certain fields of international law, like the acquisition or loss of state territory and the law concerning occupation and annexation. Notwithstanding the relevance of effectiveness in these fields of international law prior to the development of the prohibition of aggression (which is now regarded as a peremptory norm of international law), 24 the theory of the normativen Kraft des Faktischen and its ideas about the consequences of effectiveness are certainly no longer in accordance with contemporary international law. As was stated above, the notion of effectiveness has a specific function - that is, to support the stabilization of the international legal order - in light of the imperfection of the international legal system (which is its raison d'être). Every interpretation of the notion and consequences of effectiveness that is broader than, or runs against this function, will ultimately lead to the destabilization of the legal order. Therefore, when an effective factual situation is brought about by illegal means this will not, in principle, lead to the attribution of rights and/or legal
21. G. Dahm, VÖLKERRECHT, Vol. I, 1958, p. 42. 22. See }. Wildeman, The Philosophical Background of Effectiveness, NILR, 1977, Vol. XXIV, Spec. Issue 1/2, p. 335, at pp. 338 and 343 et seq. 23. G. Jellinek, ALGEMEINE STAATSLEHRE, 1905, pp. 329-332. See also Wildeman, supra note 22, at p. 345. 24. See p. 144, infra.
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Chapter 3
status by the international legal system.25 Thus, for instance, when Iraq effectively occupied Kuwait in 1990, this did not lead to Iraq's acquisition of rights (as opposed to obligations26) with respect to the Kuwaiti territory and its inhabitants. 27 In this respect it must be noted that not every violation of international law forms a bar to the acquisition of statehood. This point is, however, related to the discussion regarding the existence of modern criteria for statehood. The question of which violations of which rules of international law block the attribution of full international personality to a territorial entity will therefore be examined elsewhere in this study.28 Still another issue is whether or not recognition is permitted in the case of an illegally created but effective territorial entity. The point will be addressed in Chapter 4. A final question that must be dealt with is whether the attribution of full international personality only takes place when a factual situation is (fully) effective. International law contains specific rules which require specific factual situations to be effective for the attribution of legal status and/or rights. But that does not by definition exclude the possibility of the existence of an international legal rule or principle which does not require a specific factual situation to be (fully) effective for the acquisition of statehood. As will be pointed out later, international law does contain such a legal rule." It must therefore be concluded that effectiveness is a legal requirement (a pre-condition) for the attribution of rights, or, as the case may be, a legal status. However, that does not clarify what the pre-condition of effectiveness means in international law, and in particular in relation to the traditional criteria for statehood. This point will now be addressed.
25. See also De Visscher, EFFECTIVITÉS, p. 24: "[u]n acte internationalement illicite ne constitue jamais un titre valable en droit international. Ceci ne signifie pas 1'acte illicite soit à considérer comme inexistant et, de ce fait, à tout jamais incapable de produire des effets en droit [...]". But see id., at p. 25: " [1]' effectivité ne confère pas de titre valable à 1'acte illicite; en l'absence pronongée de toute résistance, elle peut conduire à admettre certains de ses effets. Il en résulte que le refus de reconnaitre une situation issue d'agissement illicites ne conserve pas indéfiniment sa signification juridique. Une tension trop prolongée entre le fait et le droit doit fatalement se dénouer, au cours du temps, au bénéfice de l'effectivite". 26. Like the obligations under, for instance, the Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), 12 Aug. 1949, UNTS, Vol. 75, 1950, p. 287. 27. See, e.g., UN Doc. S/Res/662, 9 Aug. 1990 (where the Council decided that the declared Iraqi annexation "under any form and whatever pretext has no legal validity and is considered null and void"). 28. See Chapters 4 and 8, infra. 29. See Section 3.3., infra of this Chapter. See also Chapter 4, Section 2.2., and Chapter 8, Sections 2.1.-2.3., infra.
The Traditional Criteria for Statehood and Effectiveness § 2.3.
57
The meaning of effectiveness in the context of the formation of States
The principle of effectiveness is applied in many different fields of international law. One might think of, for instance, the question of defining the legal consequences of a State's illegal extension of state power over foreign territory, the question of defining which State may exercise diplomatic protection with respect to an individual who possesses two nationalities, the issue of a change of factual circumstances and treaty obligations, disputes with regard to title to territory between two or more States, or the influence of factual developments on the evolution and content of rules of customary international law, to mention just a few examples. Because of its wide scope of application, it is not possible to give an all-embracing definition of the meaning of effectiveness. In the words of one scholar: "[o]ne would proceed no further than the truism that all these applications relate to some alleged special influence of fact on law".31 For this study it is important, however, to define the meaning of effectiveness in the context of the creation of States. In this respect, a brief return to the question of the relationship between might and right is called for. From the beginning of its development, the exercise of power over a territory and a population has led international law to attach a legal status and/or legal rights to this factual state of affairs. Rules concerning prescription, the formation of States and the recognition of States were developed. As soon as a new territorial and political entity with these marks and with the expectance of durability presented itself on the international plane, the international law of the nineteenth century readily endowed this territorial entity with the legal status and customary rights which were enjoyed by the already existing States. In other words: might was converted into right. Technically, this process took place by transforming the actual exercise of power by a territorial entity - which until then was nothing more than a mere fact before the law - into an important legal criterion for statehood. But the exercise of power might not be complete over the whole territory that is claimed or may just exist in theory or on paper. In such cases, it is said 30. Additionally, one could mention effectiveness in the sense of the effectivity of law, that is, the degree of expediency of the law in relation to its raison d'être.'This meaning of the term and the related discussions lie outside the scope of this study. See, e.g., J. Stone, OF LAW AND NATIONS, 1974, pp. 207-217; H. Kelsen, PRINCIPLES OF INTERNATIONAL LAW, 1966, p. 420, n. 116; H. Kelsen, GENERAL THEORY OF LAW AND STATE, 1945, pp. 118-119. For criticism regarding Kelsen's view, see W. Friedmann, LEGAL THEORY, 1967, pp. 275-287. 31. Wildeman, supra note 22, at p. 337. 32. Id., at p. 337.
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that the new territorial entity lacks effectiveness as far as its exercise of power is concerned and therefore is not (yet) a State. Effectiveness, in this sense, means the quality of a fact (here the exercise of power or territorial jurisdiction), which - according to international law - makes this fact suitable as a condition for the attribution of full international legal personality.33 The distinct feature of the traditional criteria for statehood is that they are, in principle, all based on this meaning of effectiveness.
§ 3.
THE TRADITIONAL CRITERIA FOR STATEHOOD
§ 3.1.
Permanent population
The first qualification which a State should possess is the existence of a permanent population. The State as a territory-based form of political and social organization must necessarily be an organization of individual human beings. Thus, an uninhabited territory - like Antarctica - for this reason alone cannot qualify as a State. According to Oppenheim [a] permanent population is an aggregate of individuals of both sexes who live together as a community in spite of the fact that they may belong to different races or creeds, or be of different colour.
It must be noted that a permanent population is not necessarily the same as a 'people'. As is pointed out elsewhere in this study, a 'people' may refer to an ethnic sub-group within a State.35 In that case, a permanent population may consist of several distinct 'peoples'. Moreover, although there must be a population, there seems to be no minimum requirement with respect to the size of a State's population. ' As to the condition of 'permanency', two points have to be distinguished. First, the population must have the intention to inhabit the territory on a permanent basis. Where a group of people occupies an island or an uninhabited territory not with the intention to move there but, for instance, solely for the
33. 34. 35. 36.
See also id. L.F.L. Oppenheim, INTERNATIONAL LAW, 1955, p. 118. See Chapter 6, Section 3.2., infra. P.K. Menon, The Subjects of Modern International Law, Hague Y.B. Int'l L., Vol. 3, 1990, p. 30, at pp. 36-37; Crawford, CREATION OF STATES, p. 40 ; H.M. Blix, Contemporary Aspects of Recognition", HR, Vol. 130, 1970 II, p. 393, at p. 633.
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purpose of gaining monetary benefits, there can be no question of statehood.37 The same applies with regard to a population which completely consists of refugees who have no other intention but to return to their home country. But the fact that large numbers of nomads are moving in and out of the country, as in the case of Somalia, is in itself no bar to statehood as long as there is a substantial number of permanent inhabitants.38 Secondly, the territory claimed has to be habitable. § 3.2.
Defined territory
States are territorially defined institutions of authority. Territory and territorial sovereignty are closely interrelated. While territory can exist without territorial sovereignty (terra nullius), the latter cannot exist without the former. In the Island of Palmas case the Court noted that territorial sovereignty involves the exclusive right to display the activities of the State within a certain geographical
37.
See also B. Broms, States, in: M. Bedjaoui (Ed.), INTERNATIONAL LAW: ACHIEVEMENTS AND PROSPECTS, 1991, p. 41, at p. 44. During World War II, the United Kingdom established several anti-aircraft radar platforms along the east coast of England in the North Sea. Some of these platforms were, at the time, located outside British territorial waters. In 1966, an abandoned platform was occupied by the United Kingdom citizens Paddy Roy Bates and his wife. On 2 September 1967, Bates proclaimed the independence of the entity which was named the Principality of Sealand. The entity claimed to have 160,000 citizens, who except for a few, all had a second citizenship. In fact, the 'population' of the 'Principality' was made up of businessmen, who permanently lived in the countries they originated from. A small team of security guards abandoned the platform after storms in 1991. There is no doubt that in this case there was no permanent population in the sense of international law. Therefore, for this reason alone, Sealand was never a State. In April 2000, the Spanish Civil Guard dismantled the structure of the entity and arrested Bates' successor who operated mainly out of Spain. For details, see E. W. Strauss, HOW TO START YOUR OWN COUNTRY, 1999, pp. 132-138; http://www.pnncipality-sealand.-net/enOO.htm. See also Bogus Passport Ring Busted in Spain, The New York Times, 11 Apr. 2000. 38. American Law Institute, Restatement (Third) of the Foreign Relations Law of the United States, 1987, Vol. 1, p. 73, para. 201. Arguably this was the position of the International Court of Justice in the Western Sahara case where the Court appears to have expressed the opinion that the Sahrawis constitute a people for the purposes of statehood. Western Sahara case, Advisory Opinion, ICJ Rep. 1975, p. 12, at 342-344. See also G.J. Naldi, The Statehood of the Saharan Arab Democratic Republic, Indian JIL, Vol. 25, 1985, p. 448, at pp. 452-453. 39. On 19 January 1972, the 'Republic of Minerva' was proclaimed. The entity, which was the brainchild of Michael Oliver, a United States citizen, concerned a group of hitherto-unclaimed underwater reefs (260 miles west of Tonga). The government of the 'Republic' asked several governments to give recognition to the purported State. The Prime Minister of Minerva stated that after some construction work, the coral reefs could be made habitable all year round. The atoll was eventually formally annexed by Tonga on 21 June 1972. There is no doubt however that the entity was never a State if only because of the inhabitable character of the territory. See also B. Broms, Subjects: Entitlement in the International Legal System, in: R.St.J. Macdonald and D.M. Johnston (Eds.), THE STRUCTURE AND PROCESS OF INTERNATIONAL LAW; ESSAYS IN
LEGAL PHILOSOPHY, DOCTRINE AND THEORY, 1983, p. 383, at p. 386.
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area.4() In the same line of thought Lachs observed that [...] the most basic manifestation of a State's jurisdiction is the power exercised in regard to its territory. Here we find the first and basic relationship between the State and nature [...], territory being the physical foundation of State power in several dimensions.41
Thus, a group of people without a territory cannot establish a State.42 And nonterritorial entities like intergovernmental organizations may exercise considerable authority over land, but they do not constitute States because the territory remains a constituent element of the member States.43 There is no rule prescribing a minimum size of the territory of the State. Tuvalu (seven square kilometres) and Nauru (21 square kilometres) are both States. As Crawford observes, the size of the territory is not what matters, provided that there is an independent authority that exercises actual authority over the territory.44 Statehood requires a defined territory, but not necessarily defined or agreed external boundaries. There is thus no need for the existence of frontiers which are undisputed by neighbouring States. As was noted by a German-Polish 40. Island of Palmas case, supra note 6, at p. 838. 41. M. Lachs, The Development and General Trends of International Law in Our Times, HR, Vol. 169, 1980, p. 9, at p. 36. See also L. Ali Khan, THE EXTINCTION OF NATION-STATES: A WORLD WITHOUT BORDERS, 1996, p. 63. Since time immemorial, a possessive-compulsive relationship exists between land and people as evidenced by countless numbers of wars which have been waged over land. This bond between land and people was deified by the concept of State, which as a territorially defined sovereign power signified the break with the medieval era of empires. As a consequence, territory rather than theology became the new source of authority. 42. Also, a State may become extinct and a people may lose its territory as a result of natural developments. For instance, two small islands forming part of the Republic of Kiribati drowned and several other islands of that Republic and the Republic of Tuvalu are threatened as a result of rising sea levels. See South Pacific Regional Environment Programme, Centre for Pacific Islands Studies, University of Hawaii, Pacific Islands Report, 3 Nov. 1998; Islands Disappear Under Rising Seas, Reuter, 14 June 1999. 43. See also Blix, supra note 36, at p. 632. 44. Crawford, CREATION OF STATES, p. 38. 45. Many of the new States that were established after the end of World War I were recognized as States while many of their external frontiers were not yet defined. The recognition was accompanied by stipulations which required the recognized States to accept the frontiers to be laid down by the Paris Peace Conference. See Lauterpacht, RECOGNITION, p. 30. Even in the situation of a dispute concerning the whole territory, the entity may still be regarded as a State, as in the case of Israel. When Israel applied for admission to the UN, the Arab States - despite claims to the entire territory of Israel - did not deny Israel's statehood as is evidenced by the Arab States' contention that Israel did not qualify for membership under the terms of Article 4 of the Charter because it was not a peace-loving State. See UN Ybk., 1948-1949, p. 403. Notwithstanding the Arab arguments, Israel was admitted to the UN (see UN Docs. S/Res/70, 4 March 1949 and A/Res/273 (III), 11 May 1949). See also Dugard, RECOGNITION, pp. 60-63. Other situations wherein claims to the entire territory of the State were raised against the background of admission to the UN are, for instance, Kuwait, Bahrein and Mauritania. See Crawford, CREATION OF STATES, p. 38, and the references mentioned there.
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Mixed Arbitral Tribunal: [w]hatever may be the importance of the delimitation of boundaries, one cannot go so far as to maintain that as long as this delimitation has not been legally effected the State in question cannot be considered as having any territory whatever [...]. In order to say that a State exists [...] it is enough that this territory has sufficient consistency, even though its boundaries have not yet been accurately delimited, and that the State actually exercises independent public authority over that territory. 46
This general rule was confirmed by the International Court of Justice in the North Sea Continental Shelf cases. Though external boundaries do not have to be fixed in the sense that they are undisputed, it must in some way be clear to the international community what state territory is claimed. Otherwise it might be possible to violate the State's territorial sovereignty without even knowing that one crossed that State's territory. This means, that the purported State must clarify what external boundaries are claimed. Thus, if a territorial entity which claims statehood cannot specify the external boundaries of the territory claimed, or constantly
46. Deutsche Continental Gas-Gesellschaft v. Polish State, ILR, Vol. 5, p. 11, at pp. 14-15. See also the statement by Jessup, the American representative on the Security Council of the UN in 1948. The statement was made in the context of Israel's admission to the UN and the conflicts over its external boundaries and territory. UN SCOR, 383nd mtg., 2 Dec. 1948, p. 41. 47. North Sea Continental Shelf cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. the Netherlands), ICJ Rep. 1969, p. 3, at p. 32, para. 46. A special and related situation concerns the admission of the former Yugoslav Republic of Macedonia to membership of the UN. Greece opposed the inclusion of the word 'Macedonia' in the name of the State, because that would imply territorial aspirations. Greece did not, however, raise objections regarding the statehood of Macedonia prior or during the discussions on admission to membership, nor did any other UN member State. Consequently, it appears that a dispute regarding the name, use of symbols, flags or emblems does not in itself affect statehood - even if these elements are interpreted by a neighbouring State as indicating territorial aspirations. See UN Ybk., Vol. 47, 1993, pp. 207-210; and UN Doc. A/48/637, 23 Nov. 1993. See also the Arbitration Commission of the International Conference on Yugoslavia, Opinion 6, ILM, Vol. 31, 1992, pp. 1507-1512 (the Commission held that the former Yugoslav Republic of Macedonia qualified for recognition by the EC member States because it had explicitly renounced all territorial claims and that, therefore, "the name 'Macedonia' cannot imply any territorial claim against another State"); Athene Boos Over Advies erkenning Macedonië, NRC Handelsblad, 15 Jan. 1992; AIs het van pas Komt Zijn Zelfs de Barbaren Grieks, De Volkskrant, 3 Feb. 1993; Reeks EG-Leden Zegt Macedonië nu te Erkennen, De Volkskrant, 16 Apr. 1993. The Security Council recommended and the General Assembly decided to admit Macedonia to membership of the UN under the provisional name of 'the Former Yugoslav Republic of Macedonia'. See UN Docs. S/Res/817,7Apr. 1993 and A/Res/47/225,8 Apr. 1993 (adopted by acclamation, Greece sponsor). See also pp. 105-106, infra. 48. See also K. Doehring, State, EPIL, Vol. 10, 1987, p. 423, at p. 425. This is inherent in the very legal concept of territory, defined by geographical space separated by borderlines from other space and under a common legal system. See Malanczuk, AKEHUKST'S MODERN INTRODUCTION TO INTERNATIONAL LAW, 1997, p. 76. See also, generally, M.N. Shaw, Territory in International Law, NYIL, Vol. 13, 1982, p. 61.
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shifts its claims with respect to its external boundaries,49 statehood is lacking or seriously becomes in doubt. This, it must be noted, does not apply in cases of already established States as is evidenced by numerous territorial and border disputes between States. The German-Polish Mixed Arbitral Tribunal which was referred to above emphasized that a State must consist of a certain sufficiently coherent territory that is effectively governed by an independent authority. It follows that the criterion of 'defined territory' cannot be separated from the criteria of 'government' and 'independence', which latter is inherent in the criterion of 'capacity to enter into relations with other States'. § 3.3.
Government
Statehood requires the existence of a government. But international law does not prescribe the exact form of government except that it must be in conformity with the right of self-determination of peoples.50 According to the traditional law of statehood, the criterion 'government' consists of two related dimensions. Firstly, there should be an institutionalized political, administrative and executive organizational machinery for the purpose of regulating the relations in the community and charged with the task of upholding the rules. ' Secondly, and based on the concept of effectiveness, the criterion 'government' refers to the existence of effective government, which means that the institutionalized political, administrative and executive organizational machinery must actually exercise state authority over the claimed territory and the people residing in that territory.52 In other words, to be effective there must be an entity or organ 49. It must seriously be doubted whether the Republic of Serbian Krajina which proclaimed independence from the Republic of Croatia on 19 December 1991 met the criterion of a defined territory, because of constantly shifting and unclear claims with respect to its external boundaries. For instance, according to one spokesman of the Croatian-Serbs the municipality of Petrinja (which had an ethnic composition of 50 per cent Croats and 50 per cent Serbs) did belong to the Republic of Serbian Krajina, according to another it did not. See Globus, Petrinjski Obzor, No. 16, 17 Apr. 1992. See also B. Covic (Ed.), CROATIA BETWEEN WAR AND INDEPENDENCE, 1991, p. 58. Arguably, for this reason alone the entity was not a State. For a further discussion of the case of the Republic of Serbian Krajina, see pp. 79-80, and esp. Chapter 7, Section 5.3., infra. 50. For the discussion of this point see Chapter 6, infra. 51. See also Blix, supra note 36, at p. 633. 52. To the same effect, see Oppenheim, supra note 34, at p. 118. The aspect of effectiveness of state authority was also emphasized by the Permanent Mandates Commission of the League of Nations. In 1931 the Commission adopted in 1931 a list of conditions which in its opinion had to be satisfied before a mandated territory could be considered to have achieved a position in which it could be released from the mandatory regime and recognized as a State. The conditions which were mentioned by the Commission were (a) a settled government and an administration capable of maintaining the regular operation of essential government services; (b) capacity to maintain its territorial integrity and political independence; (c) capacity to maintain peace
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capable of establishing and maintaining a legal order throughout the territory of the prospective State. The position of Finland in the period 1917-1918 has frequently been referred to as a situation which clarifies the requirement of effective government.54 Finland had been an autonomous part of the Russian Empire from 1807. After the Russian revolution of March 1917 and after the Bolshevik coup d'etat in November, the Finnish Diet proclaimed the independence of Finland on 6 December 1917. Subsequently, as a result of several military interventions and the presence of foreign military troops it was, at least until the beginning of 1918, impossible to speak of an effective Finnish government. The International Commission of Jurists, which was entrusted in 1920 by the Council of the League of Nations with the task of giving an advisory opinion on the legal aspects of the Aaland Islands dispute between Finland and Sweden, was confronted with the question whether, and if so when, Finland became a State under international law. According to the Commission for a considerable time, the conditions required for the formation of a sovereign State did not exist. In the midst of revolution and anarchy, certain elements essential to the existence of a State, even some elements of fact, were lacking for a fairly considerable period. Political and social life was disorganised; the authorities were not strong enough to assert themselves; civil war was rife; further, the Diet, the legality of which had been disputed by a large section of the people, had been dispersed by the revolutionary party, and the Government had been chased from the capital and forcibly prevented from carrying out its duties; the armed camps and the police were divided into two opposing forces, and Russian troops, and after a time Germans also, took part in the civil war between the inhabitants and between the Red and White Finnish troops. It is therefore difficult to say at what exact date the Finnish Republic, in the legal sense of the term, actually became a definitely constituted sovereign State. This certainly did not take place until a stable political organisation had been created, and until the public authorities had become strong enough to assert themselves throughout the territories of the State without the assistance of foreign troops. It would appear that it was in May, 1918, that the civil war ended and that foreign troops began to leave the country, so that from that time onwards it was possible to re-establish order and normal political and social life, little by little.56
The emphasis on the requirement of an actual exercise of authority is evident. throughout the territory. LNOJ, 1931, p. 2176. See also Balekjian, supra note 5, at p. 29. 53. In this respect it is evident that approval of, or acquiescence by, the population in the exercise of State power contributes to the effectiveness of government. 54. See, e.g., Crawford, CREATION OF STATES, pp. 44-45. 55. See Chapter 7, Section 3.2.3., infra. 56. The Aaland Islands Question: Report of the Committee of Jurists, LNOJ, Spec. Supp., No. 3, 1920, pp. 3-19, at pp. 8-9.
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The underlying considerations for this emphasis on an actual exercise of authority seem to be expressed by Marek when she states: [a]s a rule, negotiations can only be conducted with a real and effective government; treaties can only be concluded with such a government which alone can give the guarantee of their implementation, and only a real and effective government can successfully be held responsible. In all those real transactions of international law fictitious or merely claimant governments can have no place.57
At first sight, such a proposition does seem reasonable. However, if Marek's proposition is accepted, the general acknowledgement of, for instance, the statehood of the Republic of Congo in 1960 is difficult, if not impossible, to explain. The proposition is, therefore, too absolute. In the early 1950s several political parties were formed in the former Belgian colony of the Congo. As a result of the rise of the doctrine of selfdetermination, several of these political parties explicitly expressed the wish for an independent State of Congo. The Belgian authorities came to realize that this Congolese independence movement could not be resisted for long without a great deal of effort, in particular a large-scale military intervention. A hasty independence was therefore granted by Belgium on 30 June 1960. The colony had no experience with self-government, there was little education above the age of 14, and there were hardly any Congolese-held positions of executive or operational responsibility during Belgian colonial rule. It was therefore not surprising that within one week after the proclamation of independence of the Republic of Congo by King Boudewijn of Belgium, the situation in the Republic became chaotic. Civil riots and mutiny in the armed forces - no longer under the command of the Belgian Government - could not be suppressed by the new, divided and bankrupt government, which was actually not even able to control the capital.58 On 10 July 1960, Belgian troops intervened upon request of the premier of the province of Katanga, which province formally proclaimed its independence on that same day. Finally, and upon request of the Congolese Government, the United Nations intervened
57. Marek, IDENTITY, p. 59. Cf. also Blix, supra note 36, at p. 633: "[i] f [...] a [community] organization is missing, it is meaningless for the outside world to seek to attribute rights and obligations to the population of a State. Accordingly, a State will not be considered to have come into being until there is an organization which can effectively shoulder these rights and obligations". 58. Crawford, CREATION OF STATES, p. 43. See, generally, C. Hoskyns, THE CONGO: A CHRONOL-
OGY OF EVENTS, JANUARY 1960-DECEMBER 1961, 1962; C. Hoskyns, THE CONGO SINCE INDEPENDENCE, 1965; J.B. Wright, ZAIRE SINCE INDEPENDENCE, 1988; R.F. Holland, EUROPEAN DECOLONIZATION 1918-1981, 1985, pp. 175-190; J. Stengers, CONGO, MYTHESET RÉALITÉS, 1989. See also Buchheit, SECESSION, pp. 141-153; Dugard, RECOGNITION, pp. 86-90.
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in the conflict. As far as the lack of effective government is concerned it is not difficult to see the similarities between the facts in the Congo in 1960 and those in Finland in 1917-1918. As Crawford states with respect to the situation in the Congo: "[a]nything less like effective government [...] would be hard to imagine".59 Nevertheless, it is beyond any doubt that the Republic of Congo was regarded as a State from its inception, that is, from the day of the proclamation of independence onwards.60 It was widely recognized and admitted to the United Nations without dissent.61 In addition, the firm belief of the international community in the statehood of the Congo is reflected in the United Nations operation in the Congo. The United Nations peacekeeping force (ONUC) first directed its actions against the foreign intervention, but later on its actions became directed more and more against the secession of Katanga. On 24 November 1961, the Security Council passed Resolution 169 which reaffirmed that one purpose of the United Nations operation was "to maintain the territorial integrity and political independence of the Congo".62 In this respect the question of whether the criterion of 'government' must be satisfied on the basis of effectiveness in each and every situation does present itself. Based on the Congo situation it would seem that this is not the case. As is observed by Crawford: [t]he point about 'government' is that it has two aspects: the actual exercise of authority, and the right or title to exercise that authority."
This exclusive right to exercise authority or jurisdiction over the territory and its inhabitants may, as in the case of the Republic of Congo, result from a formal grant of independence by the former sovereign (devolution).' In such a case, the governmental authorities of the territorial entity have a prima facie
59. Crawford, CREATION OF STATES, p. 43. 60. Id. 61. See UN Docs. S/Res/142, 7 July 1960 and A/Res/1480 (XV), 20 Sept. 1960. 62. UN Doc. S/Res/169, 24 Nov. 1961. See also UN Doc. S/Res/145, 22 July 1960, Para. 2: "request all States [...] to refrain from any action which might undermine the territorial integrity and the political independence of the Republic of Congo" (emphasis added); UN Doc. A/Res/1474 (ES-IV), 20 Sept. 1960, Preamble: "[c]onsidering that, with a view to preserving the unity, territorial integrity and political independence of the Congo [...] it is essential for the United Nations to continue to assist the Central Government of the Congo" (emphasis added); id., at Para. 6: "[w]ithout prejudice to the sovereign rights of the Congo [...]" (emphasis added). 63. Crawford, CREATION OF STATES, p. 44 (emphasis added). 64. An exception to this rule is formed by a grant of independence which is in violation of a fundamental norm of international law such as the right of self-determination of peoples. See Chapter 4, Section 5.2.2.(b), infra. See also Crawford, id., at p. 215 ff., and in particular at pp. 218-227.
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international right to govern the territory.65 As was stated above, effectiveness as a pre-condition for the acquisition of a legal right is required when this right is claimed or when it has to be proved to exist. Therefore, if an exclusive right to govern a territory exists on the basis of, for instance, a formal grant of independence, the criterion of 'government' is met." As the case of the Congo indicates, under such circumstances a lack of effectiveness in relation to the actual exercise of authority does not, in itself, form a bar to the acquisition of statehood. Hence, the subsequent and universal recognition of the Congo as a State. But, as far as the recognition of the statehood of the Congo is concerned, another factor cannot be overlooked. It must be noted that the Congo qualified as a colonial territory which was entitled to political self-determination. 67 As will be discussed later, in the context of decolonization this meant that the population of the Congo had the right to establish an independent State.68 Thus, although the formal transfer of sovereignty by Belgium led to the immediate acquisition of an exclusive right to exercise authority over the country on the part of the Congolese authorities, this clearly took place against the background of the right of self-determination of the population of the Congo. In the light of the increasing international pressure on colonial powers to acknowledge the existence of a right of self-determination of colonial peoples, there is no doubt that the right of self-determination of the inhabitants of the Congo was also taken into consideration by the international community in 65. See also Crawford, id, at p. 44. 66. In this respect the situation of Finland in 1917-1918 is relevant. On the date of the proclamation of independence (6 December 1917) the Finnish authorities did not possess an exclusive right to govern the Finnish territory because no grant of sovereignty had taken place by the Russian government, nor could such an exclusive right be based on another source or rule of international law. Therefore, the conclusion of the Commission of Jurists that Finland did not constitute a State on 6 December 1917 appears to be correct. However, the Commission was also of the opinion that there was no Finnish State until May 1918 and in that particular respect the second Commission, the Commission of Rapporteurs, disagreed. The Rapporteurs were of the opinion that the recognition of Finland as a State by the Soviet authorities on 4 January 1918 was of considerable importance for the statehood of Finland (see LN Council Doc. B7:21/68/106, 1921, p. 22). While this argument was not put forward by the Rapporteurs, it is presumably correct to state that, in principle, recognition by the parent State of a seceding territorial entity amounts to the same legal effect as a formal grant of sovereignty, namely the renunciation of the title to the territory in question, including the title to exercise jurisdiction over that territory. In both situations, the authorities of the territorial entity have, directly or indirectly, explicitly or implicitly, obtained an exclusive title to exercise territorial jurisdiction. Therefore, and in combination with the fulfilment of the other traditional criteria for statehood, it may be argued that Finland became a State subsequent to Soviet recognition. This conclusion is reinforced by the conduct of several States, which recognized the new territorial entity as a new State only after the recognition by the Soviet authorities. For instance, Sweden recognized Finland on 4 January but after Soviet recognition, France on 5 January, Denmark and Norway on 10 January, and Switzerland on 22 February. 67. See Chapter 5, Section 3.4.2., infra. 68. See Chapter 5, Section 3.4.3., infra.
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recognizing and supporting the statehood of the Congo, that is, in addition to the Belgian grant of sovereignty and the related existence of an exclusive right to govern the territory. Indeed, as will be shown elsewhere in this study, in cases where a right of (external) self-determination exists,' the applicability of this right may compensate for a possible lack of effective government by the entity created as a result of the exercise of that right. This is so regardless of any transfer of sovereignty by the parent State. Without prejudice to the requirement of effectiveness in relation to the other traditional criteria for statehood, at this point it may be concluded that, as the case of the Congo shows, a State may come into being despite a substantial lack or sometimes even a total absence of effective government. This conclusion does not, however, lead to the existence of a presumption in favour of new States in comparison to established States with respect to the required degree of effective government, because, and apart from situations of illegal annexation and the like which will be addressed below, the subsistence of both new and established States essentially depends on the (continued) existence of an effective government. In other words, a new State could eventually collapse and become extinct if a situation of substantial lack of effective government persists. Although the latter situation concerns a problem which belongs to the field of the extinction rather than the formation of States, it is necessary to elaborate this point a bit further, because it is related to the fact that the outward characteristics of a State may be temporarily lacking. Practice indicates that even a prolonged period of absence of effective government does not ex definitione lead to the extinction of a State, that is, that there is a strong presumption in favour of the continuity of statehood. This applies in different cases, such as, for instance, belligerent occupation of a State. Under contemporary international law, belligerent occupation per se (accompanied or not by a government-in-exile) does not lead to the extinction of the international personality of a State, as was shown by the occupation of several States by Nazi Germany during World War II.70 Also, the annexation of a State does not, in principle, lead to the juridical extinction of that State, although it may have disappeared in an empirical sense. It is now generally accepted that no title to territory can be acquired through the illegal use or threat of armed force, not even when the occupation is 69. The applicability of a right of external self-determination means that a 'people' is entitled to implement its right to political self-determination through, amongst others, the establishment of an independent State. See p. 205, infra. 70. See Marek, IDENTITY, pp. 73-125; J.L. Kunz, Identity of States Under International Law, AJIL, Vol. 49, 1955, p. 68. See also, generally, H. Bokor-Szegö, Naissance et Disparation des Etats Dans le Droit International Contemporain, Acta Juridica Academiae Scientiarum Hungaricae, Vol. 25, 1983, p. 351; U. Fastenrath, States: Extinction, EPIL, Vol. 10, 1987, p. 465.
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effective and all effective organized resistance against the invader has ceased.71 In such cases the international personality of the annexed State, or in other words its juridical existence, remains intact, even though the actual exercise of its rights is suspended.72 Finally, a civil war or anarchy within a State for a more or less prolonged period of time does not a priori affect the continuity of that State's international personality.73 Although civil war and anarchy may overlap, in both cases the 71. See, e.g., Art. 2(4) UN Charter; UN Doc. A/Res/2625, (XXV), 24 Oct. 1970, Principle I; UN Doc. A/Res/3314 (XXIX), 14 Dec. 1974, Ann., Art. 5(3); UN Doc S/Res/242, 22 Nov. 1967. See also note 27, supra. 72. This principle was applied to, for instance, the World War II cases of Albania, Austria, Ethiopia and Poland. See generally Marek, IDENTITY, pp. 73-126; Crawford, CREATION OF STATES, pp. 58, 310-312, 417-420; OPPENHEIM'S INT'L LAW, pp. 192-193 and the references mentioned there. A complex case is formed by the Baltic States which remained under de facto Soviet control for over 50 years. Lithuania declared its independence on 11 March 1990, Estonia on 20 August 1991, and Latvia on 21 August 1991. Opinions differ with respect to whether the Baltic States regained their independence (which would only have been suspended de facto as a result of the Soviet annexation) or whether they became new States. The Baltic States' position is that they never de jure formed part of the Soviet Union and that consequently, they do not consider themselves to be successors of the Soviet Union. Most States never recognized the Soviet annexation dejure because the incorporation of the Baltic States was considered to be in violation of international law. Several States regarded the statehood of the Baltic States as uninterrupted since the establishment of their independence (see, e.g., A Charter of Partnership Among the United States of America and the Republic of Estonia, Republic of Latvia, and Republic of Lithuania, http://www.state.gov/www/regions/eur/). It is therefore tenable that their statehood did not become extinct during Soviet rule and, consequently, that the status quo ante (that is, the de facto situation prior to the Soviet annexation) was restored in 1990-1991. Practice seems to support this position. For instance, Finland and Estonia renewed the application of the treaty on cultural co-operation which was concluded over 50 years ago. Moreover, in a declaration of 27 August 1991, the EC welcomed the "restoration of the sovereignty and independence of the Baltic States" (quoted in: BYIL, Vol. 62, 1991, p. 558). Strictly speaking any reference to the restoration of sovereignty and independence is superfluous if the Baltic States became new States. The German Secretary of Foreign Affairs, Mr. Genscher, declared that the Baltic States had not been 'recognized', but that the interrupted diplomatic relations had merely been reestablished (see Frankfurter Allgemeine Zeitung, 28 Aug. 1991, p. 2). See also R. Mullerson, The Continuity and Succession of States by Reference to the Former USSR and Yugoslavia, ICLQ, Vol. 42, 1993, p. 473, at. 480-483; R. Mullerson, INTERNATIONAL LAW, RIGHTS AND POLITICS, 1994, p. 119 ff.; D. Murswieck, The Issue of a Right of Secession - Reconsidered, in: C. Tomuschat (Ed.),
MODERN LAW OF SELF-DETERMINATION, 1993, p. 21, at p. 31. Cf. also Crawford, CREATION OF STATES, p. 64, 419-420. And see, generally, Marek, IDENTITY, p. 581; A. Cassese, SelfDetennination of Peoples and the Recent Break-Up of USSR and Yugoslavia, in: R. St. J. Macdonald (Ed.), ESSAYS IN HONOUR OF WANG TlEYA, 1994, p. 131, at pp. 133-137. But see Fastenrath, supra note 70, at p. 465; Shaw, INTERNATIONAL LAW, p. 144. 73. Although the Yugoslav conflict was a war with aspects of both internal and international armed conflict (see The Prosecutor v. Dusko Tadic, ICTY, Appeals Chamber, Case No. IT-94-1-AR72, Decision of 2 Oct. 1995, p. 35, at. p. 43), for a considerable period it was not entirely clear whether the SFRY was or was not dissolved as a result of the events in 1990-1992. The Security Council was of the opinion that it was (see UN Doc. S/Res/777, 19 Sept. 1992: "[c]onsidering that the state formerly known as the Socialist federal Republic of Yugoslavia has ceased to exist"). This was also the opinion of the Arbitration Commission of the International Conference on Yugoslavia (see Opinion 8, 4 July 1992, ILM, Vol. 31, 1992, pp. 1521-1523). Confusion was created by General Assembly Resolution 47/1 which (a) did not take over the quoted passage of the Security Council resolution, and (b) stated that the FRY should apply for membership as well as that (c) the FRY was not entitled to participate in the work of the General Assembly.
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continuation of personality is presumed on the basis of the underlying assumption of the lack of finality of the existing situation. An example of a situation which features aspects of anarchy rather than civil war is the case of Albania after the outbreak of chaos in 1997. The general breakdown of institutions, law and order in Albania in March 1997 and the resulting period of widespread anarchy was caused by popular anger as a result of the collapse of dubious investment funds (also known as pyramid schemes) and due to the complete loss of faith in President's Berisha's government. This development was in turn influenced substantially by the authoritarian rule of the Democratic Party and President Berisha, the undermining of democracy by the Democratic Party and the President, as well as the thoroughly corrupt administration and mismanagement.74 For the majority of the population, final responsibility lay with the government, which in turn was unable to pay compensation for losses incurred. As a result, demonstrations in protest broke out in all the major cities. The police, overwhelmed, were obliged to withdraw, in some cases leaving their equipment in the hands of the demonstrators. Economic discontent turned into political demonstrations. More and more 'national salvation' committees sprang up, demanding the President's resignation. Army and police arms depots were ransacked, and the subsequent events resulted in the complete implosion of State structures.75 The government was not capable of maintaining law and order in Tirana, let alone in the other parts of the country. As a result of the establishment of the Multinational Protection Force in March 1997, the situation in Tirana and in the main Adriatic ports improved slightly.76 Despite this, the Albanian government did not control the major part of the country. This is also true as regards the situation after the deployment of an observer mission by the WEU in May 199777 and with respect to the whole of 1998. The The resolution thus seemed to state that the FRY both was and was not a member of the UN. See UN Doc. A/Res/47/1, 22 Sept. 1992. See also UN Doc. A/47/485, 29 Sept. 1992. The matter was solved by the application for membership of the FRY (UN Doc. A/55/528-S/2000/1043, 27 Oct. 2000) which necessarily implied FRY's revocation of the claim to continuity of legal personality and acceptance of the dissolution of the SFRY. 74. The Norwegian Helsinki Committee, Albania Report: Albania's Second Transition, A Human Rights Perspective on Recent Developments in Albania, Report No. 1, 1998; WEU Doc. 1650, Public Perception of WEU's Contribution to Stabilising Democracy in Albania - Reply to the Annual Report of the Council, Report Submitted on Behalf of the Committee for Parliamentary and Public Relations by Mrs. Pulgar, Rapporteur, 19 May 1999. 75.
Id.
76. The operation was also known as 'Operation Alba', carried out under Italian command and authorized by the Security Council in Resolution 1101 for a three month period. See UN Doc. S/Res/1101, 28 March 1997. The operation's primary goal was to allow humanitarian aid to reach the country. 77. The WEU Multinational Advisory Police Element which was established by the Council of the WEU on 2 May 1997.
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internal situation improved somewhat in comparison to the previous two years after the stationing in Albania and subsequent country-wide presence of a substantial amount of NATO troops within the framework of the NATO operation against the FRY in March 1999. However, notwithstanding the NATO presence, the country was still characterized by a general state of lawlessness and the fact that the government did not control major parts of the country, especially the northern part. The overall security situation did not improve significantly until the run-up to the June 2001 general election, when the political climate cooled off.78 It is important to note that at no point during the period of widespread anarchy and completely ineffective government has Albania's statehood been the subject of discussion. For instance, Security Council Resolution 1101 of 28 March 1997 affirmed "the sovereignty, independence and territorial integrity of the Republic of Albania",79 while it is clear that at the date of the adoption of the resolution and for a considerable period thereafter, an Albanian government existed in name only. The case of Somalia since 1991 is an example of civil war which is characterized not only by a division of authority over several groups within the country but also, and in particular, by the absence of government. In the power vacuum after the fall of President Siad Barre's regime in 1991, civil war broke out between factions and clans who either supported Interim President Ali Mahdi Mohamed or General Mohamed Farah Aidid. This resulted in the disappearance of a structure of government, disintegration of society and widespread death and destruction. As a result, Somalia is referred to as the principal example of a 'failed' or 'collapsed' State.80 However, despite this characterization the international legal personality of Somalia as a State has not been questioned.81 78. Human Rights Watch, World Report 2002, Albania, http://hrw.org/wr2k2/europel.html. 79. UN Doc. S/Res/1101, 28 March 1997, Preamble. See also UN Doc. S/Res/1114, 19 June 1997, Preamble. 80. As to the concepts of 'failed State' and 'collapsed State' see, e.g., R.H. Jackson, QlJASl-STATES:
SOVEREIGNTY, INTERNATIONAL RELATIONS, AND THE THIRD WORLD, 1990; I. Zartman (Ed.), COLLAPSED STATES: THE DISINTEGRATION AND RESTORATION OF LEGTIMATE AUTHORITY, 1995; G. Gros, Towards a Taxonomy of Failed States in the New World Order: Decaying Somalia, Liberia, Rwanda and Haiti, Third World Quarterly, Vol. 17, 1996, p. 455; D. Thürer, M. Herdegen & G. Hohloch, DER WEGFALLEFFECTIVER STAATSGEWALT: 'THE FAILED STATE', 1995; N. Wallace-Bruce, Of Collapsed, Dysfunctional and Disoriented States: Challenges to International Law, NILR, Vol. 47, 2000, p. 53. 81. While reference is made by the Security Council and the Secretary-General of the UN to the absence of an "effective functioning Government in the country" (UN Doc. S/25354, 3 March 1993), "the general absence of the rule of law in Somalia" (UN Doc. S/Res/814, 26 March 1993), "the absence of law enforcement and judicial authorities and institutions in the country as a whole" (UN Doc. S/Res/865, 22 Sept.1993), "the exceptional circumstances, including in particular absence of a government in Somalia" (S/Res/897, 4 Feb. 1994). In the last mentioned
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The case of Albania shows that even in a case of a temporary but completely ineffective government, as is the case with anarchy, the presumption is against extinction and in favour of continuity of statehood. As stated, this presumption is based on the assumption of a lack of finality of the situation.83 The Somali situation, however, seems to suggest that in the case of an established State the presumption is in favour of the continuity of statehood not only when there is a prolonged period of ineffective government but even if there is a prolonged period of absence of government. Indeed, in numerous resolutions the Security Council has stressed the importance of "the rehabilitation of Somalia's governing structures and the restoration of the rule of law throughout the country", which seems to reflect the Council's opinion that governing structures in Somalia can be re-established. On the other hand, it is doubtful that the considerably long period of absence of a central government in Somalia should be considered as a precedent for future situations. The patience of the international community in this particular case is best explained in terms of a refusal to jeopardize legal relations with an entity where there is clearly no successor State and where there is still a chance, however small, that the state
resolution the Security Council nevertheless states in unequivocal terms that it bears in mind "respect for the sovereignty and territorial integrity of Somalia [...]". See also UN Doc. S/Res/923, 31 May 1994; UN Doc. S/Res/954, 4 Nov.1994; UN Doc. S/PRST/1997/57, 23 Dec. 1997; UN Doc. S/PRST/1999/16, 27 May 1999; UN Doc. S/PRST/1999/31, 12 Nov. 1999; UN Doc. S/PRST/2000/22, 29 June 2000; UN Doc. S/PRST/2001/1, 11 Jan. 2001 (which states moreover that: "[t]he Security Council insists that all States should refrain from any military intervention in the internal situation in Somalia [...]"); UN Doc. S/PRST/ 2001/30, 31 Oct. 2001. And see Resolution No. 12/26-P on the situation in Somalia, adopted during the Twenty-Sixth Session of the Islamic Conference of Foreign Ministers, 28 June-1 July 1999. This resolution emphasizes the necessity of all Somali factions' "effective participation in the national reconciliation conference [...] so as to achieve peace and preserve the unity, territorial integrity and independence of Somalia" (emphasis added). Also the Final Communique of the same Twenty-Sixth Session states that "[t]he Conference reaffirmed its commitment to contribute effectively to the restoration of stability in Somalia and its full commitment to the respect of that country's sovereignty and territorial integrity". The different Somali leaders were and are of the opinion that Somalia's statehood remained intact as well. See Press statement on Somalia, UN Doc. S/1997/135,17 Feb. 1997, Ann. I. See also Somali Diplomat Case, Superior Administrative Court of North Rhine-Westfalia, Federal Republic of Germany, 11 Feb. 1992, ICR, Vol. 94, p. 596, at p. 606; Republic of Somalia v. Westhouse Drake and Carry (Suisse) SA and Others, England, High Court, Queen's Bench Division, 13 March 1992, ICR, Vol. 94, p. 608, at p. 621. These decisions, resolutions and statements clearly indicate that Somalia's statehood was always considered juridically intact, despite the fact that the exercise of the rights attached to statehood were suspended as a result of the absence of a government. 82. Crawford, CREATION OF STATES, p. 417: "generally, the presumption - in practice a strong one - is in favour of the continuance, and against extinction, of an established State. Extinction is thus, within broad limits, not affected by more or less prolonged anarchy within a State". 83. See also id., at pp. 417-418: "effective [...] disappearance of separate State organs [...] over a considerable period of time will result in the extinction of the State so long at least as no substantial international illegality is involved". 84. See, e.g., UN Doc. S/PRST/2001/1, 11 Jan. 2001.
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structure will be reconstructed.85 In sum, despite its fundamental position for the (continued) existence of a State, international law contains important exceptions to the requirement of effective government. These exceptions reflect the principle that international law is in favour of the continuity of a State's international personality in the absence of clear evidence to the contrary. Thus, even in cases involving a period of absence of government, the continuity of statehood is presumed. While this position bears a distinctly provisional character it is, according to the current state of international law, unclear as to how long such a period may take. Several conclusions may be drawn from the preceding discussions. Firstly, in order to qualify as a State, international law requires the existence of a government or a system of government. Secondly, this government should exercise exclusive territorial jurisdiction. Thirdly, where there is a lack of effective government this will form a bar to the acquisition of statehood with the exception of situations in which an exclusive right to govern the territory exists, such as in the case of the Congo in 1960. In such a situation - and provided that the other criteria for statehood are satisfied - the entity must be regarded as a State under international law. However, because a factual element - the actual exercise of authority - is still lacking, the State exists in a juridical but not yet in an empirical sense.86 It will be seen later in this study that this distinction has important consequences for questions of statehood in the colonial context (for instance in the cases of Algeria and Guinea Bissau) and in the post-colonial era (such as the cases of Croatia and the former Soviet Republic of Georgia).87 Here it is important to note that there is a certain resemblance between the situation of a lack of effective government in the context of the formation of States and the same situation in the case of an established State. The legal position of the latter is stronger, however. For, where the existence of a government is a conditio sine qua non for the creation of a State, a presumption in favour of the continuity of the statehood of an established State does exist even in cases of (prolonged) absence of (a central) government. A fourth conclusion that can be drawn is that the position of Finland in 1917-1918 seems to suggest that in the absence of an exclusive right or title to exercise territorial jurisdiction the criterion of 'government' must be 85. See also Fastenrath, supra note 70, at p. 466 ("[o]nly when all hope of ever re-establishing a central government is lost, does a State break-up into several parts ruled by regional authorities"); M.C.R. Craven, The European Community Arbitration Commission on Yugoslavia, BYIL, 1996, p. 333, at p. 376; P.H. Kooijmans, INTERNATIONAAL PUBLIEKRECHT IN VOGELVLUCHT, 2000, p. 21. 86. For this distinction see also Jackson, supra note 80, at pp. 21, 32-48, 51-53. The distinction is discussed in more detail in Chapters 4 and 8, infra. 87. See Chapter 4, Section 2.3., and Chapter 8, Section 2.2., infra.
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interpreted strictly, in the sense of 'actual exercise of authority', that is, effective government. Finally, the persistent lack or absence of effective government will eventually lead to the extinction of the State as an international person. The requirement that the government of an entity claiming statehood must actually govern the relevant territory and the requirement that, alternatively, an exclusive right or title to govern the territory concerned must exist, are directly related to the idea that a State must be independent. The requirement of independence is in fact implicit in the fourth criterion for statehood which is mentioned in the Montevideo Convention, namely "the capacity to enter into relations with other States". This criterion will now be examined. § 3.4.
The capacity to enter into relations with other States
It does not seem to be correct to state that a territorial and political entity must have relations with existing States in order to qualify as a State, because the existence or lack of such relations is largely dependent on the will of the existing States to enter into relations with the entity in question. 89 The emphasis must, therefore, be put on the term 'capacity'. This, it seems, is also the view of the American Law Institute: [a]n entity is not a state unless it has competence, within its own constitutional system, to conduct international relations with other states, as well as the political, technical, and financial capabilities to do so. 88. But see Chapter 8, Section 2.3, infra. 89. Kooijmans, supra note 85, at p. 21; Broms, supra note 37, at p. 45. See also S v. Banda, South African Law Reports, 4,1989, p. 519, at p. 543. But see, e.g., H. Bull, THE ANARCHICAL SOCIETY, 1977, pp. 8-9; Calgar and others v Billingham (Inspector of Taxes), 1996, para. 182, cited in: C. Warbrick, Unrecognized States and Liability for Income Tax, ICLQ, Vol. 45, 1996, p. 945, at p. 958, in which the English Special Commissioners for Inland Revenue held that the nonrecognition of the Turkish Republic of Northern Cyprus resulted in the absence of functional independence "as it cannot enter into relations with other states. It does not, therefore, satisfy the fourth requirement of statehood". It is difficult to follow this reasoning. If the existence of (diplomatic) relations with other States is mandatory for the existence of statehood, this would necessarily imply that without such relations the entity is not a State. This in turn would mean that under such circumstances the recognition of that entity (for the purpose of establishing relations) would be premature and without object. It is clear that such reasoning (which is in its foundations nothing more than a plea in favour of the constitutive theory on recognition) leads to a vicious circle because it confuses a condition for statehood with a (most likely) consequence of statehood. It must, therefore, be rejected. 90. Restatement (Third), supra note 38, at para. 201, cmt. (e). International law does not, however, require that the maintenance of all contacts with third States (and international organizations) is carried out by a State's own organs or representatives. Some States do not have the resources to meet such a requirement and therefore delegate some powers in the field of representation to an agent State. An example of such a relationship is formed by Switzerland's role with respect to representation of Liechtenstein at the international level. Such a delegation of powers does not derogate from statehood if the delegating State retains the power to instruct the agent State, to veto decisions of the agent State which might legally bind the delegating State, and to
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Thus, an organizational machinery which is capable and authorized to legally bind, and both politically and legally represent the State in its relations with other subjects of international law must exist. The capacity to enter into foreign relations is, however, not limited to States. Both international organizations and constituent parts of States (like federal components) (may) have the capacity or competence to enter into such relations. The term 'capacity' as it is used here refers to a consequence of the international personality of a State (or another entity) rather than to a constitutive requirement for its existence. In this respect it is important however, that the territorial and political entity must be able, at least potentially, to "create such legal relations with other units as it sees fit".92 The essence of such a capacity is independence. § 3.5.
Independence
When it is stated that the Peace of Westphalia marked the beginning of the era of the system of sovereign States, the term 'sovereignty' is used to refer to the freeing of the State from the notions of imperial and papal supremacy. The State is thus regarded as the highest authority on earth and therefore cannot derive its totality of competences from any other earthly authority. Sovereignty thus used reflects the generally accepted opinion that a State which, by its own will, actually and lawfully comes under the control of another State so as to no longer constitute a separate territorial and political entity (a separate legal order) but an extension of the authority of that other State, ceases to be a State under international law. A comparable reasoning applies to the creation of States. It is inherent in the requirement of the capacity to enter into relations with other States, that this must be done by an entity in its own right. Therefore, to become a State, a territorial and political entity must be 'independent'. In the Austro-German Customs Union case Judge Anzilotti observed [i]ndependence [...] is really no more than the normal condition of States according to international law; it may also be described as sovereignty (suprema potestas), or external sovereignty, by which is meant that the State has over it no other authority than that of international law. [...] The idea of dependence [...] unilaterally terminate the agency agreement. Put differently, the agent State must remain an agent, and the delegating State must remain responsible for the conduct of its foreign affairs by the agent-State on its behalf. One should thus not confuse international responsibility with international representation. See also Section 3.5. , infra. And see Crawford, CREATION OF STATES, pp. 186-208; Brownlie, PRINCIPLES, pp. 457-460. 91. See also, e.g., Crawford, CREATION OF STATES, p. 47; Grant, supra note 1, at p. 435.
92. Shaw, INTERNATIONAL LAW, p. 142.
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implies a relation between a superior State [...] and an inferior or subject State [...]; the relation between the State which can legally impose its will and the State which is legally compelled to submit to that will [...]. It follows that the legal conception of independence has nothing to do with a State's subordination to international law or with the numerous and constantly increasing states of de facto dependence which characterise the relation of one country to other countries. It also follows that the restrictions upon a State's liberty, whether arising out of ordinary international law or contractual engagements, do not as such in the least affect its independence. As long as these restrictions do not place the State under the legal authority of another State, the former remains an independent State however extensive and burdensome those obligations may be.9393
Thus, independence as described by Anzilotti does not mean that to be a State there should be no outside interference whatsoever. This fact is confirmed by state practice. The modern international society is characterized by States having become more and more interdependent with respect to different fields of decision-making. As a consequence, the decision of one State may, directly or indirectly, affect the decision-making of another State. A requirement which would hold that there shall not exist any outside interference would therefore be impossible to satisfy. Moreover, the requirement of independence does not mean that one State may not exert political pressure on another which may cause the latter to adopt or reject a particular course of action. If that would be the meaning of independence, very few States would exist today. The criterion of independence requires that a separate territorial and political entity possesses the legal capacity to act as it wishes, within the limits given by international law. It points to the absence of direct or indirect subordination of that legal capacity to the will of a third State or a group of States. It will be noted that independence used as a criterion for statehood thus differs from the notion of independence as often used to describe a 'right' of States after their establishment, a right which may eventually be defended even by using armed force. 'Independence' used thus, is nothing more than a synonym for sovereignty.96 Two aspects of the criterion of independence should be distinguished: formal independence and actual independence. 93. Judge Anzilotti, Separate Opinion, Customs Regime Between Germany and Austria (Protocol of March 19th, 1931), Advisory Opinion, PCIJ, Ser. A/B, No. 41, p. 45, at 57-58.
94. Shaw, INTERNATIONAL LAW, p. 142. 95. See also Kooijmans, supra note 85, at p. 21. 96. Denoting the totality of rights and obligations attributed by international law to the State, as well as the State's quality of suprema potestas. See p. 26, supra. 97. Lauterpacht, RECOGNITION, pp. 26-28; Marek, IDENTITY, pp. 162-189; Crawford, CREATION
OF STATES, pp. 52-71.
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§ 3.5.1.
Formal independence
Formal independence exists where the powers of government (both in internal and external affairs) are vested exclusively in one or more separate authorities of the purported State either as a result of its national law (such as a constitution or a proclamation of independence), or as a result of a grant of sovereignty by a former sovereign.98 It is clear that if an entity, although independent in fact, does not consider itself to constitute a State, there can be no statehood. A proclamation of independence is therefore a necessary requirement for statehood. An example of a de facto but not formally independent entity is Taiwan (Formosa). Formal independence continues to exist if a State enters into an international agreement by which it "undertakes to perform or refrain from performing a particular act". The same is true for the exercise of governmental competence on the basis of agency.102 But the existence of discretionary authority to determine and effect intervention in the internal affairs of the putative State may be regarded as a situation that derogates from formal independence.103 In this situation, the exclusiveness of the powers of government becomes seriously questionable. An example of such a situation is formed by the Principality of Monaco. On the basis of the treaty of 17 July 1918 between Monaco and France,104 France possesses the discretionary power to intervene with military means in
98. To the same effect, see Crawford, id., at p. 52. 99. See also Restatement (Third), supra note 38, at para. 201, cmt. (f). 100. Taiwan has not proclaimed independence. The government has stated, however, that it wishes recognition of Taiwan's de facto independence. See, e.g., President of Taiwan Seeks Separate Identity, NYT, 2 Sept. 1998; Taiwan Leader Denies Policy Change, AP, 14 July 1999; Taiwan Plans Statehood Explanation, AP, 21 July 1999; President Taiwan Wil Erkenning Maar Geen Onafhankelijkheid, De Volkskrant, 21 July 1999. See, generally, J. Shen, Sovereignty, Statehood, SelfDetermination, and the Issue of Taiwan, Am. U. Int'l L. Rev., Vol. 15, 2000, p. 1101; L. Chen, Taiwan's Current International Legal Status, New Engl. L. Rev., Vol. 32, 1997-1998, p. 675; J.F. Copper, TAIWAN: NATION-STATE OR PROVINCE?, 1996. Some States, such as FYROM, Papua New Guinea and Costa Rica, have accorded diplomatic recognition to Taiwan in exchange for loans or other financial agreements. Some other States still recognize the government of Taiwan as the only legitimate government of China. In these cases, recognition is heavily subsidized as well. See R.E. Newnham, Embassies for Sale: the Purchase of Diplomatic Recognition by West Germany, Taiwan and South Korea, International Politics, Vol. 37, 2000, p. 259; Peking Boos op Macedonië Wegens Erkennen Taiwan, De Volkskrant, 29 Jan. 1999. 101. S.S. Wimbledon case (France, Italy, Japan and United Kingdom v. Germany), Judgment, PCIJ Rep. 1923, Ser. A, No. 1, p. 5, at p. 25. 102. See Crawford, CREATION OF STATES, p. 54. See also, generally, id., at pp. 53-55 for an enumeration of suggested other situations which do not derogate from formal independence. 103. Id., at p. 56. 104. 1918TreatybetweenMonaco and France, reprinted in: J.P.Gallois,LERÉGIME INTERNATIONAL DE LA PRINCIPAUTÉ DE MONACO, 1964, pp. 224-225.
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Monaco for upholding the security of the two countries. Additionally, the same treaty stipulates, in Article 1, that Monaco is obliged to "exercise its rights of sovereignty entirely in accord with the political, military, naval, and economic interests of France". Succession to the throne of the principality must be in accordance with the French government and, when a future heir is absent, "the territory of Monaco shall form, under the protectorate of France, an autonomous State called the State of Monaco".105 The Minister of State and the Government Counsellor for the Interior have to be of French nationality and have to be chosen by the Prince of Monaco from several candidates proposed by the French government.106 Consequently, in the absence of formal independence Monaco does not qualify as a State under general international law, that is as a State with full international personality. 107 Formal independence alone is not, however, sufficient for the fulfilment of the criterion of independence. Formal independence may be a façade for what is in fact a dependent entity. Therefore the putative State must also satisfy the requirement of actual independence for "if independence is a condition for statehood, it must be genuine and not a mere fiction".108
105. Id., Art. 3. 106. See Franco-Monegasque Treaty of 28 July 1930, Art. 5 and exchange of letters of 7 May 1973, Journal Officiel de la République Française, 28 Feb. 1974, p. 2320, cited in: J. Duursma, SELFDETERMINATION, STATEHOOD AND INTERNATIONAL RELATIONS OF MICRO STATES, 1994, p. 281, n. 36. 107. See also Crawford, CREATION OF STATES, pp. 193-194. It is, however, regarded as a 'State' for certain purposes: Monaco is a member of the UN and a party to different treaties. But see Duursma, supra note 106, at pp. 277-342, who is of the opinion that Monaco should be qualified as a State under general international law, because France has no discretionary right to intervene in Monaco's internal and external relations as a result of a right to self-determination of the Monegasque people. In addition, Duursma maintains that Art. 3(2) of the 1918 Treaty (which addresses the consequences of default of succession) is void, because it violates the jus cogens norm of self-determination of the Monegasque people (at p. 339). It is difficult to accept this view. It seems more accurate to state that the 1918 Treaty reflects the will of the Monegasque people rather than constituting a violation of it. Since 1918, no initiative has been taken to amend the crucial provisions which derogate from Monaco's formal independence. Although it is true that the right of self-determination is an inalienable right, there is nothing legally wrong with the codification of an expression of external self-determination as long as the expression and codification of that expression in a binding instrument has not been procured by coercion in violation of international law (volenti non fit injuria). Consequently, an explicit approval by the Monegasque people of French action is unnecessary from a legal point of view as long as the action is within the limits as layed down in the 1918 Treaty. Therefore, the provisions in the 1918 Treaty and any French action in accordance with both these provisions as well as the spirit and purposes of the Treaty are not in violation of international law. For the discussion of the right of (internal and external) self-determination, see Chapter 6, infra. 108. Marek, IDENTITY, p. 169.
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§ 3.5.2.
Actual independence
Actual independence109 means that the decisions and actions of the putative State must be its own, that is to say, it must be the putative State as such, and not a third State, which can be held responsible under international law for the actions of the putative State. When decisions by a third State bind the putative State, this is in principle only in conformity with actual independence if the third State acts formally on behalf of the putative State, while the latter retains control of the decision-making process.110 Entities which are created in territory under belligerent occupation are presumed not to meet the actual independence test and thus do not to constitute States under international law.111 This is a logical consequence of international law being in favour of the continued and separate existence of the international personality of an occupied State.112 An example of such a situation is formed by the Japanese invasion of the Chinese province of Manchuria in 1931 and the subsequent establishment of the purported State of Manchukuo, which is discussed in more detail in Chapter 4.113 What is important here, is that one of the first steps which were taken by the Council of the League of Nations in reaction to the creation of Manchukuo was the establishment of a fact-finding body, generally known as the Lytton Commission, which was to investigate the Chino-Japanese relationship. The facts described in the 1932 Report of the Commission make it clear that Manchukuo was not actually independent, because its creation, continued existence and internal and foreign policy were in fact determined by Japan.114 Based on the Commission's Report, the League of Nations Assembly stated that "the sovereignty over Manchuria belongs to China".115 109. Actual independence has also been referred to as 'functional independence', in the sense that the State must be independent in the actual exercise of the functions of a State. But note that the term 'functional independence' was understood quite differently in Calgar and others v. Billingham (Inspector of Taxes), supra note 89. In that case, the lack of functional independence of the Turkish Republic of Northern Cyprus was equated with the lack of the possibility to enter into international relations. However, the lack of functional independence was, according to the Special Commissioners, not a result of a subject position of the 'Republic' in relation to Turkey, but rather the result of non-recognition of the claim to statehood by the international community. 110. See note 90, supra. See also the ILC Draft Articles on Responsibility of States for International Wrongful Acts, adopted by the Drafting Committee on second reading, UN Doc. A/CN.4/L.602/Rev.l, 26 July 2001, Art. 17. 111. Marek, IDENTITY, p. 113; Crawford, CREATION OF STATES, p. 60. 112. See p. 67 ff., supra; Marek, IDENTITY, p. 170. 113. See pp.116-120, infra. 114. Report of the Commission of Enquiry, League of Nations Publications, Vol. 7, 1932, No. 12. See also Lauterpacht, RECOGNITION, pp. 46-47. 115. Resolution of 24 Feb. 1932, League of Nations Spec. Supp., No. 112, p. 75.
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Several resolutions of both the Council and the Assembly of the League with respect to this matter, however, indicate that the principal consideration with respect to the rejection of the statehood of Manchukuo by the international community was grounded in its illegal creation rather than the manifest lack of actual independence."116 Another and more recent example of an entity lacking actual independence is the Republic of Serbian Krajina which was established on Croatian territory in 1991. Although this case will be discussed in more detail later in this study as well,117 a few remarks should be made here. In the course of June 1991, the Yugoslav National Army (JNA) intervened in the Republic of Croatia as a result of hostilities between Croatian police forces and Serbian militants which erupted after the Croatian proclamation of independence on 25 June 1991.118 Although it was maintained that the JNA had a neutral role and that the object of the military intervention was to separate the warring parties, the federal army in fact prevented the re-establishment of Croatian authority over certain Croatian territories where Serbs formed the majority or a substantial minority. As a result, these territories, which were proclaimed to constitute the Republic of Serbian Krajina on 19 December 1991, were effectively occupied and detached, first, from Croatia as a federal part of the SFRY, and after 8 October 1991 (the date that marked the lapse of a moratorium period with respect to Croatia's proclamation of independence of June 1991), from Croatia as a State under international law. In December 1991, in order to prevent further escalation of the conflict in Croatia, the international community proposed the establishment of 'United Nations Protected Areas' (UNPAs), which were areas which effectively corresponded to the Serbian controlled territories which made up the Republic of Serbian Krajina. 120 In these areas, United Nations peacekeeping troops and police monitors would be deployed. This plan for dealing with the conflict in Croatia is also known as the 'Vance-(peace) plan'. 121 The UNPAs would have to be demilitarized and the role of United Nations troops would be "to ensure 116. See also Dugard, RECOGNITION, pp. 32-33. But see Lauterpacht, RECOGNITION, p. 420; Crawford, CREATION OF STATES, p. 107. For a further examination of this point, see Chapter 4, Section 5.1., infra. 117. See Chapter 7, Section 5.3., infra. 118. For a discussion of the Croatian case, see Chapter 7, Section 3.3.2., infra. 119. The Proclamation states, inter alia, that "[t]he Republic of Serbian Krayina is a sovereign State exercising full political and administrative authority on the whole of its territory". Proclamation of the Republic of Serbian Krayina and the Basic Principle of the Constitution of the Republic of Serbian Krayina, on file with author. 120. UN Doc. S/23280, Ann. III, 11 Dec. 1991, para. 9. Three UNPA's were created: Eastern Slavonia, Western Slavonia and Krajina. 121. The plan was named after the UN Secretary-General's personal representative Cyrus Vance.
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that the areas remained demilitarized and that all persons residing in them were protected from fear of armed attack".122 It was emphasized that the establishment of the UNPAs as well as the United Nations operation "would be of an interim nature to create conditions of peace and security required for the negotiation of an overall settlement of the Yugoslav crisis".123 The plan was accepted by Croatia and Serbia, but met with firm resistance from the Croatian Serbs, because the plan spoke of the UNP As as "areas in Croatia [...] in which Serbs constitute the majority or a substantial minority of the population and where inter-communal tensions have led to armed conflict in the recent past",124 and thus rejected the existence of the Republic of Serbian Krajina as a State under international law.125 However, since President Milosevic of Serbia had already accepted the Peace Plan, the resistance of the Serbian minority was not tolerated by the Belgrade authorities. The eventual acceptance of the plan by the Serbian minority was therefore brought about by the exertion of substantial political pressure by both the Yugoslav federal authorities and the authorities of the Republic of Serbia. ' Despite this development the Serbian minority maintained its claim to statehood. The eventual acceptance of the Peace Plan by the Serb minority as a result of outside political pressure in and of itself gives rise to serious doubts regarding the actual independence of the Republic of Serbian Krajina. In addition, because Croatia became a State on 8 October 1991 a'nd because the JNA left the country only after the proclamation of independence of the Republic of Serbian Krajina, the latter was thus established during foreign occupation of one third of Croatian territory. As was stated above, there is a strong presumption against the actual independence of territorial entities created under such circumstances. Although, as will be discussed later,128 it was probably not the principal reason for the international community's denial of the validity of the claim to statehood by the Republic of Serbian Krajina, according to the law of statehood the latter's lack of actual independence did form a bar to the acquisition of statehood. Another situation that derogates from actual independence is that of "foreign control overbearing the decision-making of the entity concerned on 122. 123. 124. 125. 126.
UN Doc. S/23280, Ann. III, supra note 120, para. 7. Id., para. 1. Id., para. 8 (emphasis added). See Renegade Serbs Resist UN Troops, The Times, 27 Jan. 1992. See, e.g., Belgrad ûbt Druck auf Serben in der Krajina aus. Serbischen Politiker: Niemand darfdie A n k t n f t der Blauhelme in Kroatien verhindern, Die Welt, 24 Jan. 1992. 127. Only after the establishment of the United Nations Protection Force (UNPROFOR) in the course of February 1992 did the JNA begin the withdrawal of its forces from Croatian territory. 128. See Chapter 7, Section 5.3., infra.
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a wide range of matters of high policy and doing so systematically and on a permanent basis".129 This is without doubt true for so-called 'puppet States'. A puppet State has been described as "an entity which, while preserving all the external paraphernalia of independence, is in fact utterly lacking such independence, [...] and is in reality [...] a mere organ of the State which has set it up, whose [...] satellite it is",130 and therefore does not constitute a State at all. In most cases, puppet States are created by the occupant during occupation of a State, for the purpose of circumventing the former's international responsibility regarding the violation of the rights of the occupied State. In many cases the puppet character of the entity will be obvious, but in specific cases the concrete ties between the puppet and its master are difficult to establish, because of the latter's interest in the absence of official directions and instructions. This, for example, was the case with Manchukuo which entity was without a doubt a puppet State, in view of the fact that the striving for independence did not occur until Japanese occupation and because of the fact that Japanese officials were attached to all important departments of the entity, holding the most important posts. 131 Furthermore, in this context mention must also be made of the 'Independent State of Croatia', a fake State that was set up in 1941 by German and Italian occupation forces on Yugoslav soil and that was almost entirely controlled by Germany and Italy.132 In addition, another and more recent example is formed by the Serb Republic of Bosnia-Herzegovina, also called the 'Republika Srpsfa'. The Serb Republic was proclaimed on 7 April 1992 under the leadership of Radovan Karadzic. The republic's territory was cobbled together from an alliance of Serb enclaves that had rebelled against BosniaHerzegovina's secession from the SFRY. There seems to be little doubt about the republic's puppet character. As was observed by the Appeals Chamber of the ICTY in its judgment in The Prosecutor v. Dusko Tadic the control of the FRY authorities over [the Bosnian Serb armed forces] required by international law for considering the armed conflict to be international was overall control going beyond the mere financing and equipping of such forces and involving also participation in the planning and supervision of military operations. [...] It now falls to the Appeals Chamber to establish whether, in the circumstances of the case, the Yugoslav Army [VJ] exercised in 1992 the requisite measure of control over the Bosnian Serb Army. The answer must be in the affirmative. [...] The creation of the [Army of the Serb Republic of Bosnia129. Brownlie, PRINCIPLES, p. 72 (emphasis in original).
130. Marek, IDENTITY, p. 170. 131. Report of the Commission of Enquiry, supra note 114, at p. 97. 132. See Socony Vacuum Oil Co. Claim, United States International Claims Commission, ICR, Vol. 21, 1954, p. 55 ff., cited in: Crawford, CREATION OF STATES, pp. 63-64.
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In sum, to qualify as a State a territorial and political entity must be both formally and actually independent. To be sure, these are not two separate criteria for statehood but two aspects of one single criterion for statehood, namely independence. When an entity is formally independent, but its creation took place in a territory during and/or as a direct result of belligerent occupation, the presumption is against the existence of actual independence. On the other hand, when an entity has been granted full formal independence by a previous sovereign, the presumption is in favour of the actual independence of the entity concerned.134
§ 4.
RECOGNITION AND THE TRADITIONAL CRITERIA FOR STATEHOOD
It is generally agreed by both the supporters of the constitutive and the declaratory theory on recognition, that premature recognition constitutes an illegal act vis-a-vis the parent State.135 When an entity located within the boundaries of an established State claims statehood, but does not satisfy the criteria for statehood, third State recognition of the entity concerned is
133. The Prosecutor v. Dusko Tadic, Case IT-94-1-A, Judgment, 15 July 1999, paras. 145, 147, 154, 160. But see Kadic v. Karadzic, F.3d, Vol. 70, p. 232, cert. denied, USLW, Vol. 64, p. 3832, 18 June 1996, US Court of Appeals, 2nd Circuit, 13 Oct. 1995 (the Republika Srpska meets "the criteria for a state in all aspects of international law"). 134. See p. 66, supra; Crawford, CREATION OF STATES, pp. 65 and 71. However, as Crawford points out: "where there is evidence that real control has not been granted, other States are justified in withholding recognition, and may well be bound to do so". Id., at pp. 65-66. 135. See, e.g., H. Teuscher, DIE VORZEITIGE ANERKENNUNG IM VÖLKERRECHT, 1959. See also Chapter 4, Section 2, infra.
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premature and a violation of the prohibition of non-intervention.136 Therefore, the recognition of States is regulated by at least the same legal rules which regulate the formation of States. 137 Premature recognition must, however, be distinguished from a hurried and early recognition. While premature recognition as described above denotes an illegal act because a necessary element for statehood is lacking, a hurried or early recognition refers to a precipitate act from a political and retrospective point of view. The international community's recognition of Bosnia-Herzegovina in early 1992, has been mentioned as an example of the latter situation.138 Although recognition (or the withholding of such) may be politically influenced and in principle does not produce legal consequences in the sense of 'creating' the international personality of the recognized entity,139 its legal significance should not be underestimated. It is generally agreed that recognition may constitute an important indication for statehood especially when recognition is granted (primarily) on legal grounds, on a wide scale and by States having a different political system or ideological background and where the statehood of the entity before the recognition was equivocal.
§ 5.
RETROACTTVITY OF RECOGNITION OF STATEHOOD
In Chapter 2, it was seen that the adherents of the constitutive theory are of the opinion that because of the decentralized nature of international law and the absence of a centralized organ authorized to decisively and determinatively decide upon the existence or non-existence of a State, existing States have to
136. This is without prejudice to the fact that an act of recognition may violate the right of selfdetermination of a people. For instance, recognition of the unilateral proclamation of independence of Southern Rhodesia which was issued by the white minority regime on 11 November 1965, would have violated the right of self-determination of the black population of Southern Rhodesia. For a discussion of the case of Southern Rhodesia, see Chapter 4, Section 5.2.2.(a), infra. 137. States may, however, agree upon additional conditions for recognition as was done by the member States of the EC through the adoption of the Declaration on the Guidelines on Recognition of New States in Eastern Europe and the Soviet Union on 16 December 1991. See ILM, Vol. 31, 1992, pp. 1485-1487. As the title of the document suggests, the enumerated requirements were intended as conditions for recognition and not as conditions for statehood. See also Chapter 4, Section 10, and Chapter 8, Section 5, infra. 138. VS: Snelle Duitse Erkenning Kroatië Was Ernstige Fout, De Volkskrant, 18 June 1993 (in which United States Secretary of State Warren Christopher is reported as having stated that the hurried recognition of both Croatia and Bosnia-Herzegovina were serious mistakes for which Germany and the rest of the EC bear responsibility, because the war in Bosnia-Herzegovina escalated after recognition was granted). As to the case of Bosnia-Herzegovina, see Chapter 8, Section 2.4., infra. 139. But see p. 38, note 81, supra.
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fulfill that function by granting or withholding recognition.140 It was also seen that to that end, a comparison is made with national law, under which it is maintained that just like a factual situation of forcibly taking property is only theft and as such illegal, when and only from the moment of a determination of such by a competent court following a prescribed procedure, so is the act of recognition by existing States decisive for answering the question of whether a certain entity has fulfilled the criteria for statehood; if recognition is granted, the entity is a State with international personality from the moment of recognition onwards. 141 This argument was rejected precisely because it is not the court which 'creates' the illegality of the act, neither is the act illegal from the moment of the court's pronouncement. The act is illegal because the law so determines and it is illegal from the moment the act was committed. Thus, the determination by the court is declaratory in character and retroactive ab initio. The same applies with respect to the act of recognition by States. It was already pointed out that the declaratory theory best reflects customary international law.142 Consequently, recognition must thus be considered to be a formal acknowledgement of the existence of a State at a moment prior to the date of recognition. Recognition of statehood must therefore necessarily have a retroactive operation. This means that it dates back to the moment of the formation of the State as an international person. In this sense, recognition does not create the State or its international legal personality, but rather reflects a confirmation of the existence of statehood prior to the act of recognition. In must be noted that, technically at least, it is correct that retroactivity of recognition of statehood is superfluous with respect to the existence of the legal status of statehood and the attached rights and obligations.144 But this is only correct insofar as the notion of retroactivity is used to point to the 'validation' of acts and conduct of the recognized State. This is so, because in principle no 'validation' is required for the consequences of the exercise by a State of its rights under international law. However, in a broader sense, that is, pointing to the confirmation of a pre-existing situation, retroactivity of recognition of statehood is not superfluous. For, it is inherent in the declaratory theory and juridically necessary as long as States still base the decision to grant recognition 140. 141. 142. 143.
See Chapter 2, Section 3.1., supra. See Chapter 2, Section 4.1, supra. See Chapter 2, Section 4, supra. See also, e.g., I.A. Shearer, STARKE'S INTERNATIONAL LAW, 1994,pp. 121,137; R.M.M. Wallace,
INTERNATIONAL LAW, 1997, p. 86; Crawford, CREATION OF STATES, p. 388; Verdross, supra note 11, at p. 245; Von Glahn, supra note 43, at 96. But see I. Brownlie, Recognition in Theory and Practice, in: Macdonald and Johnston (Eds.), supra note 39,-p. 627, at p. 637. And see Luther v. Sagor, ICR, Vol. 1, 1921, p. 49; Boguslawski v. Gdynia American Line, King's Bench Division, 1, 1949, p. 157; Oetjen v. Central Leather Company, USLW, 246, 1918, p. 297, at pp. 302-303. 144. Brownlie, PRINCIPLES, p. 93.
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upon factors other than the fulfilment of the criteria for statehood.145 If recognition would not have retroactive effect in the aforementioned broader sense, this would mean that the date of recognition is determinative for the recognized State's (legal) existence with regard to the recognizing State. In effect, this would lead to an adoption of the constitutive theory of recognition, which is, as stated, not supported by existing international law. Retroactivity of recognition is also related to another issue, namely the problem of the recognition by foreign courts of the validity of internal acts of an entity where such recognition depends on the recognition of the entity as a State by the executive branch of government of the State where the Court in question resides. If recognition has been granted, the question arises whether a national law must be held applicable from the moment of the recognition of statehood or from the time the national law was enacted by the State concerned, assuming that the qualifications for statehood were met at that point in time. Most national courts adopt the latter view.146 The retroactive effect of the recognition of a new State in this sense may be tempered, however, "to uphold vested rights established under the ancient legislation"147 or for reasons of legal security, that is, when one has relied in good faith on the laws of the 'old' State. Thus, the fact that the ancient legislation is deemed to take priority over (some of) the laws of the new State with respect to a particular situation, does not in and of itself signify a denial of statehood of the new State at the date of enactment of the laws in question.
§ 6.
THE MOMENT OF THE COMMENCEMENT OF STATEHOOD
The discussion thus far was premised on the assumption that it is possible to determine the moment of the commencement of the State as an international person. As a matter of fact, the question of the critical date of commencement of statehood is inextricably bound up with the question of the objectiveness or juridical character of the traditional criteria for statehood. In this respect, and on the basis of the analysis of the content of the traditional criteria for statehood
145. To the same effect, see Chen, RECOGNITION, p. 177. 146. For a survey of national jurisprudence on the subject see J.G. Sauveplanne, Recognition and Acts of State in the Conflict of Laws, NILR, Vol. 7, 1960, p. 17. See also Institute of International Law, Resolutions Concerning the Recognition of New States and Governments, adopted at Brussels, April, 1936, Art. 7 (concerning the recognition of States) and Art. 16 (concerning the recognition of governments), AJIL, Vol. 30, 1936, Supp., pp. 185-187. And see J.M. Ruda, Recognition of States and Governments, in: Bedjaoui (Ed.), supra note 37, p. 449, at p. 454; OPPENHElM'S lNT'L LAW, p. 161, and the references mentioned there. 147. Sauveplanne, supra note 146, at p. 44.
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in this Chapter, it must be concluded that these criteria are sufficiently precise to be applied in specific cases. In other words, the criteria constitute legal rules (and not merely multi-interpretable guidelines). Hence, theoretically at least, the birth of the State takes place at an "objectively ascertainable time".148 At this point, the distinction between juridical and empirical statehood must be recalled.149 In both situations, the traditional criteria for statehood have been satisfied, but in the former situation the criterion of 'government' has been met as a result of the existence of an exclusive right or title to exercise authority over the relevant territory and its inhabitants. Therefore, the State commences both its juridical or empirical existence when it satisfies the criteria for statehood. Normally the date of the proclamation of independence will constitute the critical date of commencement of statehood; at least it will be the date on which statehood must be presumed in the absence of clear evidence to the contrary. It is not denied that ascertaining whether or not an entity satisfies the criteria for statehood is sometimes a difficult job. It is argued, however, that the traditional criteria for statehood constitute objective and 'workable' criteria. This means that a dispute between, for instance, a parent State and a recognizing State with respect to the question of whether a particular factual situation which has been created as a result of secession constitutes a State, is "in principle suitable for judicial determination by any body in possession of those facts"150 .
§ 7.
CONCLUSIONS
It has been asserted by both constitutivists and declaratists that "the formation of a State is a matter of fact [...] and not of law".151 However, this proposition is misleading and not in accordance with contemporary international law for mainly two reasons. Firstly, as has been seen, the formation of a State is not simply the establishment of some facts the verification of which is outside the realm of international law. Indeed, the creation of a State is the result of the fulfilment of specific legal rules. Whether these criteria are fulfilled or not is regulated by international law and as such "a matter of law". Secondly, and more importantly, the statement suggests that any set of facts which meets the traditional criteria for statehood on the basis of the pre-condition of effective148. 149. 150. 151.
See also Chen, RECOGNITION, p. 41. See p. 72, supra. Chen, RECOGNITION, pp. 41 and 49; Crawford, CREATION OF STATES, p. 389. Oppenheim, supra note 34, at p. 544. See also Chen, RECOGNITION, pp. 38 and 60; Lauterpacht,
RECOGNITION, p. 31.
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ness qualifies as a State under international law. This, it must be noted, has been the generally accepted position under traditional international law and when specific cases were analysed in the preceding paragraphs, the question whether the entity did or did not qualify as a State was in fact answered on the basis of this traditional position. However, if this would be the only correct position, it is difficult, if not impossible, to explain why effective territorial entities such as, for instance, Southern Rhodesia under the Smith government and the South African Homeland State of Transkei were never considered to be States and, consequently, remain(ed) unrecognized. A proclamation of independence is an act that calls for recognition and in the majority of cases recognition is granted on a universal scale. But in some cases it is not. The withholding or refusal to recognize is especially remarkable when the entity in question is effective and therefore the refusal to recognize cannot be said to be based - or to be based primarily - on the non-fulfilment of one or more traditional criteria for statehood. In some situations, the United Nations Security Council even explicitly called upon both member and nonmember States not to recognize an entity after its proclamation of independence and in other situations this was done implicitly through, for instance, a confirmation of the territorial integrity of the parent State. What, then, makes these factual situations so different from other situations that recognition is withheld? In the next Chapter it will be argued that the principal reason for the absence of recognition in these cases is given by the fact that the entities concerned have been created in violation of international law. The question which legal rules, if violated, call for non-recognition will be answered on the basis of the doctrine of the obligation of non-recognition. The refusal to recognize, especially when it is on a wide-scale basis, consistent and for a prolonged period, may give valuable information regarding the international community's point of view with respect to essential elements for statehood.152 This is particularly true when States consider themselves obliged to withhold recognition of an effective territorial entity under certain circumstances. In the next Chapter it will be submitted that such an obligation exists when certain specific norms of international law have been violated in the process of state formation and, furthermore, that a violation of these norms forms a bar to the acquisition of statehood by the entity concerned. It will thus be argued that the norms which must be respected in the process of the
152. See also J.A. Frowein, Recognition, EPIL, Vol. 10, 1987, p. 340, at p. 342.
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formation of the State constitute additional criteria for statehood. Because these criteria result from relatively recent developments in international law they will be referred to as the modern criteria for statehood which, unlike the traditional criteria, are not based on the concept of effectiveness but on legality.
Chapter 4
The Obligation of Non-Recognition and Additional Criteria for Statehood Based on Legality
§ 1.
INTRODUCTION
Now that it has been seen in the preceding Chapter that a de facto situation does not create rights or a legal status under international law by its mere effectiveness, the question needs to be addressed whether States are entitled, under international law, to recognize illegal but effective de facto situations. In addition to the political function of recognition, that is to say, expressing the intention to enter into relations with the recognized State, it is generally accepted that recognition may also have another function: the function or capacity of 'law-making'. This may be the case when a vast majority of States through recognition validates an illegal act or a factual situation resulting from illegal conduct. However, it should be clear that not every act of recognition of an illegal situation necessarily leads to the modification or disappearance of the international legal rule forming the legal ground from which the illegality in a specific case stems. Sometimes an illegal act or a situation resulting from such an act may be recognized for purely political reasons, and not because it is believed that the law should be modified. Apart from such situations, it is difficult to deny that, in principle, recognition of an act involving a violation of a right of the recognizing State, does lead to the latter's waiver of that right vis-a-vis the wrongdoer.1 When either a deviation from an existing rule or an infringement thereof, or the consequences of such are intended to be validated through recognition by the vast majority of States, then, in general, there is a strong presumption in favour of the modification or even the disappearance of the relevant rule. This is certainly the case if such recognition is repeated and if, prior to the acts
1.
H. Lauterpacht, The Principle of Non-Recognition in International Law, in: Q. Wright (Ed.), LEGAL PROBLEMS IN THE FAR EASTERN CONFLICT, 1941,p. 129,at p. 132. See also E. Usuki, The 1930s Jurists' Views on the Doctrine of Non-Recognition: the Lauterpacht Doctrine of 'NonRecognition ', Daito Bunka Univ. Bull., No. 31, 1993, p. 73, at p. 83. But see p. 107, note 73, infra.
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of recognition, said deviations or infringements were considered to be illegal and the consequences resulting from this without legal effect.2 Such recognition takes the form of 'curing' the invalidity of the conduct as well as of the consequences resulting from it. Therefore, it has been described as a quasilegislative act.3 True, such a law-creating or law-adjusting method is not striking in a system where there is no central law-making machinery and where it may sometimes be desirable to adjust the law to specific effective factual situations where a great tension between fact and law exists, and where there is no willingness to bring the facts into line with the existing law.4 For the purpose of this study it is not necessary, however, to address the question whether or not States are allowed to recognize any and all factual situations established as a result of illegal conduct. The question that needs to be addressed is whether or not States are allowed to recognize effective territorial entities claiming statehood and created in violation of one or more fundamental norms of international law.5 The core of the doctrine of the obligation of non-recognition as applied to territorial entities claiming statehood is formed by the question of the admissibility and legality of recognition when recognition is intended to 'validate' or 'cure' an illegal act and/or the consequences of such an act. As will be discussed below, the doctrine of non-recognition is widely supported in literature, confirmed by state practice and upheld in judicial decisions. According to this doctrine, States are under a legal obligation not to recognize
2. 3.
4.
But see Section 9 of this Chapter, infra. Lauterpacht, RECOGNITION, p. 412; Chen, RECOGNITION, p. 413. However, as the Supreme Court of Canada noted: "[t]he principle of effectivity [...] proclaims that an illegal act may eventually acquire legal status if, as a matter of empirical fact, it is recognized on the international plane [...]. It is, however, quite another matter to suggest that a subsequent condonation of an initially illegal act retroactively creates a right to engage in the act in the first place. The broader contention is not supported by the international principle of effectivity and must be rejected". Reference re Secession of Quebec, Supreme Court of Canada, ILM, Vol. 37, 1998, pp. 1342-1377, at p. 1375 (para. 146). See, e.g., R.Y. Jennings, Nullity and Effectiveness in International Law, in: CAMBRIDGE ESSAYS
IN INTERNATIONAL LAW, ESSAYS IN HONOUR OF LORD MCNAIR, 1965, p. 64, at pp. 74-75 ("the
5.
legal result of recognition may be to validate - at least in the municipal law and courts of the recognising state but perhaps also in a wider field - a situation brought about by illegal acts. Recognition is, after all, the principal device of traditional international law for accommodating the law to obstinate facts"). See also OPPENHEIM'S INT'L LAW, pp. 184-185. The question about the existence of a legal obligation of non-recognition of an act or situation established in violation of a fundamental rule of international law is also relevant for territorial acquisitions. This problem is not dealt with in this study. For a discussion of this point, see, e.g., Dugard,RECOGNITION, pp.111-117; OPPENHEIM'S INT'L LAW, pp. 194-198; P.K.Menon, Some Aspects of the Law of Recognition. Part VII: the Doctrine of Non-Recognition, RDISDP, 1991, No. 4, p. 227, at pp. 239-242; I. Brownlie, INTERNATIONAL LAW AND THE USE OF FORCE BY STATES, 1963, Ch. 25.
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effective territorial entities which have come into existence as a result of a violation of one or more specific fundamental rules of international law. In this case "[n]on-recognition is said to 'bar the legality' of the act or situation in question, unless otherwise legalised".6 Thus, although a legal obligation to recognize a claim to statehood does not exist under contemporary international law, this, it is argued, does not mean that recognition is not regulated in international law. In this respect it has been observed that [w]hile the grant of recognition is within the discretion of states, it is not a matter of arbitrary will or political concession, but is given or refused in accordance with legal principle.
In addition, it has been pointed out that there is a clear relationship between non-recognition and the criteria for statehood: [t]o establish what states consider to be the essential criteria for statehood, it is more appropriate to consider under which circumstances they refuse recognition as a state.
Indeed, serious attention is called for when States withhold recognition of situations or acts where one would normally expect their recognition. This is particularly true for those situations where States are of the opinion that they are under an international legal obligation to withhold recognition of an otherwise effective territorial entity claiming statehood. It will be seen later that the grounds for the legal obligation of nonrecognition at the same time constitute legal criteria for a lawful recognition as well as additional criteria for statehood. These additional and 'modern' criteria for statehood are based on legality, not on effectiveness. Because the obligation of non-recognition has sometimes been confused with the prohibition of premature recognition, the latter is addressed in more detail in Section 2. Subsequently, the meaning of the obligation of nonrecognition is examined in Section 3. The origin of the doctrine of the obligation of non-recognition of statehood will be elaborated upon in Section 4, and state practice in the field of non-recognition both during the era of the League of Nations and during the era of the United Nation is analysed in
6. 7.
Chen, RECOGNITION, p. 411 (references omitted). See Chapter 2, Section 5, supra. See also Chapter 8, Section 5, infra.
8.
OPPENHEIM'S INT'L LAW, p. 130.
9.
J.A. Frowein, Recognition, EPIL, Vol. 10, 1987, p. 340, at p. 342. Cf. also Dugard, RECOGNITION, p. 81. 10. This is apart from the fact that the criteria for recognition and the criteria for statehood are not necessarily the same. See pp. 165-167, infra.
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Section 5. Section 6 examines the legal character of the norms which give rise to an obligation of non-recognition. Section 7 discusses the legal basis of the obligation of non-recognition. The question of the existence of modern and additional criteria for statehood will be examined in Section 8. Whether there are any limits to the obligation of non-recognition is analysed in Section 9. Finally, in addition to some conclusions, a number of observations are made in Section 10, which will form the basis for further investigation in the subsequent chapters.
§ 2.
THE PROHIBITION OF PREMATURE RECOGNITION
A possible distinction between the prohibition of premature recognition and the obligation of non-recognition is that the former has always been concerned with the duty not to recognize a territorial entity which does not (yet) meet the traditional criteria for statehood (and for that reason alone is not a State under international law), whereas the obligation of non-recognition is, as will be pointed out in more detail later, concerned with the withholding of recognition from an effective territorial entity brought into being in violation of a fundamental rule of international law. However, this distinction is to a certain extent blurred when modern and additional criteria for statehood based on legality rather than on effectiveness are accepted. In such a case, the recognition of an entity which does not satisfy a modern criterion for statehood and is therefore not a State under international law, would amount to a violation of the prohibition of premature recognition as much as it would to a violation of the obligation of non-recognition. On the other hand, it could be argued that 'premature' entails 'action which is undertaken before the propertime' and, consequently,that premature recognition refers to recognition granted at a time when the recognized situation does not yet satisfy all the conditions which would permit its recognition. This means that recognition of said situation could be permissible at some point in the future. As such, premature recognition would be distinguishable from the obligation of nonrecognition because the latter refers to a duty to withhold recognition now and in the future.11 Another possible distinction between the two principles is that in the case of non-fulfilment of the traditional criteria for statehood, recognition of an entity as a State under international law is premature and, if the entity is located within the territory of a parent State, constitutes a violation of an
11. Cf. also pp. 112-113, infra.
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obligation erga singulum (that is, a violation of the principle of non-intervention), whereas a grant of recognition to an entity where an obligation of nonrecognition exists, in principle involves a violation of an obligation erga omnes.12 But, as stated above, these cases may overlap. Assuming that criteria for statehood based on legality exist and that a territorial entity is established in accordance with these criteria, two other problems may still be envisaged with respect to premature recognition. The first is whether recognition is lawful in the absence of recognition of the entity by the parent State (the latter kind of recognition is called 'permissive' recognition). The second problem concerns the question whether recognition in the absence of fulfilment of the criterion of 'government' on the basis of effectiveness (effective government), is always premature and therefore unlawful. § 2.1.
No recognition without 'permissive' recognition?
According to the international law of the eighteenth and nineteenth century, States were under a general obligation not to recognize a new State before the recognition of that State by the parent State.13 Contemporary international law, however, recognizes "the possibility of an original, non-derivative emergence of States as subjects of international law",14 which means that the principle of 'permissive recognition' is no longer applicable.15 This is evidenced by, for instance, the recognition of Algeria by a substantial number of States prior to its recognition by France.16 Other examples include the recognition of Bangladesh well before its recognition by Pakistan in 1974, and the recogni12. See p. 149, infra. 13. R.H. Sharp, NONRECOGNITION AS A LEGAL OBLIGATION: 1775-1934, 1934, pp. 7-11; H. Teuscher, DIE VORZEITIGE ANERKENNUNG IM VÖLKERRECHT, 1959; Frowein, supra note 9, at p. 341; C. Haverland, Secession, EPIL, Vol. 10, p. 384, at p. 387. It was not until the achievement of independence of the former Spanish colonies in South America in the 1820s that the old rule, requiring recognition by the parent State, was put under pressure because of the recognition of statehood of the former Spanish territories by the United States, followed by Great Britain and other States. In 1903, the United States recognized Panama's secession from Colombia (which recognized Panama only in 1914). The United States' lead was soon followed by France, China, Germany and Austria-Hungary. However, eleven years later the United States admitted the unlawful character of that act. In the Treaty of Bogota of 1914 between the United States and Colombia, it was, among others, provided that the United States pay $ 25,000,000 as a form of compensation. See }. Brown Scott, The Treaty Between Colombia and the United States, AJIL, Vol. 15, 1921, p. 430; Lauterpacht, RECOGNITION, pp. 22-23. 14. Haverland, supra note 13, at p. 387.
15. OPPENHEIM'S INT'L LAW, p. 144. 16. France recognized the Republic of Algeria on 2 July 1962. In April 1961, twenty-nine States had already recognized Algerian statehood. See M. Bedjaoui, LAW AND THE ALGERIAN
REVOLUTION, 1961, pp. 112-138. 17. See Chapter 7, Section 3.3.1., infra.
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tion of Guinea-Bissau by various States before recognition by Portugal in September 1974.18 A recent example is the recognition of the statehood of Slovenia, Croatia and Bosnia-Herzegovina by the international community in 1992-1993, and the recognition of the Former Yugoslav Republic of Macedonia in 1993-1994, that is, before the recognition of these States by Yugoslavia.19 Therefore, it must be concluded that under modern international law a new territorial entity, created by secession, may acquire full international personality originally and independently, that is, without the necessity of a transfer of sovereignty by the predecessor State.20Thus, recognition of statehood in the absence of, or prior to, the recognition of the entity by the parent State, cannot be unlawful for that reason alone. However, as is discussed below, even if 'permissive' recognition is granted by the parent State, through, for instance, the transfer of sovereignty to an entity, recognition of the latter by third States may be unlawful, when, for instance, the grant of independence by the parent State is in itself unlawful under international law.21
18. OPPENHEIM'S INT'L LAW, p. 144, n. 8. Another example sometimes referred to in this context is the exchange of ambassadors between the United States and India in the course of FebruaryApril 1947 which implied recognition of India's statehood by the United States, although India did not become formally independent until August 1947. See Murarka et al. v. Bachrack, ILR, Vol. 20, 1954, p. 52. See also OPPENHEIM'S INT'L LAW, p. 174, n. 18. Arguably, still another case is formed by the grant of de facto and in some cases de jure recognition of the government of the Republic of Indonesia prior to the transfer of sovereignty by the Netherlands in December 1949. Although the de facto recognition may be regarded as not necessarily implying recognition of the Republic of Indonesia as a State, it is difficult to regard the grants of de jure recognition in the same way. For a discussion of the establishment and status of the Republic of Indonesia, see C. Hillgruber, DIE AUFNAHME NEUER STAATEN IN DIE VÖLKERRECHTSGENEINSCHAFT, 1998, pp. 446-498. And see, generally, Crawford, CREATION OF STATES, pp. 258-259, and the references mentioned there; Information Department of the Indonesia Office, THE REPUBLIC OF INDONESIA: A REVIEW, 1949; M. Taylor, INDONESIAN INDEPENDENCE AND THE UNITED NATIONS, 1960; A. Sastroamidjojo, The Status of the Republic of Indonesia in International Law, Colum. L. Rev., Vol. 49, 1949, p. 344; C. Hyde, The Status of the Republic of Indonesia in International Law, Colum. L. Rev., Vol. 49, 1949, p. 955; P.J. Kuyper and P.J.G. Kapteyn, A Colonial Power as Champion of Self-Determination: Netherlands State Practice in the Period 19451975, in: H.F. van Panhuys et al. (Eds.), INTERNATIONAL LAW IN THE NETHERLANDS, 1980, p. 149, at pp. 157-170. 19. Yugoslavia recognized Slovenia on 21 August 1992 (see The Ministry of Foreign Affairs of the Federal Republic of Yugoslavia, Note no. 5793, 21 Aug. 1992), Croatia on 23 Aug. 1996 (see Department for Foreign Affairs of the Republic of Croatia, Povratak na Vanjske Poslove, 1998), the former Yugoslav Republic of Macedonia on 8 April 1996 (see Agreement on the Regulations and Promotion of Co-Operation Between the Republic of Macedonia and the FRY, 8 Apr. 1996; Yugoslav-Macedonia Ties, The New York Times, 9 Apr. 1996) and Bosnia-Herzegovina on 3 October 1996 (see Declaration Commune, Paris, 3 Oct. 1996, cited in: M. Skrk, Recognition of States and its (Non-)Implication on State Succession: the Case of Successor States to the Former Yugoslavia, in: N. Mrak (Ed.), SUCCESSION OF STATES, 1999, p. 1, at p. 26, n. 96). 20. See also Haverland, supra note 13, at p. 388. 21. Cf. Section 5.2.1.(b) of this Chapter, infra.
Non-Recognition and Additional Criteria Based on Legality § 2.2.
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of the traditional criteria for statehood and
It is widely accepted that States are obliged to withhold recognition of an entity which does not satisfy the traditional criteria for statehood.22 As has been observed: [t]he question is precisely when recognition as a new state may be given as distinguished from the recognition as a belligerent authority. For an untimely and precipitate recognition as a new state is more than a violation of the dignity of the parent state. It is an unlawful act, and it is frequently maintained that such untimely recognition amounts to intervention.23
Recognition of a secessionist entity in the absence of the fulfilment of the traditional criteria for statehood has three effects: (a) it constitutes an unlawful intervention in the affairs of the parent State, (b) it is not constitutive in the sense that it does not create full international legal personality of the entity concerned and in that respect has no legal effect, and (c) it does have a constitutive effect in the sense that the recognition is opposable to the recognizing State which means that this State must treat the entity as a State.24 There is no doubt that in the absence or lack of a defined territory, a permanent population and/or (formal or actual) independence, the entity is not a State and, therefore, recognition would be premature. The question is, however, whether the recognition of a secessionist entity lacking an effective government must always be qualified as premature and unlawful. The question is relevant both for cases of decolonization and for post-colonial cases. § 2.2.7.
Colonialism and state formation through national liberation wars: the requirement of effective government and the operation of the right of self-determination
As to the relation between effective government and decolonization, several situations exist in which the awarded recognition of statehood can be considered premature, because there was a lack of effective government both on the date of the proclamation of independence as on the date when recognition was 22. There is practical unanimity among international lawyers (both constituvists and declaratists) about this aspect of the law of recognition. See, e.g., Chen, RECOGNITION, p. 54; H. Kelsen, Recognition in International Law: Theoretical Observations, AJIL, Vol. 35, 1941, p. 605, at pp. 607 and 610; Lauterpacht, RECOGNITION, pp. 8-9 and 94-96. See, generally, Teuscher, supra note 13, at pp. 59-93. 23. OPPENHEIM'S INT'L LAW, p. 143. 24. See p. 38, note 81, supra.
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granted. In this respect, and apart from the case of the Congo which was already discussed earlier,25 three of the principal cases in which a lack of effective government existed will be analysed: the emergence and recognition of Guinea-Bissau, Algeria and Angola.26 It will be seen that as far as the relationship between 'government', effectiveness, statehood and recognition is concerned, an important role is played by the operation of the right to selfdetermination of the inhabitants of colonial territories. (a) Algeria27 The case of Algeria's hard-won independence from the colonial power France forms an example of a situation wherein recognition was given before the existence of an effective government. Since the end of World War II France took several steps clearly aimed at the complete integration of Algeria into France, in response to an emerging aspiration of the Algerian people towards independence.28 Because, according to France, Algeria formed part of metropolitan France, the people of Algeria could not claim a right of selfdetermination. For, the French maintained, such a right was only granted to colonial peoples but not to minorities within a sovereign State claiming secession. As will be discussed later in this study, the French view was clearly contrary to international law and United Nations practice with respect to the
25. See pp. 64-67, supra. 26. As was stated above, it is arguable that the dejure recognition of the government of the Republic of Indonesia by several States prior to the Dutch transfer of sovereignty to the country, amounted to the recognition of the statehood of the republic. But it was only after the transfer of sovereignty that the Indonesian government actually exercised authority over the entire territory of the republic. It would thus appear that the given recognition was unlawful. However, it is a tenable position that the question of the legality of the grants of recognition must be answered in the light of the applicability of the right of self-determination. This point is discussed in more detail below. On the implicit recognition by the Netherlands of the right of self-determination of the population of the Republic of Indonesia, see the Agreement of Linggadjati of 15 Nov. 1946, Arts. 3 and 4, reprinted in: Taylor, supra note 18, App. 3. Moreover, in 1949 the Dutch government, after several efforts to crush the independence movement in Indonesia and in the context of the Round Table Conference which led to the formal transfer of sovereignty to the Republic of Indonesia, explicitly stated that "self-determination was an internationally recognized right which accrued to the people [of the Republic of Indonesia] irrespective of whether it had been laid down in an agreement or not". Kuyper and Kapteyn, supra note 18, at p. 166. Another case which has been suggested in this regard is the case of Ruanda-Urundi, but that case primarily involved doubts as to the capacity to exercise effective authority. See R. Higgins, THE DEVELOPMENT OF INTERNATIONAL LAW THROUGH THE POLITICAL ORGANS OF THE UNITED NATIONS, 1963, pp. 22-23; H. Guillaume, LE RUANDA-URUNDI, 1959. 27. See, generally, Bedjaoui, supra note 16; A. Bleckmann, Decolonization: French Territories, EPIL,
Vol. 10, 1987, pp. 89-93; A Home, A SAVAGE WAR OF PEACE, ALGERIA 1954-1962, 1979; D.S. White, BLACK AFRICA AND DE GAULLE, FROM THE FRENCH EMPIRE TO INDEPENDENCE, 1979. 28. In 1958, a new French constitution was enacted which, as did its predecessor, accepted the right to self-determination within the French community. The Statut Organique de I'Algérie declared Algeria to be an integral part of metropolitan France, and granted all of its population equal voting rights for local self-governing bodies as well as for the French Parliament.
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right of self-determination for colonial peoples.29 For there is no doubt that Algeria qualified as a territory which was entitled to self-determination and independence.30 Although it was only in 1961 that the General Assembly formally declared Algeria to be a colonial territory the population of which was entitled to self-determination, the prior proceedings on the Algerian question within the United Nations took place on the assumption that Algeria was a colony.31 Nevertheless, the French government held firm to the integration of Algeria into the French Republic. An important consideration for this policy was formed by the fact that Algeria constituted the domicile of numerous French settlers and businesses. The FLN declared Algeria's independence on 19 September 1958. On the same day, it formed the Provisional Government of the Republic of Algeria. The government operated as a government-in-exile, having its seat in Tunis. The Republic was soon recognized by several Arab States, Asian countries, including China, and one year later by the OAU.32 The Soviet Union recognized Algeria's independence in March 1962, directly after the cease-fire with France, but before recognition by France, which led France to sever diplomatic relations with Moscow.33 Many of the aforementioned States had urged for discussion of the matter within the United Nations. However, and mainly for political reasons, it was not until 1960 that the claim to independence became an issue within the General Assembly, which called for the implementation of the right to self-determination and independence of the Algerian people.34 Independence was granted by France in the Accords d'Evian of 13 March 1962.35
29. See Chapter 5, Section 3.4., infra. It was not until 1999 that the French Parliament proposed a law which recognized the Algerian conflict as a 'war' in the sense of an international armed conflict. See Assemblée Nationale, Texte Adopté No. 334, Session Ordinaire de 1998-1999, Proposition de Loi Adoptée par 1'Assemblee Nationale en Premiere Lecture, 10 June 1999, Art. 1. 30. See UN Doc. A/Res/742 (VIII), 27 Nov. 1953, Ann. The resolution enumerates criteria for the identification of dependent territories. These criteria have been supplemented by the criteria mentioned in Principle IV of Resolution 1541. See UN Doc. A/Res/1541 (XV), 15 Dec. 1960, Ann. See, generally, Chapter 5, Section 3.4.2., infra. 31. A. Rigo Sureda, THE EVOLUTION OF THE RIGHT OF SELF-DETERMINATION, A STUDY OF UNITED NATIONS PRACTICE, 1973, p. 107. Prior to 1961, several States had asked for the inclusion of the question of Algeria on the agenda of the General Assembly, because they considered Algeria to be a colony. See UN Doc. A/2924 and Add.l, 29 July 1955, p. 2. 32. By April 1961, twenty-nine States had recognized the statehood of Algeria. See Bedjaoui, supra note 27, at pp. 112-138. 33. OPPENHEIM'S INT'L LAW, p. 147. The Soviet hesitation to grant recognition to Algeria was not based on any doubts concerning Algerian statehood. Instead, it feared that Soviet recognition would strengthen the western, French-led, opposition against Algerian independence. See M. Harbi, LES ARCHIVES DE LA REVOLUTION ALGÉRIENNE, 1981, pp. 518-519. 34. UN Doc. A/Res/1724 (XVI), 20 Dec. 1961. 35. UNTS, Vol. 507, p. 25. It has been argued, and not without merit, that the terms of the Accords acknowledge Algerian statehood. See Crawford, CREATION OF STATES, p. 259, n. 53.
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The numerous and preceding grants of recognition indicate, however, that Algeria was already considered to be a State under international law prior to its recognition by France, despite the lack of effective exercise of governmental authority.36 It will be pointed out below that this position is indeed tenable. First, however, it is necessary to discuss the cases of Guinea-Bissau and Angola. (b) Guinea-Bissau 37 The former Portuguese colony of Guinea-Bissau seceded from Portugal and was recognized as a State by a substantial number of States prior to the recognition of the country by Portugal.38 Portugal recognized the Republic of Guinea-Bissau through the 'Agreement Granting Independence between Portugal and Guinea-Bissau' of 26 August 1974. 39 In addition to the recognition by several States affirming the validity of the independence of the Republic regardless of Portuguese permission, the Security Council unanimously recommended the admission of the Republic of Guinea-Bissau to the United Nations on 12 August 1974.40 From the early 1960s onwards, the PAIGC started to use armed force against the Portuguese colonial power with the aim of liberating the territory. When, in 1972, a United Nations Special Mission visited the country, the Mission confirmed the claims of the PAIGC that it had liberated a large part of the country, that the colonial power had lost effective administrative control in these 'liberated' areas (about two-thirds of the country) and that in these areas the de facto administrative control was exercised by the PAIGC.41 The PAIGC formally proclaimed the independence of Guinea-Bissau on 24 September 1973,42 This claim of statehood was, apart from numerous individual grants of recognition, also accepted through the adoption of General Assembly Resolution 3061 (XXVIII) on 2 November 1973, which [w] elcomes the recent accession to independence of the people of Guinea-Bissau, thereby creating the sovereign State of the Republic of Guinea-Bissau [...]
36. But see OPPENHEIM'S INT'L LAW, p. 147. 37. See, generally, C. Rousseau, Guinée-Bissau, Chronique des Faits, RGDIP, Vol. 78, 1974, p. 1166. 38. Guinea-Bissau was recognized by more than seventy countries before October 1973. UN Ybk., Vol. 27, 1973, pp. 144. 39. ILM, Vol. 18, 1979, p. 1244. 40. UN Doc. S/Res/356, 12 Aug. 1974. The Republic of Guinea-Bissau was admitted to the UN on 17 September 1974. See UN Doc. A/Res/3205 (XXIX), 17 Sept. 1974. 41. UN Doc. A/AC.109/L804, 1971, p. 19. See also UN Ybk., Vol. 25, 1971, p. 567. 42. See UN Doc. S/11022, 5 Oct. 1973. The text of the proclamation of the State of Guinea-Bissau stated, amongst other things, that at its meeting of 24 September 1973 in the Boé region, the People's National Assembly, expressing the sovereign will of the people, had solemnly proclaimed the State of Guinea-Bissau as a sovereign, republican and democratic State.
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and furthermore demanded that the Government of Portugal desist forthwith from further violation of the sovereignty and territorial integrity of the Republic of Guinea-Bissau [...]. 43 There is thus little doubt that Guinea-Bissau was regarded as a State enjoying full international legal personality even before its recognition by Portugal, even in a situation where the PAIGC did not actually exercise authority over the vast majority of the population or in the major towns.44 It is difficult to deny the ineffectiveness of the government of Guinea-Bissau, because, of course, the actual exercise of authority is not only measured in terms of square kilometres where that authority is displayed. For, if effective government is to have any meaning it must require the actual exercise of authority over, at least, the major part of the territory as well as over the vast majority of the population. It is clear that a lack of control with respect to some remote areas is something entirely different from a lack of control regarding at least one-third of the territory which is moreover inhabited by the bulk of the population of the prospective State. However, as in the case of Algeria, it would seem that the lack of effective government was not considered a bar to the statehood of the Republic of Guinea-Bissau under current international law. (c) Angola46 The situation of Angola after the grant of independence resembles that of the Congo in 1960. The title to exercise exclusive authority was granted by Portugal to its former colonial territory of Angola in November 1975. However, after Portugal's withdrawal from the territory in April 1975, there did not appear to be one single governmental authority claiming and exercising effective
43. UN Doc. A/Res/3061 (XXVIII), 2 Nov. 1973 (vote: 93 to 7, with 30 abstentions). See also UN Doc. A/Res/3181 (XXVIII), 17 Dec. 1973, which excluded, inter alia, Guinea-Bissau ("which is an independent State") from the state territory of Portugal. 44. Shaw, INTERNATIONAL LAW, 1997, p. 145; Dugard, RECOGNITION, pp. 73-74. See also UN GAOR 28th Sess., General Comm., 213rd mtg., pp. 25-26, 28, 30 and 31; UN GAOR, 28th Sess., Plenary, 2156th mtg., pp. 8, 12 and 16 and 2157th mtg., pp. 22-25 and 65-67; UN Ybk., Vol. 27, 1973, pp. 143-144 (position of African and Asian countries). But see id., at p. 144 (position of a number of western States). 45. This was certainly the opinion of the Portuguese government, which argued that the "so-called Republic of Guinea-Bissau had not met the requirements of classical international law for the accordance of recognition to new States". It was furthermore maintained "that PAIGC was not in control, as it claimed, of three fourths of the territory and that the proclamation of independence had been made without a national territory and a capital city, without effective control of any population, and without anything that could characterize a State". See id., at pp. 144-145. 46. See, generally, M. Bothe, Völkerrechtliche Aspekte des Angola-Konflikts, ZaöRV, Vol. 37, 1977, p. 572; F. De Quadros, Decolonization: Portuguese Territories, EPIL, Vol. 10, 1987, p. 93.
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territorial and personal jurisdiction over the whole territory of Angola and its inhabitants. Instead, there were three different conflicting parties - the National Union for the Total Independence of Angola (UNITA),47 the National Front for the Liberation of Angola (FNLA)48 and the Popular Movement for the Liberation of Angola (MPLA) - each rivalling the other for power. The MPLA, which was backed by the Soviet Union, won the conflict for State control and an MPLA government was installed. Portugal had, even before the grant of independence, permitted the Soviet Union and Cuba to support the MPLA through the sending of military help, consisting of both materiel and men. In addition, Portugal breached earlier agreements with all the parties, by handing over the power to the MPLA alone on 11 November 1975. A civil war broke out and still rages on, especially between the MPLA government and UNITA, despite the conclusion of several peace agreements between the parties under the auspices of the international community.50 The MPLA government was assisted by Cuban troops (who, arguably, intervened to counteract South-African military intervention) and it did not control major parts of the country. The described situation thus has important features corresponding to the case of Finland in 1917-1918.51 But contrary to the Finnish situation, the vast majority of the international community did consider Angola to be a State under international law, despite the existence of a serious lack of effective governmental control.52 Angola was admitted to the United Nations on 1 December 1976, after initial resistance by the United States which was primarily caused by the direct involvement of Cuba in the civil war.53 (d) The Congo The situation of the Congo after the grant of independence by the Belgian colonial power in 1960 has been discussed elsewhere in this study.54 It has been 47.
48. 49. 50. 51. 52. 53.
54.
União Nacional para a Independência Total de Angola, founded in 1966, representing the Ovimbundu, the largest tribe in Angola, and in control of the central and southern regions of the country. Frente Nacional de Libertação de Angola, founded in 1962, holding control of the mountainous region in the north of the country. Movimento Popular de Libertaçãdo de Angola, founded in 1956 and in control of the capital city. See, e.g., the 1991 Acordos de Paz para Angola, UN Doc. S/22609, Ann, 17 May 1991; and the 1994 Lusaka Protocol, UN Doc. S/1994/1441, 22 Dec. 1994, Ann. See p. 63, supra. See also Dugard, RECOGNITION, pp. 74-75; Crawford, CREATION OF STATES, p. 136. Despite this involvement, the Angolan situation is a case primarily concerning the problem of effective government, rather than the problem of lack of independence, because Angola was not, notwithstanding substantial support from Cuba and the Soviet Union towards the MPLA government, an extension of one or both of these States, nor was it under Portuguese rule. See pp. 64-67, supra.
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seen that the entity lacked an effective government, but despite that feature its statehood was acknowledged by the international community at large. § 2.2.2.
The formation of States and ineffective government in the post-colonial era
As will be argued below, the right of self-determination of colonial peoples, which was widely accepted during the period in which the above-mentioned entities were established, played an important role with respect to the international community's stance regarding the claims to statehood by the entities concerned. The question whether this also applies in the post-colonial era, as in the cases of Bangladesh, Croatia, Bosnia-Herzegovina, Georgia and Moldova, of necessity requires a detailed analysis of the right of self-determination beyond the colonial context. Therefore, that point is discussed in Chapters 7 and 8.55 § 2.3.
Observations
The main question arising from the cases discussed above is how it can be explained that all these entities were considered to be States under general international law while there was a clear lack of effective government. In other words, it is difficult to deny that these entities were not States in an empirical sense. As suggested above, the answer to this question must be found in the operation of the right of self-determination of peoples and more in particular in the right of external self-determination. The specific content of the right of self-determination, within the context of decolonization as well as outside of that context, will be carefully and extensively scrutinized in the following chapters. Therefore, for present purposes it is sufficient to note that colonial peoples and territories were regarded by the international community as self-determination units which were entitled to establish an independent State. 56 This mode of implementing the right of self-determination, leading to the modification of the external boundaries of the parent State and determining the political status of the people concerned vis-a-vis the rest of the international community, is generally referred to as 'external' self-determination.
55. See Chapter 7, Section 3.3.3. and Chapter 8, Section 2, infra. 56. UN Doc. A/Res/1541, supra note 30, Ann., Principle VI ("[a] Non-Self-Governing Territory can be said to have reached a full measure of self-government by: (a) emergence as a sovereign independent State, (b) free association with an independent State, or (c) integration with an independent State").
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As was stated in Chapter 3, insofar as the criterion of 'government' is concerned, one must distinguish between the actual exercise of authority on the one hand and a right or title to exercise such authority on the other.57 It was observed that if an exclusive right to exercise authority can be based on, for instance, a treaty provision or another rule of international law, the lack or sometimes even near absence of the exercise of actual control does not form a bar to the fulfilment of the criterion of 'government' and thus to the formation of a State in international law. In such cases, the lack of effective control is compensated by the existence of the right to exercise authority. And this, as was observed, is in accordance with both the raison d'être and function of the principle of effectiveness in international law.58 In this respect it is important to note that in the cases discussed above, all the proclamations of independence were supported by, and indeed were based on, self-determination principles. It is beyond doubt that the populations of the respective colonial entities were holders of the right of external selfdetermination and that they were entitled to establish an independent State. Once this right was exercised through a proclamation of independence originating from a governmental authority which was deemed to be representative of the population of the colonial territory, a vast number of States granted recognition of statehood despite the lack of effective government. It must therefore be concluded that, at least in the context of decolonization, a presumption exists in favour of the existence of a legal rule holding that a right of external self-determination gives rise to an exclusive right to exercise authority over the (former colonial) territory once the right of self-determination is exercised through a proclamation of independence issued by a governmental authority deemed to be representative of the inhabitants of the territory. In turn, this right or title to exercise authority compensates for a possible lack of effective governmental power, certainly if such a lack of effectiveness is a result of unlawful conduct by the parent State, that is to say, the colonial power. Any other interpretation giving priority to effectiveness of government over the right of external self-determination in this context, runs counter to the raison d'etre and function of effectiveness in international law. Moreover, such a standpoint would provide a colonial power - whose policy of colonization gave rise to the right of external self-determination of the entity concerned in the first place - with the opportunity to prevent the authorities of the nascent State,
57. See p. 65, supra. 58. See Chapter 3, Section 2.1., supra.
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through the illegal use of armed force, from exercising effective authority over the territory. If this reasoning would be followed consistently, it would lead to the conclusion that the parent State, or colonial power, would retain the title to exercise authority over the territory. However, such a conclusion cannot be accepted in the light of the parent State's obligation under modern international law to transfer sovereignty to the authorities of such a territory immediately.60 Alternatively, if one would be of the opinion that neither the colonial power nor the authorities of the self-determination unit are the holder of the right to exercise authority over the territory, this would render the territory terra nullius, and hence open for occupatio. However, this conclusion cannot be accepted either in light of the observations of the International Court of lustice in the Western Sahara case.61 It follows that a rigid insistence on effectiveness of government in circumstances where a 'people' proclaims the independence of a State on the basis of an applicable right of external self-determination and where this 'people' is violently and unlawfully denied the right to effectuate this proclamation in practice,62 would reduce the right of self-determination to a virtually empty legal concept. This cannot, however, be assumed, especially in the light of the fundamental position this right has been given in the context of decolonization in particular, in resolutions of both the Security Council and the General Assembly.63 59. Note that the General Assembly described the use of force by Portugal against the people of Guinea-Bissau as an "act of aggression". UN Doc. A/Res/3061 (XXVIII), supra note 43, at Para. 3. Moreover, see UN Doc. A/Res/3051 (XXVIII), 2 Nov. 1973; UN Doc. A/Res/1514 (XV), 14 Dec. 1960, Para. 4 (where it is stipulated that armed action directed against dependent peoples is unlawful). See also UN Doc. A/Res/2160 (XXI), 30 Nov. 1966 (Declaration on Nonintervention), Para. 2 (d); UN Doc. A/Res/3314 (XXIX), 14 Dec. 1974 (Definition of Aggression), Preamble, Para. 6 and Art. 7; UN Doc. A/Res/2625 (XXV), 24 Oct. 1970 (Declaration on the Principles of International Law), Principle V, Para. 5. And see M. Rafiqul Islam, Use of Force in Self-Determination Claims, Indian JIL, Vol. 25, 1985, p. 424, in particular pp. 425-432. 60. UN Doc. A/Res/1514, supra note 59, Para. 5. And see Chapter 5, Section 3.4.1. See also the statement by the Indian permanent representative to the UN. UN SCOR, 987th mtg., UN Doc. S/PV/987, 1961, p. 11. 61. Western Sahara, Advisory Opinion, 1975, ICJ Rep. 1975, p. 13, at pp. 38-39 (the Court noted that "territories inhabited by tribes or peoples having a social and political organization" are not terra nullius). 62. See also UN Doc. A/Res/1514, supra note 59, which states in Para. 4: "all armed action or repressive measures directed against dependent peoples shall cease in order to enable them to exercise peacefully and freely their right to complete independence [...]" (emphasis added). Before the adoption of a substantially revised version of the Draft Articles on State Responsibility in 2001, such use of force was earmarked by the International Law Commission as a prime example of an international crime. See ILC Ybk. 1980, Vol. II, Part 2, Art. 19(3)(b). Because of forceful protest by a number of States, the distinction in the Draft Articles between international delicts and international crimes was eventually not maintained in the revised version. See Draft Articles on Responsibility of States for International Wrongful Acts, adopted by the Drafting Committee on second reading, UN Doc. A/CN.4/L.602/Rev.l, 26 July 2001. 63. See Chapter 5, Section 3.4., infra.
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In sum, the conclusion is inevitable that at least in cases where a colonial people is forcibly or in any other coercive manner prevented from realizing its right of self-determination, a State may come into existence under international law despite a substantial lack of effective governmental control by the authorities of the previously colonial territory over the relevant territory and its inhabitants.64 In such situations, the lack of effective government is compensated by an applicable right of external self-determination. This compensatory force of the right of external self-determination will be referred to in this study as the 'compensatory force principle'.65 As was discussed in Chapter 3, in those instances of State formation where an exclusive right or title to exercise authority exists but where in practice, there is only a minimal degree of governmental control by the government of the territory concerned, it must be concluded that, while there is (still) no empirical statehood, the State does exist in a juridical sense (juridical statehood), provided, of course, that the other criteria for statehood are satisfied.66 This is not to say that statehood is either 'juridical' or 'empirical'. Such a qualification moves along a continuum depending on the degree of governmental powers exercised effectively by the authorities of the State in question. However, because juridical statehood means that the entity concerned is a State under 64. See also Brownlie, PRINCIPLES, p. 71 ("the existence of effective government is in certain cases [...] unnecessary [...] to support statehood. The principle of self-determination will today be set against the concept of effective government, more particularly when the latter is used in arguments for continuation of colonial rule"). And see Shaw, 'INTERNATIONAL LAW, p. 144 ("[t]he evolution of self-determination has affected the standard necessary as far as the actual exercise of authority is concerned, so it appears that a lower level of effectiveness, at least in decolonisation situations, has been accepted"); Dugard, RECOGNITION, pp. 78-79 ("[a] rigid insistence on the pre-1960 criteria of statehood without regard for the principles of decolonization is incompatible with the expectations of States and contrary to modern State practice"); Higgins, supra note 26, at p. 23; Haverland, supra note 13, at p. 387. Cf. also Crawford, CREATION OF STATES, pp. 102, 257, and 261-263. However, Crawford contends that in certain circumstances "the principle of self-determination will operate to reinforce the effectiveness of territorial units [...]" (at p. 102, emphasis added). This is, however, difficult to accept. The fact that the territorial unit lacks an effective government is not changed as a result of an applicable right of external self-determination. It is therefore better to speak of compensatory force or compensatory effects rather than of reinforcement of effectiveness as a result of the right of external self-determination. 65. Prior to the recognition of self-determination as a positive right, state practice chiefly pointed to the acceptance of the principle that the effectiveness of governmental control was a conditio sine qua non for both the recognition of statehood and the recognition of a (revolutionary) government. However, this practice primarily concerned British and American practice. See, e.g., Lauterpacht, RECOGNITION, pp. 28-20, 98-102, and 115-136. And see Chapter 3, Section 3.3., supra. But important exceptions to this early practice have been noted, which should probably be regarded as the forerunners of modern practice in the light of the right of selfdetermination. See D.P. O'Connell, INTERNATIONAL LAW, 1970, pp. 136-139 ("British practice has not always been based on the acceptance of facts. In the nineteenth century there was a tendency to exact some formal evidence of effectiveness in the form of popular consent. If the government was 'well supported by the nation at large' it would be recognised"). 66. See pp. 65-67, supra.
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international law, recognition of that entity as a State cannot be regarded as premature and unlawful. Finally, the fact that it is possible for a State to come into existence with a substantial lack of effective government must, however, as discussed earlier,67 be distinguished from the continued existence of that State. If the lack of effective government persists over a prolonged period of time and in particular when this lack of effectiveness is not a result of the illegal use of armed force by a third State, the State will eventually become extinct.
§ 3.
THE MEANING OF THE DOCTRINE OF OBLIGATORY NON-RECOGNITION
Before entering into a discussion about the meaning of the doctrine of obligatory non-recognition, a preliminary point must be made. As will be seen below, the obligation of non-recognition has a declaratory character in the sense that States are considered to be under a legal obligation not to recognize a specific situation which is already legally non-existent. Thus, the obligation of withholding recognition is not the cause of the fact that an illegal act does not produce the intended results, that is, legal rights for the wrongdoer. Nonrecognition merely declares or confirms that fact and the obligation not to grant recognition prevents the validation or 'curing' of the illegal act or the situation resulting from that act. The same is true for questions of statehood. Nonrecognition as such does not form a bar to the acquisition of statehood. If an entity satisfies all the criteria for statehood, it is a State. If it does not, it is not a State. In the latter situation the non-recognition of the entity merely confirms the absence of statehood, it is not the cause of it. However, one should beware of oversimplification. For instance, one may envisage the situation in which a territorial entity, which has satisfied all the criteria for statehood, is not recognized for political reasons. It is obvious that the non-recognition, while it does not juridically affect the statehood of the entity concerned, may eventually be decisive for its continued existence. This is the case in particular when the new State is not recognized by the vast majority of States or possibly even all States. An example of such a situation is formed by the case of the former Yugoslav Republic of Macedonia, which proclaimed its independence on 17 September 1991, but was not recognized by the international community until April 1993.68 67. See p. 67, supra. 68. A few States did accord recognition before April 1993. This was done by Bulgaria (15 Jan. 1992), Turkey (6 Feb. 1992) and Lithuania (26 June 1992). See R. Rich, Recognition of States: the Collapse of Yugoslavia and the Soviet Union, EJIL, Vol. 4, 1993, p. 36, at p. 52.
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The non-recognition was based on political reasons. These concerned objections by Greece with respect to the name of the Republic and the symbols used by the Republic which, according to Greece, implied territorial aspirations. In this case the prolonged postponement of recognition in combination with economic sanctions imposed by Greece and the blocked access to foreign credits, could have resulted in the Republic's collapse. After repeated statements by the Republic that it did not claim, and did not have the intention to claim additional territory, as well as pledges, guarantees and specific provisions in its constitution to that effect, it was finally recognized by the major part of the international community in the course of 1993 under the (provisional) name of 'former Yugoslav Republic of Macedonia' (FYROM) 69 It will be noted that no State held that Macedonian statehood was absent due to the non-recognition thereof, 70 which is completely in conformity with legal theory. But that does not mean that general absence of recognition cannot have far-reaching effects. It can, as it is almost impossible for a State to survive without international relations. Moreover, if general non-recognition of a claim to statehood is motivated by legal considerations related to the purported statehood of the entity concerned (as was not the case with FYROM), it forms a strong indication or even evidence of the absence of statehood. Let us now turn to the meaning of the doctrine of obligatory nonrecognition as applied to situations involving claims to statehood. The evolution towards an acceptance of an obligation of non-recognition of invalid acts and 69. The Republic was admitted to the UN under the same provisional name (see UN Docs. S/Res/817, 7 Apr. 1993 and A/Res/47/225, 8 Apr. 1993). The conflict over the Republic's name is still unsolved. On the conflict over the name and symbols of the Republic, see Arbitration Commission of the International Conference on Yugoslavia, Opinion 6, 11 Jan. 1992, ILM, Vol. 31, 1992, pp. 1507-1512 (holding that there were no objections for recognition by the EC member States); Greek Memorandum to the United Nations Concerning the Application of the Former Yugoslav Republic of Macedonia for Admission to the United Nations, UN Doc. A/47/877-S/25158, App.,25 Jan.1993, reprinted in: S. Trifunovska (Ed.), YUGOSLAVIA THROUGH DOCUMENTS FROM ITS CREATION TO ITS DISSOLUTION, 1994, pp. 807-810; H. Axt, Mazedonien: ein Streit um Namen oder em Konflikt for dem Ausbruch?, Europa Archiv, Vol. 48, No. 3, 10 Feb. 1993, pp. 65-75; J. Shea, MACEDONIA AND GREECE: THE STRUGGLE TO DEFINE A NEW BALKAN NATION, 1997; M. Craven, What's in a Name? The Former Yugoslav Republic of Macedonia and Issues of Statehood, Aust. YIL, Vol. 16, 1995, p. 199. Several member States of the EC declared that they recognized FYROM on its admission to the UN on 8 April 1993. See p. 43, note 98, supra. The United States recognized the Republic on 9 February 1994. See http://www.binfo.com/places/Macedonia/republic/White-House_Recogn.shtml. Greece did not formally recognize FYROM's statehood until 13 September 1995 when it signed the 'Interim Accord Between the Hellenic Republic and the FYROM', which contains a provision (Art. 1) to that effect. See http://www.mfa.gr/foreign-/treaties/95-27866.htm. 70. Indeed, on 2 May 1992, that is, almost a year before FYROM was admitted to UN membership and subsequently widely recognized, the EC member States declared that "[t]hey are willing to recognize that State as a sovereign and independent State, within its existing borders, and under a name that can be accepted by all parties concerned" (emphasis added). EPC Informal Meeting of Ministers for Foreign Affairs, Declaration on the Former Yugoslav Republic of Macedonia, Guimaraes, 1-2 May 1992, EPC Press Release 53/92.
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situations under international law requires a belief and basic recognition that the observance of the rules of law is a common concern of the international community as a whole.71 The result of such a belief would be that violations of the law and especially those violations which concern fundamental legal rules, are no longer considered in terms of bilateral relationships only, that is, the wrongdoer and the direct and primary victim of the illegal act. In such a situation, it is recognized and accepted that tolerating a violation of certain fundamental norms may have disastrous consequences for the legal position of all members of the international community, and indeed for the preservation of the international public order as such. The next and related step in the evolution towards the existence of an obligation of non-recognition is that it is accepted that a violation of such a fundamental norm and its results shall not be validated and that this obligation is owed erga omnes. In light of the foregoing, the doctrine of the obligation of non-recognition as applied to statehood holds that States are under an obligation not to recognize, through individual or collective acts, the purported statehood of an effective territorial entity created in violation of one or more fundamental norms of international law.72 Recognition of such an entity would constitute an illegal act vis-a-vis the holder of the right that was breached during the process of the formation of the entity, because such would waive the holder's rights without his consent.73 Moreover, because, as will be shown later, the obligation of non71. See also Chen, RECOGNITION, p. 416. 72. It has been argued that if the illegality of a factual situation in itself forms a bar for any legal status being attached to that factual situation, any further obligation of non-recognition would be illogical and unnecessary. See J. Verhoeven, LA RECONNAISSANCE INTERNATIONALE DANS
LA PRATIQUE CONTEMPORAINE: LES RELATIONS PUBLIQUES INTERNATIONALES, 1975, pp. 586-617. However, non-recognition is not so much concerned with the factual situation as such, but with the rights or legal status under international law which are claimed to flow forth from those facts, because recognition of the situation, especially if such recognition is accorded by several States, may validate or 'cure' the illegality or its consequences. It is precisely this possible effect of recognition which is the raison d'être and function of the obligation of non-recognition, and it is therefore difficult to regard this as "illogical" or "unnecessary". See also Crawford,
CREATION OF STATES, p. 123, n. 172. 73. Indeed, the holder of a right is free to waive its right (volenti non fit injuria), as long as the waiver does not conflict with the rights of a third party which might be directly affected by the waiver. For an example under contemporary international law one might think of the transfer of territory of a State and the attached rights of territorial sovereignty to another State after the latter's occupation through the unlawful use of force of part of the territory of the former. If the transfer is done by an unrepresentative government or without the prior consultation of the population of the State and/or the population inhabiting the territory which is the object of devolution assuming that this population is entitled to the right to self-determination - the transfer would itself be in conflict with a substantive norm of international law and therefore be illegal. See also Western Sahara case, Advisory Opinion, ICJ Rep. 1975, p. 13, at p. 33, para. 59; Reference re Secession of Quebec, supra note 3, at p. 1372, para. 129; Cassese, SELF-DETERMINATION, p. 287. If the waiver does not conflict with the rights of others and if freely expressed, the subsequent recognition by third States of the initially illegal conduct or situation cannot be unlawful. It will be noted that the transfer by the United Kingdom of Hong Kong to China
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recognition relates to acts and the consequences of such acts which are in violation of a norm which must be respected erga omnes, recognition of such an act or situation constitutes in itself an act which is illegal erga omnes.74 Clearly, according to the legal doctrine of non-recognition, the obligation of non-recognition is grounded in juridical and not in purely political considerations. The doctrine is sometimes referred to as the doctrine of 'collective nonrecognition'. This terminology is used if one wishes to indicate that the determination of the occurrence of an illegal act takes the form of, for instance, a decision by a 'collective' organ of an international organization such as the League of Nations or the United Nations. Such a decision could then be followed by another 'collective' decision on the obligation of non-recognition of the illegal act and its results. However, it must be clear that, although under these circumstances the determination of the violation of international law bears a 'collective' character, the obligation of non-recognition is borne by the individual (member) States.76 Therefore, state practice as a result of these 'collective' determinations may be referred to as 'collective non-recognition', but this is by no means necessary.77 This is illustrated by the fact that the absence of a 'collective' determination of the occurrence of a breach of a fundamental rule of international law does not mean that States are freed from the obligation not to recognize the illegal act or its results.78 Returning to the relationship between a violation of international law and
in 1997 was not accompanied by a direct consultation of the population of Hong Kong. However, as has been convincingly argued by Cassese, the special circumstances of the case justified the absence of direct consultation. See id., at p. 80, n. 36. 74.
M. Ragazzi, THE CONCEPT OF INTERNATIONAL OBLIGATIONS ERGA OMNES, 1997, pp. 168-170. See also p. 149, infra.
75. Dugard, RECOGNITION, p. 24; Brownlie, PRINCIPLES, p. 96. Another example of 'collective nonrecognition' is formed by the situation wherein several States enter into a treaty which includes an explicit provision on an obligation of each individual party to the treaty not to recognize specific violations of international law. See, e.g., the Anti-War Treaty of Non-Aggression and Conciliation, 1933, Art. 2 (Saavedra-Lamas Treaty), LNTS, Vol. 163, p. 393; Convention on Rights and Duties of States, 1933, Art. 11 (Montevideo Convention), LNTS, Vol. 165, p. 19. 76. True, if these States intend to recognize or validate the situation through a decision of a collective organ, and assuming that that organ is competent to perform that act on behalf of those States, then the obligation of non-recognition is also applicable to that collective organ. In that specific case, it would be proper to speak of a collective obligation of non-recognition. 77. Brownlie, PRINCIPLES, p. 96. 78. For instance, in Article 41(2) of the ILC's Draft Articles on Responsibility of States for International Wrongful Acts (supra note 62), it is stated that "[n]o State shall recognize as lawful a situation created by a serious breach [of an obligation arising under a peremptory norm of general international law]". This obligation thus exists regardless of a collective determination that such a breach has occurred. See also p. 157, note 302, infra. This, of course, requires that such an obligation is part of customary international law. It is submitted that this is the case. See Section 7 of this Chapter, infra.
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the creation of a 'State' as a result of that violation, the following must be noted. The breach of international law which was of cardinal importance for the establishment of the entity concerned, may have been committed either by the authorities in control of the territorial entity, or by a third State, or by both. When a third State is involved, this State's illegal conduct sowed the seeds for the de facto establishment of the territorial entity. In other words, it is highly improbable that the territorial entity would have come into de facto existence without the illegal conduct of the third State, which may consist of, for instance, the use of armed force and occupation of a part of the territory of the State in which the effective entity is formed. Non-recognition thus denies the lawbreaker, or the one reaping the benefits thereof, the intended result of the breach of law, namely the legal existence or validity of the situation brought about in violation of international law. Consequently, it is not the object of the obligation of non-recognition "to render illegal an otherwise lawful and valid act; its object is to prevent the validation of what is a legal nullity".79 Moreover, when it is said that States are under an obligation to withhold recognition of an illegal act or situation, the non-recognition is not intended to invalidate or annul the act or the results of that act. For, the act and its results were already in and of themselves "devoid of legal validity by reason of their illegality or 80 •11 illegal creation". Because the obligation of non-recognition is, as will be seen later, strongly related to the principle of ex injuria jus non oritur according to which "acts contrary to international law cannot become a source of legal rights for a wrongdoer",81 the obligation of non-recognition is primarily directed at the consequences or 'poisoned fruits' of the illegal conduct. The reason for this is obvious. As was stated above,82 the fundamental norm upon which the illegality is based might be seriously undermined as a result of the validation of the consequences of the illegal conduct through recognition. This in turn may - if the legal rule involved is substantial - threaten the international legal order as a whole. Recognition of the direct consequences or manifestations of the illegal act is probably more likely to occur than recognition of the illegal act itself, because in the former situation at least the appearances may be kept up that the recognizing States have no intention to do away with the "moral or legal opprobrium attachingto the original illegality". However, if such recognition 79. Lauterpacht, RECOGNITION, p. 413.80. Usuki, supra note 1, at p. 85.
81. OPPENHEIM'S INT'L LAW, p 184. 82. See p. 90, supra. 83. Lauterpacht, RECOGNITION, p. 412.
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of situations deriving from the same sort of illegal conduct is repeated by a substantial number of States, it becomes very difficult to maintain that the legal norm the breach of which gave rise to the different illegalities has not been replaced or modified, at least vis-a-vis the recognizing States. As is observed by Chen: [h]ere, recognition is not mere confirmation of facts, but may have the effect of creating or conferring [...] rights previously non-existent. 85
On the other hand, in principle there is no logical objection to an adjustment of the law through recognition, provided that such an adjustment does not in itself pose a threat to the system of law. As will be discussed below, 86 the recognition of certain acts or their results which are in conflict with certain fundamental legal rules, such as those having the character of jus cogens, would pose a threat to the maintenance of the system of international law as a whole. No legal system can, as a matter of legal logic, contain such an unlimited permissive rule without simultaneously providing for its own self-destruction. The principle of the obligation of non-recognition is closely bound up with the maintenance of international peace through the preservation of the existing international legal order. Through the refusal of recognition of the wrongdoer's claims to legal rights or status, which according to the wrongdoer derive from his conduct, non-recognition aims at the preservation of the legal status quo ante. However, it is equally true that any rigid interpretation of this doctrine in the sense of an absolute prohibition on the recognition of any illegal act or result of that act may in itself result in a situation that is not conducive to the general good. It would simply be naive to think that international stability can only be maintained through the preservation of these legal norms and principles existing at a certain point in time. The change or adjustment of legal rules has often taken place through the general recognition of, or acquiescence in, acts or situations in violation of a rule of law, if the violation was committed with
84.
Cf. also Anglo-Norwegian Fisheries case (United Kingdom v. Norway), ICJ Rep. 1951, p. 116, at p. 131. But see Section 9 of this Chapter, infra. Lauterpacht was of the opinion that it was permissible to grant de facto recognition to an act or its direct consequences - by which the recognizing State considers the act or situation to be a fact in the international domain with limited legal effects - without doing away with the illegality as such. See Lauterpacht, supra note 1, at pp. 148-149. However, quite apart from the fact whether there are any legal differences as regards the effects of de jure or de facto recognition, it seems clear that without a distinctive framework that defines the exceptions to the obligation of non-recognition regarding specific acts or results flowing from illegal conduct, allowing for de facto recognition of illegal acts (in the sense of Lauterpacht's view) in the doctrine of non-recognition would eventually result in 'self-annihilation' of this doctrine. See also Usuki, supra note 1, at p. 95. 85. Chen, RECOGNITION, p. 413. 86. See Section 6 of this Chapter, infra.
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the intention to adjust the rule to the changing demands of international life, or simply because in evaluating the breach of the law States generally agree that the old rule should be adapted to the new circumstances.87 In sum, the obligation of non-recognition is not directed at prohibiting the recognition or validation of any and all illegal acts or illegally established situations, but at those acts or situations which are in conflict with a fundamental rule of international law, that is, those acts or situations which violate a legal norm which must be respected erga omnes and which thus affects the interests of the international community as a whole. But even in the case of a fundamental norm, a situation may occur in which it is considered justified to validate a breach of a fundamental rule or the effective consequences of such a breach for the purpose of the effectuation of another fundamental rule of international law - a situation that is accepted even in the context of jus cogens.88 However, in these kinds of exceptional cases as well, the law is - as a matter of principle - against recognition, and where the law permits recognition it follows that the sole effectiveness of a situation brought about in violation of a fundamental norm does not render its recognition admissible.89 Thus, the scope and limits of the prohibition on recognition of statehood should be interpreted in the light of the object and purpose of the doctrine of non-recognition, which is the maintenance of international peace and stability through the preservation of the authority, integrity and legal character of international law. In this context, collective non-recognition must be regarded as a sanction. From the perspective of law enforcement, obligatory nonrecognition therefore bears the character of a lever. As has been pointed out 87. This seems to have been the case with, for instance, the limits of the territorial sea. See Shaw,
INTERNATIONAL LAW, pp. 70-72, 401-402; Brownlie, PRINCIPLES, pp. 185-186. 88. Vienna Convention on the Law of Treaties, UNTS, Vol. 1155, 1980, p. 331, Art. 53: "a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character". 89. See Chapter 3, Section 2.2., supra; K. Doehring, Effectiveness, EPIL, Vol. 7, 1984, p. 70, at p. 74. 90. L. Henkin, International Law: Politics, Values and Functions, HR, 1989 IV, p. 19, at p. 33; C. Lloyd Brown-John, MULTILATERAL SANCTIONS IN INTERNATIONAL LAW, A COMPARATIVE ANALYSIS, 1975, pp. 13-14. A 'sanction' in the sense of international law can be defined as a coercive measure imposed by a State (generally) in response to perceived unlawful conduct by another State or entity and meant to uphold standards of behaviour required by international law. When the sanction is imposed by a group of States acting in concert, or by (an organ of) an international organization on behalf of its members, one speaks of a 'collective' sanction. See A. de Hoogh, OBLIGATIONSERGAOMNES' AND lNTERNATIONAL CRIMES, 1996, pp. 217-220; B. Boutros-Ghali, Supplement to An Agenda for Peace, UN Doc. A/50/60, 3 Jan. 1995, p. 16 (para. 66); N. Schrijver, The Use of Economic Sanctions by the UN Security Council: An International Perspective, in: H. Post (Ed.), INTERNATIONAL ECONOMIC LAW AND ARMED CONFLICT, 1994, p. 123, at p. 125. Cf. also V. Gowlland-Debbas, Comments, in: Post (Ed.), id.,
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by Lauterpacht: [i]n a society in which the enforcement of the law is precarious, there is a natural tendency to regard successful breaches of the law as a source of legal right. Nonrecognition obviates that danger to a large extent. It is the minimum of resistance which an insufficiently organized but law-abiding community offers to illegality; it is a continuous challenge to a legal wrong. In a sense, the effectiveness of nonrecognition grows with the passage of years. For it brings into relief the contrast between the consolidating power of the successful defiance of the law and its status as a mere legal nullity.91
However, Marek has pointed out, and probably correctly, that "in view of the unrelenting pressure of facts", non-recognition is essentially a temporary measure. Holding on to non-recognition without the willingness to restore the legal status quo ante if the situation is not brought to an end as a result of the non-recognition as such, may indeed result in the fact that international law is largely reduced to a system of "ideal notions".92 According to Marek, an obligation of non-recognition "would make sense in an organized international community which would be both able and willing to let deeds follow words".93 However, this does not mean that deeds should follow words immediately. Rectifying international action may be postponed for a considerable time, especially when non-recognition, through its force of isolating a situation both legally and practically, is in itself regarded as capable of forcing the wrongdoer to reverse the situation. Nevertheless, Marek observes that the refusal to admit the validity of an existing situation can make sense only if that situation is, sooner or later, to be brought effectively to an end; the reservation of violated rights can make sense only if such rights can again be effectively implemented in the future [...]. Non-recognition is therefore bound to give way to a new adaption either of fact to law, or vice-versa.94
However, this appears to be a valid argument only when the continuance of non-recognition in itself becomes a greater threat to the maintenance of the
at pp. 163-173. And see J. Combacau, Sanctions, EPIL, Vol. 9, p. 337 ("[s] anctions are not intended to be directly repressive or punitive [...] but rather 'coercive'" (at p. 339)). See, generally, Report of the ILC to the General Assembly on the Work of Its Thirty-First Session, UN Doc. A/34/10, Ybk. ILC, 1979, Vol. II, Part. 2, pp. 115-122; R. Ago, Eighth Report on State Responsibility, UN Doc. A/CN.4/318 Add. 1-4, Ybk. ILC, 1979, Vol. II, Part 1, pp. 39-47; G.M. Abi-Saab, De la Sanction en Droit International: Essai de Clarification, in: J. Makarczyk (Ed.),
THEORY OF INTERNATIONAL LAW AT THE THRESHOLD OF THE 21 ST CENTURY, 1996, p. 61; 91. 92. 93. 94.
J. Kunz, Sanctions in International Law, AJIL, Vol. 54, 1960, p. 324. Lauterpacht, RECOGNITION, pp. 430-431. Marek, IDENTITY, p. 565. Id., at pp. 562-563. Id., at p. 563.
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international public order and international stability than the non-recognized act or situation, which, taking into consideration the fundamental character of the norms involved and the possible precedential effect of recognition, cannot be assumed easily.
§ 4.
THE ORIGIN AND DEVELOPMENT OF THE DOCTRINE OF OBLIGATORY NON-RECOGNITION IN PRACTICE
Under contemporary international law, the validity of the doctrine of obligatory non-recognition of statehood is evidenced by the bulk of modern state practice which reflects the conviction that governments do not deem themselves free to grant recognition to purported States in an arbitrary manner, that is, "by exclusive reference to their own political interests, and regardless of legal principle".95 Some of the elements of the doctrine of the obligation of non-recognition can be traced back to the early practice of States in the field of non-recognition of governments. This was sometimes intermingled with the non-recognition of statehood. For this study, the early practice is particularly relevant because it sheds light on the object and purpose of the concept of non-recognition. As far as the legal roots of the modern doctrine of non-recognition are concerned, the early practice is of lesser importance because, as will be seen below, this practice was primarily based on political and not on legal considerations. The earliest practice of non-recognition of governments was developed in the eighteenth century. The French Revolution put pressure on the monarchy as a system of government. Therefore, the European monarchs assumed the obligation not to recognize the results of revolutions, that is to say, any inroad upon the monarchial system of government. This practice became known as the doctrine of monarchial illegitimacy. Although the obligation not to recognize revolutionary governments was set down in formal declarations 96 and treaties, it did not reflect and did not become a rule of international customary law. As regards the scope of application of the doctrine of monarchial illegitimacy, it must be noted that the obligation of non-recognition assumed by the main European monarchial powers, was not limited to revolutions in Europe 95. OPPENHEIM'S INT'L LAW, p. 133. 96. Such as the Declaration of Pillnitz of 1791, signed by Leopold II of Austria and Frederick William II of Prussia, which contained an implicit non-recognition of the revolutionary government of France. See Sharp, supra note 13, at p. 14. 97. Like the treaty establishing the Holy Alliance of 1815 signed by Russia, Austria and Prussia, as well as The Netherlands and other continental powers. Id., at p. 22.
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only. It was also considered to be applicable to non-European colonies of monarchial powers, and especially to Spanish colonies in South America claiming independence as a result of revolution. In this respect, and as a logical consequence of its basic principles, the doctrine of monarchial illegitimacy was also applied to cases involving claims to statehood. But again, this obligation was applicable only to monarchies, who accepted, among themselves, such an obligation. States which were not bound by treaties and declarations which contained such obligations, were only bound by the rules of general international law, which at that time, as was stated earlier, held that no recognition may be granted prior to the parent State's recognition of the entity in question.98 In this regard, the following should be stressed. As was suggested above, the assumed obligation of non-recognition of revolutionary governments and new States resulting from successful revolutions was not regarded as an obligation flowing forth from a violation of a rule of international law," as is the case in the modern doctrine of the obligation of non-recognition. Indeed, non-recognition was based on political grounds.100 Non-recognit.ion, especially in the form of a collective measure, was thus used as a form of pressure in order to maintain the status quo ante, that is to say, the system of monarchial government. The next step in the development towards a doctrine on obligatory nonrecognition based on legal grounds, was formed by what is generally referred to as the doctrine of constitutional legitimacy. This doctrine particularly influenced international relations in North and Latin America between 1907, when the ideas of the doctrine appeared in the Additional Convention to the General Treaty of Peace and Amity, and 1933, when a general obligation of non-intervention was included in the Montevideo Convention on Rights and Duties of States.101 The doctrine of constitutional legitimacy was also mainly concerned with the non-recognition of governments and, as was the case with the doctrine of monarchial illegitimacy, the reason for non-recognition was essentially politically motivated. Defenders of the doctrine were Charles Tobar,102 a former 98. See p. 93, supra. See also Sharp, supra note 13, at p. 30. 99. In most cases, however, the revolutions were in violation of the municipal law of the (parent) State. 100. See also Menon, supra note 5, at pp. 249-250. 101. See, e.g., Sharp, supra note 13, at pp. 34-66; Menon, supra note 5; at pp. 230-239; OPPENHEIM'S
INT'L LAW, p. 152. 102. The doctrine of constitutional legitimacy is also referred to as the 'Tobar doctrine', since Tobar was one of the first to state that "the American Republics [...] should intervene indirectly in the internal dissensions of the Republics of the continent. The intervention could consist at least in the refusal to recognize de facto governments, issuing from revolutions against the
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Ecuadorian Minister for Foreign Affairs, and the American President Woodrow Wilson.103 They legitimized their support for the doctrine by referring to such notions as constitutionalism. The doctrine held that any government that came into power in violation of the State's constitution.– which is seen as the ultimate expression of the 'will' of the people - that is, as a result of a coup d'etat or of a revolution, was an illegitimate government and should not be recognized. The doctrine acquired legal foundation when it was included in Article 1 of the Additional Convention to the General Treaty of Peace and Amity of 1907,104 which stated: [t]he Governments of the High Contracting Parties shall not recognize any other Government which may come into power in any of the five Republics as a consequence of a coup d'etat, or of a revolution against the recognized Government, so long as the freely elected representatives of the people thereof have not constitutionally reorganized the country.105
Article II of the 1923 General Treaty of Peace and Amity went even further in imposing an obligation not to recognize an elected government when the head of the government would be disqualified to fulfill that function under the Constitution of that State. The 1923 treaty was signed by five Central American States.106 However, the doctrine of constitutional legitimacy did not attract much support in practice. Two of the five signatories denounced the 1923 treaty, and United States' Secretary of State Stimson qualified the general policy of 'constitutionalism' as contrary to international law.107 The doctrine was firmly criticized in the 1930s by people like the Mexican Foreign Minister Estrada. He maintained correctly that the doctrine of constitutional legitimacy was nothing less than an intervention in the affairs of another State and thus a violation of international law. Furthermore, he was of the opinion that as far as the recognition of governments was concerned, formal recognition should be abandoned and, in order to prevent intervention in the internal affairs of a State, third States should deal with whatever government which de facto exercised power in a State. This policy became generally known as the 'Estrada doctrine'. However, the proposals of Estrada are difficult if not impossible to apply, since in the case of two rival governments both claiming de facto control,
Constitution". Quoted in: Sharp, supra note 13, at p. 35. 103. Wilson's view on the matter resembled that of Tobar. Wilson's view is sometimes referred to as 'Wilsonian Constitutionalism'. Id., at pp. 35-36, 56. 104. Reprinted in: AJIL, Vol. 2, 1908, Supp., pp. 219-265. 105. Id., at pp. 229-230. 106. The States concerned were Costa Rica, Guatemala, Honduras, Nicaragua and El Salvador. 107. Sharp, supra note 13, at pp. 56-57.
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the de facto government requirement by necessary implication requires the passing of a judgment on which of the two governments should be regarded as representing the State, and thus cannot avoid a third State's qualification with respect to the internal affairs of that State. In sum, the early practice of 'collective' non-recognition was mainly concerned with governments. The obligation was based on conventional law and therefore not binding on States who were not parties to the conventions in question. Finally, the obligation thus assumed was primarily politically based that is, it was not related to a violation of international law. The idea that the recognition or validation of effective territorial entities created in violation of a fundamental rule of international law would itself be in violation of international law and should therefore be withheld, first appeared during the period of the League of Nations in the context of the SinoJapanese conflict over Manchuria. However, this assumed obligation was soon abandoned and only appeared again during the era of the United Nations. It is this practice in the field of non-recognition and claims to statehood, both during the period of the League of Nations and during the era of the United Nations, to which we will now turn.
§ 5.
STATE PRACTICE IN THE FIELD OF NON-RECOGNITION OF CLAIMS TO STATEHOOD
§ 5.1.
The era of the League of Nations
The obligation of non-recognition of the Japanese seizure of Manchuria in 1931 and the subsequent establishment of the purported State of Manchukuo,"108 formulated by the League of Nations, was without a doubt influenced directly by the policy of the United States regarding the matter. On 7 January 1932 Foreign Secretary Stimson informed both China and Japan that [the United States] cannot admit the legality of any situation de facto [...] and that it does not intend to recognise any situation, treaty or agreement which may be brought about by means contrary to the covenants and obligations of the Treaty of Paris of August 27, 1928.109
108. See, generally, G. Mong, LA POSITION JURIDIQUE DU JAPON EN MANDCHOURIE, 1933; A.R. Tullé; LAMANDCHOURIEETLECONFLITSlNO-jAPONAISDEVANTLASOCIETEDESNATIONS, 1935; T. Leang-Li (Ed.), THE PUPPET STATE OF MANCHUKUO, 1935; M.O. HUDSON, THE
VERDICT OF THE LEAGUE: CHINA AND JAPAN IN MANCHURIA: THE OFFICAL DOCUMENTS, 1933; Marek, IDENTITY, pp. 173-180; Dugard, RECOGNITION, pp. 27-35. 109. Reprinted in: AJIL, Vol. 26, 1932, p. 342.
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This policy became known as the 'Stimson doctrine'.110 The League's Council, of which the United States was not a member, had not considered nonrecognition in the early days of the Manchurian conflict. After Stimson's declaration however, it gradually adopted this policy of non-recognition as well. It is clear from the terms of statements and resolutions by both the League's Council and Assembly that the assumed legal obligation imposed on the members of the League of Nations not to recognize the Japanese seizure nor any result flowing forth from that seizure, was read into Article 10 of the League's Covenant, which stated that: [t]he Members of the League undertake to respect and preserve as against external aggression the territorial integrity and existing political independence of all Members of the League.111
On 16 February 1932, the President of the Council directed an appeal to the Japanese government. With explicit reference to Article 10 of the Covenant, it was made clear that no infringement of the territorial integrity and no change in the political independence of any member of the League ought to be recognized as valid and effectual by the Members of the League of Nations.112
This course was continued with the adoption by the Assembly of the League of the often cited resolution of 11 March 1932, in which the Assembly declared that it is incumbent upon the Members of the League of Nations not to recognize any situation, treaty or agreement which may be brought about by means contrary to the Covenant of the League of Nations or to the Pact of Paris.
Therefore, it is probably correct to state that the obligation of non-recognition assumed in 1932, based as it was on Article 10 of the Covenant in particular,
110. See generally, Sharp, supra note 13, at pp. 134-151; A. McNair, The Stimson Doctrine of NonRecognition: A Note on Its Legal Aspects, BYIL, 1933, pp. 65-74; H. Kelsen, PRINCIPLES OF
INTERNATIONAL LAW, 1966, pp. 415-416; R.A. Vitas, THE UNITED STATES AND LITHUANIA, THE STIMSON DOCTRINE OF NON-KECOGNITION, 1990, pp. 16-30; OPPENHEIM'S INT'L LAW, pp. 184-185; Lauterpacht, RECOGNITION, pp. 415-420; Dugard, RECOGNITION, pp. 27-35. The Stimson doctrine did not, as was sometimes suggested, assume the existence of any legal obligation of non-recognition on the side of the United States. The doctrine was merely seen as a political undertaking rather than a legal obligation. Lauterpacht, supra note 1, at p. 136; Dugard, RECOGNITION, p. 416. 111. LNOJ, Feb. 1920, pp. 3-11, at p. 5 (emphasis added). 112. LNOJ, March 1932 (Part I), p. 384, quoted in: Sharp, supra note 13, at p. 141. 113. Id. at pp. 87-88, quoted in: Sharp, id., at pp. 142-143.
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was not declaratory of an already existing customary rule of law,114 but was declaratory of an already existing treaty obligation. Moreover, the formulation of the obligation was such that it was not specifically limited to the protection of the exclusive interests and subjective rights of the non-recognizing State, but rather concerned the interests of all members of the League and parties to the Pact of Paris.115 The question is whether or not this obligation of non-recognition did encompass the obligation not to recognize territorial entities claiming statehood, but created in violation of the Covenant of the League and the Pact of Paris. In other words, did the assumed legal obligation of non-recognition have any bearing on the creation of States? According to O'Connell, the answer to this question must be in the negative, because if any legal obligation of nonrecognition developed at all in this period, it was "a rule against extinction of States or violations of territorial sovereignty [...]".116 Consequently, "the doctrine of non-recognition is thus concerned only with territorial change and not with new States or new governments".117 However, as is convincingly argued by Dugard, it is very likely that the obligation of non-recognition by the League's members was - in addition to territorial changes brought about as a result of aggressive war - also meant to apply to situations of purported statehood.118 This does not only follow from the language used in the League's declarations, where the term "situation" is indeed wide enough to encompass the case of a 'State',119 but also from the fact that the League maintained its non-recognition policy even after Japan had recognized Manchukuo as a State on 15 September 1932, and thus had renounced any claim as to the annexation of the territory.120 If the obligation 114. 115. 116. 117. 118. 119. 120.
Cf. Lauterpacht, supra note 1, at p. 138 ("controversial"). See also Lauterpacht, RECOGNITION, p. 416. O'Connell, supra note 58, at p. 142. Id. Dugard, RECOGNITION, pp. 32-35. Id., at p. 32. Cf. Assembly Resolution of 24 February 1933 (which was thus adopted more than five months after Japan's recognition of Manchukuo), LNOJ, March 1932, Part I, p. 39. The Lytton Commission's report, which was discussed elsewhere (see p. 78, supra), was considered by another commission, established by the Assembly (the Commission of Nineteen). The recommendatory report of the latter commission stated that: "[i]t follows that, in adopting the present report the Members of the League intend to abstain, particularly as regards the existing regime in Manchuria, from any act which might prejudice or delay the carrying out of the recommendations of the said report . They will continue not to recognize this regime either de jure or de facto". LNOJ, 1933, Spec. Supp., No. 112, pp. 75-76. The recommendatory report of the Commission of Nineteen thus endorsed the recommendation of the Lytton Commission not to recognize Manchukuo and advised the Assembly to associate itself with that recommendation. This the Assembly did by adopting the report of the Commission of Nineteen on 24 February 1933.
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of non-recognition was only assumed with respect to unlawful territorial changes, its continued application after Japan's recognition would have been legally inconsistent. Therefore, this position can only be explained if the measures taken by the League were intended to prevent the recognition of Manchukuo as a State under international law. It has been stated that the object of the collective non-recognition of Manchukuo was its lack of actual independence (and thus the non-fulfilment of a traditional criterion for statehood), rather than its illegal creation. 121 Manchukuo was without a doubt not an independent entity as was clearly stated in the Lytton Commission's Report.122 Recognition would, therefore, have violated the prohibition of premature recognition. It is also correct that the measures taken by the League were to a large extent predicated on the Report of the Lytton Commission. However, not once was the lack of actual independence included in the League's resolutions insisting on the obligation of nonrecognition. Rather, with respect to the obligation of non-recognition, reference was made to the Covenant of the League (Article 10) and the Briand-Kellog Pact and thus to the illegal creation of the situation. It thus appears that, without prejudice to the absence of actual independence of Manchukuo as a result of its creation by Japan on occupied territory, it was the illegal manner in which that entity was created which the League's members had in mind first and foremost when they referred to the obligation of non-recognition of Manchukuo's claim to statehood.123 The case of Manchukuo has, therefore, rightly been considered as a precedent for a legal rule on the obligation of non-recognition of a territorial entity "which has been brought in to being contrary to a fundamental rule of international law, in casu the prohibition on aggressive war". 124 It is well known, however, that the assumed obligation of non-recognition of situations realized as a result of the aggressive use of force, including the establishment of 'States', did not last long during this period of history. Although the doctrine of non-recognition, especially in the field of territorial acquisitions obtained by force, gained substantial support in countries of the South American continent,125 which continent, as was discussed above, already had experience with the practice of non-recognition, the doctrine had to give 121. Lauterpacht, RECOGNITION,p. 420;H. Lauterpacht, in:E. Lauterpacht(Ed.),INTERNATIONAL
LAW, BEING THE COLLECTED PAPERS OF HERSCH LAUTERPACHT, Vol. I, 1970, p. 339; Crawford, CREATION OF STATES, pp. 60, 62, and 107. 122. Report of the Commission of Enquiry, League of Nations Publications, Vol. 7, No. 12, 1932, p. 97 ff. See also Chapter 3, Section 3.5.2., supra. 123. See also Dugard, RECOGNITION, p. 33. 124. Id.,at p. 35. 125. See note 75, supra.
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way to the political realities of the time, as will be seen below. It has also been argued that the rather wide interpretation by the League of the obligation of non-recognition, which included the duty to bar Manchukuo even from the benefits of the Universal Postal Union,126 has been an important factor in the League's failure to uphold the doctrine of nonrecognition.127 And indeed, it is probably not always in the interests of the inhabitants and not in the interest of the general good not to recognize any act resulting from a substantial illegal situation. 128 The absolute denial of the effective situation was difficult to maintain, which resulted in gradual acquiescence on the part of the League in Manchurian participation in international matters such as postal and other technical agreements.129 This arguably resulted in the subversion of the authority of the obligation of nonrecognition and consequently in a lower threshold for some States to set aside the obligation of non-recognition eventually and to recognize Manchukuo as a State under international law. However, this was certainly not the only factor contributing to the demise of the doctrine. The fact that the changed political realities were not particularly favourable for respect for the rule of law, should not be overlooked. In the period between 1934 and 1941, Japan's allies as well as other States proceeded with the recognition of Manchukuo as an independent State. These States held that the recognition of Manchukuo was legitimate, because recognition was a sovereign act which could not be limited by the Covenant of the League of Nations without an explicit provision to that effect.130 In other words, these States no longer interpreted Article 10 as implying an obligation of non-recognition. The abandonment of the doctrine of non-recognition is also apparent from the broad recognition of the Italian annexation of Ethiopia in 1936.131 After that recognition, other annexations followed.132 Puppet entities
126. Recommendations of the League of Nations Advisory Committee of 7 June 1933, LNOJ, Spec. Supp., No. 113, p. 10. 127. Usuki, supra note 1, at p. 90. 128. See Section 9 of this Chapter, infra. 129. Usuki, supra note 1, at p. 90. 130. Cf. the statement by the consul of El Salvador in reply to the criticism that all members of the League were obliged to withhold recognition of the Manchurian entity. Sharp, supra note 13, at p. 171. See also Dugard, RECOGNITION, p. 34. 131. The annexation of Abyssinia was proclaimed on 9 May 1936. See, generally, Marek, IDENTITY, pp. 263-282. More than thirty States granted recognition either dejure or de facto. The US never recognized the annexation, while the United Kingdom, after hesitation, granted de facto recognition of the King of Italy as Emperor of Ethiopia in December 1936, and de jure recognition thereof in November 1938. See Haile Selassie v. Cable and Wireless Ltd. (No. 2), 1939, Ch. 182; Haile Selassie v. Cable and Wireless Ltd. (No. 1), 1938, Ch. 545, 839. See also OPPENHEIM'S lNT'L LAW, pp. 191-192, and the references mentioned there (dealing primarily with UK practice).
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were set up on occupied territory by Germany, such as the State of Slovakia in 1939,133 which was recognized in due course by most European States.134 This practice undoubtedly prevented the doctrine of non-recognition from becoming a rule of international customary law in this period, particularly in the field of statehood. During this era of the League of Nations, one can clearly identify the rise of the doctrine of the legal obligation of non-recognition. Under this doctrine, an obligation did exist not to recognize or to validate, through an individual or a collective act, a violation of a fundamental rule of law or the results of that violation, the general rule concerned being the prohibition of the aggressive use of force. There is no logical reason for excluding purported States created in violation of that fundamental rule from the application of this obligation of non-recognition. Indeed, as the case of Manchukuo shows, there are strong reasons to believe that the doctrine was considered to be applicable to cases of state creation as well. The circumstances in, and leading up to World War II led to situations in which the doctrine was no longer upheld. However, when looking back on this episode of history, it may be said that the doctrine was not abolished completely, but only suspended temporarily. For, during the era of the United Nations the doctrine of the obligation of non-recognition of purported statehood was revived through the adoption of resolutions by both the Security Council and the General Assembly, containing determinations of violations of international law and calling on member States not to recognize either the act itself or its results as having legal effect. Three situations have arisen specifically concerning purported statehood in which the United Nations explicitly called for the non-recognition of these entities as a result of their establishment contrary to a fundamental rule of international law. These are the cases of the Turkish Republic of Northern Cyprus, Southern Rhodesia and the South African Homeland territories. Analysis of these cases not only reveals concrete norms entailing an obligation of non-recognition of purported statehood if the entity is created in violation of such a fundamental norm, but also casts light on the character of the legal norms involved. First, however, it is necessary to examine the circumstances 132. Of, for instance, the Baltic States into the Soviet Union in 1940. See Marek, IDENTITY, pp. 369416; and see p. 68, note 72, supra, 133. Marek, IDENTITY, pp. 287-291; R. Langer, THE SEIZURE OF TERRITORY: THE STIMSON
DOCTRINE AND RELATED PRACTICES IN LEGAL THEORY AND DIPLOMATIC PRACTICE, 1947, pp. 207-244. 134. For instance, the United Kingdom accorded defacto recognition to the Government of Slovakia in May 1939. OPPENHEIM'S INT'L LAW, p. 187, n. 5. On the subject of the puppet State of Croatia which was established in 1941 by Germany and Italy on Yugoslav occupied territory, see A.P. Sereni, The Status of Croatia Under International Law, APSR, 1940, p. 1144. And see Re Dues for Reply Coupons Issued in Croatia, ILR, Vol. 23, 1956, p. 591.
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leading to the establishment of the aforementioned entities and to discuss the international community's response to their claim to statehood. § 5.2.
The era of the United Nations
§ 5.2.7.
Violation of the prohibition of the use of force, in particular the prohibition of aggression
In 1951, Chen wrote: a new State may be set up in the territory of an existing State through the intervention of a foreign State. However, if, once set on its feet, the new State is in fact able to lead an independent national life, the mere fact that the intervening State had committed a breach of international law by the intervention does not necessarily invalidate the legal existence of the new State. Its recognition should be determined according to the principle of de factoism.135
Although this statement is understandable in the context of the time when it was written, it is no longer in accordance with contemporary international law on the subject. This is shown by the case of the establishment of the Turkish Republic of Northern Cyprus (TRNC)136 and the reaction of the international community which, with the exception of Turkey, has completely rejected the Republic's claim to statehood. Cyprus has a population of around 700,000, of which it is estimated that around 70-75 per cent are Greeks and 20-24 per cent are Turks.137 The Greeks are descended from the Greek mainland and the Turks are descended from Turkish settlers who came to the island when it was part of the Ottoman empire. In 1878, after some 300 years under Ottoman rule, Turkey agreed to assign Cyprus to Britain after Britain's decision to join Turkey in a defensive alliance against Russia. Cyprus remained under Turkish sovereignty but would be ruled by Britain. Anti-colonial feelings led to the Greek Cypriot's call for Enosis (union with Greece). When Turkey took position against Britain in World War I , the latter annexed the island in 1914. This annexation was recognized by Turkey in 1923. Under British rule, inter-ethnical tensions ran high. On 11 February 1959, Turkey and Greece reached an agreement on the 135. Chen, RECOGNITION, pp. 414-415. 136. The history of Cyprus and the conflict over the northern part of the island has been described in extensive detail elsewhere. See, e.g., Z.M. Necatigil, THE CYPRUS QUESTION AND THE
TURKISH POSITION IN INTERNATIONAL LAW, 1989; J. Joseph, CYPRUS: ETHNIC CONFLICT AND INTERNATIONAL POLITICS, 1997; R McDonald, THE PROBLEM OF CYPRUS, 1989. See also S. Palmer, The Turkish Republic of Northern Cyprus: Should the United States Recognize It as an Independent State?, B.Univ. ILJ, Vol. 4, 1986, p. 423. 137. Necatigil, supra note 136, at p. 1.
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future for Cyprus,138 which would entail its independence, and which was accepted by the British as well as the representatives of the Greek and Turkish communities eight days later, with the 'London Agreement'. The Cyprus Constitution was signed on 6 April 1960, and was followed by the signature of three treaties on 16 August 1960: the Treaty of Establishment and the Treaty of Guarantee to which the United Kingdom, Greece, Turkey and Cyprus were parties, and the Treaty of Military Alliance to which Greece, Turkey and Cyprus were parties. On that same date, Cyprus became an independent State. The period between 1960 and 1974 was one fraught with constitutional crisis and mounting inter-communal strife.139 A United Nations peacekeeping force was deployed on the island in 1964.140 The situation remained tense, especially since the Turkish Cypriot position deteriorated when the government came to be more and more under Greek Cypriot control.141 On 7 and 8 August 1964, Turkey bombed certain areas in Cyprus. This action was denounced almost immediately by the Security Council.142 On 15 July 1974, the Government of the Greek Cypriot Archbishop Makarios, who was accused of abandoning Enosis, was overthrown by a coup d'etat by officers of the Greek Cypriot National Guard, backed by Greece.143 This action provoked the Turkish military intervention on 20 July 1974, after aborted consultations with the British government who refused to act in concert with the Turks.144 Turkey invoked the Treaty of Guarantee as a legal ground for its actions and stated that its actions were necessary to protect the Turkish Cypriot community. On that same day, the Security Council adopted Resolution 353, which demanded "an immediate end to foreign military intervention in the Republic of Cyprus [,..]."145 Turkish forces occupied the northern part of Cyprus, that is to say, about 35 per cent of the island. On 13 February 1975, the 'Turkish Federated State of Cyprus' was proclaimed. This proclamation however, was not intended as a proclamation of an independent State, but rather as a proclamation of an autonomous part within a federation which at that time did not exist. Following unsuccessful 138. Basic Structure of the Republic of Cyprus, British and Foreign State Papers, Vol. 164, p. 219. 139. Civil riots after president Makarios's proposal to amend the 1960 Constitution envisaging a minority status for the Turkish population led to some 500 people killed and many thousands wounded. McDonald, supra note 136, at p. 12. 140. UN Doc. S/Res/186, 4 March 1964 (UNFICYP). 141. McDonald, supra note 136, at p. 14. 142. UN Doc. S/Res/ 193, 9 Aug. 1964. 143. McDonald, supra note 136, at p. 18; D. Wippman, International Law and Ethnic Conflict on Cyprus, Texas International Law Journal, Vol. 31, 1996, p. 142, at p. 147; Necatigil, supra note 136, at p. 75-77. 144. Necatigil, supra note 136, at p. 79-80. 145. UN Doc. S/Res/353, 20 July 1974.
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talks between the two communities during the period between 1974 and 1983, an Assembly elected by the Turkish Cypriot community unanimously proclaimed the TRNC as an independent State on 15 November 1983.146 The TRNC was recognized immediately by Turkey. On 18 November 1983, the Security Council adopted Resolution 541 in which it "deplores the declaration of the Turkish Cypriot authorities of the purported secession of part of the Republic of Cyprus". The resolution continued by stating that the Security Council: 2. Considers the declaration referred to above as legally invalid and calls for its withdrawal, [...] 7. Calls upon all states not to recognize any Cypriot state other than the Republic of Cyprus, [...].147
This Resolution was followed by Security Council Resolution 550 of 11 May 1984, which re-affirmed Resolution 541, condemned all secessionist actions, including the exchange of 'ambassadors' between the TRNC and Turkey, and repeated the call on all States not to recognize the "purported State of the Turkish Republic of Northern Cyprus".148 Both Security Council Resolutions 541 and 550 cannot be considered to be binding instruments, however, because they were not adopted under Chapter VII and did not contain a reference to Article 25 of the Charter. Nor did their terms imply that the resolutions were intended to be binding.149 In addition to the resolutions adopted by the Security Council, the proclamation of independence was rejected by the Committee of Ministers of the Council of Europe,150 the European Communities 151 and the Common
146. 147. 148. 149.
See UN Doc. A/38/586-S/16148, 16 Nov. 1985. UN Doc. S/Res/541/83, 18 Nov. 1983. UN Doc. S/Res/550, 11 May 1984. Dugard, RECOGNITION, p. 110; Calgar and others v Billingham (Inspector of Taxes), 1996, p. 150, quoted in: C. Warbrick, Unrecognized States and Liability for Income Tax, ICLQ, Vol. 45, 1996, p. 945, at p. 958. See also J.A. Frowein, Non-Recognition, EPIL, Vol. 3, 1997, p. 627. 150. Committee of Ministers, Resolution (83) 13, 24 Nov. 1983, Paras. 1 and 2, reprinted in: Republic of Cyprus, EUROPEAN STAND ON THE CYPRUS PROBLEM, 1998, p. 45. See also Parliamentary Assembly, Recommendation 974, 23 Nov. 1983 and Parliamentary Resolution 816, 21 March 1984. Both documents are reprinted in: id., at pp. 27-30. 151. Declaration, 16 Nov. 1983, stating: "[t]he ten Member States of the European Community are deeply concerned by the declaration purporting to establish a 'Turkish Republic of Northern Cyprus' as an independent State. They reject this declaration, which is in disregard of successive resolutions of the United Nations. The Ten reiterate their unconditional support for the independence, sovereignty, territorial integrity and unity of the Republic of Cyprus. They continue to regard the Government of President Kyprianou as the sole legitimate Government of the Republic of Cyprus. They call upon all interested parties not to recognize this act, which creates a very serious situation in the area", quoted in: European Court of Human Rights, Loizidou v. Turkey (Merits), Judgment, 18 Dec. 1996, Reports of Judgments and Decisions of
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wealth Heads of Government.152 No State, except for Turkey, has ever accepted the TRNC's claim to statehood.153 In view of the above, it has been suggested, and as will be seen correctly so, that the main reason for the universal (minus one) non-recognition of the TRNC is that its emergence was a direct result of a violation of the prohibition on the use of force contained in Article 2(4) of the United Nations Charter, which is accepted as being part of international customary law.154 This argument must, of course, be based on the view that the use of armed force by Turkey was - and in view of its continued military presence and occupation still is - unlawful. This position is not, however, shared by all writers. It is argued that the Treaty of Guarantee authorizes the taking of "action" under Article IV155 by each of the guaranteeing Powers in the event of a breach of the provision of the Treaty and after consultation among the guaranteeing Powers. Therefore the Turkish use of armed force would be lawful both under the Treaty, the Charter of the United Nations and customary international law, because "action" was meant to include armed intervention.156 This view is difficult to accept, however. Article IV should be read in conjunction with Articles I and II of the Treaty. Even if "action" was meant to include armed intervention
152.
153.
154. 155.
156.
157.
the European Court of Human Rights, 1996 VI, p. 2216, at p. 2224. See also Resolution of the European Parliament, 17Nov, 1983, Para. 1, reprinted in: Republic of Cyprus, EUROPEAN STAND ON THE CYPRUS PROBLEM, supra note 150, at p. 75. Press Communique, 29 Nov. 1983, stating inter alia, "[t]he Heads of Government condemned the declaration by the Turkish Cypriot authorities issued on 15 November 1983 to create a secessionist state in northern Cyprus, in the area under foreign occupation. Fully endorsing Security Council Resolution 541, they denounced the declaration as legally invalid and reiterated the call for its non-recognition and immediate withdrawal. They further called upon all states not to facilitate or in any way assist the illegal secessionist entity. They regarded this illegal act as a challenge to the international community and demanded the implementation of the relevant UN Resolutions on Cyprus", quoted in: Loizidou v. Turkey, supra note 151, at pp. 2224-2225. See also Loizidou v. Turkey, supra note 151, at pp. 2230-2231; European Commission on Human Rights, Cases 6780/74 and 6950/75, Cyprus v. Turkey, Ybk. of the European Commission on Human Rights, Vol. 18, 1975, p. 82 (esp. at pp. 118-120). See also Dugard RECOGNITION, p. 110. Article IV provides: "In the event of a breach of the provisions of the present Treaty, Greece, Turkey and the United Kingdom undertake to consult together with respect to the representations or measures necessary to ensure observance of those provisions. Insofar as common or concerted action may not prove possible, each of the three guaranteeing Powers reserves the right to take action with the sole aim of re-establishing the state of affairs created by the present Treaty". Quoted in: Necatigil, supra note 136, at p. 101. Necatigil, id., at pp. 108-124. This view seems to be supported by Britain when, in 1964, during debates at the UN the British representative stated that Article IV authorized the use of armed force, but that such use would not necessarily be inconsistent with the UN Charter. UN SCOR, 1098th mtg., 1964, 27 Feb. 1964, para. 12. Article I states: "The Republic of Cyprus undertakes to ensure the maintenance of its independence, territorial integrity and security, as well as respect for its Constitution". Under Article II, the three guarantor States "taking note of the undertakings of the Republic of Cyprus
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- and quite apart from the fact that, as has been suggested, Article IV may have come to be without legal effect when Cyprus became a member of the United 158 Nations - any armed intervention against the territorial integrity of Cyprus would be in violation of the Treaty as well as Article 2(4) of the Charter of the United Nations and, therefore, customary international law.159 The armed intervention on Cyprus and the subsequent occupation of the northern part of the island by Turkish forces since 1974, violates the territorial integrity of Cyprus without a doubt. Events subsequent to the intervention show that the "action" was not aimed at "re-establishing the state of affairs created by" the Treaty of Guarantee, in which context "state of affairs" must be interpreted as including the territorial unity of Cyprus. This is so because the protection of the independence and territorial unity of Cyprus forms the essential raison d'être of the Treaty of Guarantee.160 Several arguments lead to the conclusion that the "action" taken by Turkey was and is directed against the territorial unity of Cyprus. First, it is difficult to believe that the TRNC could have been established unilaterally, that is, without outside intervention by Turkey. Instead, the establishment of the TRNC is a direct result of the Turkish occupation of the northern part of the island. Through the continued presence of 30,000 Turkish troops there, Turkey in fact secures and supports the de facto partition of Cyprus. Moreover, the recognition of the proclamation of independence of the Turkish Republic by Turkey in 1983, provides conclusive evidence that the military intervention and subsequent military presence was and is directed against the territorial integrity of Cyprus, and hence is in violation of international law, as an act of aggression. This argument is supported by the terms of the Security Council resolutions. The Council determined in Resolution 353 that the "foreign military intervention in the Republic of Cyprus [was] in contravention of [the obligation of] all
set out in Article I [...] recognise and guarantee the independence, territorial integrity and security of the Republic of Cyprus, and also the state of affairs established by the Basic Articles of its Constitution". 158. Crawford, CREATION OF STATES, p. 168. This argument was raised by the Government of Cyprus in the UN. See, e.g., UN SCOR, 1098th mtg., 27 Feb. 1964, pp. 15-31, esp. at pp. 18-19. But see for convincing criticism, Necatigil, supra note 136, at pp. 108-111. 159. To the same effect, see A. Filos, Die Entwicklung der Zypern-Frage unter besonderer Berücksichtigung der geplanten EU-Mitlied schaft der Republik Zypern, ZaöRV, Vol. 59, 1999, p. 185, at pp. 195-196. 160. This also follows from the second paragraph of Article II of the Treaty which states that the three guaranteeing Powers "[...] prohibit, so far as concerns them, any activity, aimed at promoting directly or indirectly either union of Cyprus with any other state or partition of the island".
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States to respect the sovereignty, independence and territorial integrity of Cyprus". Therefore, the violation of the territorial integrity of Cyprus by Turkey was not only a 'mere' violation of the Treaty of Guarantee, but also a violation of a fundamental rule of international law, in this case the prohibition of aggression, affecting all States and indeed posing a threat to the international legal order as such. It was seen earlier that, according to the doctrine of non-recognition, it is precisely such a situation which would engender an obligation for States not to 'cure' the illegality of the act or its 'poisoned fruits' through recognition.161 Therefore, it must be concluded that the violation of the prohibition of aggression in the process of the entity's establishment is the principal reason for the withholding of recognition of the TRNC. Moreover, the fact that the TRNC was created on occupied territory gives a strong presumption against the entity's actual independence, and may thus form an additional ground for the non-recognition of the entity's claim to statehood.162 Still another factor may be a ground for the general non-recognition of the TRNC. As will be argued later in this study, in the post-colonial context a right of external self-determination (including a right of unilateral secession) only exists as an ultimum remedium, under certain specific circumstances.163 In that respect, it can indeed be questioned whether the Turkish population in Cyprus can genuinely be considered as 'a people' for the purposes of external selfdetermination.164 But even if the Turkish population should be qualified as such, it is tenable that under the circumstances prevailing in 1983, this 'people' was not entitled to external self-determination, and thus not to the establishment of the TRNC, in the absence of circumstances which would legitimize unilateral secession.165
161. 162. 163. 164.
T.M. Franck, FAIRNESS IN INTERNATIONAL LAW AND INSTITUTIONS, 1995, p. 271. See Chapter 3, Section 3.5.2., supra. See Chapter 7, infra. See Chapter 6, Section 3.2. and Chapter 7, Section 4.1., infra. See also Wippman, supra note 143. That is not to say that the Greek population should be considered as 'a people' for the purposes of the right of self-determination. Rather, on the basis of the negative reactions of the international community regarding either union, or Enosis (Greek Cypriots), or separation, or Taksim (Turkish Cypriots), it must be concluded that the Greek Cypriots and Turkish Cypriots together are regarded as 'a people', at least for the purposes of the right of external selfdetermination. 165. Although human rights of Turkish Cypriots were violated by Greek Cypriots (and vice versa) before and during the Turkish military intervention (see, e.g., Necatigil, supra note 136, at pp. 84-86), the situation cannot be considered to be of such an exceptional character as to give rise to a right of secession as an ultimum remedium, as it did in the cases of, for instance, Bangladesh or Croatia. See Chapter 7, infra.
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§ 5.2.2.
Violation of the right of peoples to self-determination
(a) The case of Southern Rhodesia166 In the nineteenth century, the territory which was later called 'Southern Rhodesia' came under British colonial rule. The territory was administered by the British South African Company until the colony obtained a limited form of self-government. Although Britain retained powers to control and regulate legislative activities in Southern Rhodesia, the direct administration of the territory came to rest more and more in the hands of the British settlers. From 1923 onwards, when Southern Rhodesia was granted 'responsible government' by Britain, the white settlers consolidated their power. The internal political relations between the settlers and the Africans was characterized by domination and racial discrimination. Attempts were made to crush African political awareness through several bans on African political parties. The introduction of the 1961 Constitution which, as a result of British pressure, did provide for some representation of the Africans in the Legislative Assembly, did not change much else as far as the position of the Africans was concerned. It was around this time that the United Nations became concerned with Southern Rhodesia. On 12 June 1962, the General Assembly of the United Nations adopted Resolution 1747,167 which declared that Southern Rhodesia constituted a NonSelf-Governing Territory under Chapter XI ('Declaration Regarding Non-SelfGoverning Territories') of the Charter. After the victory of the 'Rhodesian Front', a white settlers political party, in the national elections of 7 May 1965, the wish for independence was explicitly and avowedly supported.168 Prime Minister Ian Smith demanded an immediate grant of independence by Britain, which was rejected. Instead, Britain listed five conditions to be fulfilled after which independence could be granted. These included the demand for progress in ending racial discrimina-
166. See, e.g., V. Gowlland-Debbas, Collective Responses to the Unilateral Declarations of Independence of Southern Rhodesia and Palestine, An Application of the Legitimizing Function of The United Nations, BYIL, Vol. 61, 1991, p. 135; Gowland-Debbas, THE QUESTION OF SOUTHERN RHODESIA; J. Nkala, THE UNITED NATIONS, INTERNATIONAL LAW, AND THE RHODESIAN
INDEPENDENCE CRISIS, 1985; Dugard, RECOGNITION, pp. 90-98. 167. UN Doc. A/Res/1747 (XVI), 12 June 1962. 168. One day before the elections, the Security Council passed Resolution 202, which recalled General Assembly Resolution 1514 (XV) of 14 December 1960. The Security Council furthermore requested "the United Kingdom and all States Members of the United Nations not to accept a unilateral declaration of independence for Southern Rhodesia by the minority Government". In addition, the United Kingdom was requested "not to transfer under any circumstances to its colony of Southern Rhodesia, as at present governed, any powers or attributes of sovereignty, but to promote the country's attainment of independence by a democratic system of government in accordance with the aspirations of the majority of the population". UN Doc. S/Res/202, 6 May 1965.
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tion and the requirement that the British government needed to be satisfied that any basis proposed for independence was acceptable to the people of Rhodesia as a whole.169 No agreement could be reached during the negotiations which followed between the Southern Rhodesian authorities and the British government.170 On 11 November 1965, Southern Rhodesia was unilaterally proclaimed an independent State by the Smith Government. The unilateral declaration of independence (UDI) was generally rejected. The next day, the Security Council passed Resolution 216, which stated that the Security Council: 1. Decides to condemn the unilateral declaration of independence made by a racist minority in Southern Rhodesia; 2. Decides to call upon all States not to recognize this illegal racist minority regime in Southern Rhodesia and to refrain from rendering any assistance 171 to this illegal regime.
This resolution was followed by several others dealing with, amongst other issues, non-recognition, the right to self-determination of the people of Southern Rhodesia and the imposition of sanctions. Security Council Resolution 217 of 20 November 1965 referred to the Smith regime as "illegal authorities" and "a racist settler minority".172 In the same resolution, the Council continued to state that it regarded "the declaration of independence by [the racist settler minority] as having no legal validity",173 and called upon "all States not to recognize the illegal authority as well as not to entertain any diplomatic or other relations with it". When the Smith regime proclaimed the republican status of Southern Rhodesia in March 1970, the Security Council reacted promptly by condemning "the illegal proclamation of republican status of the
169. United Kingdom, Command Papers 2807, at p. 66, cited in: Nkala, supra note 166, at pp. 12-13. 170. In anticipation of a proclamation of independence, the General Assembly passed a Resolution which warned that the UN would oppose any declaration of independence not based on adult suffrage and appealed to all States, "in any case, not to recognize any government in Southern Rhodesia which is not representative of the majority of the people". UN Doc. A/Res/2022 (XX), 5 Nov. 1965. 171. UN Doc. S/Res/216, 12 Nov. 1965. See also UN Doc. A/Res/2024, 11 Nov. 1965, which condemned "the unilateral declaration of independence made by the racialist minority in Southern Rhodesia". Thus, both the General Assembly and the Security Council rejected the UDI almost simultaneously. 172. Later, in Resolution 328 of 10 March 1973, yet another terminology was used when the Smith regime was referred to as "the illegal racist minority regime". 173. In Resolution 288 of 17 November 1970, the Security Council referred to the UDI as "the illegal declaration of independence".
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Territory by the illegal regime in Southern Rhodesia" and decided that Member States shall refrain from recognizing this illegal regime or from rendering any assistance to it.174
The Council also "urged" States not members of the United Nations to act in accordance with the provisions of the resolution.175 In an attempt to gain legitimacy, the minority regime planned to have elections in April 1979. This intention was condemned by the Council which declared that the elections and the results thereof "will be null and void" and "that no recognition will be accorded either by the United Nations or any Member State to any representatives or organ established by that process".176 Only with the Constitutional Conference held in London in 1979 was the rebellion brought to an end, which lead to the resumption of constitutional authority by the United Kingdom and to the independence of the territory now known as Zimbabwe in 1980. It is generally agreed among writers that Southern Rhodesia under the Smith regime would have passed the test of the fulfilment of the traditional criteria for statehood based on effectiveness, and would therefore normally have qualified as a State under international law.177 However, as stated above, the minority regime's claim to statehood was condemned, declared as having no legal validity and qualified as illegal by the United Nations. No State recognized the entity as a State under international law. The main reason for the non-recognition of Southern Rhodesia as a State under international law is that the minority regime's UDI violated the right 174. UN Doc. S/Res/277, 18 March 1970. 175. Id., Para. 18. A comparable formula was used in Resolution 288 of 17 November 1970, which states in operative Paragraph 5: "[f]urther urges all States, in furtherance of the objectives of the Security Council, not to grant any form of recognition to the illegal regime in Southern Rhodesia". 176. UN Doc. S/Res/445, 8 March 1979, Para. 6. See also Resolution 448 adopted by the Security Council after the elections under the auspices of the minority regime, which "reaffirms" Resolution 445 and in particular its provisions on the elections. It is furthermore stated that the elections did not constitute "a genuine exercise of the right of the people of Zimbabwe to selfdetermination and national independence", the resolution "reaffirms the so-called elections and the results thereof as null and void", and "reiterates" the previous "call to all States not to accord recognition to any representative of or organ established by that process". UN Doc. S/Res/448, 30 Apr. 1979. 177. See, e.g., D.J. Devine, The Requirements of Statehood Re-Examined, Mod. L. Rev., Vol. 34, 1971, p. 410, at p. 412; D.J. Devine., The Status of Rhodesia in International Law, Acta Juridica, Vol. 1, 1973, p. 39, at pp. 78-89; J.E.S. Fawcett, Note in Reply to Devine, Mod. L. Rev., Vol. 34, 1971, p. 417; J.E.S. Fawcett, Security Council Resolutions on Rhodesia, BYIL, Vol. 41, 1965-1966, p. 103, at p. 110; Crawford, CREATION OF STATES, p. 103; Gowlland-Debbas, THE QUESTION OF SOUTHERN RHODESIA, pp. 205-216; Dugard, RECOGNITION, p. 91; Nkala, supra note 166, at p. 56; Shaw, INTERNATIONAL LAW, p. 145.
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178
to self-determination of the Southern Rhodesian people. This argument is, of course, based on the presumption that the Southern Rhodesian people were entitled to self-determination. United Nations practice overwhelmingly supports this point. Thus, the General Assembly on 18 June 1962 passed Resolution 1747, which "regretted" the fact that the United Kingdom had "not yet taken steps to transfer all powers to the people of Southern Rhodesia as required under Paragraph 5 of resolution 1514" and affirmed that "the territory of Southern Rhodesia is a Non-Self-Governing Territory within the meaning of Chapter XI of the Charter of the United Nations". From this time onwards, numerous resolutions were adopted either by the Security Council or the General Assembly which mentioned and confirmed the right to self-determination of the Southern Rhodesian people.180 In addition, several statements by the International Court of Justice in the case concerning Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970)181 and the Western Sahara case182 leave no doubt that Southern Rhodesia was a territory qualifying for self-determination. In 1971, the Court, in dealing with the evolution of international law in particular since the League of
178. Dugard, RECOGNITION, pp 97-98; Gowlland-Debbas, THE QUESTION OF SOUTHERN RHODESIA, pp. 225-229; Fawcett, Security Council Resolutions on Rhodesia, supra note 178, at pp. 112-113; Crawford, CREATION OF STATES, pp. 105-106. The illegality of the UDI from the point of view of the Constitution of Southern Rhodesia is not discussed here. See GowllandDebbas, THE QUESTION OF SOUTHERN RHODESIA, pp. 80-85, and the references mentioned there. 179. UN Doc. A/Res/1747 (XVI), 18 June 1962. For a discussion regarding the General Assembly's competence to pass the resolution, see Gowlland-Debbas, THE QUESTION OF SOUTHERN RHODESIA, pp. 104-132. This author subscribes to the widely supported view that the General Assembly was competent in this regard. See also Higgins, supra note 26, at p. 113. 180. As regards the continued reaffirmation of the right to self-determination of the people of Southern Rhodesia by the Security Council, see also UN Doc. S/Res/232,16 Dec. 1966; UN Doc. S/Res/253, 29 May 1968; UN Doc. S/Res/288, 17 Nov. 1970; UN Doc. S/Res/318, 28 July 1972; UN Doc. S/Res/326, 2 Feb. 1973; UN Doc. S/Res/328, 10 March 1973; UN Doc. S/Res/386, 17 March 1976; UN Doc. S/Res/403, 14 Jan. 1977; UN Doc. S/Res/411, 30 June 1977; UN Doc. S/Res/423, 14 March 1978; UN Doc. S/Res/424, 17 March 1978; UN Doc. S/Res/445, 8 March 1979; UN Doc. S/Res/448,30 Apr. 1979; UN Doc. S/Res/460, 21 Dec. 1979; UN Doc. S/Res/463, 2 Feb. 1980). As for the General Assembly, see, e.g., UN Doc. A/Res/2022 (XX), 5 Nov. 1965 (which stated that the intention of the minority regime to proclaim independence "would continue the denial to the African majority their fundamental rights to freedom and independence", quoted in: Gowlland-Debbas, THE QUESTION OF SOUTHERN RHODESIA, p. 225. And see UN Doc. A/Res/2151 (XXI), 22 Oct. 1966; UN Doc. A/Res/2262 (XXII), 3 Nov. 1967; UN Doc. A/Res/2383 (XXIII), 7 Nov. 1968 ("any independence without majority rule in South Rhodesia is contrary to the provisions of General Assembly Resolution 1514 (XV) [...]". In the same Resolution, States are furthermore requested not to recognize any form of independence which does not conform to Resolution 1514 (XV)). See also UN Doc. A/Res/2877 (XXVI), 20 Dec. 1971. 181. Advisory Opinion, ICJ Rep. 1971, p. 6 (hereinafter 'Namibia case'). 182. Western Sahara case, supra note 73.
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Nations Mandate system, noted 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 principle of self-determination applicable to all of them.183
In the Western Sahara case, the Court stated without hesitation that the people of a territory entitled to self-determination have the right "to determine their future political status by their own freely expressed will". 184 The fact that the Smith regime proclaimed the independence of the territory while totally unrepresentative of the people of Southern Rhodesia, and the fact that it did so without the approval of the majority of the people of the territory, was considered to be a flagrant violation of the right to self-determination of the people of Southern Rhodesia as envisaged in the 1960s Resolutions 1514 and 1541 of the General Assembly.185 As a consequence, the UDI was declared to have "no legal validity", and the subsequent consequences of it, at least as far as the results of national elections were concerned, were explicitly declared to
183. Namibia case, supra note 181, at p. 31. This passage was again cited with approval by the Court in the Western Sahara case. See Western Sahara, supra note 73, at pp. 31-33. It is tenable that Resolution 1514 (supra note 59) was declaratory of an already existing rule of international customary law, because the Resolution reflects the general and consistent practice of the General Assembly regarding self-determination prior to the adoption of that Resolution. See Chapter 5, Section 3.4.3., infra. 184. Western Sahara case, supra note 73, at p. 36. See also Separate Opinion, Judge Dillard, id., at pp. 121-122 ("the present Opinion is forthright in proclaiming the existence of a 'right' [...]. The pronouncements of the Court thus indicate, in my view, that a norm of international law has emerged applicable to the decolonization of those non-self-governing territories which are under the aegis of the United Nations". And see Separate Opinion, Judge Nagendra Singh, id., at p. 81 ("the consultation of the people of the territory awaiting decolonization is an inescapable imperative whether the method followed on decolonization is integration or association or independence [...]. Thus even if integration of territory was demanded by an interested State, as in this case, it could not be had without ascertaining the freely expressed will of the people - the very sine qua non of all decolonization"). See also UN Doc. A/Res/637 A (VII), 16 Dec. 1952, Para. 2, which expressly states that the exercise of the right to self-determination should take place in accordance with "the freely expressed wishes of the peoples concerned, the wishes of the people being ascertained through plebiscites or other recognized democratic means, preferably under the auspices of the United Nations". 185. See UN Doc. S/Res/217, 20 Nov. 1965 (vote: 10 to 0, with one abstention (France)) which "[c]ondemns the usurpation of power by a racist settler minority in Southern Rhodesia and regards the declaration of independence by it as having no legal validity" and "calls upon the United Kingdom [...] to take immediate measures in order to allow the people of Southern Rhodesia to determine their own future consistent with the objectives of General Assembly Resolution 1514 (XV)". And see S/Res/277 of 18 March 1970, which states that "[t]he situation in Southern Rhodesia continues to deteriorate as a result of the introduction by the illegal regime of new measures, including the purported assumption of republican status, aimed at repressing the African people in violation of General Assembly Resolution 1514 (XV) of 14 December I960" and subsequently "[c]ondemns the illegal proclamation of republican status of the Territory by the illegal regime in Southern Rhodesia" (emphasis added).
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be null and void.186 It is therefore beyond all doubt that the call for nonrecognition was based on the denial and thus the violation of the right to selfdetermination of the Rhodesian people as a whole, and its object was to prevent recognition, either explicitly or implicitly, of Southern Rhodesia as a State under international law. 187 The UDI and its non-recognition is generally and solely approached from the perspective of the illegality of the UDI. Although this is correct, another element is important as well. This concerns the fact that according to the application by the United Nations of the right to self-determination during the period of decolonization, the Smith regime lacked all competence to issue a proclamation of independence. As will be discussed elsewhere in this study, the subject of the right to self-determination during this phase of history was limited to the inhabitants of colonial territories. Thus, the subject of the right, was territorially rather than ethnically defined.188 The effectuation of selfdetermination could be realized either through opting for independence or another political status as a result of a decision by an authority which was deemed to be representative of the inhabitants of the territory, or through a referendum or a comparable means of free political expression by the population.189 It is evident that a proclamation of independence by an unrepresentative 186. UN Doc. S/Res/445, 8 March 1979. The Resolution moreover reaffirms that "the existence of the illegal racist minority regime in Southern Rhodesia constitutes a threat to international peace and security", and reaffirms the "inalienable right of the people of Southern Rhodesia to selfdetermination and independence". 187. It may be questioned whether the violation by the UDI of the right to self-determination was the only ground for non-recognition, or that other grounds yet existed. In that respect, mention could be made of the prohibition of racial discrimination which, at the time of the UDI, was recognized as a rule of customary international law. See, e.g., Case Concerning the Barcelona Traction Light and Power Company, Limited, (Second Phase), Judgment, ICJ Rep. 1970, p. 4, at p. 32 (hereinafter 'Barcelona Traction case'); Dissenting Opinion Judge Tanaka, South West Africa cases, (Second Phase) (Ethiopia v. South Africa; Liberia v. South Africa), ICJ Rep. 1966, p. 6, at pp. 286-301, esp. at p. 293; Draft Report of the 1966 Special Committee on Principles of International Law Concerning Friendly Relations and Co-Operation Among States, Rapporteur W. Riphagen, UN Doc. A/AC.125/L.38/Add.6, 21 Apr. 1966, p. 16. See also ICCPR, Arts. 2(1) and 26; and see the International Convention on the Elimination of all Forms of Racial Discrimination of 7 March 1966, UNTS, Vol. 660, 1969, p. 212. Moreover, reference can be made to the numerous resolutions of both the Security Council and the General Assembly against South Africa's Apartheid policy (see notes 204 and 205, infra). See also Brownlie, PRINCIPLES, pp. 602-605. However, in the resolutions of both the Security Council and the General Assembly concerning Southern Rhodesia, there is no special emphasis on the violation of the prohibition of racial discrimination as far as the illegality of the UDI is concerned. It must, however, be assumed that the prohibition was taken into consideration as is evidenced by the reference in the resolutions to the racist minority regime. However, it was, arguably, not the principal ground for non-recognition.SeealsoGowlland-Debbas,THE QUESTION OF SOUTHERN
RHODESIA, pp. 221-225. 188. See, e.g., UN Doc. A/Res/1541, (XV), supra note 30, Principle IV; and see Chapter 5, Section 3.4.2., infra. 189. Western Sahara case, supra note 73, at p. 33; UN Doc. A/Res/1541, supra note 30, Principles VII and IX; UN Doc. A/Res/2625, supra note 59, Principle V, Para. 6.
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authority in a colonial territory does not meet these principles. It is therefore not surprising to see that these principles were emphasized in the Security Council resolutions on Southern Rhodesia.190 The following conclusions present themselves. The proclamation of independence by the Smith regime had two juridical effects, both of which were apparently considered to engender the obligation of non-recognition. Firstly, as is clear from the United Nations decisions, the UDI was illegal because it violated a substantive rule of international law, namely the right of selfdetermination of the population of Southern Rhodesia. The violation of this norm was regarded as being of such gravity that the UDI was therefore considered a legal nullity. Secondly, the UDI also lacked legal validity, that is, it could not produce the intended legal consequence of changing the international status of the colonial territory, because it was issued by an entity which was (a) not the subject of the right of self-determination and (b) not representative of the subject of that right. Therefore it did not possess the competence under international law to exercise the right to self-determination. Hence any recognition of this proclamation of independence would in fact endow the act by the minority regime with legal consequences which would be opposable vis-à-vis the recognizing State. Because such recognition would in itself be unlawful as a violation of the right to self-determination of the people of Southern Rhodesia, this point also explains the call for non-recognition by the Security Council and the withholding of recognition by all States.191 (b) The South African Homeland territories The creation of the so-called 'independent Homelands' by the South African government from the mid 1970s onwards, was met with general condemnation and rejection of the Homelands as States under international law. The policy of Apartheid by the South African minority regime and its implications under international law has been much discussed in doctrine.192 The Apartheid policy 190. Cf., e.g., UN Doc. S/Res/253, 29 May 1968, where, in Para. 17, it is stated "that the United Kingdom as the administering Power should ensure that no settlement is reached without taking into account the views of the people of Southern Rhodesia, and in particular political parties favouring majority rule, and that it is acceptable to the people of Southern Rhodesia as a whole" (emphasis added). See also the comments by the Netherlands, stating that the Netherlands' views "were based on the principles of [Resolution 1514]. It therefore rejected the claim of the minority regime to decide the future of the people of the Territory. That regime's UDI was illegal". UN GAOR (XXVI), 4th Committee, 1955th mtg., p. 212, para. 15, 24 Nov. 1971. 191. See also M.F. Witkin, Transkei: An Analysis of the Practice of Recognition - Political or Legal?, Harv. ILL Vol. 18, 1977, p. 605, at p. 620, n. 91. 192. See, inter alia, id., at pp. 605-627; D.A. Heydt, Nonrecognition of the Independence of Transkei, Case W. Res. JIL, Vol. 10, 1978, p. 167; Crawford, CREATION OF STATES, pp. 222-227; Dugard, RECOGNITION, pp. 98-108. For an account of the origins of and justifications for Apartheid, see L. Thompson, THE POLITICAL MYTHOLOGY OF APARTHEID, 1985.
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and the legal system based on it, demanded the most rigid form of racial segregation. It was the means by which the white minority attempted, and for a long time succeeded, to retain power in South Africa. Although racial segregation and discrimination, accompanied by the creation of separate areas exclusively designated for the native black Africans (the Bantus) featured in the policy of the white governments in South Africa as early as the beginning of the twentieth century, no independent Homelands were envisaged at that time.193 This idea developed as a result of international pressure and condemnation of the Apartheid policy and the growing emphasis and interest in decolonization in the 1950s and 1960s. The South African Government attempted to combat this international pressure to its policy of systematic racial discrimination - of which kind of policy Apartheid is the example par excellence - through a territorial definition of "separate development". This resulted in the introduction in 1959 of the Promotion of Bantu Self-Government Act. The Act set up machinery for the creation of ten territorial areas in South Africa ('Homelands') for different government-designated African tribal groups.104 The 'Homelands' comprised some 13 per cent of the territory of South Africa. The South African government asserted that this policy was based on the principle of self-determination.195 Grants of self-government to the Bantu reserves by the South African government in the course of the 1960s and 1970s would constitute evidence of the South African government's adherence to the principle of self-determination. In 1971, the South African government announced that it intended eventually to grant "self-determination" or "sovereign independence" to the ten areas.196 The first Homeland to obtain 'independence' was Transkei, which was granted independence on 26 October 1976. This was followed by grants to Bophuthatswana in 1977, Venda in 1979, and Ciskei in 1981. Even before the grant of independence to Transkei, the General Assembly of the United Nations had already adopted several resolutions stating that the Bantustan policy was in pursuance of Apartheid, and condemning the policy as violating the right of self-determination and as being prejudicial to the territorial integrity of South Africa. In addition, these resolutions called upon 193. J. Dugard, Collective Non-Recognition: the Failure of South Africa's Bantustan States, in: BOUTROS BOUTROS GHALI AMERICORUM DISCIPULORUMQUE LIBER, Vol. l, 1998, p. 383, at pp. 384-385. 194. Id., at p. 385; H.J. Richardson III, Self-Determination, International Law and the South African Bantustan Policy, Colum. J. Transnat'l L., Vol. 17, 1978, p. 185, at pp. 185-186. 195. Dugard, supra note 193, at p. 385. 196. UN Doc. 20/74, 1974, pp. 26-27, 40. 197. See, e.g., UN Docs. A/Res/ 2671 F (XXV), 8 Dec. 1970 and A/Res/2775E (XXVI), 29 Nov. 1971. The latter Resolution furthermore condemns "the forcible removal of the African people of South Africa and Namibia to those areas as a violation of their inalienable rights contrary to the
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"all Governments and organizations not to accord any form of recognition to [the Bantustan homelands]".198 On 26 October 1976, in response to the grant of independence to Transkei, the General Assembly passed Resolution 31/6 A, which called the 'independence' of Transkei a sham. The resolution continued by stating that the General Assembly: 1. Strongly condemns the establishment of bantustans as designed to consolidate the inhuman policies of apartheid, to destroy the territorial integrity of the country, to perpetuate white minority domination and to dispossess the African people of South Africa of their inalienable rights; 2. Rejects the declaration of 'independence' of the Transkei and declares it invalid; 3. Calls upon all Governments to deny any form of recognition to the so-called independent Transkei and to refrain from having any dealings with the socalled independent Transkei or other bantustans [...].199
The grants of 'independence' to Bophuthatswana, Venda and Ciskei were also 200 denounced generally. On the matter of Bophuthatswana, the General Assembly used similar terms as in the case of Transkei. The General Assembly condemned the establishment of Bantustans and called upon all States not to recognize them.201 The 'independence' of Venda was also rejected, which was made clear through a statement by the President of the Security Council on behalf of the Council. When Ciskei was granted independence a similar statement was issued. Until the disappearance of the Homeland territories
principle of self-determination [...]"• 198. UN Doc. A/Res/3411 D (XXX), 28 Nov. 1975. 199. UN Doc. A/Res/31/6 A, 26 Oct. 1976 (vote: 134 to 0, with one abstention (USA)). The abstention of the US government, however, had nothing to do with the principal points of the Resolution, but with the fact that the Resolution ostensibly prohibited all contact with the 'bantustans', applying even if the security or interests of US citizens would be at stake. See UN GAOR, 42nd plenary mtg., p. 726 and UN Doc. A/31/PU.42, 1976. Resolution 31/6 A was upheld by Security Council Resolution 402 of 22 December 1976. See also the Special Committee against A partheid, who in its annual report of 1976 recommended the General Assembly "to condemn the declaration of the 'independence' of Transkei as utterly invalid" and "to call on all Governments to refrain from extending any form of recognition to Transkei". UN Ybk., Vol. 30, 1976, p. 122. 200. Cf. the statement by the Foreign Secretary of the United Kingdom regarding Bophuthatswana's 'independence', stating: "Bophuthatswana's fragmentary nature is only one reason why no country thought it right to recognise its independence. That country is financially dependent on South Africa. The very existence of Bophuthatswana is a consequence of apartheid, and I think that that is the principal reason why recognition has not been forthcoming". BYIL, 1988, Vol. 59, pp. 436-437. 201. UN Doc. A/Res/32/105 N, 14 Dec. 1977. 202. The statement condemned "the proclamation of the so-called independence of Venda" and called "upon all Governments to deny any form of recognition to the so-called 'independent' bantustans". UN Doc. S/13549, 21 Sept. 1979. 203. UN Doc. S/14794, 15 Dec. 1981.
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in 1994, the United Nations, both through the Security Council204 and through the General Assembly,205 regularly condemned the Apartheid policy and 'bantustanization', and affirmed the right to self-determination of the people of South Africa as a whole. Until their dismantling, no State had recognized the Homeland territories as States under international law, despite the fact that no resolution adopted by the United Nations organs on the subject of withholding recognition was legally binding.206 Several grounds for the non-recognition of the Homeland territories have been suggested. One such is that the creation of the Homeland territories by a racist minority government, leading to the fragmentation of the territory of South Africa, violated the right to self-determination of the South African people. Apartheid and bantustanization or fragmentation have been stated to be incompatible with genuine independence and self-determination. This ground seems to refer to Resolution 1514 of 1960 which in its operative Paragraph 6 states 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".208 Although this provision may be interpreted so as to include situations in established States, the history and purpose of the Resolution point against such an interpretation. The apparent difficulty here is that, contrary to for instance the colonial territory of Southern Rhodesia, there was no doubt that South Africa was an independent State. How then could the creation of the Homelands violate the right to self-determination? Because the issue of the scope of
204. See, e.g., UN Doc. S/Res/181, 7 Aug. 1963; UN Doc. S/Res/392, 19 June 1976; UN Doc. S/Res/417,31 Oct. 1977. In 1980, the Security Council adopted Resolution 473, which recognized "the legitimacy of the struggle of the South African people for the elimination of apartheid and the establishment of a democratic society in which all the people of South Africa as a whole, irrespective of race, colour or creed, will enjoy equal and full political and other rights and participate freely in the determination of their destiny". UN Doc. S/Res/473, 13 June 1980. See also UN Doc. S/Res/556 of 23 Oct. 1984, which reaffirms "the will of the people as the basis of the authority of Government" and "the legitimacy of the oppressed people of South Africa for the full exercise of the right to self-determination and the establishment of a non-racial democratic society in an unfragmented South Africa". In addition, the same Resolution states in its operative Paragraph 6: "[d] emands the immediate eradication of apartheid as the necessary step towards the full exercise of the right to self-determination in an unfragmented South Africa, and to this end demands (a) the dismantling of the bantustan structures [...]". 205. See, e.g., UN Doc. A/Res/31/34,30Nov. 1976 (" [a] ffirming that bantustanization is incompatible with genuine independence, unity and national sovereignty [...]"). And see UN Doc. A/Res/37/43, 3 Dec. 1982, which reiterates the same formula. Dugard also refers to General Assembly Resolution 37/69 A of 9 December 1982, which characterizes "bantustanization" and denationalization of black South Africans as an international crime. Dugard, RECOGNITION, p. 102. 206. Id., at p. 102; OPPENHEIM'S INT'L LAW, p. 190. 207. See notes 204 and 205, supra. 208. UN Doc. A/Res/1514 (XV), 14 Dec. 1960.
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self-determination is discussed in more detail in the following chapters, at this time only the main points will be addressed against the background of the South African situation. Firstly, there is no doubt that both the General Assembly and the Security Council were of the opinion that the population of South Africa was the bearer of the right to self-determination as is evidenced by the recognition of the applicability of that right in numerous resolutions. Secondly, the situation in South Africa has been considered to be one of a "colonial-type domination".209 When the definition of the holder of the right to self-determination according to General Assembly Resolution 1541 as well as United Nations practice during decolonization - both limiting the right to traditional colonial situations - is taken into consideration, South Africa cannot be regarded as a "colonial territory" or a "non-self-governing territory" in the sense that these concepts are used in United Nations instruments. 210 However, it is difficult to deny the similarities between the South African political system and a traditional colonial situation, especially regarding alien domination and exploitation. This, it seems, would in itself justify the application of Resolution 1514 mutatis mutandis to the situation in South Africa, and thus the applicability of self-determination and the prohibition on territorial fragmentation. 211 But in this respect, it must be emphasized that the realization of self-determination under General Assembly Resolution 1514 was primarily envisaged in the ways listed in Resolution 1541, that is, through either independent statehood, association with, or integration in another State. These modes of implementation of (external) self-determination are not and were not considered to be applicable to the population of South Africa.212 Consequently, it must be concluded that the violation of self-determination in the case of South Africa was essentially concerned with the effectuation and implementation of the internal aspect of self-determination, namely the right of the South African population, and in particular the black majority, to freely determine its political status through representation in the government of South Africa and participation in its political decision-making processes without discrimina-
209. Dugard, RECOGNITION, p. 103, citing the Declaration of Lagos of 1984, UN Doc. A/39/433S/16709 and Corr. 1, 11 Sept. 1984. 210. See, e.g., UN Doc. A/AC.125/SR.69,4 December 1967, p. 22 (Kenya: "[t]here were two examples in Africa itself of a flagrant breach of the right of self-determination where the colonial issue did not arise. In South Africa and Rhodesia a minority was subjecting the majority to indescribable indignities and humanity"). 211. See Dugard, RECOGNITION, pp. 102-103. 212. Although the General Assembly's wording of its Resolution 31/34 of 30 November 1976 seems to point to the similarities between traditional colonialism and South Africa when it referred to the fact that bantustanization is incompatible with genuine independence.
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tion.213 Only through this development could "genuine independence" be achieved. 214 In this respect, the decision of the South African government to create the Bantustans, and the subsequent grants of 'independence' were taken neither with the consent of the groups who were associated with the designated areas, nor with the consent of the population of South Africa.215 The absence of consent is in line with the fact that the majority of the South African population had never been able to determine its political status and future freely. Instead, this was determined for them unilaterally by the white minority government. It is for this reason that the General Assembly referred to the establishment of the Bantustans as forming part of a means to "dispossess the African people of their inalienable rights", which cannot but include the right of self-determination.216 Yet, whatever the merits of this argument, it should not be separated, at least not regarding the South African situation, from the international community's efforts to combat colonialism and its diminishing217 hesitation to proclaim explicitly the applicability of self-determination to situations in established States in the early 1970s. Thus, on the one hand, the South African bantustan policy resulted in a situation of a 'colonial type', established and maintained by a white minority government, and, on the other, this government was the government of an established and widely recognized State. It is submitted that these two interrelated aspects regarding the creation of the South African Homelands may clarify to a certain extent the unclear language of the United Nations resolutions and statements with respect to the exact legal basis of the right to self-determination of the people of South Africa. However true this may be, there can certainly be no misunderstanding about the international community's view that (a) the establishment of the Homelands constituted a violation of the right of self-determination of the South African people, and (b) that this violation shall not be validated through the recognition of the 213. See the resolutions mentioned in notes 204 and 205, supra; and UN Doc. S/Res/556, 23 Oct. 1984. Note that the South African black majority was generally referred to as an 'oppressed people' and not as a colonial people as such. See, e.g., A/Res/35/35/A, 14 Nov. 1980, Para. 6. See also A. Rosas, Internal Self-Determination, in: C. Tomuschat (Ed.), MODERN LAW OF SELFDETERMINATION, 1993, p. 225, at pp. 236-238. For a detailed discussion of the scope and status of internal self-determination, see Chapter 6, Sections 2-4, infra. 214. The term 'genuine independence' is used in General Assembly Resolution 31/34, supra note 205. 215. Dugard, RECOGNITION, p. 105; Witkin, supra note 191, at p. 621. As to the requirement of consent by the inhabitants of a colonial territory with respect to the exercise of external selfdetermination, see Chapter 5, Section 3.4.3., infra. For a comparable requirement in the context of post-colonial cases of external self-determination, see Chapter 6, Section 5, infra. 216. See also Witkin, supra note 191, at p. 621. 217. See note 213, supra.
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Homelands as States under international law.218 Another suggested ground for non-recognition is that the Homelands did not become States, because they were not independent for the purpose of statehood in international law.219 Reference to this point was made by the United Nations Special Committee against Apartheid in its 1976 annual report, where, with regard to the establishment of the Bantustans, it recommended the General Assembly to call on all Governments to refrain from extending any form of recognition to Transkei and any contact with the authorities of that bantustan [...] and to call on all corporations, organizations institutions and individuals to refrain from any dealings with the puppet authorities.220
Moreover, any territorial entity that is established by a racist minority regime of an established State in order to perpetuate racist policies is presumed not to be independent. At the very least, such an entity has a heavy burden of proof regarding its actual independence. However, whatever the probability of this point as a ground for nonrecognition, the resolutions and statements by the General Assembly and the Security Council did not explicitly refer to any lack of independence as a ground for non-recognition of the claims to statehood. Therefore, as far as this factor is concerned, the very most that can be said is that the presumed lack of actual independence of the Homelands was taken into account by the international community, but that this factor was overshadowed by the fact that the creation of the entities violated several fundamental rules of international law, including the right of self-determination. § 5.2.3.
Violation of the prohibition of systematic racial discrimination including the prohibition of Apartheid
The case of the South African Homeland territories points at another ground for non-recognition of these territories as States under international law. For, the Homelands were established as a "logical territorial extension of Apartheid as both a general policy and a way of life for whites as a single preferred tribe 218. Another ground for non-recognition consists of the fact that the creation of the Bantustans violated the prohibition of racial discrimination, which is discussed in the next Section. Dugard has suggested yet another ground for non-recognition, namely "compulsory denationalization on grounds of race". See Dugard, RECOGNITION, p. 107. 219. Witkin, supra note 191, at p. 615; Crawford, CREATION OF STATES, p. 226. But see Heydt, supra note 191, at pp. 189-191. 220. See Report of the Special Committee Against Apartheid, UN GAOR, 13th sess., Supp. No. 22 (A/10022), p. 40 (emphasis added). And see UN Ybk., Vol. 30, 1976, p. 122.
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over blacks as an inferior collection of tribes".221 Both the General Assembly and the Security Council have condemned this South African policy as a violation of the Charter of the United Nations and of the principle of the prohibition of systematic racial discrimination, including the prohibition of Apartheid. 222 There is practical unanimity both among States and among international lawyers as to the fundamental character of these prohibitions.223 Therefore, the fact that these norms were violated flagrantly in the process of the formation of the Homelands, arguably constitutes another ground for the complete denial of their claim to statehood.
§ 6.
THE CHARACTER OF THE LEGAL NORMS INVOLVED
As observed earlier, the doctrine of the obligation of non-recognition is premised on the ground that acts and their results which are in violation of fundamental rules of international law are without legal effect and shall not be recognized or validated. The practice of the United Nations in the field of claims to statehood and non-recognition suggests the existence of certain legal rules considered to be of such importance that any act in violation of such a rule, and the consequences of such an act, including effective territorial entities, are considered to be legally non-existent,224 and will not and shall not be recognized as valid. The relevant legal norms that can be deduced from United Nations practice are (a) the prohibition of the use of force and more in particular the prohibition of aggression, (b) the prohibition of the violation of the right to self-determination of peoples, and (c) the prohibition of systematic racial discrimination, including the prohibition of Apartheid. The fact that the United Nations was of the opinion that violations of these 221. Richardson, supra note 194, at p. 192. 222. See, e.g., Declaration of the President of the Court, Sir M. Z. Khan, Namibia case, supra note 181, at p. 57, and at p. 63. See also International Convention on the Suppression and Punishment of the Crime of Apartheid, 30 Nov. 1974, UNTS, Vol. 1015, p. 244 and ILM, Vol. 13, pp. 50-57 (which declares that Apartheid, defined as certain violations of human rights "committed for the purpose of establishing and maintaining domination by one racial group of persons over any other racial group of persons and systematically oppressing them", is a crime against humanity). And see the UN resolutions mentioned supra notes 204 and 205; the International Convention on the Elimination of All Forms of Racial Discrimination, supra note 187 (Article 3 expressly condemns Apartheid). See also the statement by the Foreign Secretary of the United Kingdom, supra note 200; Witkin, supra note 191, at pp. 621-626. 223. Witkin, id.; and see note 263, infra. 224. The legal non-existence of the entity is evidenced by the fact that in all the discussed cases a third or parent State is addressed as the one under an obligation to put an end to the illegal situation. For a further discussion of the aspect of the legal non-existence of an effective territorial entity, see Section 8 of this Chapter, infra.
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norms were of such gravity that even effective territorial situations should be regarded as "invalid", "without legal effect", "illegal" or "null and void", must be rooted in a belief that these illegal acts and their consequences do not only affect the rights and interests of the holder of the violated right, but indeed affect the rights and interests of the international community as a whole. Otherwise it is difficult to explain why the United Nations called upon all States to refuse to accept the claims by the relevant territorial entities to legal status and rights under international law. For, it will be recalled, such legal status and rights would have been acquired under traditional international law as a result of the effective existence of the entities concerned. The idea that certain acts and their results are considered to be without legal effect because they are in conflict with a fundamental norm, is reflected in the underlying concept of Article 53 of the Vienna Convention on the Law of Treaties. In this Article, it is stated that a treaty is void if, at the time of its conclusion it conflicts with a rule of jus cogens.225 And jus cogens has been defined as "those substantive rules of conduct that prohibit what has come to be seen as intolerable because of the threat it presents to the survival of States and their peoples and the most basic human values".226 It is readily admitted that Article 53 deals with inter se relations. But does that warrant the conclusion that the concept of jus cogens has no role to play beyond the realm of treaty-law, as has been argued by some scholars? The generally accepted position is that the validity and effect of jus cogens transcends treaty-law.228 As has been pointed out,229 at the time of the adoption of the Vienna Convention, the criticism arose that any limitation of the concept of 225. Article 53 reads: "[a] treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character". 226. Report of the ILC, 53rd sess, 23 Apr.-ljune and 2 July-10 Aug. 2001, UN GAOR, 56th sess., Supp. No. 10, A/56/10, ch. IV.E.2 (Commentaries to the Draft Articles), p. 283. jus cogens norms are thus phrased in the form of prohibitions rather than rights. See also G. Schwarzenberger, International Jus Cogens?, in: Conference on International Law, Lagonissi (Greece), 3-8 Apr. 1966, Papers and Proceedings, Vol. II, THE CONCEPT OFJUSCOGENS IN INTERNATIONAL LAW, 1967, p. 117, at p. 119. 227. See, e.g., J. Sztucki, JUS COGENS AND THE VIENNA CONVENTION ON THE LAW OF TREATIES, A CRITICAL APPRAISAL, 1974, p. 68; K. Marek, Contribution a I'Étude du Jus Cogens en Droit International, in: RECUEIL D'ETUDES DE DROIT INTERNATIONAL EN HOMMAGE A PAUL
GUGGENHEIM, 1968, p. 426, at p. 441. 228. See, e.g., L. Hannikainen, PEREMPTORY NORMS (JUS COGENS) IN INTERNATIONAL LAW, 1988, p. 6 ff.; S. Kadelbach, ZWINGENDES VÖLKERRECHT, 1992, p. 335ff.; B. Simma, From Bilateralism to Community Interest in International Law, HR, 1994 VI, p. 221, at p. 288; G. Dahm,
VÖLKERRECHT, Vol. III, 1961, p. 60. 229. Gowlland-Debbas, THE QUESTION OF SOUTHERN RHODESIA, pp. 248-249.
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jus cogens to inter se relations did not take into account the reasons for this restriction on the contractual freedom of States, namely that these rules do not only affect the parties' individual interests which may be waived at will, but the interests of the international community as a whole.230 It is difficult to accept that a rule may not be derogated from because of overriding interests of the international community as a whole in one context, while this would be allowed in another context. In that respect, it has been observed that "if a jus cogens rule cannot be derogated from by treaty it cannot afortiori, be violated by a unilateral act or omission without having the same legal effects".231 The fact that Article 53 of the Vienna Convention limits the scope of jus cogens to treaties is by no means an argument against the existence of jus cogens beyond treaty law, because the article is part of a treaty on the law of treaties and it was that field of international law the International Law Commission was concerned with when it drafted this Convention. Indeed, in its recent Commentary to the Draft Articles on Responsibility of States for International Wrongful Acts, the Commission makes it very clear that the concept of jus cogens extends beyond treaty-law.232 Furthermore, the fact that the United Nations called upon all States not to recognize certain acts and the consequences of those acts, strongly suggests that the breach of certain obligations under international law cannot and shall not be treated as any other breaches of international law, also in cases where the breach did not arise out of inter se relations, but out of a unilateral act. The United Nations reaction should therefore be explained by the fact that the norms breached in the cases discussed above, are generally regarded as norms of jus cogens because these norms consecrate values the respect of which is "essential to the maintenance of the international public order".233 The 230. See also E. Suy, The Concept of Jus Cogens in International Law, in: Lagonissi Conference, supra note 226, p. 17, at p. 75. 231. G. Abi-Saab, Introduction, in: id., p. 7, at pp. 10-11. See also the observation by Suy that "[i]f an international jus cogens exists it must, indeed, make necessarily null and void any of those acts and actions of states whose object is unlawful [...]. It is inconceivable that this effect should not extend to any act or action [in violation of a norm which has] in the hierarchy of legal norms a lower rank than treaties". Suy, id. 232. For instance, the Commission observed that "[i]t is however desirable to make clear that the circumstances precluding wrongfulness in Chapter V of Part One do not authorize or excuse any derogation from a peremptory norm of general international law. For example, a State taking countermeasures may not derogate from such a norm: for example, a genocide cannot justify a counter-genocide". Moreover, the Commission continued," [o] ne State cannot dispense another from the obligation to comply with a peremptory norm, e.g. in relation to genocide or torture, whether by treaty or otherwise [•••]". In addition, the Commission notes that "[Articles 53 and 64 of the Vienna Convention on the Law of Treaties] recognize the existence of substantive norms of a fundamental character, such that no derogation from them is permitted even by treaty". ILC Report 2001, supra note 226, at pp. 207-208, 209, 279 (emphases added). 233. Dugard, RECOGNITION, p. 153.
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fundamental character of the norms which were breached in the aforementioned cases is moreover reflected, as will be seen below, by the fact that each separate obligation to respect each of these norms is considered an obligation erga omnes. The position that the prohibition of the use of force, and in particular the prohibition of aggression, is the example par excellence of jus cogens seems unassailable. It was identified by the International Law Commission in its commentary on the draft of the Vienna Convention on the Law of Treaties as "a conspicuous example" of jus cogens,234 and this position of the Commission was cited by the International Court of Justice in the Nicaragua case.235 There is no doubt as to the crucial position of the prohibition of aggression as one of the basic rules of the Charter of the United Nations, and its imperative status is reflected in several authoritative resolutions of the General Assembly.236 Moreover, the International Court of Justice has considered the obligation on the prohibition of aggression to be amongst other obligations erga omnes.237 Its status of jus cogens is furthermore underscored by several writers.238 The fundamental status of the prohibition of aggression and the related obligation of non-recognition of the results of a violation thereof, is supported by the fact that with respect to the conflict on the territory of the former Socialist Federal Republic of Yugoslavia, the European Community Guidelines on Recognition of New States explicitly stated that "[t]he Community and its Member States 239 will not recognise entities which are the result of aggression". 234. Report of the ILC, 18th sess., ILC Ybk., 1966, Part II, p. 247. See also ILC Report 2001, supra note 226, at p. 283, and the references mentioned there, concerning statements made by States to that effect during the United Nations Conference on the Law of Treaties. 235. Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States), Merits, ICJ Rep. 1986, p. 14, at p. 100. See also, id., Separate Opinion Judge Singh ("the principle of non-use of force belongs to the realm of jus cogens"), at p. 153; and id., Separate Opinion Judge Sette-Camara, at p. 199. For a general account of the Court's practice regarding fundamental rules of international law, see V. Gowlland-Debbas, Judicial Insights Into Fundamental Values and Interests of the International Community, in: A.S Muller, D. Raic & J.M. Thuránszky (Eds.), THE INTERNATIONAL COURT OF JUSTICE. ITS FUTURE ROLE AFTER FlFTY
YEARS, 1997, p. 327. 236. UN Doc. A/Res/2625, supra note 59, Principle I; UN Doc. A/Res/3314 (XXIX), 14 Dec. 1974 (Definition of Aggression); UN Doc. A/Res/36/103, 9 Dec. 1981 (Declaration on the Inadmissibility of Intervention and Interference in the Internal Affairs of States). 237. Barcelona Traction case, supra note 187, at p. 32. With respect to obligations erga omnes (which the Court defined as "obligations of a State towards the international community as a whole"), the Court observed: "such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination". 238. Y. Dinstein, WAR, AGGRESSION AND SELF-DEFENCE, 1994, p. 102; Brownlie, PRINCIPLES, p. 515; Dugard, RECOGNITION, p. 154; AD. McNair, LAW OF TREATIES, 1961, pp. 214-215. 239. Declaration on the Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union, 16 Dec. 1991, ILM Vol. 31, 1992, pp. 1485-1487.
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The prohibition of the violation of the right of peoples to self-determination has also often been advanced as a peremptory norm of international law. There are strong reasons to believe that this view is correct. In the first place, the fundamental position of the right of self-determination with regard to the maintenance of international peace and security as emphasized by Article 1 (2) of the Charter of the United Nations must be noted. In said Article, it is stated that friendly relations among nations must be developed by the United Nations on the basis of equal rights and self-determination.24() And, as has been pointed out, "[d]eveloping such friendly relations is one of the Purposes of the United Nations - central to its existence".241 According to the International Law Commission, the right of self-determination certainly qualifies as a norm of jus cogens.242 In addition, the International Court of Justice considered the obligation to respect the basic rights of the human person to be an obligation erga omnes.243 Given the indispensable position of the right of self-determination as a prerequisite for the effective exercise and enjoyment of individual human rights,244 it is seems inescapable that the obligation to respect the right of selfdetermination is also owed erga omnes. Moreover, in the East Timor case, the Court held that the entitlement to respect of the right to self-determination is itself a right erga omnes.245In the same case, the Court emphasized that the right of peoples to self-determination is "one of the essential principles of contemporary international law".246 This has also been the position of various States during the discussions preceding the adoption of Resolution 2625 in 1970.247 The right of self-determination was characterized as "a fundamental principle 240. See also, e.g., the Preamble of General Assembly Resolution 1514 (XV), supra note 59, at Para. 4, and id. operative Para. 1. 241. Dissenting Opinion Judge Weeramantry, Case Concerning East Timor (Portugal v. Australia), Judgment, 1995, ICJ Rep. 1995, p. 92, at p. 194. 242. See ILC Report 2001, supra note 226, at pp. 208, 284. 243. Barcelona Traction case, supra note 187. 244. See pp. 239-242, infra. 245. East Timor case, supra note 241, at p. 102. It will be noted that in this case, the Court referred to the erga omnes character of (the entitlement to respect for) the right of self-determination, not to the erga omnes character of the obligation to respect this right. The distinction between obligations and rights erga omnes was upheld by the Court in:-Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Federal Republic of Yugoslavia (Serbia and Montenegro), Preliminary Objections, Judgment, ICJ Rep. 1996, p. 595, at p. 616 (hereinafter 'Genocide case'). The matter is particularly relevant for the law of state responsibility, for instance, with respect to the entitlement of third States to impose countermeasures vis-a-vis the State (not necessarily the parent State) which is responsible for the violation of the right of self-determination of a people. The problem lies outside the scope of this study. See, e.g., R. Lefeber and D. Raic, Frontiers of International Law, Part One: The Chechen People, LJIL, Vol. 9, 1996, p. 1. 246. East Timor case, id. 247. See, generally, V.S. Mani, BASIC PRINCIPLES OF MODERN INTERNATIONAL LAW, 1993, pp.224258.
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of contemporary international law binding on all States",248 "one of the fundamental norms of contemporary international law",249 "one of the most important principles embodied in the Charter",250 "a universally recognized principle of contemporary international law",251 and "indispensable for the existence of community of nations". All these qualifications emphasize the fundamental position of the right of self-determination for the maintenance of the international legal order and the survival of peoples. Therefore, a denial of the right to self-determination does not only affect the interests of the direct holder of the right but also the interests and rights of "the international community as a whole".253 The right of self-determination is intertwined with, for instance, individual human rights, international peace and security, the principle of non-intervention and the right to territorial integrity. In view of its importance, the obligation to respect the right of self-determination has been emphasized in numerous resolutions of the United Nations. It is now even beyond doubt, as will be discussed elsewhere in this study, that the scope of application of the right to self-determination is by no means limited to the colonial context. The right of self-determination is of universal application, that is, it also applicable to peoples in established States.254 However, as has been pointed out, one would be disregarding the various discussions on self-determination as well as the complexity of the rules and principles related to the norm, if one were to argue that the prohibition on the violation of the right to self-determination as such is jus cogens, that is, without any qualification as to which particular aspect(s) of the norm qualify as such.255 As will be shown later, it is generally accepted that the right is applicable to peoples residing in Non-Self-Governing Territories or colonial territories, that is, to peoples who do not live within the boundaries of an established State and who are the victim of alien subjugation, domination or exploitation.256 In addition, the right of self-determination for peoples under 'colonial-type' situations as in South Africa prior to the Mandela government has been
248. 249. 250. 251. 252. 253. 254. 255. 256.
UN Doc. A/AC.125/SR.41, 27 July 1966, p. 9 (Poland). UN Doc. A/AC.125/SR.40, 27 July 1966, p. 9 (Yugoslavia). UN Doc. A/AC.125/SR.69, 4 Dec. 1967, p. 17 (Japan). UN Doc. A/AC.125/SR.70, 4 Dec. 1967, p. 12 (Cameroon). UN Doc. A/AC.125/SR.68, 4 Dec. 1967, p. 3 (United States of America). Barcelona Traction case, supra note 187, at p. 32. See Chapter 6, infra. Dugard, RECOGNITION, p. 159. Namibia case, supra note 73, at p. 31. See also UN Docs. A/Res/1514 supra note 59, Arts. 1 and 2 and A/Res/2625, supra note 59, Principle V.
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explicitly recognized. The above-mentioned developments have led to the situation that there is now wide support for the position that in the traditional colonial context, the prohibition on the denial of the right of 'external' selfdetermination has reached the status of jus cogens, and the same applies for situations involving a 'colonial type of domination', but here, as in South Africa, the primary concern is the 'internal' aspect of the right of self-determination.258 The final norm which may be deduced from the explicit non-recognition practice by the international community in the field of claims to statehood is the prohibition of systematic racial discrimination. This prohibition encompasses the prohibition of Apartheid. The obligations are specifically dealt with in two conventions, namely the International Convention on the Elimination of All Forms of Racial Discrimination259 which entered into force in 1969, and the International Convention on the Suppression and Punishment of the Crime of Apartheid which entered into force in 1976.260 In Article 3, the former Convention expressly condemns the practice of Apartheid, which condemnation supports the view that Apartheid is but one form of systematic racial discrimination. Both the prohibition of racial discrimination and the prohibition of Apartheid are mentioned by the International Law Commission as examples of jus cogens261 Moreover, the prohibition of racial discrimination has been qualified as an obligation erga omnes by the International Court of Justice in the Barcelona Traction case.262 There is now wide agreement on the jus cogens character of these prohibitions. 263 This seems difficult to deny as there is no 257. As to the explicit recognition by the UN of the right to self-determination of the Palestinian people, see, e.g., UN Doc. A/Res/3236, 22 Nov. 1974. 258. See pp. 215-219, infra. And see, e.g, H. Gros Espiell, Implementation of United Nations Resolutions Relating to the Right of Peoples Under Colonial and Alien Domination to SelfDetermination, Study Prepared by the Special Rapporteur, E/CN.4/Sub.2/405 (Vol. 1), 20 June 1978, pp. 31-37; ILC Commentary to the Draft Articles on the Law of Treaties, ILC Ybk., 1966, Vol. II, p. 248; Brownlie, PRINCIPLES, p. 515; Hannikainen, supra note 228, at pp. 357-424; H.J. Richardson, supra note 194, at p. 190; M. Nowak, UNO-PART ÜBER BÜRGERLICHE UND
POLITISCHE RECHTE UND FAKULTATIVPROTOKOLL, CCPR-KOMMENTAR, 1989, at p. 14; J.C.
259. 260. 261. 262. 263.
Duursma, SELF-DETERMINATION, STATEHOOD AND INTERNATIONAL RELATIONS OF MICROSTATES, 1994, p. 103; Dugard, RECOGNITION, pp. 158-163; De Hoogh, supra note 90, at pp. 69, 182; S. Rosenne, Automatic Treaty Succession, in: J. Klabbers and R. Lefeber (Eds.), ESSAYS ON THE LAW OF TREATIES, 1998, p. 97, at p. 99; Separate Opinion Judge Ammoun, Barcelona Traction case, supra note 187, at p. 304 (referring to the right of self-determination, the principle of equality and the principle of non-discrimination on racial grounds as "imperative rules of law"). On the distinction between internal and external self-determination, see Chapter 6, Sections 2.2. and 5, infra. Supra note 263. UNTS, Vol. 1015, 1976, p. 212. ILC Commentary, supra note 257; ILC Report 2001, supra note 226, at p. 283. Barcelona Traction case, supra note 187. As to the prohibition of systematic racial discrimination see Separate Opinion Judge Ammoun, Barcelona Traction case, supra note 257; Dissenting Opinion Judge Tanaka, South West Africa Cases, supra note 187, at p. 298; Brownlie, PRINCIPLES, p. 515; Dugard, RECOGNITION, pp.
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other legal basis upon which the international community could have stated that South Africa under the white minority government was violating this rule of international law, because South Africa had never either tacitly or expressly accepted an obligation to abolish racial discrimination including Apartheid.264 The question of whether the resolutions and statements of the United Nations were declaratory of already existing peremptory norms has been answered in the affirmative.265 Indeed, it would be juridically wrong to isolate the cases discussed from the development of international law dating back to times before the establishment of the United Nations. In the above discussed post-1945 cases, the response of the United Nations and its member States as well as non-member States regarding the breaches of international law and their consequences are clearly evidence of a communis opinio that recognition of the relevant entities as States would in itself be unlawful and in conflict with the interests of the international community as a whole. Any argument holding that this belief sprang up 'over night', as it were, that is to say, not before the international community was confronted with these cases in 1965 (South Rhodesia), 1976 (Transkei) and 1983 (TRNC), ignores the development of international law up to and including the era of the United Nations. Indeed, the relevant resolutions and statements of the United Nations regarding nonrecognition of claims to statehood affirmed the existence of norms already recognized as imperative at that time by the international community of States.266 Yet, although affirmative or declaratory of an already existing 156-158; Crawford, CREATION OF STATES, p. 227. As to the prohibition of Apartheid, see, e.g., ILC Report 2001, supra note 226, at p. 283; Dugard, RECOGNITION, at p. 157; Witkin, supra note 191, at p. 626. 264. P.H. Kooijmans, International Law: Placebo or Medication?, in: W.J.M. van Genugten et al.
(Eds.), REALISM AND MORALISM IN INTERNATIONAL RELATIONS, 1999, p. 87, at p. 89. See also Witkin, supra note 191, at p. 626. 265. Gowlland-Debbas, THE QUESTION OF SOUTHERN RHODESIA, p. 252. And see Section 3 of this Chapter, supra. 266. It would seem impossible to defend the position that the prohibition of aggression became a rule of jus cogens as a result of the non-recognition of the TRNC, and the same is true for the other norms involved. Regarding the right to self-determination, the consistent stance and practice of the UN regarding decolonization since the early days of the UN's establishment, eventually cumulated in the adoption of Resolution 1514 in 1960. Although, as will be discussed in Chapter 5, infra, the Resolution was arguably declaratory of an already existing rule of customary law, it cannot be denied that it was clearly a catalytic agent regarding the achievement of independence by remaining Non-Self-Governing Territories under the heading of selfdetermination. State practice since 1960, the wording of Resolution 1514, and subsequent UN resolutions dealing with self-determination, as well as the adoption of the ICCPR and the ICESCR in 1966 where self-determination was considered to be a conditio sine qua non for the effective exercise and enjoyment of individual human rights, make clear that external selfdetermination in the context of decolonization was not only a rule of international customary law in the mid-1960s, but was also recognized at that time as being of fundamental importance for the maintenance of the international public order and the survival of peoples. As regards the prohibition of racial discrimination, including Apartheid, see H. Santa Cruz, Racial Discrimination, Study by the Special Rapporteur of the Sub-Commission on Prevention of
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peremptory norm, it cannot be denied that "such resolutions are essential as they provide certainty by substituting for the decision of an individual State a collective determination of illegality and nullity".267 In sum, all the norms which constituted a ground for the United Nations to call for the non-recognition of the effective territorial entities involved, are generally regarded as jus cogens norms. Moreover, it was also seen that the corresponding obligation to respect these norms is an obligation which is owed erga omnes. From this, it follows that on the basis of the character of the norms involved, the obligation to withhold recognition of an effective territorial entity created in violation of such norms, is in itself an obligation erga omnes. On the basis of the observations and analysis in this Section, it must be concluded that States are now under an obligation not to recognize, through individual or collective acts, a claim to statehood by an effective territorial entity created in violation, or being a direct consequence of a violation, of one or more fundamental rules of international law. These fundamental rules of international law are, more in particular, those rules having the character of jus cogens or, those rules which are at any rate substantive rules of international law which should be respected erga omnes "so that the illegality is one which involves the international community as a whole."268 This conclusion is supported by a statement by the Arbitration Commission of the International Conference on Yugoslavia which held that while recognition is not a prerequisite for the foundation of a state and is purely declaratory in its impact, it is nonetheless a discretionary act that other states may perform when they choose and in a manner of their own choosing, subject only to compliance with the imperatives of general international law, and particularly those prohibiting the use of force in dealings with other states or guaranteeing the rights of ethnic, religious or linguistic minorities. 269
And, recently, this principle has been affirmed explicitly by the International Law Commission. Article 41(2) of the Commission's Draft Articles on Responsibility of States for International Wrongful Acts states: [n]o State shall recognize as lawful a situation created by a serious breach [of
Discrimination and Protection of Minorities, E/CN.4/Sub.2/370/Rev.l, 1977, pp. 1-20; and see note 263, supra. 267. Dugard, RECOGNITION, p. 135; Dugard, supra note 193, at pp. 398-399. 268. Crawford, CREATION OF STATES, p. 123. See also Dugard, RECOGNITION, p. 135. 269. Arbitration Commission of the International Conference on Yugoslavia, Opinion 10, para. 4, ILM, Vol. 31, 1992, p. 1488, at p. 1526 (emphasis added).
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§ 7.
THE LEGAL BASIS OF THE OBLIGATION OF NON-RECOGNITION
From the above, it follows that the legal basis of the obligation of nonrecognition of effective territorial entities created in violation of a fundamental norm of international law and claiming statehood is twofold.271 First, such an obligation may derive from a mandatory resolution adopted by the Security Council, as in the case of the non-recognition of Southern Rhodesia when the Security Council adopted Resolution 277 in response to the proclamation of independence of Southern Rhodesia in 1970. After the Council had stated that it was acting under Chapter VII of the Charter, it decided "that Member States shall refrain from recognizing this illegal régime."272 The second legal basis of the obligation of non-recognition is to be found in customary international law. The status of the other Resolutions adopted by the Security Council on the non-recognition of Southern Rhodesia up until 1970 (Resolutions 216 and 217) is generally regarded as non-binding. This does not only follow from the absence of a reference to Chapter VII or Article 25 in those resolutions, but also from their wording. 273 It is, however, important to note that no State granted recognition to Southern Rhodesia even before the adoption of the mandatory Security Council Resolution 277. This points to the existence of a rule of customary international law regarding obligatory nonrecognition of illegally created but effective territorial entities. This rule is firmly rooted in the maxim ex injuria jus non oritur. The existence of such a rule of customary international law on the obligation of non-recognition must also be accepted in the light of the withholding of recognition to Southern Rhodesia by non-member States. For, the non-recognition of Southern Rhodesia by non-members of the United Nations cannot be based on the mandatory Resolution 277 of the Council, because according to the maxim pacta tertiis nec nocent nec prosunt, non-member States of the United Nations cannot be bound by resolutions of the Security 270. Draft Articles on Responsibility of States, supra note 62. And see the Commentary of the Commission, ILC Report 2001, supra note 226, pp. 286-292 (with reference to the situations of Southern Rhodesia and the Bantustans in South Africa, the Commission observes: "[t]hese examples reflect the principle that where a serious breach in the sense of article 40 has resulted in a situation that might otherwise call for recognition, this has nonetheless to be withheld"). 271. See also Gowlland-Debbas, THE QUESTION OF SOUTHERN RHODESIA, pp. 279-295; Dugard, RECOGNITION, pp. 135-137; Witkin, supra note 191, at p. 627. 272. Gowlland-Debbas, THE QUESTION OF SOUTHERN RHODESIA, p. 279.
273. Id.
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Council which are adopted under Chapter VII of the Charter.274 Moreover, the duty of non-recognition under customary law can also be deduced from the fact that the United Nations resolutions on non-recognition concerning the Turkish Republic of Northern Cyprus were not mandatory. This also applies with regard to the United Nations resolutions and statements on non-recognition of the South African Homelands. The latter resolutions were passed by the General Assembly, and the statements were issued by the President of the Security Council. The Security Council Resolutions which endorsed the General Assembly Resolutions on non-recognition are Resolutions 402 and 407. 275 Yet, these Security Council resolutions did not have a mandatory character either. In both instances, however, recognition was universally and consistently withheld, 276 which adds decisive support for the existence of a customary rule of international law regarding the obligation of non-recognition of effective territorial entities the creation of which was accompanied by, or a result of, a violation of a fundamental norm of international law.
§ 8.
MODERN CRITERIA FOR STATEHOOD BASED ON LEGALITY
It has been observed by Dugard that [i]nternational law distinguishes between non-existent (in existant) acts and acts which are null and void ab initio by reason of their illegality. Although neither
274. Indeed, the Council used terms like "urges" and "calls upon" when it addressed non-member States in the relevant mandatory resolutions. This is in conformity with Article 2(6) of the Charter. See also UN Doc. S/Res/277, 18 March 1970, Para. 18: "[u]rges, having regard to the principle stated in Article 2 of the Charter, States not Members of the United Nations to act in accordance with the provisions of the present resolution". And see UN Doc. S/Res/288, 17 Nov. 1970, Para. 4. See also I. Sinclair, THE VIENNA CONVENTION ON THE LAW OF TREATIES, 1984, pp. 98-101; L.M. Goodrich and E. Hambro, CHARTER OF THE UNITED NATIONS,
COMMENTARY AND DOCUMENTS, 1946, pp. 70-71; P. Malanczuk, AKEHURST'S MODERN INTRODUCTION TO INTERNATIONAL LAW, 1997, p. 137; Brownlie, PRINCIPLES, p. 628; Nkala, supra note 166, at pp. 120-127. Cf. also the example of Switzerland's response with regard to the invitation by the Secretary-General of the UN to Switzerland to comply with mandatory Security Council Resolution 232 (1966). The Swiss government stated "for reasons of principle, Switzerland, as a neutral State, cannot submit to the mandatory sanctions of the United Nations. [It] will however see to it that Rhodesian trade is given no opportunity to avoid United Nations policy through Swiss territory. It is for that reason that it decided, as early as 17 December 1965, independently and without recognizing any legal obligation to do so, to make imports from Rhodesia subject to mandatory authorization and to take the necessary measures to prevent any increase in Swiss imports from the territory". UN Doc. S/7781, Ann. II, Feb. 1967, p. 117. But see C. Tomuschat, Yugoslavia's Damaged Sovereignty over the Province of Kosovo, in: G.P.H. Kreijen et al. (Eds.), STATE, SOVEREIGNTY AND INTERNATIONAL GOVERNANCE, to be published in 2002. 275. UN Docs. S/Res/402, 22 Dec. 1976 and S/Res/407, 25 May 1977. 276. With the exception, of course, of Turkey and South Africa.
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Dugard continues by referring to Guggenheim when he states that [i]n the case of the non-existent act" l"absence de certains elements est considérée comme si grave qu'elle n'entraîne pas la nullité de l'acte, mais son in existence". On the other hand, the act which is void by reason of its illegality fulfils the requirements of a particular act but loses its validity because it violates a rule of law in the process.277
The distinction between non-existent acts and acts which are null and void is sometimes made in municipal law, but it has been repeatedly suggested that the distinction has no place in international law, which is regarded as in essence only recognizing the concept of nullity.278 In this respect, it is at least remarkable that the Vienna Convention on the Law of Treaties does not mention this distinction. At any rate, it should be noted that in the end, and from a more practical point of view, the legal situation does not differ very much as regards both acts. Where the first is legally non-existent from its very inception onwards, the second is presumed to have never existed legally ab initio.279 Then, with reference to United Nations practice regarding the situations of Southern Rhodesia, the Bantustan territories and the Turkish Republic of Northern Cyprus, it is concluded that [r]esolutions of both the Security Council and the General Assembly condemn the non-recognized 'States' as 'null and void', invalid and illegal which strongly suggests that they are without legal effect as States, not because they fail to meet
277. Dugard, RECOGNITION, pp. 130-131, quoting P . Guggenheim, La Validité et la Nullité des Actes Juridiques lnternationaux, HR, 1949, p. 191, at p. 204. But see Gowlland-Debbas, THE QUESTION OF SOUTHERN RHODESIA, pp. 239-240 (where she maintains that "procedural irregularities", as opposed to a violation of a substantive rule, in the process of the bringing into being of the legal act lead to its nullity rather than its non-existence). 278. P. Cahier, Les Caractéristiques de la Nullité en Droit International et Tout Particulièrernent Dans la Convention de Vienne de 1969 sur le Droit des Traités, RGDIP, Vol. 76, 1972, p. 645, at pp. 652653; Jennings, supra note 4, at p. 66. The concept of nullification has, in the absence of universal recognition of the compulsory jurisdiction of the ICJ, limited value under international law. 279. It is suggested moreover that the eventual legal consequences differ in both situations. Whereas a legal act which is null and void ab initio may have some legal consequences, a non-existent act would not and cannot have any legal consequences. See J.A. Frowein, Nullity in International Law, EPIL, Vol. 7, 1984, p. 361. This position is doubtful, because even in cases where an act is performed by one who is not competent to perform the act, by which both the legal act and the intended legal consequences do not, strictly speaking, come into existence, the act may nevertheless violate the right of a third party. In this sense, the legally non-existent act may thus have legal consequences. Any other interpretation which would rely on the fact that something that is not legally existent can not harm the rights or interests of a third party, would be a prime example of Begriffsjurisprudenz ad absurdum.
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the essential requirements of statehood but because their existence violates a peremptory rule of international law.280
From this, it appears that Dugard is of the opinion that, at least on the basis of the cases discussed, the traditional criteria for statehood remain unchanged, and thus that the relevant territorial entities created in violation of international law do constitute States, but that these States, although existing in fact, are without legal effect. Dugard's argument regarding the existence of the entities as States, contrasts with the views of, for instance, Fawcett and Crawford.281 Fawcett and in particular Crawford both contend that an act in violation of a particular fundamental norm is void and - when the illegal act is linked directly to the establishment of a territorial entity - leads to the non-existence of the entity as a State. However, whatever the differences in point of view between the scholars, the arguments of both Dugard on the one hand, and Fawcett and Crawford on the other, indicate their general acceptance of, and agreement on, the existence of a new criterion for statehood (that is, for the acquisition of full international legal personality) which is not based on effectiveness but on legality. Because the terminology in the United Nations resolutions on Southern Rhodesia, the Bantustan territories and the Turkish Republic of Northern Cyprus points to the substantial illegality of origin as forming a bar to the acquisition of statehood by these territorial entities rather than to the nonfulfilment of a traditional criterion for statehood, it is difficult to deny that the respect for certain fundamental norms (that is, 'legality') is considered to be a constitutive criterion for the emergence of a State. At this point of the discussion, a brief pause is probably in order. The discussion is, it is submitted, academic, because, as was stated above, whether the violation of a fundamental norm is a criterion which leads to the nonexistence of an entity as a State from its inception, or leads to a State which is null and void ab initio, both situations lead to the existence of a situation which is ultimately legally non-existent and, in principle, without legal effect under international law.282 And if statehood under international law is defined as denoting a separate territorial entity, constituting a political and social 280. Dugard, RECOGNITION, p. 131 (emphasis added). 281. Fawcett, supra note 178; Crawford, CREATION OF STATES, pp. 103-106. See also I.I. Dore, Recognition of Rhodesia and Traditional International Law: Some Conceptual Problems, Vand. J. Transnat'l L., 1972, p. 25, at p. 40. 282. As will be shown later, an act that is null and void ab initio may nevertheless be considered to have some legal effects, either because third parties have relied in good faith on the validity of the act, or because certain effects of the illegal act cannot and should not be overlooked for humanitarian and practical reasons. See Section 9 of this Chapter, infra.
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organization of human beings and possessing full international legal personality, substantial illegality of origin in both instances forms a bar to, and thus a criterion for, statehood defined as such. Having said this, it is now again possible to return to the main discussion. In essence, both Crawford and Dugard agree that a State in the sense of (or in the context of) international law is a State which exists in international law,283 that is, a separate territorial entity which possesses full international legal personality. Therefore, on the basis of the situations discussed above in which the entities' claims to statehood were rejected explicitly through non-recognition - and with due regard to the remarks of both Crawford and Dugard - the following line of reasoning presents itself. Once an entity meets the traditional criteria for statehood on the basis of effectiveness, it exists as an effective territorial entity. In order to become a State in the sense of international law, the entity should be created lawfully, that is to say, its creation should not have been accompanied by, or be the result of, a violation of certain fundamental rules of international law. This is so because as was seen above, an effective territorial entity which has been brought about in violation of a fundamental rule - and in particular one having the character of jus cogens - is without legal effect. The breach of international law forms a bar to the attribution of full international legal personality to the entity concerned. Therefore, while existing in fact, the entity does not come into existence as a State under international law. While Dugard is of the opinion that the de facto entity is a State but without legal effect and thus not a State under international law,284 Crawford contends that no State comes into being at all. The qualification of such an effective but illegally created territorial entity as a State, because it meets the traditional criteria for statehood is confusing, however, and questionable from a legal point of view.285 Apart from the fact that the qualification of ''State' is 283. See, e.g., Dugard, supra note 193, at p. 403, where he states that "[t]he Bantustan States failed to become states under international law" because their creation was designed to give legitimacy to the policy of Apartheid which "raised doubts about their compliance with new criteria for statehood based on respect for the principles of self-determination and human rights" (emphasis added). 284. Dugard, RECOGNITION, p. 147. 285. Because, according to Dugard, a State does not become a State 'under international law' when it is illegally created, the question may be asked what, then, is the status of such a State? It seems to be a mere factual situation, which is 'outside' international law as far as its statehood is concerned. But, as has been observed, "a State is not a fact in the sense that a chair is a fact, it is a fact in the sense in which it may be said a treaty is a fact: that is, a legal status attaching to a certain state of affairs by virtue of certain rules" (Crawford, CREATION OF STATES, p. 4). Therefore, a State which does not exist under international law seems to be a uncomprehensible construct from a legal point of view. See also Chen, RECOGNITION, p. 31. Moreover, Dugard's position seems to suggest that a violation of jus cogens forms a bar to recognition only, resulting
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more than a mere semantic question, Dugard's position does not appear to be in accordance with state practice. For instance, in the context of Southern Rhodesia, the Security Council used wordings such as the "illegal racist minority regime in Southern Rhodesia",286 "illegal authority"287 and "the illegal proclamation of the Territory by the illegal regime in Southern Rhodesia", 288 by which the term 'State' was carefully avoided. Moreover, in Resolution 424, the Security Council called upon the United Kingdom "to take prompt and effective measures to bring to a speedy end the existence of the illegal racist minority regime in the rebel colony of Southern Rhodesia [...]".289 Mention should also be made of the position of the Secretary-General,290 statements made by delegations during the debates regarding the question of Southern Rhodesia in the fourth Committee of the General Assembly,291 and in the Security Council.292 On the basis of these statements it is impossible to maintain that Southern Rhodesia was at any time considered to be a State in whatever sense. The same is true for the language used in relation to the Homelands. The General Assembly resolutions used different terms like "the so-called independent Transkei",293 and "the so-called 'independent' bantustans".294 The President of the Security Council referred to "the so-called 'independence' of Venda"295 and to "the socalled 'independent bantustans'".296 As to the Turkish Republic of Northern
286. 287. 288. 289. 290.
291.
292.
293. 294. 295. 296.
in the formation of a State which cannot be recognized. This position cannot be sustained without distorting the concept of jus cogens and its assumed universality. To the same effect, see K. Knop, The 'Righting' of Recognition: Recognition of States in Eastern Europe and the Soviet Union, in: Canadian Council on International Law, STATE SOVEREIGNTY: THE CHALLENGE OF A CHANGING WORLD, Proceedings of the 1992 Conference of the Canadian Council on International Law, 1992, p. 36, at pp. 57-58. UN Doc. S/Res/216, 12 Nov. 1965. UN Doc. S/Res/217, 20 Nov. 1965. UN Doc S/Res/277, 18 March 1970. UN Doc. S/Res/424, 17 March 1978 (emphasis added). In reply to the request by the Smith regime to participate in proceedings under Article 32 of the Charter of the UN, the Secretary-General stated that "the legal status of Southern Rhodesia is that of a Non-Self-Governing Territory [...]. Article 32 of the Charter does not apply". Accordingly, the request was rejected. See UN SCOR, 1280th mtg., 18 May 1966, p. 23. See, e.g., the statement of the representative of Guinea, UN GAOR (XXVI), 4rh Comm., 1955th mtg., 1977, para. 50 (referring to the situation of Southern Rhodesia as "fictitious independence"). See, e.g., the statement by the Pakistani representative to the Security Council who addressed the collective liability of the Smith regime for violating the right to self-determination and stated: "[t]hat it is not a State, but a group of people, which has thwarted this process and threatened the peace does not make it any less a matter of international concern justifying action by the United Nations". UN SCOR, 1335th mtg., para. 80 (emphasis added). UN Doc. A/Res/31/6A, 26 Oct. 1976. UN Doc. A/Res/32/105 N, 14 Dec. 1977. UN Doc. S/13549, 21 Sept. 1979. Id.
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Cyprus, Security Council Resolution 541 uses the term "Turkish Cypriot authorities"297 and Security Council Resolution 550 refers to "the Turkish Cypriot leadership" and to "the purported State of the Turkish Republic of Northern Cyprus".298 Thus, in analysing the language of the resolutions and other documents of the Security Council and the General Assembly as well as statements by States in relation to the status of Southern Rhodesia, the Bantustan territories and the Turkish Republic of Northern Cyprus, it cannot but be concluded that, although these territorial entities existed as effective de facto situations, they were not qualified as States in any sense. However, whatever label is put on the effective but legally non-existent 'territorial entity' (which is a better description of the effective situation), the issue that really matters - for this study at least - is the question of the existence or non-existence of a State in the sense of international law, that is, whether international law attaches a legal status (full international legal personality) to a certain state of affairs. In that respect, it must be agreed upon with both Crawford and Dugard that the traditional criteria for statehood certainly no longer suffice. In sum, on the basis of the practice of explicit non-recognition of claims to statehood it must be concluded, that for the emergence of a State in the sense of, and thus under, international law, additional and new criteria for statehood must be met which are not based on effectiveness, and which can be grouped under the broader heading of the obligation to respect fundamental rules of international law (that is, at least jus cogens) during the entity's creation. Violation of these norms obviates statehood of the entity concerned and, if only for reasons of clarity, such an entity will not be called a State. The specific modern criteria for statehood which may be deduced from non-recognition practice, as discussed above, are (a) the prohibition of aggression, (b) the prohibition of the violation of the right of self-determination of peoples (in the colonial context at least) and (c) the prohibition of systematic racial discrimination, including the prohibition of Apartheid. This is without prejudice to the fact that other norms having the same character also qualify.299 As a result of the declaratory theory on recognition, the doctrine of nonrecognition, and state practice, three conclusions present themselves. Firstly, an entity does not come into existence as a State under international law when 297. UN Doc. S/Res/541/83, 18 Nov. 1983. 298. UN Doc. S/Res/550, 11 May 1984. And see also the declaration by the Commonwealth Heads of Government, supra note 152 (referring to the TRNC as "illegal secessionist entity" (emphasis added)); the United Kingdom stated: "[w]e do not recognise the area under de facto Turkish Cypriot administration as forming in any sense a separate sovereign state" (emphasis added). HC Debs., Vol. 210, WA, col. 211, 24 June 1992, quoted in: BYIL, Vol. 63, 1992, p. 647. 299. See Chapter 8, infra.
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it is created in violation of jus cogens, notwithstanding its effective existence.300 As was correctly observed by Judge Kreca [i] us cogens creates grounds for a global change in relations of State sovereignty to the legal order in the international community and for the establishment of conditions in which the rule of law can prevail over the free will of States. As an objective, non-eliminatory norm, it constitutes a material basis, a criterion for challenging the legality of individual acts in the international community. Therefore, it essentially limits the impact of effectiveness in international law. Effectiveness in a system with a defined concept of legality may be legally accepted only in cases in which it does not conflict with the norms that serve as criteria of legality. Within the co-ordinates of the de iure order effectiveness versus legality is an incorrect approach, because to accept effectiveness as a rule 'would indeed be to apply a hatchet to the very roots of the law of nations and to cover with its spurious authority an infinitive [sic] series of international wrongs and disregard for international obligations'.301
Secondly, the consequence of a breach of such a norm of international law is that States are under a general obligation not to recognize the entity as a State even if the breach has not been determined by the Security Council.302 And thirdly, if the occurrence of the illegality has been determined by the Security Council or the General Assembly, that determination is in principle declaratory in character. A final remark should be made as regards one of the peremptory norms which, if violated, forms a bar to statehood, namely the prohibition on the violation of the right to self-determination. It has been stated that this criterion would necessarily lead to many existing States ceasing to exist as States under international law.303 Crawford has suggested that this criterion would only be applicable to "self-determination units" and he excludes existing States from the applicability of the criterion.304 This has been criticized by Dugard, who maintains that this would lead to an unfortunate double standard between 300. See also Shaw, INTERNATIONAL LAW, pp. 145-146; Menon, supra note 5, at pp. 248-251. 301. Dissenting Opinion Judge Kreca, Genocide case, supra note 245, at p. 709, quoting J.H.W. Verzijl, INTERNATIONAL LAW IN HISTORICAL PERSPECTIVE, Vol. I, 1968, p. 293 (emphasis in original). Later Kreca adds: "[n]orms of ius cogens do not tolerate derogation, so any concurrent regime or situation, whether it be established by way of a bilateral or unilateral act, cannot acquire legal force due to the peremptoriness of ius cogens - more specifically, this act or acts remains in the sphere of simple facts". Id., at p. 754. 302. As was observed by Judge Skubiszewski with respect to the prohibition on the use of force: "the obligation not to recognise a situation created by the unlawful use of force does not arise only as a result of a decision by the Security Council ordering non-recognition. The rule is selfexecutory". Dissenting Opinion Judge Skubiszewski, East Timor case, supra note 241, at p. 262. See also J. Crawford, The General Assembly, the International Court and Self-Determination, in: V. Lowe and M. Fitzmaurice, FIFTY YEARS OF THE INTERNATIONAL COURT OF JUSTICE, ESSAYS IN HONOUR OF SIR ROBERT JENNINGS, 1996, p. 585, at p. 605. 303. Devine, supra note 177, at p. 410.
304. Crawford, CREATION OF STATES, pp. 105-106.
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entities claiming statehood and existing States.305 However, as was seen above,306 such a double standard is not uncommon, as is shown by the fact that prior to the acceptance of the right of self-determination under positive international law, international law required entities claiming statehood to possess a considerable degree of effective government, whereas the absence of effective government with respect to an existing State, for instance as a result of civil war, did not, and does not, automatically lead to the end of statehood, even if this situation persists for a long period. Thus, state practice shows that the criteria for the formation of a State and those applying to the continued existence of a State under international law are not necessarily the same. However, as will be shown later in this study,307 the violation of the right of self-determination by an established State does have a substantial legal effect on the scope of the rights attached to statehood. State practice indicates that the prohibition on the violation of the right of selfdetermination does not (yet) affect the continuance of statehood of an established State as such, but it does affect the exclusive title of the authorities of the State to exercise authority over (parts of) its territory and population. Thus, as a result of modern developments in international law, the State's 'shield of sovereignty', including its right to territorial integrity, may come under legitimate pressure from within the State itself.
§ 9.
LIMITS TO THE OBLIGATION OF NON-RECOGNITION
As has been shown above, the doctrine of non-recognition holds that it is not allowed under international law to recognize the consequences, 'poisoned fruits' or claims to title or status which result from or are based on an act in violation of a fundamental norm of international law. Does this imply the application of the doctrine of nullity with regard to all the consequences of the breach of international law? That is to say, does the doctrine of non-recognition preach absolute nullity? At this point, it is necessary to recall the League of Nations' response to the invasion of Manchuria by Japan and the subsequent establishment of Manchukuo. Subsequently to the League's decision that the members of the League were
305. Dugard, RECOGNITION, p. 128. Following Dugard's distinction between a State under and a State outside international law, this criterion would lead to strange juridical results insofar as the established State would cease to be a State under international law, but would remain a 'State' outside international law. 306. See Chapter 3, supra. 307. See Chapter 7, infra.
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under an obligation not to recognize Manchukuo as a State, an Advisory Committee was appointed by the League's Assembly to advise it on the implementation of the non-recognition of Manchukuo. The main task of the Committee consisted of identifying which acts could be regarded as implying either de facto or de jure recognition of the purported statehood of Manchukuo under international law, and should thus be prohibited under the obligation of non-recognition. The Advisory Committee recommended that Manchukuo should be barred from accession to international conventions, and in that regard it even went so far as to include the Universal Postal Convention of 1913 and the Sanitary Convention of 1926. Passports issued by the Manchukuo 'government' were not be recognized and States should prevent official quotations in 'Manchukuo' currency. As regards consuls, the Committee considered it in principle not contrary to the obligation of non-recognition for States to maintain or replace consuls in Manchukuo for the protection of the citizens of these States. However, consuls would be under an obligation to avoid any action which might be interpreted as express or implied recognition of Manchukuo as a State. In fact, the recommendations of the Committee, which were favoured by the League's members, entailed a policy of absolute non-recognition of all acts by the Manchukuo entity. Adopting this position is probably one of the gravest mistakes the League made and the main reason why the doctrine of nonrecognition was eventually undermined during the League's existence.309 This conclusion becomes more compelling if one considers that acts which were controversial, such as certain contacts by consuls with the 'government' of Manchukuo, the issuing of visa's, and postal and other technical agreements with Manchukuo, were acquiesced in later by the League. It therefore seems evident that the recommendations were too strict, in that they failed to acknowledge the possible occurrence of practical necessities requiring some form of cognition, and that such an act would not necessarily be contrary to, or undermine, the general obligation of non-recognition. Moreover, the recommendations failed to deal with the consequences of the policy of non-recognition as regards the status and rights of the inhabitants of the territory in light of the application of the Manchukuo's or conqueror's law to the territory.310 What about the validity of such law? Again, this point touches upon the important question of whether the obligation of nonrecognition does not only entail an obligation not to recognize the entity as a
308. LNOJ, Spec. Supp., No. 113, p. 10. 309. See also Usuki, supra note 1, at p. 90. 310. See also O'Connell, supra note 58, at p. 147.
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State, but also all consequences resulting from the illegal establishment of the entity. Although dealing with matters relating to the illegal presence of South Africa in South West Africa (Namibia), and not with an illegally established territorial entity, the authoritative 1971 Advisory Opinion of the International Court of Justice in that case is helpful in identifying the consequences of the obligation of non-recognition. With reference to Security Council Resolution 276,311 the Court held that United Nations member States were under an obligation to recognize the illegality of the continued presence of South Africa in Namibia and the invalidity of its acts on behalf or concerning Namibia; and to refrain from any acts and in particular dealings with the Government of South Africa implying recognition of the legality of, or lending support or assistance to, such presence and administration.312
According to the Court, Resolution 276 was a mandatory resolution and constituted a "declaration of illegality and invalidity".313 The Court continued by stating that the "precise determination of the acts permitted or allowed [...] is a matter which lies within the competence of the appropriate organs of the United Nations acting within their authority under the Charter".314 After this affirmation of the Council's discretionary power to oblige member States to withhold recognition of acts by the South African government on behalf or with regard to Namibia, the Court confined itself in the Opinion to giving advice on those dealings with the Government of South Africa which under the Charter of the United Nations and general international law should be considered as inconsistent with the declaration of illegality and invalidity, seeing as they might imply recognition of South Africa's presence in Namibia as legal. In this respect, it is important to note, as was made clear by Judge Dillard, that the references [by the Court] to 'any facts' and 'any dealings' are to be read subject to the critically significant qualifying phrase 'implying recognition of the legality' of South Africa's presence in Namibia.315
311. UN Doc. S/Res/276, 30 Jan. 1970. 312. Namibia case, supra note 181, at p. 58. 313. The binding character has been questioned. See Separate Opinion Judge Petrèn, Namibia case, id., at pp. 136-137; Crawford, CREATION OF STATES, p. 124. . 314. Namibia case, supra 181, at p. 55. 315. Separate Opinion Judge Dillard, id., at p. 166. And see UN Doc. A/Res/3031 (XXVIII), 18 Dec. 1972, in which the General Assembly requested "all States to refrain from action which may confer a semblance of legitimacy upon South Africa's illegal occupation of Namibia" (emphasis added).
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One should keep Judge Dillard's remark in mind when analysing the Court's considerations regarding the scope of the general obligation of non-recognition of member States under both United Nations law and general international law. Thus the Court considered the obligation of non-recognition to imply:316 (a) abstention from entering into treaty relations with South Africa in all cases in which the South African government purports to act on behalf or concerning Namibia; (b) abstention from invoking or applying bilateral treaties concluded by South Africa on behalf or concerning Namibia which involve active intergovernmental cooperation; (c) abstention from first, sending diplomatic or special missions to South Africa including in their jurisdiction the Territory of Namibia, and secondly, from sending consular agents to Namibia, as well as an obligation to withdraw any such agents already there;317 and (d) abstention from entering into economic and other forms of relationship or dealings with South Africa on behalf or concerning Namibia which may entrench its authority over the Territory. The acts or dealings which were prohibited were, according to the Court, those acts or dealings which, under general international law, are normally considered or could be considered to recognize the claim to rights or title of South Africa regarding Namibia as lawful. 318 In this respect the Court made it very clear that member States should sever diplomatic and consular relations with South Africa but moderated this obligation by emphasizing the link between such relations and the validation of South Africa's illegal conduct regarding Namibia. The obligation was thus clearly related to the prevention of implied recognition of which the establishment or maintenance of diplomatic relations is the 316. Namibia case, supra note 181, at pp. 55-56. 317. The Court furthermore stated that member States "should also make clear to the South African authorities that the maintenance of diplomatic or consular relations with South Africa does not imply any recognition of its authority with regard to Namibia". Id., at p. 55. 318. It appears to be within the limits of this rule that States are under an obligation not to recognize a judgment and the direct consequences of this judgment of a Court of a State or entity, if the judgment affirms the validity of a claim either to a title regarding a territory outside the State's borders or to the existence of the entity as a State under international law, where the majority of the international community considers that claim to be in conflict with a fundamental norm of international law, and thus illegal and invalid. Cf. S. v. Banda, South African Law Reports, 4, 1989, p. 519. In this case, Judge Friedman held that Bophuthatswana could be considered to be a State under international law, because it complied with the criteria for statehood under international customary law. Since non-recognition in principle does not affect the statehood of the entity in terms of its own national legal order, it appears that courts which are established under that legal order can pass judgments as regards the statehood of the entity under international law. However, no further effects, in terms of validity, are attached to such judgments as far as third States are concerned. These States remain under an obligation to withhold recognition of the entity as such, and of acts which are based on the judgments of its courts.
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example par excellence - of the legality of South Africa's claims with regard to Namibia. This is in accordance with the policy adopted by the League of Nations with regard to Manchukuo 319 and by the United Nations regarding Rhodesia under the Smith régime.320 This content of the obligation of nonrecognition thus seems to reflect principles directly flowing from the purpose of non-recognition. Where an obligation of non-recognition exists, implied recognition, especially through the maintenance or establishment of diplomatic relations, should be withheld, because this will be interpreted as validating or 'curing' either an illegal claim to statehood, or to a title to territory, depending on the specific circumstances in each case. As far as treaty relations are concerned, and in particular with regard to the required abstention from specific conduct concerning bilateral treaties, the Court made an important qualification when it stated that "with respect to multilateral treaties the same rule cannot be applied to certain general conventions such as those of a humanitarian character".321 From the Court's statement, it is possible to distil a general principle holding that obligatory nonrecognition of attempted and illegal territorial changes includes an obligation for States not to accept the applicability of treaties to the territory except for those treaties having a "humanitarian character". The same principle appears to apply in cases of non-recognition of claims to statehood. For no resolution either of the General Assembly or of the Security Council excluded the applicability of such treaties to the inhabitants of South Rhodesia, the South African Homelands or the Turkish Republic of Northern Cyprus. With regard to the non-recognition of acts by the South African authorities concerning Namibia, the Security Council had stated in Resolution 276 that "all acts taken by the Government of South Africa on behalf of or concerning Namibia after the termination of the Mandate are illegal and invalid".322 This determination, embracing the enactment of laws as well as both public and private acts, was not accepted entirely by the Court. The Court made a distinction between "official acts performed by the Government of South Africa on behalf of or concerning Namibia" and private acts in the field of "the registration of births, deaths and marriages, the effect of which can be ignored only to the detriment of the inhabitants of the Territory".323 These latter acts do not, according to the Court, fall under the acts which should not be 319. Although, as was seen above, in that situation the maintenance of consular relations was not regarded as derogating from the obligation of non-recognition. 320. See UN Docs. S/Res/253, 29 May 1968 and S/Res/277, 18 March 1970. 321. Namibia case, supra note 181, at p. 55. 322. UN Doc. S/Res/276, 30 Jan. 1970. 323. Id., at p. 56.
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recognized by States, through, for instance, their domestic courts. This point met with approval by the European Court of Human Rights in the case of Loizidou v. Turkey,324 which case, it must be noted, took place against the background of the non-recognition of the statehood of the Turkish Republic of Northern Cyprus. Moreover, at this time the point made by Judge Dillard in his Separate Opinion in the Namibia case must be recalled, namely that it is difficult (though, admittedly, not impossible) to regard recognition of such acts as implying recognition of the original illegality in this case the occupation of Namibia and the denial of self-determination of its inhabitants by South Africa.325 Moreover, it seems reasonable to permit the recognition of specific acts with respect to the rights of private persons when the absolute non-recognition of such acts would harm the well-being of the inhabitants. 326 However, this effect should not be assumed too easily. It seems that such hardship must be evident, and not of an essentially economical character.327 With respect to 'official acts' by the South African government, the majority Opinion did not leave much room for manoeuvre. In fact, the Court subscribed to the absolute nullity of all relevant official acts. Judge Petrèn criticized this 324. Loizidou v. Turkey, supra note 151, at p. 2233 (para. 45). 325. Cf. in this respect Jennings, supra note 4, at p. 75 ("how far is it useful to regard a nullity as being so to speak contagious, where what is in issue is the legal status of a chain of acts or consequences stemming from an original illegality. For it may often be possible, and indeed necessary, to distinguish between the original illegality which ought not be regarded as a source of title for the wrongdoer, and remoted consequences precipitated by new situations, which may themselves, within certain limits, be creative of legal rights and obligations"). 326. See also Dissenting Opinion Judge Jambrek, Case of Loizidou v. Turkey, supra note 151, at p. 2248. And see Carl Zeiss Stiftungz v. Rayner and Keeler Ltd. (No. 2), Law Reports, Appeal Cases, 1967, p. 853, at p. 961, where Lord Wilberforce held that "recognition of a law does not necessarily entail recognition of the law-maker as a government with sovereign power". It seems tenable to state that recognition of (private) laws - which do not affect the public policy of the (purported) State - does not entail the recognition of a claim to statehood. This principle may also be applied in other cases regarding claims to title or status. See also Hesperides Hotels v. Aegean Holidays Ltd., Law Reports, Queen's Bench Division, 1978, p. 205, at p. 218 (Lord Denning obiter dictum). But see Adams v. Adams, ILR, Vol. 52, p. 15 (in which a Rhodesian divorce degree granted under the Smith regime was not upheld in an English Court). 327. See Case C-432/92, The Queen v. Minister of Agriculture, Fisheries and Food ex pane S.P. Anastasiou (Pissouri) Ltd. and Others, Judgment of 5 July 1994, 1994 ECR 1-3087. The case concerned the issuing of movement certificates by the authorities of the TRNC and acceptance of these certificates by the EC member States although not under the designation of the TRNC. This practice was condoned by the European Commission. However, under the Association Agreement between the EC and Cyprus only certificates issued by the government of Cyprus may be accepted. With reference to the ICJ's Advisory Opinion in the Namibia case, the United Kingdom and the Commission argued that the policy of non-recognition should not result in depriving the population of Cyprus of any advantages conferred by the Association Agreement. The European Court of Justice rejected this argument by stating that given the differences in law and fact between Cyprus and Namibia no interpretation could be based on an analogy. The Court concurred with the point of view of the Advocate General who was of the opinion that the ICJ Opinion was of "little, if any, relevance to the present case" (id., at p. 3108).
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part of the Opinion as being too strict an interpretation of the doctrine of nullity. According to him, the admissibility of recognition of acts by the South African government regarding Namibia was dependent on "human considerations and practical needs".328 Indeed, it seems tenable - especially in the light of the considerations of the Court regarding humanitarian necessities - that specific forms of cooperation329 and the recognition of specific acts is allowed to the extent that these cannot be dispensed with without severe humanitarian consequences for the inhabitants of the entity, and insofar as such cooperation or recognition cannot be interpreted to imply the recognition or validation of the original illegality.330 In sum, it follows that the doctrine of non-recognition cannot be interpreted in such strict terms that its application would lead to the undermining of international law and human well-being in general, and in so doing would lead to the destruction of the premises upon which it is based. That is not to say, however, that the scope of the obligation of non-recognition is entirely clear. It seems that the outer limits of the obligation of non-recognition are more or less determined. Such an obligation of non-recognition exists in those cases where a fundamental rule of law has been violated and especially where the illegality has been collectively determined. The obligation of non-recognition extends to both the act and the consequences of that act, to the extent that recognition of the consequences would by implication mean recognition or validation of the original illegal act or the illegal claim to legal status. This obligation applies to both express recognition and implied recognition.331 However, this is, with some qualifications, without prejudice to the admissibility 328. Separate Opinion, Judge Petrèn, Namibia case, supra note 181, at p. 134. See also the Separate Opinion of Judge Dillard who stated: "[t]he legal consequences flowing from a determination of the illegal occupation of Namibia do not necessarily entail the automatic application of a doctrine of nullity [...]. [T]he maxim ex injuria jus non oritur is not so severe as to deny any source of right whatever can accrue to third persons acting in good faith". Id., at pp. 166-167. 329. Here it should be recalled that the Court stated that "[i]n general, the non-recognition of South Africa's administration of the Territory should not result in depriving the people of Namibia of any advantages derived from international co-operation". And see Separate Opinion Judge Petrèn, Namibia Opinion, id. at p. 56. See also id., at pp. 134-136 (after excluding "official and ostentatious top-level contacts", Judge Petrèn held that "necessities of a practical or humanitarian nature may justify certain contacts or certain forms of co-operation"). 330. Crawford, CREATION OF STATES, pp. 127-128; Gowlland-Debbas, THE QUESTION OF SOUTHERN RHODESIA, pp. 310-311. As a general principle it seems that even in cases of humanitarian necessities it would be incumbent upon third States to limit their recognition or validation to those acts which are of a humanitarian and non-sovereign nature. This seems to follow from the fact that if such recognition would validate the illegal claim by the wrongdoer, this could eventually lead to a situation which might be even more harmful to the inhabitants of the territory than when no recognition would have been granted at all. 331. For a general discussion of the modes of recognition in the field of statehood, see P. K. Menon, Some Aspects of the Law of Recognition. Part V: Modes of Recognition, RDISDP, 1991, No. 1, p. 19.
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of recognition of certain consequences of an illegal act or situation, if nonrecognition would have substantial harmful effects for the inhabitants of the entity concerned. Thus, within the given limits, each case should be judged on its own merits.
§ 10.
NON-RECOGNITION AND THE EUROPEAN COMMUNITY DECLARATION ON THE GUIDELINES ON THE RECOGNITION OF NEW STATES IN EASTERN EUROPE AND IN THE SOVIET UNION
As has been discussed above, because States are obliged under certain circumstances to withhold recognition of an effective territorial entity, the grounds for that obligation constitute legal criteria for a lawful recognition.332 In addition, it was also seen that these grounds constitute separate and modern criteria for statehood as well. If an entity has been created in violation of a fundamental norm of international law it shall not be recognized and is not a State under international law. That is not to say that the conditions for recognition on the one hand, and the criteria for statehood on the other, are necessarily the same. In that respect an example is formed by, for instance, the Declaration on the Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union, adopted by the member States of the European Community on 16 December 1991.333 In the Declaration, the member States affirmed their attachment to the principles set down in the Helsinki Final Act of 1975334 and in the Charter of Paris of 1990,335 and in particular to the principle of self-determination. The Declaration continues by stating that the member States affirm their readiness to recognize, subject to the normal standards of international practice and the political realities in each case, those new States which, following the historic changes in the region, have constituted themselves on a democratic basis, have accepted the appropriate international obligations and have committed themselves in good faith to a peaceful process and to negotiations.
The Declaration subsequently mentions specific requirements which reflect 332. It was already observed that the acceptance of modern criteria for statehood leads to the fact that recognition of an entity which does not satisfy the modern criteria is in violation of both the prohibition of premature recognition (it is not a State) as well as the obligation of nonrecognition (the entity has been established in violation of a fundamental rule of international law). See Section 2 of this Chapter, supra. 333. EC Guidelines on Recognition, supra note 239. 334. ILM, Vol. 14, 1975, pp. 1292-1325. 335. ILM, Vol. 30, 1991, pp. 190-228.
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a "common position" of the member States of the European Community on the process of recognition of those new States, which requires: - respect for the provisions of the Charter of the United Nations and the commitments subscribed to in the Final Act of Helsinki and in the Charter of Paris, especially with regard to the rule of law, democracy and human rights; - guarantees the rights of the ethnic and national groups and minorities in accordance with the commitments subscribed to in the framework of the CSCE; - respect the inviolability of all frontiers which can only be changed by peaceful means and by common agreement; - acceptance of all relevant commitments with regard to disarmament and nuclear non-proliferation as well as to security and regional stability; - commitment to settle by agreement, including where appropriate by recourse to arbitration, all questions concerning State succession and regional disputes.336
It is emphasized moreover that "the Community and its Member States will not recognise entities which are the result of aggression". These requirements must be understood as intended to lay down conditions for recognition first and foremost, and not conditions for statehood, which is also evident from the title of the Declaration. By listing these specific requirements, it was made clear that recognition would not be accorded if these requirements were not met, which is nothing other than a policy of conditional recognition. In fact, the conditions - especially insofar as they require commitment to treaties - presuppose the international legal existence of the States to be recognized. In addition, a requirement like "acceptance of all relevant commitments with regard to disarmament" is clearly a political condition which no-one would qualify as a criterion for statehood. It must therefore be concluded that the requirements spelled out by the member States of the European Community were not supposed to deal with the statehood of the relevant republics, but to clarify the sort of policies the new States were expected to follow after recognition.337 Moreover, non-fulfilment of a condition would in principle lead to no more than a political - as opposed to a legal obligation of non-recognition for the member States of the European Community, because the Declaration was not meant to have a legally binding 336. EC Guidelines on Recognition, supra note 239. 337. See also Shaw, INTERNATIONAL LAW, p. 146; S. Mahmoudi, Recognition of States: The Case of Former Yugoslav Republics, in: O. Bring (Ed.), CURRENTlNTERNATIONALLAWlSSUES. NORDIC PERSPECTIVES: ESSAYS IN HONOUR OF JERZY SZTUCKI, 1994, pp. 135-159, at p. 154; R. Rich, Recognition of States: the Collapse of Yugoslavia and the Soviet Union, EJIL, Vol. 4, 1993, p. 36, at pp. 55-56; M. Weller, The International Response to the Dissolution of the Socialist Federal Republic of Yugoslavia, AJIL, Vol. 86, 1992, p. 569, at p. 588.
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character.338 It could be argued that a possible exception in this regard is formed by the requirement concerning guarantees for the rights of the ethnic and national groups and minorities, which to a certain extent seems to reflect an objective legality criterion for a well-founded claim to statehood. However, closer analysis will reveal that this criterion was primarily considered in terms of a criterion for recognition as well. The point is discussed later in this study.339 An implicit reference to the doctrine of the obligation of non-recognition can be found in the formulation that "the Community and its Member States will not recognise entities which are the result of aggression". The explicit statement and the reference to "entities" moreover confirms the view that the prohibition of aggression forms a bar to the acquisition of statehood in international law.
§ 11.
CONCLUSIONS AND OBSERVATIONS
It has been shown that recognition is not just a matter of discretion to be granted whenever a State wants it to do so. Recognition is regulated by legal principles, which prescribe that when a certain effective de facto situation exists which is not in violation of fundamental rules of international law, recognition is both permissible and lawful.340 In addition, it was seen that the existence of a State under international law is to be determined on the basis of (a) criteria based on the concept of effectiveness (the traditional criteria) and (b) criteria based on legality (the modern criteria). Furthermore, the analysis of the cases of Southern Rhodesia and the Homeland territories indicates that the right of self-determination may be regarded as a necessary legal foundation for statehood under international law. These cases show that there is a distinct relationship between the right of selfdetermination and statehood. In that respect it was also seen that, in the colonial context at least, the applicability of a right of external self-determination runs counter to a strict application of the principle of effectiveness in relation the criterion of 'government'. Indeed, the right of external selfdetermination gives rise to an exclusive right or title to exercise authority over
338. Germany, for instance, declared that it would recognize Croatia and Slovenia before Christmas 1991 notwithstanding any negative advice by the Arbitration Commission. See, generally, B. Crawford, Explaining Defection from International Cooperation. Germany's Unilateral Recognition of Croatia, World Politics, Vol. 48, Oct. 1995-July 1996, p. 482. 339. See Chapter 8, Section 5, infra. 340. See also OPPENHEIM'S INT'L LAW, p. 130.
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the territory and its inhabitants, which compensates for the lack of effectiveness. In such a case, the State which has been established exists in a juridical sense (juridical statehood). This is, however, only the beginning of an analysis regarding the role of the right of self-determination with respect to the formation of States in international law. Thus, the issue must be addressed of whether this role is limited to (a) the situation in which a completely unrepresentative regime unilaterally proclaims the independence of the territory (as in the case of Southern Rhodesia) and (b) the situation in which a completely unrepresentative government of a State without consulting the majority of its population, attempts to split up the State's territory through the grants of independence to parts of its territory (as in the case of the South African Homelands). Moreover because, the right of self-determination extends beyond the colonial context, as will be shown later, it must be examined what role, if any, the law of self-determination has in the process of post-colonial State formation. In modern, post-colonial times there have been, and still are, several cases of unrecognized - that is ignored - claims to statehood by effective territorial entities. Mention could be made of, for instance, the Republic of Abkhazia, the Republic of Serbian Krajina, the Republic of Anjouan and the Republic of Bougainville. Because there are no explicit collective determinations in these cases with regard to the illegality of their creation, the withholding of recognition cannot a priori be explained in the light of the modern doctrine of the obligation of non-recognition. Moreover, it seems that with respect to the establishment of several of these entities there is no clear-cut case of aggression, no violation of a right of self-determination of the majority of the population, and no racial discrimination or Apartheid. However, the virtually universal denial of their claims to statehood by the international community is strong evidence for the absence of statehood. The question of course is: why? It will be shown that the principal answer to this question is to be found in the law of self-determination. Under contemporary international law, the right of self-determination is not only the principal legitimation of statehood, it has also become a crucial factor in the process of the formation of States. However, it follows that before it is possible to examine any other (potential) effects - in addition to the effects already discussed in this Chapter - of the concept of self-determination on the formation of States under international law, an analysis of the rules and principles relating to the law of self-determination, including the content of the right, its scope and its subject, is required. The next Chapter will commence this analysis by investigating the roots of the concept and its development until the end of the era of decolonization.
Part II Self-Determination
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Chapter 5
The Emergence and Development of the Principle of Self-Determination: From the American and French Revolutions to the Era of Decolonization
§ 1.
INTRODUCTION
Common Article 1 of the 1966 Covenants on Human Rights states [a] 11 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.1
The wording repeats the language of Paragraph 2 of General Assembly Resolution 1514 of 1960,2 and clearly formed the basis for the almost identical wording in General Assembly Resolution 2625 of 1970.3 Common Article 1(1) states that "peoples" have the right freely to determine their political status, which refers to the concept of 'political self-determination'. This study concentrates itself on the analysis of this particular political aspect of selfdetermination for two reasons. Firstly, as will be shown, it is this aspect of selfdetermination that is linked to the law of statehood, and secondly, in nearly all situations political self-determination is a conditio sine qua non for the effective exercise, protection, development and enjoyment of economical, social and cultural self-determination.5 5 1. 2. 3.
4.
5.
See ICCPR, Art. 1(1) and ICSECR, Art. 1(1). Declaration on the Granting of Independence to Colonial Countries and Peoples, UN Doc. A/Res/1514, 14 Dec. 1960. Declaration on Principles of International Law Concerning Friendly Relations and CoOperation Among States in Accordance With the Charter of the United Nations, UN Doc. A/Res/2625 (XXV), 24 Oct. 1970. The term 'political' denotes "of, or relating to government, a government, or the conduct of government". WEBSTER'S ENCYCLOPEDIC DICTIONARY, 1994. In the context of the concept of self-determination the first two meanings are primarily relevant. J. Klabbers and R. Lefeber, Africa: Lost Between Uti Possidetis and Self-Determination, in: C. Brölmann, et al. (Eds.), PEOPLES AND MINORITIES IN INTERNATIONAL LAW, 1993, p. 37, at p. 42.
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Leaving to one side for a moment the treaty context in which the abovequoted phrasing appears, and assuming that the wording reflects international customary law on the subject, it must be clear that it raises several questions. For instance, what is meant by the term "freely"? It obviously refers to the absence of interference, but who should abstain from interference? And what is meant by the phrase "political status"? Does it mean that a people is free to decide on its 'internal' political status (for instance, through political participation or territorial autonomy), its 'external' political status (for instance, independence or association with another State), or both? And how should that be determined? Finally, and probably the most difficult question raised is what is meant by "peoples"? However, despite this lack of clarity it seems possible to conclude prima facie that political self-determination is a concept, an idea, a doctrine about the legal-political relationship between a people and the State.6 In addition, it would appear that a 'people' and not the State as such is the holder of the right of political self-determination. But this seems to be all that can be said at this point. Therefore, in order to find answers to these questions which relate to the raison d'être, content, subject and scope of application of self-determination, it is necessary to analyse the historical roots of the concept and its subsequent development. This Chapter analyses the development of self-determination up to and including the era of decolonization. The post-colonial era will be dealt with in subsequent chapters. Section 2 charts the political and philosophical foundations of the concept of self-determination. In Section 3, the actual emergence of the concept within international relations, strongly influenced by both Wilson's and Lenin's ideas on self-determination, will be addressed. Section 4 will elaborate upon the development, content and application of the principle of self-determination in the era of decolonization under the guidance of the United Nations. On the basis of the analysis in the previous sections, Section 5 will examine the core meaning, raison d'être and objective of political self-determination as an international legal norm.
§ 2.
POLITICAL AND PHILOSOPHICAL FOUNDATIONS
§ 2.1.
The American and French Revolutions: democratic political theory
An important and influential factor with respect to the emergence and historical development of the concept of self-determination is formed by the phenomenon 6.
See also A. Cobban, THE NATION STATE AND NATIONAL SELF-DETERMINATION, 1969, p. 39.
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of communities refusing to consent to, or accept any longer, the exercise of power over them by a ruler or governmental authority which they considered to be 'alien'.7 Preceded by a gradual development of group consciousness and political awareness, these communities repudiated the right of an elite or an 'alien' people to determine for them and without their consultation their fate, their destiny, and their political, cultural, social and economical status. It is this claim of peoples to govern themselves which finds expression in both the American and French Revolutions. These Revolutions were based on natural law theory insofar as they reflected a rejection of the Divine Right of Kings. The Declaration of Independence of the united States of America of 4 July 1776, written by Thomas Jefferson, states: [w]hen in the Course of human events, it becomes necessary for one people to dissolve the political bonds which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation. We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and <) to provide new Guards for their future security. The French Revolution of 1789 also reflects these claims and ideas. The French Revolution was rooted in such political-philosophical ideas as Jean-Jacques
7.
8.
9,
The point of being or feeling different from the governing authorities is often influenced by historical factors. As Buchheit observes: "[w]ithout the effects of conquest, forced annexation, subjugation, dynastic union and colonial expansion, the world's peoples would presumably now be arranged into freely chosen political units". Buchheit, SECESSION, p. 3. According to Jefferson: "[e]very man, and every body of men on earth, possesses the right of self-government. They receive it with their being from the hand of nature". Opinion on Residence Bill, 15 July 1790, reprinted in: S.K. Padover, THOMAS JEFFERSON AND THE FOUNDATIONS OF AMERICAN FREEDOM, 1965, quoted in: J.E. Falkowski, Secessionary SelfDetermination: A Jeffersonian Perspective, B.Univ. ILJ, Vol. 9, 1991, p. 209, at p. 213, n. 28. J.P. Boyd (Ed.), THE PAPERS OF THOMAS JEFFERSON, 1950, p. 432.
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Rousseau's contrat social and the volontée générale as the basis for and the protection of democratic order, individual freedom and the exercise of legitimate authority. 10 In turn, these ideas can be traced back to the Renaissance with its emphasis on the individual personality of the human being and the almost unlimited right of self-determination of the individual. The French Revolution led to the overthrow of the feudal social and political order; monarchial authority was replaced by the doctrine of popular sovereignty. The Revolution claimed that government should be based on the will of the people, not on that of a King. The established institutions were abolished and replaced by direct representation of the people. In this respect, the Declaration des Droits de I'Homme et du Citoyen which was adopted by the Assembleé nationale on 26 August 1789 has been characterized as the embodiment of the Revolution.11 The French Revolution was strongly influenced by the so-called 'contractual school of thought' which came to be generally accepted in the seventeenth and eighteenth centuries, for instance, by such influential political philosophers as John Locke.12 It was maintained that a necessary requirement for a State with a common legislature and government to come into being was an agreement to that extent made by a collection of individuals. The important element added to this thinking by revolutionary political thought, was the conception of government as a manifestation of the democratic will, and the identification of the State as sovereign with the people.13 Also, the plebiscite as a means of determining the political fate of a territory was an invention of the French Revolution.14 And although the French Revolution did not lead to a French Republic acting as a champion of self10. J.J. Rousseau, DU CONTRAT SOCIAL, 1762, Livre I, Ch. 6. 11. G. Lefebvre, THE COMING OF THE FRENCH REVOLUTION: 1789, 1947, p. 56. The Declaration states in Article 1 that "[l]es hommes naissent et demeurent libres et égaux en droits [...]", and Article 3 proclaims "[l]e principe de toute souveraineté réside essentiellement dans la Nation. Nul corps, nul individu ne peut exercer d'autorité qui n'en émane expressément". Cf. the Declaration's individualistic definition of liberty in Article 4: "[l]a liberté consiste à pouvoir faire tout ce qui ne nuit pas à autrui: ainsi, 1'exercice des droits naturels de chaque homme n'a de bornes que celles qui assurent aux autres membres de la société la jouissance de ces mêmes droits. Ces bornes ne peuvent être déterminées que par la loi". 12. As was stated by Locke: "[w]here-ever [...] any number of Men are so united into one Society, as to quit every one his Executive Power of the Law of Nature, and to resign it to the publick, there and there only is a Political or Civil Society. And this is done where-ever any number of Men, in the state of Nature, enter into Society to make one People, one Body Politick under one Supreme Government[...]. Hence it is evident that Absolute Monarchy [...] is indeed inconsistent with Civil Society". J. Locke, TWO TREATISES OF GOVERNMENT, 1764, Chapter VII, paras. 89-90. 13. Cobban, supra note 6, at p. 34. 14. C.G. Roelofsen, The Right to National Self-Determination in the 18th and 19th Century, in: N. Sybesma-Knol and J. van Bellingen (Eds.), NAAR EEN NlEUWE INTERPRETATIE VAN HET RECHT
OP ZELFBESCHIKKING, 1995, p. 109, at p. 115.
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government in international relations,15 the proclaimed right of the French people to determine its constitution had considerable impact on eighteenth and nineteenth century political thinking, the development of political consciousness of communities, and the fate of the monarchial system of government in Europe. The influence of the ideas underlying these two Revolutions has been significant with regard to the development of the concept of selfdetermination.16 The idea that the people are the source of all legitimate governmental power and that therefore, to be legitimate, state authority must be based on the will of the people, clearly has a close link with the concept that a people has the right freely to determine its political status. Indeed, as will be seen below, when self-determination was put forward by President Wilson of the United States in the context of World War I as an essential principle for world peace, the idea that legitimate governmental power should be based on 'the consent of the governed' was a crucial feature of his understanding of the concept. It should be noted, however, that the driving forces underlying the two Revolutions were primarily rooted in the Enlightenment and such political theories as liberalism with its emphasis on individualism 17 rather than in theories emphasizing the rights or status of a collectivity as such. Because selfdetermination is a concept concerned in principle with the rights and status of a collectivity (a 'people'), the concept of self-determination cannot therefore, as is sometimes suggested, be equated with the underlying ideas of the two Revolutions. On the other hand, what may be contended is that the substantive development of several aspects of the concept of self-determination is linked to primarily western democratic political thought and ideology as expressed in the American and French Revolutions.
15. Indeed, and quite contrary to their initial statements, the French revolutionaries did not hesitate to impose their ideals on other peoples if non-imposition would threaten their democratic ideals (such as in the case of Belgium). Likewise, several territorial arrangements were carried out with complete disregard of the wishes of the people concerned (such as the transfer of the Venetian Republic to Austria in 1797). See id., at p. 116; A. Rigo Sureda, THE EVOLUTION OF
THE RIGHT OF SELF-DETERMINATION, A STUDY OF UNITED NATIONs PRACTICE, 1973, p. 18. 16. Cassese, SELF-DETERMINATION, pp. 11-13; P. Thornberry, Self-Determination, Minorities, Human Rights: A Review of International Instruments, ICLQ, Vol. 38, 1989, p. 867, at p. 869; N. Berman, Sovereignty in Abeyance: Self-Determination and International Law, Wis. ILJ, Vol. 7, 1988, p. 51, at p. 59; Buchheit, SECESSION, p. 3; Cobban, supra note 6, at p. 114; D. Thürer, Self-Determination, EPIL, Vol. 10, 1987, p. 470, at p. 470. 17. That is, the primary object of the theory of liberalism concerns the rights of the individual human being and more in particular the so-called classical rights to life, liberty and property.
176 § 2.2.
Chapter5 Nationalism
Parallel with and influenced by, but distinct from the democratic idea of the State, a development in theoretical and political thinking took place during the second half of the eighteenth century which emphasized the link between, on the one hand, the State as a political organization, and the people as a social and cultural one on the other.18 What is referred to here is the theory of nationalism, which was, at least in Europe, strongly influenced by the French Revolution ("the roi de France et de Navarre became roi des Français"19) and French revolutionary expansionism, either "through the creation of 'national' satellites or by the reactions it provoked".20 Nationalism expanded or broadened the idea or concept of the 'State'. No longer was the State perceived solely as a juristic and territorial concept and as a simple historical fact. While it was assumed that cultural and political communities, that is, 'natural' political units, could be identified, the theory of nationalism posited the ideal of a universal system of 'nation States'. In other words, 'nationalities' should have their own States, so that the society composing a State should be congruent with the ethnically homogeneous 'nationality' as far possible.21 From the second half of the eighteenth century, attaining its high point around World War I, the ideology of nationalism became the principal expression of rebellion against 'artificial' multinational empires. Contrary to liberalism, nationalism emphasized the rights of collectivities, that is, 'nationalities'. Thus, within the framework of the ideology of nationalism "the conception of individual self-determination as a corollary of democracy" as expressed in the American and the French Revolution shifted, in the words of Carr, "to the conception of nationality as an objective right to independent statehood".23 It is against this background that the protests against the 1768 sale of Corsica by the Genoese to France and against the extinction of the Polish State towards the end of the eighteenth century should be explained.24 In response to the purchase of Corsica by France, Burke commented "[t]hus was a nation 18. 19. 20. 21.
Cobban, supra note 6, at pp. 34-35. Id., at p. 35. Roelofsen, supra note 14, at p. 117. See also A. Eide, The National Society, Peoples and Ethno-Nations: Semantic Confusions and Legal Consequences, Nord. JIL, p. 353, at p. 355. 22. Buchheit, SECESSION, p. 4. 23. E.H. Carr, THE BOLSHEVIK REVOLUTION (1917-1923), Vol. I, 1969, p. 417, n.1 , quoted in: Rigo Sureda, supra note 15, at p. 18. 24. Russia, Prussia and the Habsburg Empire annexed extensive segments of Poland in the three Partitions of 1772, 1793 and 1795 at the end of which Poland was completely extinguished. D. Heater, NATIONAL SELF-DETERMINATION, WOODROW WILSON AND HIS LEGACY, 1994, p. 1.
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disposed of without its consent, like the trees on an estate".25 And Rousseau wrote: [i]t is making fools of people to tell them seriously that one can at one's pleasure transfer peoples from master to master, like herds of cattle, without consulting their interests or their wishes.26
In essence, both Burke and Rousseau, although in different ways, implicitly referred to a 'right' of a 'nationality' to determine its own (political) destiny. In other words, both writers were in fact addressing the so-called principle of nationalities, or that which later, that is, in the beginning of the twentieth century, became the principle of national self-determination. In sum, in addition to the factor of democratic or representative government underpinning both the American and the French Revolution, the nationalist emphasis on, and claim to, the existence of an objective right of nationalities to independent statehood, especially in the case of an 'artificial' multinational empire, constituted another important factor influencing the development and content of the concept of self-determination. Both factors were to a certain extent taken over, moulded, adapted and re-defined by the American president Wilson when he launched his ideas on self-determination towards the end of World War I.
§ 3.
FROM A POLITICAL PRINCIPLE TO A LEGAL RIGHT
§ 3.1.
Woodrow Wilson and 'Wilsonian self-determination'
The name of the American president Wilson and his ideas are inextricably bound up with the concept of self-determination. Almost every student of selfdetermination is forced to at least touch upon the ideas of Wilson, and rightly so, because he was among the first to give the concept a place in international relations and seeking to give it substance. Wilson developed the ideas which formed the core of his understanding of self-determination well before his famous Fourteen Points speech of 8 January 1918, although, at the time, he referred to 'self-government' and not to 'self-determination'. A fundamental element of Wilson's conception of self-determination is firmly rooted in democratic political thought as advocated in the context of the American and 25. E. Burke, Annual Register, 1768, Historical Section, I, p. 2, quoted in: Cobban, supra note 6, at p. 32. 26. J.J. Rousseau, POLITICAL WRITINGS, 1915, pp. 340-341, quoted in: Cobban, supra note 6, at p. 32.
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French Revolutions. For Wilson self-determination was, as Cobban observes, "entirely a corollary of democratic theory".27 It was "almost another word for popular sovereignty [...], for Wilson vox populi was voxdei".28 Self-government, according to Wilson, meant that ethnically identifiable peoples or nations should have the right to select their own democratic government. This reflected his initial idea about self-determination which ought to be implemented primarily within the State.29 Democratic government, according to Wilson (like Jefferson), would be the only guarantee against oppression and conflict, since only under a democratic form of government could a people (or nation) choose their own government, control the actions of the government, and ensure that it did not infringe upon the rights and interests of that people.30 It was not until 1914 that Wilson emphatically linked the concept of democratic government to the future of post-war Europe.31 In May 1916, he publicly declared that [w]e believe these fundamental things [...] that every people has a right to choose the sovereignty under which they shall live.32
This statement was clearly based on the concept of 'consent of the governed' and consequently raised that concept to the level of official American policy.33 On 22 January 1917, in his so-called 'Peace Without Victory' address to the United States Senate, Wilson set out the principles upon which the peace between the belligerents in World War I - and in fact the world order - should
27. Id., at p. 63. 28. Id. 29. See also A. WheJan, Wilsonian Self-Determination and the Versailles Settlement, ICLQ, Vol. 43, 1994, p. 99, at p. 100. 30. See also T.D. Musgrave, SELF-DETERMINATION AND NATIONAL MINORITIES, 1997, p. 22. 31. Heater, supra note 24, at p. 28-29.
32. J.B. Scott (Ed), PRESIDENT WILSON'S FOREIGN POLICY: MESSAGES, ADDRESSES, PAPERS, 1918, P. 193. 33. After more than two and a half years of neutrality, Wilson felt that the time had come to explain to the peoples of the world what the general terms of a peace settlement should be according to the United States. He discussed his idea with his confidant Colonel House who noted afterwards: "[w]e thought that the main principle he should lay down was the right of nations to determine under what governments they should continue to live". See T.J. Knock, To END
ALL WARS, WOODROW WILSON AND THE QUEST FOR A NEW WORLD ORDER, 1992, p. 111. But note the criticism from within Wilson's own administration by Secretary of State Robert Lansing, who described the idea of self-determination as "loaded with dynamite". He further stated that "it will raise hopes which can never be realised. It will, I fear, cost thousands of lives. In the end it is bound to be discredited, to be called the dream of an idealist who failed to realise the danger until too late to check those who attempt to put the principle in force. What a calamity that the phrase was ever uttered! What a misery it will cause!". R. Lansing, THE PEACE NEGOTIATIONS, A PERSONAL NARRATIVE, 1921, pp. 97-98, quoted in: Cobban, supra note 6, at p. 62.
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stand. One of those principles was that [n]o peace can last, or ought to last, which does not recognize and accept the principle that governments derive all their just powers from the consent of the governed, and that no right anywhere exists to hand peoples about from sovereignty to sovereignty as if they were property.34
The Allied Powers were reluctant at first to support the principle advocated by Wilson openly, because of the potential negative effects of the principle on the stability of the Russian empire in the light of that latter's complex multinational composition. However, two important factors made the Western European powers accept the principle of self-determination as a basis for the peace settlement. The first factor was the Russian Revolution and the Russian Provisional Government's emphasis on self-determination as a basis for both peace with the Central Powers35 and the solution of the national question in Russia.36 The other factor was the United States' entry in the war in April 1917.37 At that time, Wilson's ideas were well known to the other Allied Powers. With the passage of time Wilson became less and less tentative in his attitude towards self-determination as a core principle for perpetual world peace. In August 1917, Wilson declared that [t]he American people [...] believe that peace should rest upon the rights of peoples, not the rights of Governments - the rights of peoples great and small,
34. Quoted in: Knock, supra note 33, at p. 112. 35. Cobban, supra note 6, at p. 50; Knock, supra note 33, at p. 143; Heater, supra note 24, at p. 35-36. The negotiating agenda of the Bolshevik government for the peace talks with the Central Powers in December 1917 at Brest-Litovsk was clearly based on the (Bolshevik) idea of self-determination. Point 3 of the Agenda stated: "[n]ational groups not enjoying political independence before the war to be guaranteed an opportunity to decide freely by means of a referendum whether to adhere to any given State or to be an independent State [...]". Point 4 stated: "[i]n regard to territories inhabited by several nationalities, the right of minorities to be protected by special laws, guaranteeing them, cultural national independence, and, as far as practicable, administrative autonomy". Quoted in: AJ. Mayer, POLITICAL ORIGINS OF THE NEW DIPLOMACY 1917-1918, 1970, pp. 296-297. Article III of the Treaty of Peace of Brest-Litovsk of 3 March 1918 reflects the abovementioned points, but is less outspoken: "Germany and Austria-Hungary intend to determine the future status of the [territories lying to the west of the line determined by the contracting powers and which formerly belonged to Russia] with the consent of their inhabitants". Treaty of Peace of Brest-Litovsk, Government Printing Office, Washington, 1918. 36. Cobban, supra note 6, at pp. 50-51; and see p. 184 ff., infra. 37. Rigo Sureda, supra note 15, at p. 20. For instance, on 5 January 1918, the British Prime Minister Lloyd George clarified the British war aims in an address to the British Trades Union League. He made clear that the United Kingdom had accepted the relevance of the concept of selfdetermination for the re-division of post-war Europe: "a territorial settlement must be secured based on the right of self-determination or the consent of the governed [...]". Lloyd George's understanding of self-determination in the sense of reflecting the principle of 'consent of the governed' was determined by Wilson's previous pronouncements on the matter. See Knock, supra note 33, at p. 143.
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With the end of the war in sight, it became imperative for the Allied Powers to define the principles on the basis of which a peace should be settled. It was realized that solutions or at least guidelines had to be formulated for the rearrangement of the boundaries of Europe after the war. The British Prime Minister Lloyd George made no secret of his support for Wilson's ideas on selfdetermination by proclaiming that "government with the consent of the governed must be the basis of any territorial settlement in this war".39 On 8 January 1918, in an address to a joint session of Congress, Wilson formulated his famous Fourteen Points, which eventually became the basis for the peace settlement.40 A study of the Fourteen Points and the 'Four Principles'41 he added later reveals that - in addition to democratic political thought - Wilson's understanding of self-determination was influenced by the ideology of nationalism as well. From several sides it has been argued that Wilson was an idealist, probably even a 'dreamer', who aimed at a peaceful transformation of the world in accordance with democratic principles and ideals.42 Even if this view is correct, it should be realized that Wilson was also a politician who was very much aware of Realpolitik. When the war reached its final stages, he realized that self-determination could be a useful political tool in the re-division of Europe
38. Quoted in: Scott, supra note 32, at p. 324. 39. Quoted in: Heater, supra note 24, at p. 27. 40. Cf. Cobban, supra note 6, at pp. 57-58, who observes that the Fourteen Points and Four Principles were in a sense forced on the other Allies (except probably for Britain). See also Heater, supra note 24, at p. 45. An important factor for the timing of the delivery of the Fourteen Points speech was the Bolshevik stand on self-determination as a crucial principle for peace. It has been suggested that the Russian situation formed the chief raison d'être of the speech. Id., at p. 36. 41. See p. 182, infra. 42. The reasons of the United States' entry in the war which Wilson formulated in his Fourteen Points speech make clear that Wilson was very much concerned with abstract, universal principles the violation or obstruction of which indirectly affected the interest of the United States. He referred to a creation of a world which would be safe to live in and "particularly that it be made safe for every peace-loving nation which, like our own, wishes to live its own life, determine its own institutions, be assured of justice and fair dealing by the other peoples of the world as against force and selfish aggression. All the peoples of the world are in effect partners in this interest". Therefore, whereas the European States and nations were fighting for their frontiers and ideals of independence and freedom of autocracy and militarism, the United States had no frontier to defend but shared the European ideals and made them the core of its war policy under the concept of self-determination. For the full text accompanying Wilson's Fourteen Points speech, see A.S. Link et al. (Eds.), THE PAPERS OF WOODROW WILSON, Vol. 45, 19171918, 1984, pp. 536-539.
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after the war. In that respect he borrowed, in a manner of speaking, from the ideology of nationalism the idea that large artificial and multinational empires, which were the product of conquest or dynastic union, should be broken down into smaller natural units referred to as 'nationalities' or 'nations'.44 The justification for this policy consisted in the fact that these artificial empires were unnatural and therefore illegitimate political entities.45 In this way, Wilson broadened the concept of'consent of the governed' in that it did not only relate to internal relations - as was his initial understanding - but came to subsume external dimensions as well.46 As such, self-determination became both the theoretical and legitimizing basis as well as the practical instrument for reorganizing post-war Europe. Although the Fourteen Points do not mention the concept of self-determination as such, it is generally accepted that six out of the Fourteen Points implicitly address the concept.47 A few weeks after his Fourteen Points speech, Wilson made it explicitly clear that his ideas with regard to the peace settlement were based on self-determination. In his address to Congress on 11 February
43. But self-determination was not to be pursued at the expense of stability. This is clear from the last mentioned Principle of the 'Four Principles'. See p. 182, infra. 44. However, as has been pointed out, the 'self in Wilson's conception of 'self-government' was not necessarily the 'nation' of continental Europe. Wilson favoured the Anglo-American view of the 'nation' as a community of organization, of life, and of tradition over the German concept of 'Volk' as a community of blood and of origin. See M. Pomerance, The United States and SelfDetermination: Perspectives on the Wilsonian Conception, AJIL, Vol. 70, 1976, p. 1, at p. 17. Thus, initially, Wilson saw Austria-Hungary as an integral whole where self-determination had to be achieved through democracy within the State. Gradually, however, Wilson was forced to adapt his view to the actual developments on the ground. In the course of May and June 1918 Wilson agreed with Lansing that "we can no longer respect or regard the integrity of the artificial Austrian Empire". Quoted in: Heater, supra note 24, at p. 51. 45. Buchheit, SECESSION, p. 4. 46. M. Pomerance, SELF-DETERMINATION IN LAW AND PRACTICE, THE NEW DOCTRINE IN THE UNITED NATIONS, 1982, p. 1; Pomerance, supra note 44, at pp. 17-20; Cassese, SELFDETERMINATION, pp. 19-20; Musgrave, supra note 30, at p. 24. 47. Point V which called for "a free, open minded, and absolutely impartial adjustment of all colonial claims, based upon the principle that in determining all such questions of sovereignty the interests of the populations concerned must be given equal weight with the equitable claims of the government whose title is to be determined [...]", Point IX (on the readjustment of the frontiers of Italy along lines of nationality), Point X which proclaimed "the peoples of AustriaHungary, whose place among the nations we wish to see safeguarded and assured, should be accorded the freest opportunity of autonomous development", Point XI (demanding the evacuation and restoration of Roumania, Serbia and Montenegro, with access to the sea for Serbia), Point XII on the limitation of Ottoman sovereignty to regions actually Turkish and stating that "the other nationalities which are now under Turkish rule should be assured an undoubted security of life and an absolutely unmolested opportunity of autonomous development", and Point XIII (on the formation of a Polish State). See T.A. Bailey, WOODROW WILSON AND THE LOST PEACE, 1944, pp. 333-334.
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1918, he stated: [s] elf-determination is not a mere phrase. It is an imperative principle of action, which statesmen will henceforth ignore at their peril.48
And he continued his address by what has become known as the Four Principles referred to above, and which followed the Fourteen Points. Wilson noted: - That each part of the final settlement must be based upon the essential justice of that particular case and upon such adjustments as are most likely to bring peace that will be permanent; - That peoples and provinces are not to be bartered about from sovereignty to sovereignty as if they were mere chattels and pawns in a game, even the great game, now forever discredited, of the balance of power; but that - Every territorial settlement involved in this war must be made in the interest and for the benefit of the populations concerned, and not as a part of any mere adjustment or compromise of claims amongst rival states; and - That all well-defined national aspirations shall be accorded the utmost satisfaction that can be accorded them without introducing new or perpetuating old elements of discord and antagonism that would be likely in time to break the peace of Europe and consequently of the world.49
Although Wilson was first and foremost concerned with the situation in Europe, he did not believe that the scope and application of the concept of selfdetermination should be confined to Europe only. According to Wilson, selfdetermination was a universal principle50 and therefore also Asian and African colonies would be suitable for self-government. But with regard to these cases he was of the opinion that tutelage by existing States would be needed before self-government could eventually be granted to these communities.51 48. A. Shaw (Ed.), THE MESSAGES AND PAPERS OF WOODROW WILSON, Vol. 1, 1924, p. 475. 49. Quoted in: Bailey, supra note 47, at p. 335. 50. Wilson stated: [w]hen properly directed there is no people not fitted for self-government", quoted in: H. Notter, THE ORIGINS OF THE FOREIGN POLICY OF WOODROW WILSON, 1937, p. 291. See also Pomerance, supra note 44, at p. 17. 51. Pomerance, supra note 46, at p. 2; Buchheit, SECESSION, p. 113. In fact Point V of Wilson's Fourteen Points made clear that he regarded self-determination as a concept that would be applicable to all colonial territories. However, as is also emphasized in Point V, self-determination had to be reconciled with the interests of the colonial Powers. The general and broad wording of Point V was restricted and made concrete by the so-called Inquiry. The Inquiry which had been given qualified approval by Wilson - was Wilson's 'think-tank' as far as the peace settlement was concerned. The Inquiry observed that Point V should be interpreted as being confined to German colonies and that the interests of the native populations were to be met not by granting them independence but by the colonial power acting "not as an owner [...] but as a trustee". Heater, supra note 24, at p. 45. Cf. also Lloyd George, the British Prime Minister, who followed the same train of thought, although he went further in proclaiming that the German colonies could be granted independence if the inhabitants had expressed their desire to become independent. Heater, id., at p. 37. Thus, as opposed to Wilson, in the eyes of Lloyd
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For Wilson, the ultimate objective of self-determination in the sense of democratic self-government was the well-being of human beings through the protection of subject minority and ethnic groups. As a result, one of the most important sources of conflict and threats to world peace would be removed. In line with Jefferson's ideas, he believed that men had an inherent right to resist overreaching sovereigns, that is, sovereigns who transgressed against the inherent rights of the governed.52 Conquest and annexation of territory and the subjugation of peoples would - sooner or later - lead to intra- and inter-State tensions and conflicts, as was evidenced by World War I. Therefore, according to Wilson, only governments which were based on the consent of the governed - which in his eyes could only be democracy - could form a guarantee for a lasting world peace.53 The idea that a nationality or nation had the right to dispose of its own destiny consisted of two dimensions. The first was an internal dimension of legitimacy, that is, the democratic relationship between the government and the population of a State. A distinctive feature of this internal dimension was its continuing character. The second was the external dimension, characterized by a temporary nature, which could legitimize the disintegration of unnatural and therefore illegitimate empires, that is, non-democratic 'artificial' empires composed of several nationalities. Territorial adjustments would also fall under this dimension and should be based on the consent of the inhabitants whose wishes should preferably be determined by means of a plebiscite. It should be noted that this understanding of self-determination, and especially of its external dimension, points to a concept which would be applicable to collectivities first and foremost, and not so much to individuals as such.54 The inevitable outcome of a consistent application of these ideas would be that a multiplicity of small States would be generated as a result of selfdetermination. But Wilson was prepared to accept that. As a matter of fact, this was one reason why he emphasized the need for the creation of an international
George tutelage by 'civilized nations' was not required in these cases. 52. Falkowski, supra note 8, at p. 220. 53. Pomerance, supra note 44, at p. 19. Wilson observed that "only a Nation whose government was its servant and not its master could be trusted to preserve the peace of the world". Quoted in: R.S. Baker and W.E. Dodd (Eds.), THE NEW DEMOCRACY, PRESIDENTIAL MESSAGES,
ADDRESSES, AND OTHER PAPERS, Vol. 2, 1926, p. 84. 54. Cf. Cassese who distinguishes four different variants (of different modes of implementation) of Wilsonian self-determination. The first would relate to the right of each people to choose the form of government under which they would live. The second variant would relate to the restructuring of the States of central Europe in accordance with national desires. The third variant relates to territorial change which should be made in the interests and for the benefit of the populations concerned. The final variant relates to the settlement of colonial claims. Cassese, SELF-DETERMINATION, pp. 20-21.
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organization which would have as its task to ensure the territorial integrity of these small States against external aggression. 55 In sum, Wilson's perception of self-determination was based on democratic political thought. The only political form of government under which a collectivity (a 'nation' or 'nationality') would be able to freely determine its political destiny was a democracy. In those cases in which a nation or nationality formed part of an 'artificial' multinational State or empire, such a collectivity would have the right to establish its own democratic State. Because Wilson was first and foremost concerned with the guarantee of perpetual peace in post-war Europe, the practical application of his ideas was geographically limited to the territories of the defeated States. In retrospect, it must be concluded, however, that Wilson made a number of serious mistakes and misjudgements with regard to the presentation of his ideas. Firstly, in formulating self-determination in such general and 'universal' terms, he misjudged the force and effect of his words, raising hopes everywhere which he could not fulfill.56 Secondly, one could point to his somewhat naive belief that the 'holder' of the 'right' to self-determination would be self-evident and therefore easy to ascertain. And the same holds true for his presentation of self-determination as an absolute principle in the settlement of peace and the drawing of new boundaries in Europe. § 3.2.
Vladimir Ilyich Lenin and self-determination
Immediately after the total collapse of central authority in Russia in 1917, the Bolsheviks emphatically called attention to their theory of self-determination in response to the national question in Russia and in order to win the support of the non-Great Russian minority groups. It was Lenin in particular who, already before 1917, had developed the theory of Bolshevik 'national self55. Buchheit, SECESSION, p. 114. 56. His words, misinterpreted or no, reached many ears. The Armenians, Ukrainians, Rumanians, Jews, Persians and many others all appealed for the right to govern themselves. For instance, a desperate Korean delegation stated: "[t]he war just finished has decided once and for all the contest between democracy and autocracy, and President Wilson has said very truly that all homogeneous nations that have a separate and distinct language, civilization and culture ought to be allowed independence [...]. Under Japanese control Korea as a nation is doomed to extinction. Therefore, we, the undersigned citizens of Korea, hereby appeal to the people and the Government of the civilized world to take up the cause of Korea against Japan". Quoted in: R.S. Baker, WOODROW WILSON AND WORLD SETTLEMENT: WRITTEN FROM HIS
UNPUBLISHED AND PERSONAL MATERIAL, Vol. I, 1922, p. 6. 57. The concept of self-determination was, however, already put forward long before that year. Article 9 of the 1903 Russian Social Democratic Labour Party Programme proclaimed "[t]he right of all nations in the state to self-determination". The Programme is reprinted in: R.E. Pipes,
THE FORMATION OF THE SOVIET UNION, 1954, pp. 32-33.
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determination'. According to Lenin, self-determination of nations exclusively meant the right of oppressed nations to political separation, that is secession, from alien oppressor bodies and nations and the formation of an independent national State. As such Lenin saw self-determination as a concept that was applicable to collectivities only and not to individuals. It was a collective right. "Specifically", Lenin stated, this demand for political democracy implies complete freedom to agitate for secession and for a referendum on secession by the seceding nation. This demand [...] is not equivalent of a demand for separation, fragmentation and the formation of small states. It implies only a consistent expression of struggle against all national oppression.
Oppression as a result of bourgeois nationalism was the principal constitutive factor for the right to self-determination. Accordingly, Lenin continued, the support for freedom of self-determination should not be equated with encouraging separatism, because that would be "as foolish and hypocritical as accusing those who advocate freedom of divorce of encouraging the destruction of family ties".60 Lenin stated repeatedly that an important distinction had to be made between a right to secession and the resort to secession. Resort to
58. V.I. Lenin, The Right of Nations to Self-Determination, in: V.I. Lenin, COLLECTED WORKS, 1964, p. 393, at pp. 397, 400, 424; Lenin, The Socialist Revolution and the Right of Nations to SelfDetermination (Theses), in: id., p. 143, at p. 146. Lenin rejected the Austrian Social-Democrats' view of self-determination as a right to national-cultural autonomy. According to Lenin, and to Stalin, a nation should essentially be territorially defined. Therefore nationhood was rejected for those communities who were dispersed in various areas, that is, who did not have a clear common territorial base. See A.D. Low, LENIN ON THE QUESTION OF NATIONALITY, 1958, p. 36 ff.; B. Meissner, The Soviet Concept of a Nation and the Right of National Self-Determination, International Journal, Vol. XXXII, 1976-1977, p. 56, at pp. 57-59; J. Stalin, MARXISM AND THE NATIONAL QUESTION, 1950, p. 16 ("[a] nation is a historically evolved, stable community of people, formed on the basis of a common language, territory, economic life and psychological makeup manifested in a common culture"). 59. Lenin, The Socialist Revolution, supra note 58, at p. 146. Although Lenin equated selfdetermination with secession, he eventually did not rule out a Russian federation as an outcome of the exercise of self-determination. Lenin first fiercely rejected the idea of the State as a federation of nations because this would be incompatible in principle with his idea of national self-determination. However, he gradually came to accept the federal option as a solution for the national problem in Russia in the course of 1917. A federation as a result of free unification, while preserving the right of every nation to secede, would be in conformity with Lenin's desire "in the interests of democracy and socialism" for "the largest possible state [and] the closest possible Union [...]". See S. Shaheen, THE COMMUNIST (BOLSHEVIK) THEORY OF NATIONAL SELF-DETERMINATION, 1956, pp. 72-89,141-146; and see Lenin, The Socialist Revolution, supra note 58, at p. 146. However, in view of the inevitable process of the evolution of the world towards a universal socialist society such a State or Union would, of course, only be of a temporary nature. 60. Lenin, The Right of Nations to Self-Determination, supra note 58, at p. 422.
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secession would only take place when national oppression and national friction make joint life absolutely intolerable and hinder any and all economic intercourse. In that case, the interest of capitalist development and of the freedom of class struggle will be best served by secession.61
Lenin thus believed that secession would be a remedy of last resort. It is clear, however, as appears from the second sentence of the quoted part, that in Lenin's conception of self-determination the raison d'être and function of the right of self-determination was not the protection or development of the collective identity or other collective interests of the 'nation' or the 'self.62 Lenin proposed self-determination, defined as a right to secession, solely as a tool, a vehicle or a strategic concept for the realization of the integration of all nations, that is, a universal socialist community. Indeed, the creation of separate nation-States was by no means the ultimate object of the application of selfdetermination. Rather, the existence of nation-States formed a transitional period towards a classless society which could only be realized on a worldwide basis. For, capitalism, according to Lenin, could only effectively and fully develop in separate nation-States.' Hence his remark in the quoted passage that "the interest of capitalist development" would best be served by secession and the creation of new States. After capitalism had fully developed, its inevitable downfall would begin and the road would be clear for the evolution towards a socialist society by means of the socialist revolution. The essentially political nature of Lenin's conception of self-determination clearly shines forth from his statement that [t]he various demands of democracy, including self-determination, are not absolute, they are a particle of the general democratic (at present general
61. Id., at p. 423. 62. See also Cassese, SELF-DETERMINATION, p. 18. The American President Wilson, on the other hand, whilst also using self-determination as political tool, ultimately saw self-determination as a legal concept the main justification of which would follow from the impermissibility of governing people without their consent. Self-determination was thus seen by Wilson as a concept which meant to serve the particular interests of nations or nationalities and, because of that, of world peace. See Heater, supra note 24, at pp. 24, 31-32. 63. See, e.g., Lenin, The Right of Nations to Self-Determination, supra note 58, at pp. 397 and 400; Lenin, The Socialist Revolution, supra note 58, at pp. 147-148 ("[t]he aim of socialism is not only to end the division of mankind into tiny states and the isolation of nations in any form, it is not only to bring the nations closer together but to integrate them. And it is precisely in order to achieve this aim that we must [...] demand the liberation of oppressed nations [...]. In the same way as mankind can arrive at the abolition of classes only through a transition period of the dictatorship of the oppressed class, it can arrive at the inevitable integration of nations only through a transition period of the complete emancipation of all oppressed nations, i.e., their freedom to secede").
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socialist) world movement. In individual concrete cases the particle may contradict the whole; if it does then it must be rejected.'
In the event that the right to self-determination would conflict with the right to dictatorship of the working class, "the former must give way to the latter".65 In fact, Lenin's theory of the 'right' to secession circumscribed the operative sphere of the principle to the noncommunist areas of the world.66 Thus, the principle of self-determination was championed by Lenin only insofar as it furthered the class struggle.67 Indeed, the same strategy also underpinned Lenin's extension of the concept to colonial territories which should be given "determined support in their strife for national liberation" and should be assisted "against the imperialist powers that oppress them".68 From the above it follows that Lenin first and foremost emphasized an external dimension of the concept of self-determination by defining it as a right of a nation to determine its international political status through secession from the State.69 In that respect, as was pointed out by Cassese, Lenin and other Russian and Soviet leaders in the first two decades of the twentieth century primarily regarded self-determination as having three meanings or functions.70 Firstly, self-determination meant a right to secession that could be invoked by oppressed nations for the determination of their political destiny. Secondly, it was considered to be a right which the nations of all colonial countries were entitled to invoke against the imperialist powers. Finally, it was suggested as
64. V.I. Lenin, MARX, ENGELS, MARXISM, 1934, p. 147 (emphasis in original). Cf. also the following statement by Lenin: "[t]here is not a single Marxist who, while adhering to the foundations of Marxism and socialism, would not say that the interests of socialism are above the right of nations to self-determination". V.I. Lenin, TWENTY-ONE THESES FOR PEACE, 1918, quoted in: Cobban, supra note 6, at p. 195. 65. J. Stalin, MARXISM AND THE NATIONALAND COLONIAL QUESTION, 2nd. ed., 1936, p. 168, quoted in: Cobban, id., at p. 196. 66. This Soviet stand is reflected in the rejection of nationalist sentiments within its borders by, for instance, Ukraine and Georgia after World War I as counter-revolutionary movements and therefore incompatible with the socialist order and objectives. The same holds true for the Soviet military reaction to the rise of nationalism in its satellite Czechoslovakia in 1968. See Buchheit,
SECESSION, pp. 124-125. 67.
Cassese, SELF-DETERMINATION, p. 18. And see note 62, supra. See also Cobban, supra note 6, at p. 190. Cf. Lenin's remark that "[i]n the question of self-determination of nations, as in every other question, we [the Social-Democrats] are interested, first and foremost, in the selfdetermination of the proletariat within a given nation". Lenin, The Right of Nations to SelfDetermination, supra note 58, at p. 427. The political, as opposed to the juridical, nature of the right of Bolshevik self-determination made Cobban state that "however it was defined, the truth was that the right of secession was a theoretical right and no more. If it retained any value, apart from propaganda purposes, it was solely as a sop to the amour-propre of the nationalities in the Soviet Union". Cobban, supra note 6, at p. 198. 68. Lenin, The Socialist Revolution, supra note 58, at p. 151. 69. But see note 59, supra. 70. Cassese, SELF-DETERMINATION, p. 16.
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a concept that should be applied with regard to territorial conflicts between States where it should guarantee that no "state frontiers contrary to the will of the population"71 would be established. In sum, self-determination in Lenin's eyes was not aimed at the furtherance and protection of the values and interests of collectivities, but was merely a political instrument for the purpose of, and subject to, socialism.72 Therefore, the concrete and direct contribution of Lenin's ideas to the legal theory of selfdetermination is limited.73 However, it must be noted that, in the end, Lenin saw self-determination as a concept on the basis of which collectivities would be entitled to determine their political destiny. Thus, despite many substantial differences, in that particular respect his viewpoint comes close to that of Wilson. In addition, the influence of Lenin's 'oppression-secession-theory' should not be underestimated. This is reflected in particular in the continued Soviet insistence on the liberation and emancipation of colonized peoples, which insistence was of considerable importance for the wave of decolonization under the guidance of the United Nations during the first three decades after its establishment and the evolution of self-determination into a positive legal right to decolonization. 74 § 3.3.
Self-determination in the aftermath of World War I
§ 3.3.1.
Versailles
The creation of new States out of the former Central Powers was only partly a result of the decisions taken at the Peace Conference. Even before the statesmen at Versailles were discussing the borders of the new map of Europe, nationalities were forming their own States, which complicated "the definition of ideal solutions" at Versailles.75 The various promises for self-government made by the Allies during the war in order to provoke passive and active 71. V.I. Lenin, The Discussion of Self-Determination Summed Up, in: V.I. Lenin, COLLECTED WORKS, supra note 58, p. 320, at p. 328. 72. It may, however, be contended that in Lenin's view self-determination in the form of secession eventually did serve the interests of individuals because it was a vehicle towards the realization of a universally socialist community, which would exist for the benefit and well-being of the individual human being. Yet, this does not remove the point that, according to Lenin, the raison d'etre and direct function of self-determination was not to guarantee (on a continuing basis) the interests, values and rights of collectivities and their members. To Wilson, this was the core of the concept. See also note 62, supra. 73. See also Buchheit, SECESSION, p. 126. 74. Cassese, SELF-DETERMINATION, p. 19. For a discussion of the Soviet rejection of colonialism, see G. Ginsburgs, Wars of National Liberation' and the Modern Law of Nations - The Soviet Thesis, Law & Contemp. Probs., Vol. 29, 1964, p. 910. 75. Bailey, supra note 47, at p. 319.
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resistance and hence internal destabilization of the Central Powers, constituted an important factor stimulating the disintegrative forces.76 Consequently, borders were drawn on the ground which did not correspond to the ideas of the Allies, and in particular not to those of the United States. Although Wilson had proclaimed national self-determination as though it were an absolute principle, in practice he could not prevent the inconsistent application of the principle by the Peace Conference. In other words, Wilson had promised more than he could deliver at Paris. This, as was stated above, was a mistake since his words, so generally phrased, raised hopes in all corners of the world and consequently resulted in many minority groups being dissatisfied when they came to realize that they did not belong to the privileged category which was granted self-determination. It is not unthinkable that this could have been prevented, because when Wilson formulated the concept as one of the cornerstones of world peace, he was very well aware of the opposition against the concept, especially by France, as well as of other competing principles and interests which could not be set aside easily at Versailles.78 In fact, these competing principles and strategic and economic interests did influence his decisions and made him derogate from his claims. An example is formed by his opposition, mainly on political and strategic grounds, to the Anschluss. He ruled out an affiliation of Germany and Austria, despite the explicit wishes of the people concerned, "until", he so stated, "they have proved themselves in the eyes of the world".79 Another reason for some of the concessions he made was his attempt to safeguard the implementation of the last of his Fourteen Points, namely the creation of the League of Nations. It would, however, be a perversion of reality to refer to the peace settlement 76. In point of fact, as was observed by Heater, "by the time hostilities ceased in November 1918 the three eastern empires - Russia, Austro-Hungary and Turkish - were disintegrating". Heater, supra note 24, at p. 47. 77. Wilson later confessed that" [w]hen I gave utterance to those words ['that all nations had a right to self-determination'] I said them without knowledge that nationalities existed, which are coming to us day after day [...]. You do not know and cannot appreciate the anxieties that I have experienced as a result of many millions of people having their hopes raised by what I have said". Quoted in: Cobban, supra note 6, at p. 65. 78. K. Schwabe, WOODROW WILSON, REVOLUTIONARY GERMANY, AND PEACEMAKING, 1985, p. 417; Heater, supra note 24, at p. 44. 79. Quoted in: Schwabe, supra note 78, at p. 464, n. 66. Wilson struggled with the Austrian wishes stating "[i]n regard to Austria, I am afraid to impinge upon the right of peoples to selfdetermination [...] we cannot deny a country the right to link up with another". Quoted in: Heater, supra note 24, at p. 67. However, at the same time Wilson was aware of the potential danger regarding German-Austrian unification. He found a compromise in Article 80 (which he devised) of the Versailles Treaty which provided in the prohibition of Austrian integration into Germany except with the consent of the Council of the League of Nations. This was, however, a purely theoretical possibility. In practice it was very likely that France would have vetoed any such proposal. For the full text of the 1919 Versailles Peace Treaty, see Carnegie Endowment for International Peace, THE TREATIES OF PEACE 1919-1923, 1924.
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as "patchwork Wilsonism", because "[i]n terms of national self-determination, he prevented more injustices than he conceded".80 Be that as it may, the gap between Wilson's initial words and the actual outcome of the Peace Conference was considerable. Thus despite Wilson's sincere motives and ideas, self-determination was applied in an arbitrary manner by the Allied Powers. Political, strategic and economic interests and arguments often prevailed over self-determination. Communities which had been loyal to the Allied Powers, like the Yugo-Slavs, the Polish people, the Czechs and Slovaks and the Romanians, were permitted to form their own States, while other claims were ignored. On the other hand, from a very practical point of view, not all claims could be satisfied. The readjustment of the European boundaries solely on the basis of self-determination and aimed at the establishment of ethnically homogeneous nation States was simply impossible, if only because of problems of a demographic and cartographical nature. If applied without limitations, the inevitable, but absolutely undesired, consequence would be that "[t]he solution of one set of minority problems [would] involve the creation of another set, with the dismal prospect of the commencement of a fresh cycle of conflict, revolt, and war".81 The result of these political, strategic and other obstacles was that at the Paris Peace Conference, the concept of self-determination was used only as a legitimizing concept for the formation of a new State in those cases where these burdens could be to a very large extent overcome. In other cases of territorial readjustments which involved complex issues of nationalities (or other factors), the concept of self-determination was sometimes reflected in the use of plebiscites to determine the wishes of the population. But in this context as well, self-determination was inconsistently applied, which is evidenced by a number of cases, like the fate of the Germans living in the area which was allotted to Poland for the purpose of creating a Polish corridor to the Baltic sea, AlsaceLorraine, the Sudetenland, Upper Silesia and Fiume.82 The same holds true 80. Heater, supra note 24, at p. 120. See also Knock, supra note 33, at p. 250. 81. C. Webster, THE LEAGUE OF NATIONS IN THEORY AND PRACTICE, 1933, p. 206, quoted in: Buchheit, SECESSION, p. 64. 82. See also T. M. Franck, Postmodern Tribalism and the Right to Secession, in: Brölmann et al. (Eds.), supra note 5, p. 3, at p. 7. Regarding the restoration of Alsace-Lorraine there was no real doubt. The fact that the territory, except for the period of 1871-1919, had been French since the reign of Louis XIV was of decisive importance (see Art. 50 of the Versailles Treaty, supra note 79). On the other hand, Wilson absolutely refused to condone French annexation of the Left Bank of the Rhine and the Saar Basin. He stated "I am willing to give France any indemnity in kind to which she is entitled. I have no right to hand over to her people who do not want to go to her". Quoted in: Heater, supra note 24, at p. 72. A wording of compromise was used in Articles 45-50 of the Versailles Treaty in which a special administration was created and France was allowed to exploit the mines for fifteen years. In order to preserve self-determination, Article 49 provides: "[a]t the end of fifteen years from the coming into force of the present Treaty the
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for South Tirol under the Peace Treaty of Saint Germain of 10 September 1919.83 These are all examples of cases where the concept of self-determination in the form of a plebiscite was either not used or its outcome modified, whether for economical, security or biased political reasons, or because of a lack of real interest in the concrete case on the side of the Allies.84 As a result, as far as Europe was concerned, three million Germans were placed under Czech rule, and over a million Germans were placed under the rule of the Polish.85 These and indeed other shortcomings in the application of self-determination, sowed the seeds for World War II.86 However, influenced by Wilson's concern about oppressed minorities as a source of future conflicts, the Conference was pressed to search for further or alternative solutions. In those cases where no adequate solution for minority problems could be found through territorial readjustments, the Peace Conference chose a system of minority protection through guarantees of minority
83. 84.
85. 86.
inhabitants of the said territory shall be called upon to indicate the sovereignty under which they desire to be placed". In 1935, the territory went to Germany. See, generally, M.T. Florisky, THE SAAR STRUGGLE, 1934; H. Hannum, AUTONOMY, SOVEREIGNTY, AND SELF-DETERMINATION, THE ACCOMMODATION OFCONFLICTING RIGHTS, pp. 389-394. Also on the ltalian claim regarding Fiume Wilson would not budge. However he could not prevent its forcible seizure by Italy in defiance of the treaty allotting the district to Yugoslavia. Heater, supra note 24, at p. 113. Article 88 of the Versailles Treaty concerned the future status of Upper Silesia which had to be determined by plebiscite. The closeness of the voting resulted in the partition of the territory under the auspices of the League of Nations. As a result of the partition, a sizeable German minority was placed under Polish rule. With regard to the Sudetenland Wilson ignored his own principles on self-determination in favour of historical and economical factors. He referred to the Sudetenland "which is undoubtedly predominantly German in population but which lies within the undoubted historic boundaries of Bohemia and constitutes an integral part of her industrial life. In such circumstances ethnographic lines cannot be drawn without the greatest injustice and injury". Quoted in: A. Walworth, WILSON AND HIS PEACEMAKERS, 1986, p. 453. See also Heater, supra note 24, at p. 75. The Sudetenland was allotted to Czechoslovakia. See Hannum, supra note 82, at pp. 432-440; Cassese, SELF-DETERMINATION, pp. 24-25, and the references mentioned there. In this respect the following part of a diary of one of the participants at the Versailles Conference is revealing: "8 May 1919 - [...] the fate of the Austro-Hungarian Empire is finally settled. Hungary is partitioned by these five distinguished gentlemen [...]. They begin with Transylvania, and after some insults flung like tennis balls between Tardieu and Lansing, Hungary loses her south. Then Czechoslovakia, and while the flies drone in and out of the open windows Hungary loses her north and east. Then the frontier with Austria, which is maintained intact. Then the Jugo-Slav frontier, where the Committee's report is adopted without change. Then tea and macaroons". H. Nicholson, PEACEMAKING 1919, quoted in: R. McCorquodale, Self-Determination: a Human Rights Approach, ICLQ, Vol. 43, p. 857, at p. 870. The Versailles Settlement left 30,000,000 people in States in which they were not part of the dominant nationality. A. Sharp, THE VERSAILLES SETTLEMENT, 1991, p. 155. But see Bailey, who, observes that, firstly, considerable responsibility for the failure of the Versailles Treaty should be borne by those who failed to carry out the provisions of the Treaty, and secondly that the postwar settlements were a "complicated and top heavy structure" of which the "most important foundation stone [i.e. the United States as a partner in guaranteeing the new world order] was never put into place". Bailey, supra note 47, at p. 320.
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rights in treaties concluded between, among others, the Allied Powers and the defeated States, as well as between the Allied Powers and the newly created or enlarged States in Eastern and Central Europe.87 The arbitrary nature of the 'solution' follows from the fact that in many cases the treaty guarantees only applied to those minority groups who lived in another State - different from their own nationality - while their kith and kin had been accorded the right to form their own State (the 'kin State'), like the Poles who were left in Germany after the rebirth of the Polish State.88 Thus, whether it concerned the formation of States, territorial readjustments or minority guarantees, in all these cases many minorities were disappointed and discontented. As a result, Wilson and the other Allied statesmen were accused of having applied a 'double standard'. The practice of a 'double standard' is also reflected in the fact that the concept of self-determination was not applied at all to the territories of the Allied Powers, because only the defeated States were credited with having subjugated their peoples. Thus only German and Turkish "colonies and territories" were placed under the Mandate System of Article 22 of the League of Nations.90 This policy was both legitimized and rationalized in the same Article, which states that the principle of the 'sacred trust' should be applied to "those colonies and territories which as a consequence of the late war have ceased to be under the sovereignty of the States which formerly governed them [...]". In sum, in no way did the application of self-determination harm the Allies. So what was recognized ? To whom did the concept of self-determination apply according to the Allied Powers? Was it only applicable to some of the collectivities living in the defeated States? And if so, which collectivities? As noted above, Wilson did not confine self-determination to Europe. In his view, the 'holders' of self-determination were self-evident, that is, 'natural' political communities with a desire for self-government. Wilson's views did not point to any inherent limitations in the concept of self-determination itself as far as the 'holder' was concerned, except for the political consciousness and matureness of the collectivity in question. On the other hand, because he was essentially confronted with the need to redraw the map of Europe, Wilson stated that his principles were to be applied only to the territory of the defeated
87. Together, these treaties are known as the 'minority treaties'. See Buchheit, SECESSION, p. 67, and the references mentioned there. 88. Rigo Sureda, supra note 15, at pp. 23-24. Cf. also Chapter 6, Section 3.3., infra. 89. H.S. Johnson, Self-Determination: Western European Perspectives, in: Y. Alexander and R.A. Friedlander (Eds.), SELF-DETERMINATION: NATIONAL, REGIONAL, AND GLOBAL DIMENSIONS, 1980, p. 81, at p. 88. 90. See p. 194, infra.
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Powers and were not to be used to "inquire into ancient wrongs".91 Thus, theoretically, the main object or target of the concept of selfdetermination consisted of States or empires composed of several more or less ethnically homogeneous communities which had enjoyed (some degree of) selfgovernment in the (recent) past but which status had been lost as a result of (recent) conquest and annexation.92 In practice, however, the geographical scope of self-determination was limited, since the Central Powers were the target of the concept.93 In sum, in Europe from the period of the Polish partitions until World War II, the collectivities generally believed to be 'entitled' to selfdetermination were politically conscious ethnic groups, called 'nations' if already independent, or else 'nationalities', whose common identity and loyalty to the group as a whole were defined primarily in terms of their language and culture. Consequently, exceptions notwithstanding, the suitable 'subject' for the purpose of self-determination - in particular when it formed the legitimizing basis for statehood - was thus ethnically rather than territorially defined by the Peace Conference. For this reason, and because distinctive aspects of the concept of self-determination were influenced by or borrowed from the theory of nationalism, self-determination during this period of history is usually referred to as 'national self-determination'. § 3.3.2.
The League of Nations
When Wilson came to Europe for the Peace Conference, he had two great central ideas in his programme for peace. One concerned the right of selfdetermination of peoples. The other concerned the establishment of a world association of States, that is to say, a 'League of Nations', through the institu
91. H. Temperly (Ed.), A HISTORY OF THE PEACE CONFERENCE OF PARIS, Vol. 4, 1921, p. 433, quoted in: Buchheit, SECESSION, p. 63. As Wilson observed "[i]t was not within the privilege of the conference of peace to act upon the right of self-determination of any peoples except those which had been included in the territories of the defeated empires". Speech of 17 Sep. 1919, quoted in: Cobban, supra note 6, at p. 66. 92. Such as the Bulgarians, Poles, Serbs and Croats. 93. Note in this respect Wilson's statement on "ancient wrongs" mentioned above. Cf. also Cobban, supra note 6, at pp. 18-19 ("[d]uring the first World War it was generally believed by public opinion in the Western democracies that there was a right of national independence which the Central Powers had overthrown, and that the primary object of the Allies was the reinstatement of this right. The democratic conception of government being added to it, the combined ideal obtained widespread recognition as the principle of self-determination"). 94. See also, e.g., K. Doehring, Self-Determination, in: B. Simma (Ed.), THE CHARTER OF THE
UNITED NATIONS, A COMMENTARY, 1994, p. 56, at p. 64; H.O. Schoenberg, WE'RE NOT BANANAS!: THE CONCEPT OF 'PEOPLE' IN THE PRINCIPLE OF SELF-DETERMINATION AND ITS IMPLICATIONS FOR THE UNITED NATIONS, 1993, p. 58.
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tionalization of an obligation to cooperate for mutual aid and protection.95 Wilson did not succeed in his efforts to include the concept of selfdetermination in the Covenant of the League of Nations. His draft of Article 10 contained the principle of self-determination as the basis for territorial readjustments if such would become necessary "by reasons of changes in present racial conditions and aspirations or present social and political relationships".96 This draft was rejected, however. The final version of Article 10 of the Covenant made no reference to the principle. Instead, it emphasized the territorial integrity of the members of the League. . Despite this, it is generally agreed that self-determination was the principal idea behind the Mandate System of the League as laid down in Article 22 of the Covenant. In addition to the fate of the European nationalities, the Peace Conference at Versailles was also confronted with the fate of the territories taken from Turkish control and the former overseas territories of Germany. Because the Allies stated repeatedly that the peace settlement would not involve annexations,98 a solution had to be found for the territories which, as a consequence of the war and the collapse of the old empires, were no longer under the sovereignty of a State.
95. Baker, supra note 56, at p. 11. 96. D.H. Miller, THE DRAFTING OF THE COVENANT, Vol. 2, 1928, pp. 12-13. 97. The idea of a mandate system originated from several minds. As early as 1915, Hobson had contemplated some form of international trusteeship as a first step towards the phasing out of colonialism. See J.A. Hobson, TOWARDS INTERNATIONAL GOVERNMENT, 1915, pp. 139-142. The idea of administration of certain territories of the Central Powers in trust by single States was developed more and more by Wilson and his staff in the course of the year 1918. The first proposal in that direction was drafted by G.L. Beer as early as January 1918. Beer, an expert on colonies, was a member of the Inquiry, the group of United States experts who had to advise Wilson on various questions that could be expected to arise at the Peace Conference. In October 1918, in a Commentary on Point V of Wilson's Fourteen Points, the Inquiry explicitly endorsed the idea of trusteeship. By the end of the war, Wilson was convinced that some such concept of mandates should be created for the former enemy territories under the supervision of the League of Nations. See S. Slonim, SOUTH WEST AFRICA AND THE UNITED NATIONS: AN
INTERNATIONAL MANDATE IN DISPUTE, 1973, pp. 13-14. The discussion on a system of mandates did not just involve the former German colonies and former territories under Turkish rule. On 16 December 1918, the South-African statesman General Smuts published a pamphlet advocating a League of Nations mandatory system, but, contrary to Wilson's view, this system would be applicable to Austria-Hungary, Russia and Turkey, thus leaving the enemies' overseas possessions open for annexation. A mandate system could not, according to Smuts, be applicable to German colonies in the Pacific and Africa because the areas "are inhabited by barbarians, who cannot possibly govern themselves but to whom it would be impracticable to apply any idea of self-determination in the European sense". J.C. Smuts, The League of Nations: A Practical Suggestion, 1918, quoted in: Q. Wright, MANDATES UNDER THE LEAGUE OF NATIONS, 1930, p. 30. See, generally, Miller, supra note 96, at pp. 23-60. The proposal for European mandates was rejected by the Conference. 98. Knock, supra note 33, at p. 211.
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Although some States favoured annexation of the territories in question," a standpoint that was vigorously supported by the British Dominions,100 a consensus gradually developed to the effect that the issue of the enemy colonies could best be resolved by some permanent relationship with the projected League of Nations.101 The Mandate System established so-called 'A', 'B' and 'C' Mandates. Each category corresponded to a certain level of autonomous government by the population of the Mandate itself - 'A' being the highest category. The category awarded was in turn based on the degree of political maturity - to be determined by the Peace Conference - of the inhabitants concerned to govern themselves.102 In reality the Mandate System was a compromise formula between the territorial ambitions of France, Japan and the British Dominions and the 'no-annexation' policy of the United States which position was later explicitly supported by Britain.103 Some of Wilson's ideas about self-determination can be recognized in the structure or system that was established under Article 22, but they were clearly pushed into the background. Wilson expressed his understanding of the Mandate System as follows: [t]he whole theory of mandates is not the theory of permanent subordination. It is the theory of development, of putting upon the mandatory the duty of assisting in the development of the country under mandate, in order that it may be brought to a capacity for self-government and self-dependence which for the time being it has not reached, and that therefore the countries under mandate are candidates, so to say, for full membership in the family of nations.104
To a certain extent, this view seems to be reflected in the formulation in Article 22 that "those colonies and territories [...] which are inhabited by peoples not yet able to stand by themselves under the strenuous conditions of the modern 99. In particular France (e.g. Togoland and the Cameroons) and Japan (e.g. Kiaochow, in the Chinese province of Shantung and former German colonies in the Southern Pacific). Id., at pp. 210-226; Musgrave, supra note 30, at p, 28. 100. The British Dominion of New Zealand was interested in Samoa, Australia demanded New Guinea and South Africa wanted South West Africa. See Musgrave, id. See also Heater, supra note 24, at pp. 89-91. 101. See Slonim, supra note 97, at pp. 13-22. 102. 'A' mandates were allocated to Britain (Iraq, Palestine and Transjordan) and France (Syria and Lebanon). 'B' mandates were allotted to Britain (Cameroons, Togo and Tanganyika), France (Cameroun and Togo) and Belgium (Ruanda-Urundi). 'C' mandates were allotted to South Africa (South-West Africa), New Zealand (Western Samoa), Australia (New Guinea and Nauru, the latter of which was administered together with Great Britain and New Zealand) and Japan (Mariana, Caroline and Marshall Islands). 103. Slonim, supra note 97, at pp. 22-38; Musgrave, supra note 30, at p. 28. 104. Statement in the Council of Four, 17 May 1919. Quoted in: Slonim, supra note 97, at p. 37, n. 96. Smuts, however, stated that "in effect the relations between the South West Protectorate and the Union amount to annexation in all but name". Id.
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world, there should be applied the principle that the well-being and development of such peoples form a sacred trust of civilisation [...]".l()5 However, no specific mention was made of the existence of an obligation for the Mandatory Power to lead the Mandate Territory to independence, although it is stated that 'A'-Mandates could be "provisionally recognized". An implicit reference to selfdetermination is to be found in the phrase in Article 22 that "the wishes of these communities must be a principal consideration in the selection of the Mandatory". On the other hand, the provision that 'C'-Mandates should be administered "as integral portions of the territory" of the Mandatory Power comes close to an acceptance of the annexation of these territories. However, the International Court of Justice emphasized that the objective (self-determination and independence) and safeguards for all mandate categories were the same. In its Advisory Opinion on the illegal presence of South Africa in Namibia, the Court observed: the Court is unable to accept any construction which would attach to 'C' mandates an object and purpose different from those of 'A' or 'B' mandates [...]. To hold otherwise would mean that territories under 'C' mandate belonged to the family of mandates only in name, being in fact the objects of disguised cessions [...].106
§ 3.3.3.
National self-determination as a gift
National self-determination, as was shown above, was inconsistently applied in the aftermath of World War I. The Allied Powers have been criticized severely on this point. It can, however, be questioned whether this was entirely correct. As Whelan points out: [i]t can be alleged that mistakes were made, and that the Allies' powers were abused, or improper factors considered. It would be surprising if it were otherwise, in a period when the principle [of self-determination] was still unfamiliar to international practice, and was by no means felt to be binding by many Powers represented at the Conference."107
In addition to the arbitrary nature of application of self-determination in Europe, the concept was also inconsistently applied with respect to the Mandate System of the League of Nations. Firstly, the former Turkish territories of 105. Emphasis added. 106. Namibia case, ICJ Rep. 1971, p. 16, at p. 32. 107. Whelan, supra note 29, at p. 110. Cf. also Bailey, supra note 47, at pp. 317-322 ("[m]ost of his [i.e. Wilson's] critics assume that he should have forced his Points fully and completely upon his colleagues who did not want them, and who under no circumstances would accept them. Not even Wilson could do the impossible").
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108
Armenia and Kurdistan 10!) never became Mandates. Under the Treaty of Sevres, Turkey agreed to recognize Armenia as "a free and independent state". Accordingly, Wilson gave strong encouragement to the suggestion that the United States should assume a mandate over Armenia. However, the proposal for an Armenian Mandate was rejected by the United States Senate and then forgotten. In the case of Kurdistan, the territory was given the perspective of independence under Articles 62 through 64 of the Treaty of Sevres.111 But with the rise of Mustafa Kemal Ataturk, the Treaty of Sévres was never ratified by Turkey and it was later replaced by the Treaty of Lausanne of 24 July 1923 which did not contain any reference to an autonomous Kurdistan.112 Subsequently Kurdistan was divided up between Turkey and the Mandates of Iraq and Syria. Secondly, as has been stated above, the Mandate System was applied with regard to the territories of the defeated States only. In no way was self-determination made applicable to the overseas territories of the Allied Powers. "On the whole", Cassese says with respect to state practice in the aftermath of World War I, "self-determination was deemed irrelevant where the people's will was certain to run counter to the victor's geopolitical, economic, and strategic interests".113 And indeed, in the early twentieth century the success or failure of assertions of self-determination were largely dependent on support from one or more of the Allied Powers. Therefore, from the point of view of positive international law, self-determination did not develop into a customary legal right which could be invoked by its holder vis-a-vis the parent State. This holds true for the internal dimension of self-determination as none of the new States were obliged to institute a democratic form of government, and it is also true for its external dimensions, that is, for the formation of an independent State or the use of plebiscites in the context of territorial readjustments. Instead, the nature of self-determination was that of a gift or a favour. At the very most it was a political principle. The only exception to this conclusion regarding the positive legal nature of self-determination consists of explicit provisions in treaties or agreements granting or acknowledging a right to self-determination
108. See, generally, R.G.Hovannisian, ARMENIA ON THE ROAD TO INDEPENDENCE, 1918, 1967; H. Morgenthau, THE TRAGEDY OF ARMENIA, 1918. 109. See, generally, D. McDowall, A MODERN HISTORY OF THE KURDS, 1996;McDowall,The Kurds, Minority Rights Group Report No. 23, 1985; Hannum, supra note 82, at pp. 178-186; Buchheit, SECESSION, pp. 153-162. 110. Treaty of Sèvres, LNTS, Vol. 28, 1924, pp. 31-37. 111. Id. 112. Id. See also P.M. Brown, The Lausanne Treaty, AJIL, Vol. 21, 1927, p. 503; E. Turlington, The Settlement of Lausanne, AJIL, Supp., Vol. 18, 1924, p. 696. 113. Cassese, SELF-DETERMINATION, p. 25.
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of a people.114 Although confined to conventional law, it must be noted that this development was significant, because it indicated a break with the classical perception that positive international law concerned the relations between States only.115 The fact that the right of self-determination could not be characterized as a rule of customary law was also emphasized by two Commissions appointed by the Council of the League of Nations in order to analyse and report on a number of issues relating to the Aaland Islands, which allegedly fell under Finnish sovereignty after the Finnish proclamation of independence on 6 December 1917. ' The inhabitants of the islands had expressed the wish to attach themselves to Sweden and had rejected Finnish offers of autonomy. The first Commission, the Commission of Jurists, stated that [a]lthough the principle of self-determination of peoples plays an important part in modern political thought, especially since the Great War, it must be pointed out that there is no mention of it in the Covenant of the League of Nations. The recognition of this principle in a certain number of international treaties cannot be considered as sufficient to put it on the same footing as a positive rule of the Law of Nations [...]. Positive International Law does not recognise the right of national groups, as such, to separate themselves from the State of which they form part by the simple expression of a wish [...]. Generally speaking the grant or refusal of the right to a portion of its population of determining its own political fate by plebiscite or by another method is, exclusively, an attribute of the sovereignty of every State which is definitively constituted.117
Thus, while the Commission rejected self-determination (here essentially being put on a par with territorial separation) as a positive right under international law, it did so only with regard to States definitively constituted.118 The other
114. This was the case with respect to, for instance, the Mandate for Palestine, which acknowledged or endorsed a right of national self-determination of the Jewish people in Palestine (Art. 2), and which emphasized that this would not prejudice the rights and position of other sections of the population (Art. 6). Documents Relating to the Balfour Declaration and the Palestine Mandate, The Jewish Agency for Palestine, 1939, pp. 24-26. See also Rigo Sureda, supra note 15, at p. 25. 115. See pp. 14-15, supra. 116. See, generally, J. Barros, THE ALAND ISLANDS QUESTION: ITS SETTLEMENT BY THE LEAGUE OF NATIONS, 1968. 117. Report of the Commission of Jurists, LNOJ, Spec. Supp., No. 3, 1920, pp. 3-19, at p. 5. 118. Crawford, CREATION, p. 87. The Commission was of the opinion that Finland could not be qualified as such on the date of the proclamation of independence and the immediate subsequent period. "Under such circumstances", the Commission continued, "the principle of self-determination of peoples may be called into play [...]. The principle recognising the rights of peoples to determine their political fate may be applied in various ways; the most important of these are, on the one hand the formation of an independent State, and on the other hand the right of choice between two existing States. This principle, however, must be brought into line with that of the protection of minorities; both have a common object - to assure to some national Group the maintenance and free development of its social, ethnical or religious characteristics". Report of the Commission of Jurists, supra note 117, at p. 6.
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Commission, the Commission of Rapporteurs, held that [t]his principle [of self-determination] is not, properly speaking a rule of international law and the League of Nations has not entered it in its Covenant [...]. It is a principle of justice and of liberty, expressed by a vague and general formula which has given rise to most varied interpretations and differences of opinion [...]. Is it possible to admit as an absolute rule that a minority of the population of a State, which is definitely constituted and perfectly capable of fulfilling its duties as such, has the right of separating itself from her in order to be incorporated in another State or to declare its independence? The answer can only be in the negative. To concede to minorities, either of language or religion, or to any fractions 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 [...]. The separation of a minority from the State of which it forms part and its incorporation in another State can only be considered as an altogether exceptional solution, a last resort when the State lacks either the will or the power to enact and apply just and effective guarantees. The Commission of Rapporteurs eventually considered that the culture of the inhabitants of the Aaland Islands, who were qualified as a 'minority' rather than a 'people', could be effectively preserved and protected through autonomy arrangements under Finnish sovereignty. Only if the State would clearly fail to meet these safeguards, separation (of the Islands) would be an option pursuant to a plebiscite in the Aaland Islands. It is thus beyond a doubt that in the aftermath of World War I selfdetermination did not develop into a rule of international customary law. It was only after the establishment of the United Nations that this development took shape, initially in the context of decolonization. This development will now be addressed. § 3.4.
The United Nations and decolonization
§ 3.4.1.
The liberation of colonial peoples and territories: towards a right of self-determination
Although self-determination was proclaimed by the United States and the United Kingdom during World War II in the Atlantic Charter, 120 it was mainly 119. Report of the Commission of Rapporteurs, LN Doc. B7.21/68/106, 1921, pp. 22-23. 120. President Roosevelt and Prime Minister Churchill stated that "they desire to see no territorial changes that do not accord with the freely expressed wishes of the people concerned" and that "they respect the right of all peoples to choose the form of government under which they will live; and wish to see sovereign rights and self-government restored to those who have been
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because of Soviet pressure that self-determination was included in the Charter of the United Nations.121 The principle of self-determination is referred to twice in the Charter. Article 1(2) mentions as one of the purposes and principles of the United Nations [t]o develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace.
The second reference to self-determination is in Article 55(c), which is included in Chapter IX on "International economic and social cooperation".122 Despite the fact that self-determination in the Charter is referred to 'only' as a "principle" and not as a legal right,123 its appearance in a conventional instrument establishing an international organization which would be open to universal membership was a very important step in the evolution of selfdetermination into a positive right under international law. Although self-determination was not explicitly mentioned, the principle underlies Chapter XI ("Declaration Regarding Non-Self-Governing Territories") and Chapter XII ("International Trusteeship System") of the Charter,124 of which Chapter XII may be seen as the substitute of the League's Mandate System and having essentially similar purposes.125 Chapter XI, on the other
121.
122.
123.
124.
125.
forcibly deprived of them". L.M. Goodrich and E. Hambro, CHARTER OF THE UNITED NATIONS, COMMENTARY AND DOCUMENTS, 1946, pp. 305-306. The Atlantic Charter was subscribed to in the Declaration by United Nations of 1 January 1942 which was signed by 26 States. See Goodrich and Hambro, id., at pp. 306-307. See also MM. Whiteman, DIGEST OF INTERNATIONAL LAW, Vol. 5, 1965, p. 44. Cassese, SELF-DETERMINATION, pp. 37-43.1. Brownlie, An Essay in the History of the Principle of Self-Determination, Grotius Society Papers, 1968, p. 90; R.B. Russel, A HISTORY OF THE UNITED NATIONS CHARTER, 1958. Article 55 reads: "[w]ith a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote: [...] (c) universal respect for, and observance of, human rights and fundamental freedoms [...]". It is remarkable that the English and French versions of the Charter do not coincide in this respect. The French text speaks of "le principe de 1'égalité de droits des peuples et leur droit a disposer d'eux mêmes",see Chartre des Nations Unies, Paris Impremerie nationale, Ministrère des Affaires Etrangères, 26 May 1945 (emphasis added). Pomerance, supra note 46, at p. 9; A. Cristescu, The Historical and Current Development of the Right to Self-Determination, Study Prepared by the Special Rapporteur, UN Doc. E/CN.4/Sub.2/404 (Vol. 1), 3 July 1978, p. 8; D. Bowett, Problems of Self-Determination and Political Rights in Developing Countries, PASIL, 1966, p. 134. See also Art. 1(3) ICCPR. Under Article 73, United Nations members administering "territories whose peoples have not yet attained a full measure of self-government" undertook "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 their varying stages of advancement". Article 76 states that "the basic objectives of the trusteeship system [...] shall be [...] to promote [...] progressive
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hand, laid down a rather new regime on Non-Self-Governing Territories which were referred to as "territories whose peoples have not yet attained a full measure of self-government". In this way, the scope of application of the notion of self-determination was substantially expanded in comparison to the League era. Opinions differ as to what the drafters had in mind when the concept of self-determination was included in the Charter. As was stated above, before the drafting of the Charter the notion of self-determination could be identified in the Atlantic Charter in the context of the free choice of rulers and territorial changes. However, the language used in the Atlantic Charter is not found in the Charter of the United Nations. With regard to Articles 1 and 55, it has been suggested that "in each the context was clearly the rights of the peoples of one state to be protected from interference by other states or governments. It is revisionism to ignore the coupling of 'self-determination' with 'equal rights' - and it was the equal rights of states that was being provided for, not of individuals".126 However true this may be, it is clear that the Charter did not define the content of the principle of self-determination and the same applies with respect to the term 'peoples'. It was therefore only through the adoption of numerous resolutions in the following years, in particular by the General Assembly, that some insights were given into the content and the subject of the 'right', although this practice was primarily confined to the context of decolonization. After the establishment of the United Nations, the Soviet Union and its communist allies continued to demand decolonization by the Western imperialist States in accordance with communist theory. In that effort they were, of course, supported by the Afro-Asian States. Because, although not expressly mentioned, the principle of self-determination was most prominently present in the context of Chapters XI and XII of the Charter, these Chapters formed the background for the evolution of self-determination from a principle into a positive legal right in the field of decolonization in the first two decades development towards self-government or independence as may be appropriate to the particular circumstances of each territory and its peoples and the freely expressed wishes of the peoples concerned [...]"• 126. R. Higgins, Postmodern Tribalism and the Right to Secession, Comments, in: Brölmann et al. (Eds.), supra note 5, p. 29, at p. 29 (emphasis in original). The phrase "equal rights" may indeed be regarded as a normative substitute for 'equality of states'. See also Goodrich and Hambro, supra note 120, at p. 61. But it may also be argued from the perspective that World War II had been fought against an ideology of conquest and racial superiority, that it has a broader meaning in that it also refers to the inherent equality of peoples (whether or not organized as States) and the respective rights recognized to them. See, e.g., Dissenting Opinion Judge Kreca, Genocide case, ICJ Rep. 1996, p. 595, at p. 737. 127. Musgrave, supra note 30, at p. 93. And see p. 184 ff. supra.
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after the establishment of the United Nations. There is a considerable amount of literature on this topic. 128 The discussion will therefore be limited to those issues and developments which, for this study at least, cast light on the status, content and scope of self-determination under international law. Until 1960, the General Assembly adopted a series of resolutions in which much effort was devoted to asserting its authority with regard to Non-SelfGoverning Territories listed by the colonial powers as Territories on which information had to be transmitted to the Secretary-General in accordance with Article 73 (e) of the Charter.129 The common characteristic of these territories was that they corresponded to the somewhat classical notion of a colonial territory.130 Both Chapter XI and XII provided for a gradual development of Non-SelfGoverning Territories towards self-government, or, in the case of Trust Territories, towards independence "as may be appropriate". But in the early 1950s, this policy of progressive and gradual development towards increased self-government was put under pressure more and more by the General Assembly.131 Eventually the Assembly set aside the policy of gradual develop128. See, e.g., M.A. Ajomo, International Law, the United Nations, and Decolonization, in: ESSAYS IN
HONOUR OF JUDGE TASLIM OLAWALE ELIAS, Vol. 1, 1992, p. 77; F. Abdulah, The Right to Decolonization, in: M. Bedjaoui (Ed), INTERNATIONAL LAW: ACHIEVEMENTSAND PROSPECTS, 1991, pp. 1205-1218; J.D. Hargreaves, DECOLONIZATION IN AFRICA, 1988; F. Ansprenger, THE DISSOLUTION OF THE COLONIAL EMPIRES, 1989; See also Cassese, SELF-DETERMINATION, p. 74, n. 15, and the references mentioned there. 129. See, e.g., UN Doc. A/Res/334 (IV), 2 Dec. 1949. Seventy-four Territories constituting territories under Article 73 of the Charter were listed in UN Doc. A/Res/66 (I), 14 Dec. 1946, which was the result of a reply by the member States to an invitation by the Secretary-General to give their opinion with regard to the factors that should be taken into account in determining whether or not a territory constituted a NSGT. See UN Docs. A/47, 29 June 1946, and A/47, Ann. I to VIII and Add. 1 and Add. 2. In 1946, the following countries were recognized as colonial powers: Australia, Belgium, Denmark, France, New Zealand, the Netherlands, the United Kingdom, and the United States. Abdulah, supra note 128, at p. 1206, n. 3. In 1960, four Spanish and nine Portuguese territories were added to the list by the Assembly and in 1962 Southern Rhodesia was added by the Assembly despite efforts by both the government of Portugal and the United Kingdom to prevent these territories from being listed. See UN Docs. A/Res/I 542 (XV), 15 Dec. 1960 (Portugese territories), and A/Res/I747 (XVI), 28 June 1962 (Southern Rhodesia). 130. The classical, that is the nineteenth century notion of a colony, which was still very much the same in 1945, was narrowly understood as a territory not geographically located in the metropolitan area of the parent State, lawfully incorporated into the parent State's territory, inhabited by a native population that is ethnically distinct from the population in the metropolitan area and the relationship of which is one of domination by the parent State. See R, Ranjeva, Peoples and Liberation Movements, in: Bedjaoui (Ed.), supra note 128, p. 101, at p. 103; A. Blackmann, Decolonization, EPIL, Vol. 10, 1987, p. 75; OPPENHEIM'S INT''L LAW, p. 281. 131. Cf. UN Doc. A/Res/637 (VII) of 16 Dec. 1952, entitled "The right of peoples and nations to self-determination". The Resolution states in its final operative paragraph: "States Members of the United Nations responsible for the administration of Non-Self-Governing and Trust Territories shall take practical steps, pending the realization of the right of self-determination and in preparation thereof, to ensure the direct participation of the indigenous populations in the legislative and executive organs of government of those Territories, and to prepare them for
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ment and replaced it with a policy which asserted that subject and dependent or colonial territories should immediately be granted independence.132 As has been observed, this dramatic change of policy was actually a break with the prewar framework of international law which drew a sharp distinction between Europeans or people of European descent and non-Europeans: only the former were unquestionably entitled to sovereign statehood. The latter were assumed not to be qualified at least prima facie, and the burden of proof was on them to justify it in terms of standards defined by Western civilization.133 What caused this radical shift of opinion? A number of influential factors can be mentioned. A first important factor was the emergence of an anti-discrimination doctrine taking place at both the international and national level. Whereas the Mandate System marked the "beginning of systematic international intrusion into the workings of colonialism",134 widespread attack upon the very existence of the colonial system had gathered momentum by the end of World War II.135 To some extent this development parallelled national developments. In that respect one may think of the revolution in the United States during which formal racial discrimination was abolished in the course of the 1950s, which culminated in the 1964 Civil Rights Act.136 Secondly, the slow progress of Non-Self-GoverningTerritories towards self-government was undoubtedly an important reason for the change.137 As early as 1949, France, the United Kingdom and the United States ceased the transmission of information under Article 73 with regard to a substantial amount of territories listed in General Assembly Resolution 66 (I).138 In addition, when Spain and
complete self-government or independence" (emphasis added). 132. See UN Doc. A/Res/1514, supra note 2, Para. 5. In this respect compare the following statement by the representative of Saudi Arabia during the debates preceding the adoption of Resolution 1514. With reference to a number of African colonies he stated: "the argument has often been adduced that these peoples are now under tutelage and that their economic and social advancement requires that such tutelage should continue for some time. Well this is an antiquated argument not worthy of the spirit of the day [...]. These peoples have been under the tutelage for decades and some of them for ages. How long should we wait for this weary ordeal - for this painful trial - for this bitter experiment [...]? If the past tutelage has not been able, thus far, to raise these people from dependence to independence, then the tutelage is a failure, and the United Nations should put an end to this failure". See UN GAOR 15" Sess., (Part I), Plenary mtgs., Vol. 2, 27 Oct. - 20 Dec. 1960, p. 1017 (paras. 118-119). 133. R.H. Jackson, QUASI-STATES: SOVEREIGNTY, INTERNATIONAL RELATIONS, AND THE THIRD
WORLD, 1990, p. 16. 134. I.L. Claude, Jr., SWORDS INTO PLOWSHARES: THE PROBLEMS AND PROGRESS OF INTERNATIONAL ORGANIZATION, 1964, p. 3. 135. Id., at p. 329. 136. Jackson, supra note 133, at p. 74. 137. By 1959, ten of the seventy-two Territories listed in Resolution 66 (I) (supra note 129) had become independent. 138. Id.
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Portugal were admitted to the United Nations in 1955, these States denied that they administered territories in the sense of Article 73 of the Charter.139 A third factor, closely linked with the former, is that no territories were voluntarily placed under the Trusteeship System pursuant to Article 77(1) (c) of the United Nations Charter.140 Finally, the continued insistence on decolonization by the SovietUnion, East-European States and Afro-Asian countries in particular, was of essential importance.141The latter, while increasing their numerical strength in the United Nations, launched a major diplomatic offensive in the Bandung Conference which was held in 1955 and which declared that "colonialism in all its manifestations is an evil which should speedily be brought to an end".142 The much celebrated Resolution 1514 (the 'Declaration on Decolonization') adopted by the General Assembly on 14 December I960,143 one of the main objectives of which is "the necessity of bringing to a speedy and unconditional end colonialism in all its forms and manifestations", is without a doubt the clearest expression of the revolutionary change of policy with respect to Non-Self-Governing Territories and Trust Territories. The title of the resolution is revealing: "Declaration on the Granting of Independence to Colonial Countries and Peoples".144 The categorical character of the resolution features throughout its text: 1. The subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, is contrary to the Charter of the United Nations and is an impediment to the promotion of world peace and co-operation. 2. All peoples have the right to self-determination; by virtue of that right they freely determine their political status [...]. 3. Inadequacy of political, economic, social or educational preparedness should never serve as a pretext for delaying independence. 4. All armed action or repressive measures of all kinds directed against dependent peoples shall cease in order to enable them to exercise peacefully and freely their right to complete independence [...]. 5. Immediate steps shall be taken, in Trust and Non-Self-Governing Territories or all other territories which have not yet attained independence, to transfer all powers to the peoples of those territories, without any conditions or reservations, in accordance with their freely expressed will and desire, without any
139. Abdulah, supra note 128, at pp. 1206-1207. 140. J.L. Kunz, Chapter XI of the United Nations Charter in Action, AJIL, Vol. 48, 1954, p. 103, at pp. 106-107; Falkowski, supra note 8, at p. 226. 141. See D.A. Kay, The Politics of Decolonization, The New Nations and the United Nations Political Process, International Organization, Vol. 21, 1967, p. 786; Cassese, SELF-DETERMINATION, p. 71. 142. S.M. Finger and G. Singh, Self-Determination: A United Nations Perspective, in: Alexander and Friedlander (Eds.), supra note 89, p. 333, at p. 335. 143. Resolution 1514, supra note 2, (vote: 89 to 0, with 9 abstentions). 144. Id. (emphasis added).
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distinction as to race, creed or colour, in order to enable them to enjoy complete independence and freedom. 145
One day later, the General Assembly adopted Resolution 1541.146 Principle VI mentions three results on the basis of which it could be said that a Non-SelfGoverning Territory had reached a full measure of self-government: (a) Emergence as a sovereign independent State; (b) Free association with an independent State; or (c) Integration with an independent State.
Although the concepts are discussed in more detail in the following chapters, at this point it must be noted that this mode of implementation147 of selfdetermination through the realization of any of the three options mentioned, is often referred to as external self-determination, because it generally denotes the determination of the international status of a territory and a people, as opposed to internal self-determination, which generally refers to the relationship between the government of a State and the people of that State.148 Principles VII and IX of Resolution 1541 emphasize that 'free association' should be the result of a "free and voluntary choice by the peoples of the territory concerned" and 'integration' should be based on "the freely expressed wishes of the territory's peoples". Both provisions refer to impartial democratic processes as the technique for determining the will of the people.149 In view of the vast amount of dependent territories which became independent after 1960, the 1960 resolutions and in particular Resolution 1514 must be considered as catalytic agents for the dismantling of the dependency system and the liberation of colonial peoples. 145. Id. (emphasis added). 146. UN Doc. A/Res/1541 (XV), 15 Dec. 1960. 147. Pomerance, supra note 46, at p. 37; O. Kimmenich, A Federal Right of Self-Determination?, in: C. Tomuschat (Ed.), MODERN LAW OF SELF-DETERMINATION, 1993, p. 83, at p. 88. See also UN Doc. A/Res/2625, supra note 3, Principle V, Para. 4. 148. This distinction is often made in the context of self-determination, but not always in a consistent manner. Cassese claims that Wengler was probably one of the first to use the distinction. See Cassese, SELF-DETERMINATION, p. 70, n. 6, referring to W. Wengler, Le Droit à la Libre Disposition des Peuples Comme Principe de Droit International, Revue Héllénique de Droit International, Vol. 10, 1957, p. 27. However, the distinction already appears in the Report on the First Part of the Seventh Session of the General Assembly (Dutch Ministry of Foreign Affairs Publication No. 32, The Hague, 1953), which was written (in Dutch) by the Dutch representative in the Third Committee, Beaufort. See also P. J. Kuyper and P.J.G. Kapteyn, A Colonial Power as Champion of Self-Determination: Netherlands State Practice in the Period 1945-1975, in: H.F. van Panhuys el al. (Eds.), INTERNATIONAL LAW IN THE NETHERLANDS, Vol. 3, 1980, p. 149, at p. 184. See further Chapter 6, infra. 149. It should be noted, however, that the formula of "freely expressed will" as the basis for a legitimate exercise of self-determination is also referred to in operative Paragraph 5 of Resolution 1514 with respect to "complete independence". See further p. 212 ff.
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§ 3.4.2.
The subject of the right of self-determination and the principle of territorial integrity
Although the Charter refers to self-determination of "peoples", and Resolution 1514 proclaims that "all peoples" have the right to self-determination, an analysis of United Nations practice until the mid-1960s reveals that it was mainly the decolonization aspect of self-determination which was developed during that period.150 That is to say, the actual application of the right to selfdetermination by the United Nations was mainly confined to colonial peoples and territories.151 As was affirmed by the International Court of Justice in the Namibia case, self-determination developed into a right for Trust Territories.152 But the development was not limited to these territories. The Court continued by stating that the subsequent development of international law in regard to non-self-governing territories [...] made the principle of self-determination applicable to all of them.153 An indication of what constitutes a Non-Self-GoverningTerritory as the subject of the right to self-determination was given in Resolution 1541 which defines a Non-Self-Governing Territory in Principle IV as a "territory which is geographically separate and is distinct ethnically and/or culturally from the country administering it". Reference is often made to this phrasing as the 'salt
150. As has been argued in Chapter 4, the South African Apartheid system cannot, strictly speaking, be regarded as a colonial situation in the sense of Resolution 1541, but as a 'colonial type' situation. The case is therefore more properly treated as a situation concerning the denial of internal self-determination. 151. In the 1950s Belgium challenged the restrictive interpretation of the subject of self-determination. The delegation pointed out that the Charter did not prohibit 'colonialism' but Non-SelfGoverning Territories. It was maintained that "a number of States were administering within their own frontiers territories which were not governed by the ordinary law; territories with welldefined limits, inhabited by homogeneous peoples differing from the rest of the population in race, language and culture. These populations were disfranchised; they took no part in national life; they did not enjoy self-government in any sense of the word". The Belgian delegation stressed therefore that it was not clear why these territories should not be qualified as NSGT in the sense of Chapter XI of the Charter. Thus, the Belgian thesis expanded the scope of applicability of self-determination beyond the classical definition of colonies. The thesis was not accepted, however. It was pointed out that at San Francisco, Article 73 was not considered to apply to groups within established States. See UN GAOR, 8th Sess., Fourth Comm., 326th mtg., paras. 60-69 (esp. para. 62); UNCIO, Summary Report of the 11th mtg. of Comm. II/4, Doc. 712, II/4/30, 31 May 1945, pp. 2-3. See also Rigo Sureda, supra note 15, at pp. 103-104; Thornberry, supra note 16, at pp. 873-875. 152. Namibia case, supra note 106, at p. 31. 153. Id.
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water barrier' or 'salt water' theory.154 Principle IV is supplemented by Principle V which lays down possible additional criteria for the determination of a NonSelf-GoverningTerritory which may be placed under the more general heading of 'political subordination'. Thus with the requirement that territories must be 'geographically separate', the application of the provision on Non-SelfGoverning Territories was effectively limited to "overseas colonial countries and peoples ruled by alien whites".155 Indeed, it should be noted that the rather strict definition set down in Resolution 1541 proceeded from the basic principle that "[t]he authors of the Charter of the United Nations had in mind that Chapter XI should be applicable to territories which were then known to be of a colonial type",156 although Chapter XI leaves room for Non-Self-Governing Territories created after 1945.157 United Nations decolonization practice was almost entirely along the lines of the 'salt water barrier'. Thus, the identified subject or holder of the right of self-determination during this period of history was - in addition to Trust Territories - a territory, as the International Court noted, "under a colonial regime".158 It should be noted that this development meant a rejection of the position that only States could be subjects of international law. Indeed, it was explicitly recognized, or, in other words 'positivized', that in addition to States, a certain group of people could be, and actually was, the direct holder of a right under international law.159 Resolution 1514 of the General Assembly stipulates in Paragraph 6 that [a]ny 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.160
The practice of the United Nations suggests that this provision regarding the principle of territorial integrity in the context of decolonization is a reflection of international customary law, or at least of United Nations law. Four remarks should be made in this respect. Firstly, neither the General Assembly Resolution 154. See, e.g., Rigo Sureda, supra note 15, at p. 105. 155. R. Emerson, Self-Determination, PASIL, Vol. 60, 1966, p. 135, at p. 138; Falkowski, supra note 8, at p. 226. 156. Resolution 1541, Principle I (emphasis added). 157. Cf. Art. 73 of the Charter: "Members of the United Nations which have or assume responsibilities for the administration of territories whose peoples have not yet attained a full measure of selfgovernment [...]" (emphasis added). See also Crawford, CREATION OF STATES, pp. 94, 358-560. 158. Namibia case, supra note 106, at p. 31. 159. See pp. 14-16, supra. See also H. Bokor-Szegö, NEW STATES AND INTERNATIONAL LAW, 1970, pp. 39-43. 160. UN Doc A/Res/1514, supra note 2, Para 6.
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nor subsequent state practice in the field of decolonization should be interpreted in a way that the title of the metropolitan State to the colonial territory became illegal or void ab initio.161 What it did mean was that a positive legal rule was developed which held that colonial powers were under an obligation to decolonize in accordance with the wishes of the inhabitants of the colonial territory. In those cases where, in violation of this obligation, metropolitan States did not transfer sovereignty to the authorities of the colonial territory, the right of self-determination of the colonial territory prevailed over any claim by the metropolitan State to the maintenance of its sovereignty over the colonial territory. ' Therefore, no violation of the principle of territorial integrity occurred when a colonial territory chose to dissolve the bonds with the metropolitan State without the latter's consent. Secondly, the principle of territorial integrity meant that third States (including Trustees) were under an obligation to respect the territorial integrity of the colonial territory.163 Thirdly, in practice the right of self-determination was interpreted in the light of the principle of territorial integrity, which meant that the fragmentation of the colonial territory before the realization of independence (or integration or association) as a result of secession by a segment of the colonial population was not accepted by the United Nations and the international community at large.164 Finally, after the accession to independence, the governments of the new States did invoke the principle of territorial integrity against secessionist demands by minority groups within that State. This, however, concerns the question of the existence or non-existence of a right of unilateral secession in the post-colonial era and will therefore be discussed in Chapter 7. It will be noted that in the context of decolonization, the result of the interpretation of the right of self-determination in the light of the principle of territorial integrity was that a 'people' as the holder of the right of self-
161. The Charter of the United Nations does not regard the existence of colonies or colonial regimes as being in violation of international law. See also OPPENHEIM'S INT'L LAW, p. 282. 162. Cf, e.g., the cases of Algeria and Guinea-Bissau which were discussed in Chapter 4, Sections 2.2.1. (a) and 2.2. l.(b), respectively, supra. See also K.N. Blay, Self-Determination Versus Territorial Integrity in Decolonization Revisited, Indian JIL, Vol. 25, 1985, p. 386; H. Hannum, Rethinking Self-Determination, Va. JIL, Vol. 34, 1993, p. 1, at p. 32. 163. Hence the rejection by the United Nations of the South African's attempt to fragment Namibia by creating a number of 'bantustans' in the territory. See UN Doc. S/Res/ 264, 20 March 1969; UN Doc. S/Res/301, 20 Oct. 1971; UN Doc. S/Res/366, 17 Dec. 1974; UN Doc. S/Res/385, 30 Jan. 1976. And see UN Doc. A/Res/2372 (XXII), 12 June 1968; UN Doc. A/Res/2403 (XXIII), 16 Dec. 1968; UN Doc. A/Res/31/146, 20 Dec. 1976. See also Dugard, RECOGNITION, p. 122. 164. See also R. Higgins,THE DEVELOPMENTOFlNTERNATIONALLAWTHROUGHTHE POLITICAL ORGANS OF THE UNITED NATIONS, 1963, p. 104; Blay, supra note 162, at pp. 389-391; Pomerance, supra note 46, at pp. 18-19; Cassese, SELF-DETERMINATION, p. 72. Sometimes, the principle of territorial integrity has been equated erroneously with the principle of uti possidetis. The point is discussed in Chapter 6, Section 6, infra.
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determination was primarily territorially defined.165 In sum, the right of self-determination, which in this context has been referred to as "a right to decolonization",166 was applied to all inhabitants of a colonial territory and not to minority groups or segments of the population within that territory. Obviously, this (United Nations) policy was predicated on the fear of territorial fragmentation and international destabilisation in view of the often complex ethnic structure of the territories in question. Therefore, as a general rule, self-determination had to be granted to Trust Territories and Non-Self-GoverningTerritories as a whole. But exceptions were accepted. The United Nations' insistence on the preservation of the territorial integrity of a dependent or colonial territory did not form a bar to partition, but only if that was the clear wish of the majority of all inhabitants of the territory in question. For instance, in the case of the Non-Self-Governing Territory of the Gilbert and Ellice Islands, the Assembly first agreed to an administrative division of the colonial territory and subsequently approved the partition of the colony as a result of the express wishes of the inhabitants of the Ellice Islands, which became the State of Tuvalu.167 Furthermore, mention should be made of the separation of Ruanda-Urundi in two separate States, Rwanda and Burundi, 168 and the division by Britain of the British Cameroons into a southern and northern region, of which the former acceded to Cameroon and the latter to
165. Pomerance, supra note 46, at p. 18; Hannum, supra note 82, at p. 36; Thornberry, supra note 16, at p. 872; Falkowski, supra note 8, at p. 226 ("[i]n the overwhelming majority of cases the United Nations has not applied the international trust provisions to 'peoples' but has applied it to 'colonial units'"). Cf also J.P. Humphrey, The International Law of Human Rights in the Middle Twentieth Century, in: M. Bos (Ed.), THE PRESENT STATE OF INTERNATIONAL LAW, 1973, p. 75, at p. 103 (according to Humphrey the United Nations had adopted the questionable position that although "all peoples have the right of self-determination, only colonial countries are peoples" (emphasis added)). 166. See Abdulah, supra note 128. 167. See UN Doc. A/Res/32/407, 28 Nov. 1977. Arguably, another example is found in the partition of the Federation of Rhodesia and Nyasaland, also called the Central African Federation, which was formed at the initiative of the British in 1953. It was composed of the self-governing British colony of Southern Rhodesia, and the territories of Northern Rhodesia and Nyasaland. The Africans, fearing continued domination by the white minority, demonstrated (1960-1961) against the Federation, and in 1962 there was a strong movement for its dissolution, particularly from the new African-dominated regime in Northern Rhodesia. The British at first tried to keep the Federation intact, but finally realized that this was impossible. Britain approved a gradual process towards secession and independence of Nyasaland beginning on 1 February 1963. The Federation was dissolved on 31 December 1963. Nyasaland became independent as Malawi on 6 July 1964 and Northern Rhodesia as Zambia on 24 October 1964. See, generally, L.J. Butler, Britain, the United States and the Demise of the Central African Federation, 1959-63, in: K. Fedorowich and M. Thomas (Eds.), INTERNATIONAL DIPLOMACY AND COLONIAL RETREAT, 2001, p. 131. 168. See UN Doc. A/Res/1746 (XVI), 27 June 1962. The General Assembly initially aimed at preventing the separation of the Trust Territory. See, e.g., UN Doc. A/Res/I743 (XVI), 23 Feb. 1962.
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Nigeria. 169 Another example is formed by the division of the 'strategic' Trust Territory of the Pacific Islands in 1978 with the agreement of the inhabitants and the Trusteeship Council.170 Four separate entities were created, three of which became independent States, namely the Federated States of Micronesia, Palau and the Marshall Islands, and one - the Northern Mariana Islands came to be associated with the United States.171 § 3.4.3.
Implementation and legal status of self-determination
The first point that needs to be examined is what specific territorial status chosen by the inhabitants of a dependent territory (or their representatives) in their exercise of self-determination was considered to be an actual realization of the right of self-determination. As was stated by Pomerance [i]n innumerable [...] resolutions of the General Assembly, self-determination has been bracketed together with independence - so much that it is popularly
169. See UN Doc. A/Res/63 (I), 13 Dec. 1946. Another case worthy of mention is the approved partition of the Palestine Mandate into an Arab and a Jewish .State by the General Assembly in 1947. See UN Doc. A/Res/181, 19 Nov. 1947. For a discussion of that partition, see T.G. Fraser, PARTITION IN IRELAND, INDIA AND PALESTINE, 1984. 170. In this respect, the United States Permanent Representative to the United Nations stated: "[t]he United States regrets that the exercise of full self-determination by the peoples of the Territory has led to the decision to divide the Territory into more than one entity. However, both the United States and the Trusteeship Council are in agreement that it is ultimately for the Micronesians themselves to decide upon their political relations with one another. To take any other position, for example, that unity should be imposed upon the people of the Trust Territory, would make a mockery of the concept of self-determination as democratically conceived". See Letter from the Permanent Representative of the United States of America to the United Nations, addressed to the President of the Trusteeship Council, 25 Apr. 1979, quoted in: R.S. Clark, Self-Determination and Free Association; Should the United Nations Terminate the Pacific Islands Trust?, Harv. ILJ, Vol. 21, 1980, p. 1, at p. 81. 171. Under Article 83 of the Charter, the Trust Territory was administered by the United States after 1947 as a 'security Trusteeship' the ultimate disposition of which was to be determined by the Security Council. In the period of 1979-1986, after the inhabitants had opted for the division of the Territory through plebiscites and referenda, the United States gradually transferred governmental functions. The Marshall Islands, the Federated States of Micronesia and Palau entered into a so-called Compact of Free Association with the United States, which entered into force on 21 October 1986, 3 November 1986 and 1 October 1994, respectively. On the same dates, these entities became independent States. See L.A. McKibben, The Political Relationship Between the United States and Pacific Islands Entities: The Path to Self-Government in the Northern Mariana Islands, Palau, and Guam, Harv. ILJ, Vol. 31, 1990, p. 257; Department of State United States of America, Trust Territory of Pacific Islands, 39th Annual Report, 1986; Clark, supra note 170. See also UN Doc. S/Res/956 (1994), 10 Nov. 1994; and see S.O. Roth, Assistant Secretary for East Asian and Pacific Affairs, US Department of State, Compacts of Free Association with the Marshall Islands, Federated States of Micronesia and Palau, Joint Oversight Hearing Before the Committee on Resources and Subcommittee on Asia and the Pacific of the Committee on International Relations, House of Representatives, 105th Congress, 2nd Sess., 1 Oct. 1998, Y 4.R 31/3:105-107, pp. 52-55.
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(and incorrectly) assumed that the terms are synonymous in theory or, at least, 172 that they are so in UN practice.
Indeed, independence is mentioned in Resolution 1541 as one of three optional results of the implementation of self-determination,173 that is, in addition to 174 integration and association.174 Another point is that Resolution 1514 states that the political status should 175 be "freely" determined by a people.175 This is clarified in Resolution 1541 which maintains that association should be the result of the free and voluntary choice by the peoples of the 176 territory concerned expressed through informed democratic processes,
and that integration should be the result of the freely expressed wishes of the territory's peoples acting with full knowledge of the change in their status, their wishes having been expressed through informed and democratic processes [...]. 177
This principle, which may be called the 'free choice principle', has been confirmed by the International Court of Justice in the Western Sahara case,178 where, on the basis of Resolution 1514 and its own statements in the Namibia case, the Court stated that "the application of the right to self-determination requires a free and genuine expression of the will of the people concerned".179 In practice, "the will of the people" meant the will of the majority of the
172. Pomerance, supra note 46, at p. 25. 173. Cf. also UN Doc. A/Res/2625, supra note 3, which states that "[t]he establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a people constitute modes of implementing the right of self-determination by that people". 174. See also Separate Opinion Judge Dillard, Western Sahara case, Advisory Opinion, ICJ Rep. 1975, p. 13, at pp. 122-123 ('it may be suggested that self-determination is satisfied by a free choice, not by a particular consequence of that choice or a particular method of exercising it"); Pomerance, supra note 46, at pp. 25-28. And see UN Doc. A/Res/2625, supra note 3, which, under the heading of Principle V ("the principle of equal rights and self-determination of peoples"), repeats the wording of Resolution 1541 and adds "or the emergence into any other political status freely determined by a people". For a detailed discussion of Resolution 2625, see Chapter 6, infra. 175. UN Doc. A/Res/1514, supra note 2, Para. 2. 176. UN Doc. A/Res/1541, supra note 146, Principle VII. 177. Id., Principle IX (b). 178. Western Sahara case, supra note 174, at pp. 31-33. 179. Id., at p. 32 (para. 56).
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inhabitants of a colonial territory.180 And according to the Court in the Western Sahara case, only in those cases where a collectivity did not constitute a people for the purpose of decolonization or in cases where, for instance, the wishes of the people were so obvious as to render superfluous any act of consultation, this requirement could be dispensed with.181 It must therefore be concluded that in the context of decolonization the element of 'free choice' was regarded by the United Nations as being of essential importance for a genuine exercise of self-determination,182 that is, at least for those situations where self-determination would be implemented through association or integration. This was especially so when the selected option was union or association with the "former colonial parent", which was, as Pomerance observes, "viewed with a jaundiced eye and deemed to be inherently reversible, rather than final". 184 In fact, it was more or less assumed that the exercise of self-determination by colonial populations would in most cases result in independence, as appears from the title of the Declaration on Decolonization itself. Hence the demand in Resolution 1541 for guarantees and specific procedures geared to establishing the wishes of the people in those cases where independence was apparently not preferred. United Nations practice with respect to the principle of 'free choice' is practically uniform. Compliance with the principle was sought to be guaranteed through the organization and supervision of elections, referenda and/or
180. Higgins, supra note 164, at p. 104; H. Gros Espiell, Implementation of United Nations Resolutions Relating to the Right of Peoples Under Colonial and Alien Domination to SelfDetermination, Study Prepared by the Special Rapporteur, UN Doc. E/CN.4/Sub.2/405 (Vol. 1), 20 June 1978, pp. 10-11. 181. Western Sahara case, supra note 174, at p. 33 (para. 59); Pomerance, supra note 46, at p. 27. See also Declaration Judge Nagendra Singh, Western Sahara case, supra note 174, at p. 73. 182. See also UN Doc. A/Res/54/90, 4 Feb. 2000 ("Resolution Adopted by the General Assembly on the Report of the Special Political and Decolonization Committee"). While recalling Resolution 1514, the General Assembly observes that "referendums, free and fair elections and other forms of popular consultation play an important role in ascertaining the wishes and aspirations of the people" and it recognizes "that all available options for self-determination of the Territories are valid as long as they are in accordance with the freely expressed wishes of the peoples concerned [...]". 183. As was stated by Judge Nagendra Singh: "the consultation of the people of the territory awaiting decolonization is an inescapable imperative whether the method followed on decolonization is integration or association or independence [...]. Thus even if integration of territory was demanded by an interested State, as in this case, it could not be had without ascertaining the freely expressed will of the people - the very sine qua non of all decolonization". Declaration Judge Nagendra Singh, Western Sahara case, supra note 174, at p. 81. 184. Pomerance, supra note 46, at p. 25. She refers to the decision of the Cook Islands to maintain ties with New Zealand and the General Assembly's assurance that independence remained a future option. See UN Doc. A/Res/2064 (XX), 16 Dec. 1965. In that respect it will be noted that Resolution 1541 suggests that "free association" is open to subsequent revision.
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plebiscites, especially in cases where association or integration185 would presumably be the result of the exercise of self-determination.186 Thus, as a matter of principle, strict democratic standards were required for association or integration, while the choice for independence had to be free,187 but not necessarily based on democratic verification standards, that is, in accordance
185. When, apparently, the population would opt for independence, the wishes of the people were normally to be established by the usual political processes of the territory, save for those special cases where it was considered necessary to make special arrangements as, for example, with regard to the Ellice Islands in 1974 where a referendum - leading to independence - was held in the presence of United Nations observers. See UN Doc. A/Res/3288 (XXIX), 13 Dec. 1974; UN GAOR, 29th Sess., Supp. No. 23 (A/9623/Rev.l), Ch. XXI, Ann. 186. See Cassese, SELF-DETERMINATION, pp. 76-78, and the examples given there. See also OPPENHEIM'S INT'L LAW, pp. 713-714. The fact that in some circumstances the principle of 'free choice' was not applied, does not detract from the general and universal character of the principle. For instance, a referendum was not held in Gibraltar, but this was premised on the fact that the inhabitants were not considered to constitute a people for the purpose of external self-determination. See UN Doc. A/Res/2353 (XXII), 19 Dec. 1967. Another example of a situation where the principle of 'one man, one vote' through the instrument of a referendum or plebiscite was not used is West Irian (West New Guinea), but here the decision to deviate from the general rule is highly debatable and thus criticized (cf. Cassese, SELF-DETERMINATION, p. 84: "this 'act of free choice' [...] amounted to a substantial denial of self-determination"). In this case the Secretary-General's representative in West Irian observed that "geographical and human realities in the territory required the application of a realistic criterion", which would be different from "the orthodox and universally adopted method of 'one man one vote'". Report of Mr. Ortiz Sanz, UN Doc. A/7723, 6 Nov. 1969, Ann. 1, p. 9, para. 82. Accordingly, the will of the people was established on the basis of the Indonesian musjawarah system ("a process in which decisions are reached by collective discussion and consensus rather than by individual votes"). Despite the fact that the Dutch government eventually did not object against the validity of the exercise of self-determination in West Irian (judging from the adoption of General Assembly Resolution 2504 (XXIV) of 19 Nov. 1969, which was co-sponsored by the Netherlands and which took note of the outcome of the 'act of free choice', acknowledged "with appreciation the fulfilment by the Secretary-General and his representative of the tasks entrusted to them under the Agreement of 15 August 1962"), it made clear that according to the Netherlands the standard for how to establish the will of a people for the purpose of exercising self-determination remained that of 'free choice' based on informed democratic processes based on universal adult suffrage, because this standard was in conformity with international practice. See Kuyper and Kapteyn, supra note 148, at pp. 198-199. During the debates in the General Assembly leading up to the adoption of Resolution 2504, which extended over three plenary sessions, several delegations expressed reservations regarding the procedures used, and questioned whether the people of West New Guinea had been allowed to exercise the right of self-determination. Cf. the statement by the Indian government, UN GAOR, 24th Plenary Sess., 1813th mtg., 19 Nov. 1969, para. 24 (the method of musjawarah is "appropriate for the special circumstances of West Irian but cannot under any circumstances be considered a precedent for the process of the exercise of the right of self-determination under completely different conditions in territories still under colonial domination"). See also W. Henderson, WEST NEW GUINEA, THE DISPUTE AND ITS SETTLEMENT, 1973, esp. pp. 226-240; Pomerance, supra note 46, at p. 33. It has been suggested that the majority stand in the General Assembly with regard to Resolution 2504 (XXIV) (vote: 84 to 0, with 30 abstentions) should be explained in the sense that West Irian was regarded by that majority as an integral part of Indonesia and that there was therefore no need to meet the required standards for exercising self-determination. See Rigo-Sureda, supra note 15, at p. 151. 187. See Resolution 1514, supra note 2, Para. 5. See also the statement by Judge Nagendra Singh, supra note 184.
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with (the Western view of) the principle of 'one man one vote'.188 However, in those cases where serious doubts existed as to the genuine expression of the wish for independence, additional safeguards were required. The situation of Southern Rhodesia under the Smith regime serves as a prime example.189 But, as was observed earlier, although 'free choice' was required, it is not clear whether or not the States concerned were of the opinion that they were under a legal obligation to ascertain "the will of the people" specifically through either a referendum or a plebiscite.190 It should be noted that although the technique by which the will of the 188. Pomerance, supra note 46, at p. 32. See also Crawford, CREATION, pp. 101-102. For instance, an acceptable procedure of consultation with leaders of opinion and organizations took place in Bahrain pursuant to an agreement between Iran and the United Kingdom in 1970. The latter had been a protecting power and the former had claimed sovereignty. Under their agreement, a representative of the United Nations Secretary-General consulted representative leaders in Bahrain in the course of March - April 1970 and concluded in his report that "the Bahrainis [...] were virtually unanimous in wanting a fully independent sovereign State". See UN Doc. S/9772, 30 Apr. 1970, p. 11. The report was unanimously endorsed by the Security Council in Resolution 278. See UN Doc. S/Res/278 (1970), 11 May 1970. And see O. Schachter, The United Nations and Internal Conflict, in: K.V. Raman (Ed.), DISPUTE SETTLEMENT THROUGH THE UNITED NATIONS, 1977, pp. 301-364, at pp. 333-334; E. Gordon, Resolution of the Bahrain Dispute, AJIL, Vol. 65, 1971, pp. 560-568. Another example is formed by the case of Malaysia where it was deemed acceptable by the United Nations that the wish for independence was expressed by traditional authorities which enjoyed general support among the population. See T.E. Smith, THE BACKGROUND TO MALAYSIA, 1963, pp. 25-32. 189. Reference can be made to the Security Council's determination of the invalidity of the proclamation of independence by the white minority regime in Southern Rhodesia in 1965 (UN Doc. S/Res/216, 12 Nov. 1965) and the Council's subsequent demand for "arrangements [...] for a peaceful and democratic transition to genuine majority rule and independence", which arrangements "include the holding of free and fair elections on the basis of universal adult suffrage under United Nations supervision" in order to "effect the genuine decolonization of the Territory [...]"(UN Doc. S/Res/423, 14 March 1978). See also, e.g., UN Doc. A/Res2138 (XXI), 22 Oct. 1966, Para. 2 ("reaffirming the obligation of the administering Power to transfer power to the people of Zimbabwe on the basis of universal adult suffrage, in accordance with the principle of 'one man, one vote'"); UN Doc. A/Res/2877, 20 Dec. 1971, Para. 2 ("no settlement which does not conform strictly to the principle of 'no independence before majority rule' on the basis of one man, one vote, will be acceptable"). The Lancaster House Agreement of 12 Dec. 1979 called for elections and a transition period under British rule. The Agreement was endorsed by the Security Council (UN Doc. S/Res/463, 2 Feb. 1980), which no longer demanded United Nations supervision of the elections, but which did require the United Kingdom to create conditions in Southern Rhodesia to ensure free, democratic and fair elections resulting in genuine majority rule, calling upon "all Member States to respect only the free and fair choice of the people of Zimbabwe" (Para. 9). Pre-independence elections were held from 27-29 February 1980 under the supervision of the British government and monitored by hundreds of observers of the OAU. The report of the OAU Observer Team concluded that under the prevailing circumstances, the elections were free and fair and reflected the will of the people. See OAU Doc. ECM/Res. 25 (XIII), adopted at the 13th Extraordinary Sess. in Addis Ababa, Ethiopia, from 10-12 March 1980, Para. 1 (endorsing the outcome of the elections). Robert Mugabe's ZANU party (PF) won absolute majority and formed Zimbabwe's first representative government. The British government formally granted independence to Zimbabwe on 18 April 1980. On 26 August 1980, Zimbabwe was admitted to membership in the United Nations. As to the elaboration upon the Southern Rhodesian attempt to secede, see pp. 128-134, supra. 190. Cassese, SELF-DETERMINATION, p. 79.
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people had to be ascertained in a way echoes the concept of the 'consent of the governed', the internal dimension of self-determination was completely disregarded in the process of decolonization. There is no case in which it was required that the subsequent political system or form of government of the former colony should be based on the continued 'consent of the governed'.191 The next point which needs to be addressed, is the legal status of selfdetermination in the context of decolonization. In Resolution 1514 the General Assembly refers without hesitation to self-determination as a right and not as a principle. Does that mean that the Assembly regarded self-determination as a right under international customary law at the time of the adoption of the Resolution? This may very well be the case. It must be recalled that, as early as 1952, the General Assembly adopted a number of resolutions under the title of "The right of peoples and nations to self-determination". In these resolutions it was stated that "the States Members of the United Nations shall recognize and promote the realization of the right of self-determination of peoples of Non-Self-Governing and Trust Territories who are under their administration".192 And in 1953 the Assembly adopted a resolution containing factors which should be used by the Assembly as a guide in determining whether a territory is still or no longer within the scope Chapter XI of the Charter. The resolution declared that "each concrete case should be considered and decided upon in the light of the particular circumstances of that case and taking into account the right of self-determination of peoples".193 In addition, Resolution 1188 (XII), adopted by the General Assembly in 1957, reaffirms in its first operative paragraph that those member States bearing responsibility "for the administration of Non-Self-Governing Territories shall promote the realization and facilitate the exercise of the right [of self-determination] by the
191. That is not to say that the transfer of sovereignty by the colonial power would be approved by the United Nations with regard to any, that is, even an unrepresentative government of a previous dependent entity. Again, Southern Rhodesia could be mentioned as an example, in which case it was made clear by the Security Council that not only the outcome of the exercise of self-determination should be the result of a 'free choice', but also that only in the case of a 'majority' government genuine independence could be considered to be achieved. In general, the United Nations was concerned about whether the choice for independence, integration or association was a reflection of the will of the population of a dependent territory. Therefore, the demand for a genuine exercise of external self-determination should be distinguished from the issue of whether or not the United Nations required the future political and constitutional system of former colonies to be in conformity with the internal dimension of self-determination. Because immediate external self-determination of all dependent territories and peoples was considered to be of primary importance, no requirement of continued internal self-determination was formulated in this context. See also Crawford, CREATION OF STATES, pp. 219-220. 192. UN Doc. A/Res/637 A-B-C, 16 Dec.1952. 193. UN Doc. A/Res/742 (VIII), 27 Nov. 1953.
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peoples of such Territories".194 If the terminology used in these resolutions is compared with the terminology used in Resolution 1514, it is clear that the latter is formulated in a much more mandatory manner by which the impression at least is created that the Resolution aims at expressing the applicable law.195 Moreover, the character of self-determination as a right under customary 194. UN Doc. A/Res/1188 (XII), 11 Dec. 1957 (vote: 54 to 0, with 13 abstentions). Operative Paragraph 1 was voted on separately before the vote on the draft resolution as a whole. This Paragraph was adopted by 51 votes to 9, with 7 abstentions. The thirteen States abstaining from voting with respect to the draft resolution as a whole, included those States which voted against Para. 1 of the draft: the Netherlands, New Zealand, Portugal, the United Kingdom, Australia, Belgium, Canada, France and Italy (the remaining States abstaining from voting on the entire resolution were Denmark, Norway, Spain and Sweden). It has been suggested that if the principal colonial powers voted against or abstained from voting with regard to resolutions proclaiming self-determination as a right of peoples, it seems impossible to state that a rule of customary law had emerged at the relevant time. See R. Emerson, Self-Detennination, AJIL, Vol. 65, 1971, p. 459, at p. 462. However, this conclusion must be rejected upon further analysis. As comes to the fore from the debates, for many (colonial) States the principal reason for voting against or abstaining from voting in 1957 was not so much the use of the term 'right' but the fact that according to these States self-determination was not confined to the populations of NSGT. See UN GAOR, 12th Sess., Third Comm., 821st mtg., 26 Nov. - 3 Dec. 1957: United Kingdom (pp. 303, para. 4 and 325, para. 62: "[the United Kingdom] had voted against operative paragraph 1, since even in independent States the principle of self-determination could be disregarded [...]"), France (p. 308, para. 13), the Netherlands (p. 313, para. 4), Canada (p. 319, para. 2: "the discussion has shown that the question of self-determination was not confined to situations relating to traditional colonialism"), New Zealand (p. 321, para. 21: "it had been suggested that self-determination was a practical question only in cases of NSGT's. Article 1 of the draft Covenants [on Human Rights] had however not been adopted on such premises. It could hardly be explained to a large segment of the world public, including the subjects of police States, that the right of self-determination was in their cases a kind of constitutional fiction. Such an interpretation would deprive the [draft] Covenants [on Human Rights] and the United Nations of all moral authority"), Australia (p. 322, para. 26), Belgium (p. 324, para. 54). Only the United Kingdom publicly questioned the existence of a legal right, but did not put forward this position in explaining its vote. This position was not supported by the other colonial powers and rejected publicly and outright by the vast majority of the non-colonial States, many of which referred to the draft International Covenant on Human Rights where selfdetermination was explicitly recognized as a right in draft Paragraph 1(1). As to the latter, see UN GAOR, 10th Sess., Ann., agenda item 28 (part I), Doc. A/3077, para. 77. 195. Cf. Cristescu, supra note 124, p. 79 ("represents a legal and political formulation, by the international community, of the principle of equal rights and self-determination of peoples"). It is an entirely different thing, however, to state that the resolution is an authoritative interpretation of the Charter. For this view see H. Waldock, General Course on Public International Law, HR, 1962 II, p. 5, at pp. 31-34; Brownlie, PRINCIPLES, p. 600. This view cannot be maintained, at least not in the sense that the entire resolution would be an authoritative interpretation of the Charter in view of such formulations as "immediate steps shall be taken to transfer all powers" to NSGT and "all other territories which have not yet attained independence" (emphasis added), which go well beyond that what is stated in the Charter. See also B. Roth,
GOVERNMENTAL ILLEGITIMACY IN INTERNATIONAL LAW, 1999, pp. 208-209; Pomerance, supra note 46, at pp. 11-12; Crawford, CREATION, p. 90; Bokor-Szegö, supra note 159, at p. 29. In this respect it should be noted that the General Assembly does not have the power to adopt binding resolutions except for those resolutions adopted under the heading of a number of very specific provisions in the Charter. The resolutions normally have recommendatory force only. It is, however, generally accepted that the recommendatory resolutions may either reflect existing international customary law or influence the creation of a new international customary rule. In both cases the resolutions may be evidence of opinio juris. See, generally, B. Sloan, General
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international law appears to be reflected in the fact that some thirty Non-SelfGoverning and Trust Territories196 achieved independence prior to the adoption of the Resolution on 14 December I960.197 It therefore seems tenable that Resolution 1514 reflected an existing rule of customary law as far as a right of self-determination for colonial countries and peoples is concerned.198 In any event, it is beyond doubt that the right of self-determination in the sense of a right of Non-Self-Governing Territories and Trust Territories to choose either independence, association or integration developed into a rule of customary
Assembly Resolution Revisited (Forty Years Later), BYIL, Vol. 58, 1987, p. 39. But see B. Cheng, United Nations Resolutions on Outer Space: 'Instant'International Customary Law, Indian JIL, Vol. 5, 1965, p. 23. 196. Benin (1 Aug. 1960), Burkina Faso (5 Aug. 1960), Burma (4 Jan. 1948), Cambodia (9 Nov. 1953), Cameroon (1 Jan. 1960), Chad (11 Aug. 1960), Congo (15 Aug. 1960), Cote d'Ivoire (7 Aug. 1960), the Democratic Republic of Congo (15 Aug. 1960), Gabon (17 Aug. 1960), Ghana (6 March 1957), Guinea (28 Sept. 1958), India (15 Aug. 1947), Indonesia (17 Aug. 1945 proclaimed/27 Aug. 1949 devolution), Laos (19 July 1949), Libya (24 Dec. 1951), Madagascar (26 June 1960), Malaysia (21 Aug. 1957), Mali (20 June 1960), Mauritania (28 Nov. 1960), Morocco (2 March 1956), Niger (3 Aug. 1960), Nigeria (1 Oct. 1960), Philippines (4 July 1946), Senegal (20 June 1960), Somalia (1 July 1960), Sri Lanka (4 Feb. 1948), Sudan (1 Jan. 1956), Togo (27 Apr. 1960), and Tunisia (20 March 1956). 197. Between 1945 and 1957 some 700,000,000 people had seen their countries attain independence. Resolution 1514 refers explicitly to this development in its Preamble. This significant development was already observed and stressed by numerous delegations during the discussions leading to the adoption of Resolution 1188 (XII) in 1957, which was referred to above. See UN GAOR, 12th Sess., supra note 194, at pp. 299 (United States), 307 (Romania), 311 (Panama), 316 (Czechoslovakia). An interesting remark was made by the Netherlands with regard to the Indonesian quest for independence. Several years before the adoption of the 1960 resolutions, self-determination was at the core of the Dutch-Indonesian conflict in 1947-1949. In 1949, the Dutch government, after several efforts to crush the independence movement in Indonesia and in the context of the Round Table Conference which led to the formal transfer of sovereignty to the Republic of Indonesia, stated that "self-determination was an internationally recognized right which accrued to the people [of the Republic of Indonesia] irrespective of whether it had be laid down in an agreement or not". Kuyper and Kapteyn, supra note 148, at p. 166. 198. Cf. OPPENHEIM'S INT'L LAW, p. 286, n. 17, stating that "the observations of the ICJ [in the Namibia case and the Western Sahara case] come close to attribution to the resolution the status of customary international law". See also Hannum, supra note 82, at pp. 33-34; Cristescu, supra note 124, at p. 79; Sloan, supra note 195, at pp. 99-100. During the discussions leading to the adoption of Resolution 1514 none of the delegations questioned the character of self-determination as a right for colonial countries and peoples. If the matter was referred to at all, it was to affirm the legal character of the right. See UN GAOR, 15lh Sess., (Part I), Plenary mtgs., Vol. 2, 27 Oct. - 20 Dec. 1960: e.g., Ethiopia (928th mtg., p. 1022, para. 31); Poland (id., p. 1023, para. 50); United States (937th mtg., p. 1158, para. 19); France (945th mtg., p. 1259, para. 141). As in the case of Resolution 1188 which was discussed above, some States which abstained from voting explained their abstention by raising objections with regard to the fact that the resolution appeared to confine self-determination to colonial peoples (see, e.g., United States (947th mtg., p. 1283, paras. 143, 145)) or by objecting against the requirement of immediate transfer of sovereignty which would not be to the benefit of the peoples concerned (see, e.g., Australia (933" mtg., p. 1093, paras. 73, 83); United States (937th mtg., p. 1160, para. 29 and 947th mtg., p. 1283, para. 151); United Kingdom (925th mtg., pp. 983-986, paras. 32-62 and 947th mtg., p. 1275, para. 54)).
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law in the course of the 1960s. This is reflected in the numerous resolutions adopted both by the Security Council200 and by the General Assembly201 affirming the existence of a right of self-determination, as well as in the dismantling of almost the entire dependency system in terms of Non-SelfGoverning Territories and Trust Territories in the course of the 1960s and 1970s. Yet another point which must be examined is whether or not the prohibition of the denial of self-determination for the inhabitants of dependent territories is to be qualified as a norm of jus cogens. In this respect, the categorical and absolute formulation in numerous resolutions of the General Assembly of the obligation of States responsible for colonies to end this colonial relationship is significant. Moreover, as has been discussed elsewhere in this study,202 States have repeatedly emphasized the obligation to respect the right of self-determination as a fundamental premise for the maintenance of the international legal order. Furthermore, the fundamental character of the right of self-determination has been stressed with regard to the process of decolonization, and in that respect it has been explicitly qualified by States as a norm of jus cogens.,203 Although the International Court of Justice did not explicitly use the term jus cogens, it did stress the fundamental and special character of the norm in the East Timor case. The Court observed that the right of selfdetermination "is one of the essential principles of contemporary international 199. Cf. Namibia case, supra note 106, at p. 31 (para. 52) ("the last fifty years [...] have brought important developments. These developments leave little doubt that the ultimate objective of the sacred trust was the self-determination and independence of the peoples concerned. In this domain, as elsewhere, the corpus iuris gentium has been considerably enriched [...]")• Cf. also the later remark by Judge Dillard, who concluded that "the pronouncements of the Court thus indicate that a norm of international law has emerged applicable to the decolonization of those non-self-governing territories which are under the aegis of the United Nations". Separate Opinion Judge Dillard, Western Sahara case, supra note 174, at pp. 121-122. 200. See, e.g., UN Docs. S/Res/183, 11 Dec. 1963 and S/Res/218, 23 Nov. 1965 and the Security Council resolutions on Southern Rhodesia, (see p. 131, supra) and on the territories formerly under Portuguese administration (see UN Doc. S/Res/163, 9 June 1961; UN Doc. S/Res/180, 31 July 1963; UN Doc. S/Res/183, 11 Dec. 1963; UN Doc. S/Res/218, 23 Nov. 1965; UN Doc. S/Res/273, 9 Dec. 1969; UN Doc. S/Res/275, 22 Dec. 1969; UN Doc. S/Res/290, 8 Dec. 1970; UN Doc. S/Res/312, 4 Feb. 1972; UN Doc. S/Res/321, 23 Oct. 1972; UN Doc. S/Res/322, 22 Nov. 1972). 201. See, e.g., UN Doc. A/Res/2037 (XX), 7 Dec. 1965; UN Doc. UN Doc. A/Res/2105 (XX), 20 Dec. 1965; UN Doc. A/Res/2189 (XXI), 13 Dec. 1966; UN Doc. A/Res/2326 (XXII), 16 Dec. 1967; UN Doc. A/Res/2465 (XXIII), 20 Dec. 1968; UN Doc. A/Res/2548, (XXIV), 11 Dec. 1969; UN Doc. A/Res/2708 (XXV), 14 Dec. 1970; UN Doc. A/Res/2878 (XXVI), 20 Dec. 1971; UN Doc. A/Res/2908 (XXVII), 2 Nov. 1972. 202. See pp. 145-146, supra. 203. See, e.g., Spain, Western Sahara case, ICJ Pleadings, Vol. I, pp. 206-208; Algeria, Western Sahara case, ICJ Pleadings, Vol. IV, pp. 497-500; Morocco, Western Sahara case, ICJ Pleadings, Vol. V, 179-80; Guinea-Bissau, Case Concerning the Arbitral Award of 31 July 1989, (Guinea-Bissau v. Senegal), ILR, Vol. 83, p. 1 at p. 24; Romania, UN Doc. A/AC.125/SR.70, 4 Dec. 1967, p. 4. And see the references given by Cassese, SELF-DETERMINATION, pp. 136-137, nn. 67-72.
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law" and, furthermore, that "the assertion [by Portugal] that the right of peoples to self-determination, as it evolved from the Charter and from United Nations practice, has anerga omnes character, is irreproachable".204 In addition, the International Law Commission - with reference to, among others, the statements of the International Court of Justice in the East Timor case - has qualified the obligation of respect for the right of self-determination as jus cogens. 205 Finally, there is considerable doctrinal support for the view that the prohibition of the denial of the right of (external) self-determination in the colonial context is jus cogens.206 For these reasons it is concluded that, at least, the prohibition of the denial of the right of (external) self-determination for colonial territories and peoples, or put differently, the prohibition of the maintenance or establishment of colonial domination, is a rule of customary international law having the character of jus cogens, and must consequently be respected erga omnes.207 In sum, after the establishment of the United Nations, self-determination was primarily applied as an anti-colonial concept. In most colonial situations it was clear that Wilson's idea of 'consent of the governed' could not be realized unless the colonial people were given the opportunity to choose their external political status. With the Soviet Union and its allies as its principal supporters on the one hand - essentially repeating Lenin's anti-colonial ideas - and the Afro-Asian States on the other, self-determination evolved into a positive legal right for the inhabitants of dependent territories, which entitled them to freely choose between independence, integration or association. § 3.4.4.
Decolonization and statehood
What actually happened during the era of decolonization was a shift in the 204. East Timor case, ICJ Rep. 1995, p. 90, at p. 102 (para. 29). 205. Report of the ILC, 53rd sess., 23 Apr.-l June and 2 July-10 Aug. 2001, UN GAOR, 56th sess., Supp. No. 10, A/56/10, ch. IV.E.2 (Commentaries to the Draft Articles on Responsibility of States for International Wrongful Acts Adopted by the Drafting Committee on Second Reading, UN Doc. A/CN.4/L.602/Rev.l, 26 July 2001), pp. 208, 284. 206. See the literature mentioned at p. 147, note 258, supra. In addition, see M. Bedjaoui, Article 74, in: J.-P. Cot and A. Pellet (Eds.), LACHARTE DES NATIONS UNIES, 1991, p. 1077, at pp. 10821083; Cassese, SELF-DETERMINATION, pp. 133-140; A. Gomez Robledo, Le Jus Cogens International; Sa Nature, Ses Fonctions, HR, 1981 III, p. 17, pp. 172-185; Sloan, supra note 195, at p. 81; H. Gros Espiell, Self-Determination and Jus Cogens, in: A. Cassese (Ed.), UN
LAW/FUNDAMENTAL RIGHTS, Two TOPICS IN INTERNATIONAL LAW, 1979, p. 167;H. BokorSzegö, The International Legal Content of the Right of Self-Determination as Reflected by the Disintegration of the Colonial System, in: QUESTIONS OF INTERNATIONAL LAW, 1966, p. 39. See also the references given by Judge Skubiszewski, East Timor case, supra note 204, at p. 266. But see Cristescu, supra note 124, at p. 80. 207. See also Separate Opinion Judge Ammoun, Barcelona Traction case, ICJ Rep. 1970, p. 4, at p. 304
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system of international law as a system between civilized States towards a system of States which is essentially based on their sovereign equality208 This development was of considerable importance for the law of statehood. The understanding of self-determination in this period and in this context as a categorical and absolute concept, that is, the equation of self-determination in most cases with a right to independence for colonial territories, has resulted in general acceptance of the notion that the criterion of 'government' does not always require the existence of an effective government for the formation of a State in international law. For, as was argued in Chapter 4, the applicability and subsequent exercise of the right of external self-determination gives rise to an exclusive right to exercise authority over the claimed territory. Subsequently it was seen that in those cases where the inhabitants of a colonial territory were fiercely and forcibly prevented by the colonial power from realizing their right of external self-determination, as a result of which there existed a lack of effective government on the side of the authorities of the seceding territory (as in the cases of Algeria210 and Guinea-Bissau 211 ), or in those cases where the authorities were insufficiently prepared for independence by the metropolitan State, which in a number of cases resulted in a lack of effective government almost immediately after the proclamation of independence (as in the case of Belgian Congo), 212 the territorial entities nevertheless qualified as States under international law.213 Because of the existence of an ineffective government such a situation was qualified as juridical statehood as opposed to empirical statehood. Moreover, it will be recalled, the principle that an applicable right of external self-determination compensated for the lack of effective government was referred to as the 'compensatory force principle'.
§ 4.
REFLECTIONS AND CONCLUSIONS: RAISOND'ETRE AND CORE MEANING OF POLITICAL SELF-DETERMINATION
As was stated above, for Lenin the ultimate end of self-determination was socialism and the means to achieve this aim was revolution. Wilson on the other hand saw self-determination as a corollary of democratic national selfgovernment which ought to be realized through reform, that is in "an orderly, 208. 209. 210. 211. 212. 213. 214.
Jackson, supra note 133, at p. 75. See pp. 102-104, supra. See Chapter 4, Section 2.2.1.(a), supra. See Chapter 4, Section 2.2.1.(b), supra. See pp. 64-67, supra. See pp. 104-105, supra. Seep. 104, supra.
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non-violent fashion under the guidance of international law".215 Thus, whereas for Wilson self-determination was an end in itself, self-determination in Lenin's conception was subservient to socialism, and as such a merely political tool and therefore a purely abstract right. On the other hand, it is clear that Wilson was not led by moral considerations only, but also by important political and strategic reasons when he advocated political self-determination as the main political principle for the re-division of power in Europe. Yet, moral considerations did play the most important role by far in his formulation of the concept. Self-determination should guarantee that peoples and nations could no longer be treated as playthings of States. From this point of view, self-determination would constitute a counterforce against the almost unbridled power of States to formulate their international policies without paying regard to the wishes of peoples. On the basis of self-determination, the interests of peoples should be taken into account in international dealings between States, that is, peoples would have a right to have a say in international matters which directly or indirectly affected their interests.216 Wilson's reference to the referendum as a means of solving territorial disputes between States serves as a prime example of this line of thought. But Wilson did not limit the notion that peoples should have a right to have a say - with regard to matters directly or indirectly affecting their political interests - in international relations only. This notion would also apply to the relation between the people and the State. In fact, as has been shown above, it was this exact relationship which was initially Wilson's main understanding of the concept of national self-determination. Whatever the differences of opinion, both Wilson and Lenin believed that the concept of self-determination meant that peoples and nations should be free from external oppression, domination and exploitation, which included the idea that peoples should be free from colonial rule, although, as has been stated above, Lenin was much more explicit on the latter point than Wilson ever was. As has been seen, it was this 'external' aspect of self-determination which was avowedly championed by the United Nations especially between the 1950s and 1970s, and which was acknowledged by the International Court of Justice as a right for colonial peoples to determine their 'external' status in the Namibia and Western Sahara cases.217 In essence, however, this external aspect of selfdetermination in the context of decolonization, or this 'right to decolonization',
215. Cassese, SELF-DETERMINATION, p. 21. 216. Id., at pp. 315-317. 217. Supra note 199,
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is not a specific meaning of self-determination, rather it is a form of implementation of, and thus directly linked to, the notion that a people should have a right to have a say in the determination of its political status and future. Or, in other words, that States are not free to determine the (political) destiny of a people by acquiring, ceding, annexing territories, or otherwise, without paying regard to the wishes of the people concerned.218 It is this aspect that features throughout the historical development of the notion of self-determination whether is was coupled to the system of government or to the formation of States, and it is this aspect of the right of self-determination that was highlighted by the International Court of Justice in the Western Sahara case in the context of decolonization. There, as was stated above, the Court emphasized that the "essential feature of the right of self-determination"219 is the principle that its "application requires a free and genuine expression of the will of the peoples concerned".220 In sum, in this case the Court's approach to self-determination was primarily in terms of method and not in terms of result. 221 On the other hand, it should be noted that the Court discussed this essential feature of selfdetermination againstthe background of the determination of the (international) political status of a colonial people. Method and result are therefore inextricably bound up with each other. The preceding analysis of the development of the concept of self-determination, up to and including the process of decolonization, makes it possible to define the core meaning of political self-determination as a legal concept. This core meaning is that whenever the political status or political interests of a 'people' is at issue, either directly or indirectly, any decision with regard to that matter ultimately needs to be based on "a free and genuine expression of the will of the people concerned".223 Thus, the right of political self-determination implies the right of peoples to decide their political destiny, or in other 218. Id., at p. 315. 219. Western Sahara case, supra note 174, at p. 32 (para. 57) (emphasis added). 220. Id. (para. 56). See also UNCIO Doc. 944,1/1/34(1), Report of the Rapporteur of Committee I, p. 10, where an almost identical wording was used in the discussions on what became Article 1(2) of the UN Charter ('that an essential element of the principle [of self-determination] is a free and genuine expression of the will of the people [...]"). And see UNCIO Doc. 1/1A/19, Vol. VI, pp. 703-704. In this respect it should be recalled that the Court did accept exceptions to the requirement of consulting the inhabitants of the territory. See Western Sahara case, supra note 174, at p. 33 (para. 59). 221. Pomerance, supra note 46, at pp. 24-25. 222. Cf. the Court's statement that "the decolonization process to be accelerated [...] is one which will respect the right of the population of Western Sahara to determine their future political status by their own freely expressed will", Western Sahara case, supra note 174, at p. 36 (para. 70). 223. Id., at 32. See also Cassese, SELF-DETERMINATION, pp. 319-320.
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words the right of peoples to govern themselves.224 In essence, this is what is referred to when it is stated that "all peoples (...) by virtue of [the right to selfdetermination] freely determine their political status".225 Prima facie all this seems to be clear, but a directly related and logical question must be answered, namely: why? Why is there a need, why is it essential - at least from the perspective of the doctrine of self-determination that a decision which may affect or determine the political status or political interests of a people, and which decision is taken by a State (or another subject of international law which is under an obligation to respect the right of selfdetermination of peoples) with regard to or on behalf of that people, should ultimately be based on the will of that people? In a sense this may seem to be a nonsensical question and the answer to it self-evident, just as one would ask why one human being should not torture another human being. But the question is fundamental, because it forces one to formulate the raison d'etre and objective of political self-determination as a legal concept. This raison d'être and main objective or purpose of the concept of self-determination is the protection, preservation, strengthening and development of the cultural, ethnic and/or historical identity or individuality (the 'self') of a collectivity, that is, of a 'people', 226 and thus guaranteeing a people's freedom and existence. In sum, those who are under an international legal obligation to respect and promote the right of self-determination, must, in all their actions, and in particular when they are under an obligation to create the conditions for the effectuation of self-determination, act in accordance with the core meaning and raison d'être of political self-determination. But it should be realized that neither the core meaning of the right of self-determination, nor its object and purpose,
224. See also P. Thornberry, The Democratic or Internal Aspect of Self-Determination With Some Remarks on Federalism, in: Tomuschat (Ed.), supra note 147, p. 101, at p. 101. 225. UN Doc. A/Res/1514, supra note 2; UN Doc. A/Res/2625, supra note 3; ICCPR, Art. 1; and ICESCR.,Art. 1. 226. Cf. the observation of the Commission of Jurists in its report on the Aaland Island dispute, supra note 118, in which case the Commission noted that the object of the principle of selfdetermination is "to assure to some group the maintenance and free development of its social, ethnical or religious characteristics". See also M. Sornarajah, Internal Colonialism and Humanitarian Intervention, Ga. J. Int'l & Comp. L., Vol. 11, 1981, p. 45, at p. 52; D. Murswiek, The Issue of a Right of Secession - Reconsidered, in: Tomuschat (Ed.), supra note 147, p. 21, at pp. 26-27. This position reflects the idea that the classical approach of the protection of the 'self via the protection of individuals is too limited and that additional concepts and principles must be applied. The position is supported by the inclusion of self-determination in the ICCPR in addition to individual human rights. For a further discussion of this point, and the relationship between human rights and the right of self-determination in general, see Chapter 6, Section 2.2., infra. 227. See also Murswiek, supra note 226, at pp. 26-27; Cristescu, supra note 124, at p. 114. In that respect, the right of self-determination is closely linked to individual human rights, most notably the right to life, and with the right not to be subjected to genocide. See pp. 240-242, infra.
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point to the modes through which political self-determination may be effectuated or implemented.228 This issue is directly linked to the question what political status (internal and/or external) a people is entitled to determine. And if the political status may differ, under what circumstances is a people entitled to choose one status or another? Moreover, no answer is given to the question of in what manner a people effectively and freely determines its political status, that is, the question of the technique or procedure for exercising self-determination. Finally, the core meaning and the raison d'être also leave unanswered the question of who exactly is the subject who is entitled to determine its political status, except for the reference to "peoples". Thus, the core meaning of selfdetermination is phrased in general rather than in specific terms, leaving open a number of definitive questions. However, this should not come as a surprise when it is realized that the law of self-determination is composed of a complex set of legal norms and rules, rather than one specific and all-embracing legal norm or rule.229 It has been shown that from the establishment of the United Nations onwards, self-determination developed from a somewhat loosely formulated legal principle into a right of colonial 'units'. In this context, the right of selfdetermination took the form of a 'right to decolonization' and it did not only become a rule of customary international law, but also a norm with the force of jus cogens. In the colonial context answers have been given to the question of the holder of the right of self-determination and the method through which the right of self-determination could be implemented, namely through the establishment of an independent State, the association with, or the integration in an independent State, that is, 'external' self-determination.230 The question is, of course, whether this specific application of selfdetermination to colonial peoples and territories, and the linked notion that the result of self-determination should primarily be phrased in terms of international status, must be seen as a sign of those times. Indeed, decolonization has been earmarked as "an ideal candidate for inclusion within the new principle of self-determination which, after all had to have some content".231 It is beyond doubt that the right of self-determination became completely effective as an anti-colonial injunction, but does that mean that the concept
228. To the same effect, see Cassese, SELF-DETERMINATION, p. 320. 229. J. Crawford, Book Review, AJIL, Vol. 90, 1996, p. 331 (reviewing A. Cassese, SELF-DETERMINATION OF PEOPLES: A LEGAL REAPPRAISAL, 1995). 230. Cf. Cristescu, supra note 124, at pp. 155-156 (referring in this context to the "law of decolonization"). 231. Buchheit, SECESSION, p. 17 (emphasis added).
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is ex definitione confined to decolonization? It has been observed that [t]he fact that in the Court's practice [...], the right to [...] self-determination has been linked to non-self-governing territories cannot be interpreted as a limitation of the scope of the right to self-determination rationae personae, but as an application of universal law ad casum.232
It is thus suggested that a colonial people is but a particular category of a 'people' for the purpose of self-determination. Even if this is true, the question remains whether or not those 'non-colonial' peoples are equally entitled to implement the right of self-determination in the same manner as was recognized for colonial peoples and territories. The point is related to the question of the continuing character of the right of self-determination, that is, does a right of self-determination exist in the post-colonial era? In that respect, a distinction has been made in doctrine between a right of 'internal' selfdetermination on the one hand, and a right of 'external' self-determination on the other, which was already briefly referred to in the preceding discussions. The next Chapter addresses in detail the content, meaning and legal status of the suggested 'internal' and 'external' aspects of self-determination under contemporary international law, as well as the question of who might possibly be entitled to exercise either one or both of these aspects of self-determination in the post-colonial era.
232. Dissenting Opinion Judge Kreca, Genocide case, supra note 126, at p. 740.
Chapter 6
The Post-Colonial Era: Internal and External Self-Determination
§ 1.
INTRODUCTION
An important feature of the right of self-determination in the context of decolonization was its 'external' manifestation, that is, self-determination was in most cases realized through the formation of an independent State. This manifestation of self-determination has led to statements that once independence was achieved by a dependent territory, the right was consumed. Put simply, self-determination was regarded as a right which operated only under certain very specific circumstances and therefore had an inherently temporary nature. Thus in 1967, in the context of the debates leading up to the adoption of General Assembly Resolution 2625 in 1970,' the representative of Burma stated: [t]he sum total of the experience gained by the United Nations in the implementation of the principle [of self-determination] had clearly and incontrovertibly established its meaning and its purpose, namely that it was relevant only to colonialism and was to be specifically applied in the promotion of the independence of peoples under colonial domination.2
The views advocating such an interpretation of self-determination may together be referred to as the 'equality theory' of self-determination: self-determination is seen as a right of dominated peoples to achieve equality in relation to those
1. 2.
Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in accordance with the Charter of the United Nations, UN Doc. A/Res/2625 (XXV), 24 Oct. 1970 (hereinafter 'Friendly Relations Declaration'). UN Doc. A/AC.125/SR.68, 4 Dec. 1967, p. 8. Cf. also the Australian Law Reform Commission, Report No. 31, Recognition of Aboriginal Customary Law, 1986, p. 128 (stating in 1986: "so far [...] the principle [of self-determination] has been confined in international practice to situations involving separate ('colonial') territories politically and legally subordinate to an administering power"). To the same effect, see C. Tomuschat, Yugoslavia's Damaged Sovereignty over the Province of Kosovo, in: G.P.H. Kreijen et al. (Eds.), STATE, SOVEREIGNTY AND
INTERNATIONAL GOVERNANCE, 2002 (forthcoming).
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who dominate them.3 It is therefore not surprising that the adherents of this view limit the scope of application of self-determination primarily to traditional colonial situations (and situations of foreign occupation), and thus reject the idea of a permanent right of self-determination. In this Chapter, it will be seen that such a narrow interpretation is not supported by international law. Section 2 will discuss the suggested continuing character of self-determination, as well as to what aspect or element of self-determination this would apply. In addition, this Section will also address the meaning and surplus value of internal selfdetermination. In Section 3, the question of the potential holder of the 'right' of internal self-determination will be analysed. The legal status of internal selfdetermination is the focal point of Section 4. Section 5 examines the meaning and legal status of external self-determination. While the issue of secession and territorial integrity will be elaborated upon in more detail in the next Chapter, Section 6 discusses the suggested tension or conflict between external selfdetermination and the principle of uti possidetis. In this context, attention will also be given to the relation between the principle of territorial integrity and the principle of uti possidetis. In Section 7, some final observations will be made.
§ 2.
SELF-DETERMINATION BEYOND DECOLONIZATION
In doctrine and in state practice it has become common, especially with respect to the discussion on the right of self-determination beyond the context of decolonization, to refer to the notions of 'internal' and 'external' self-determination. As will be seen below, the interpretations of these alleged aspects of the right of self-determination result in a much broader scope of application and meaning of self-determination than the one which is suggested by the 'equality theory'. However, from the outset it should be clear that the use in this study of the notions 'internal' and 'external' self-determination is not meant to refer to different rights of self-determination. The main object of their use, is to refer to different modes of implementation of the right of self-determination. Thus, insofar as reference is made to a 'right' of internal (or external) self-determination, this refers to a right to implement self-determination 'internally' (or 'externally', respectively). If self-determination were confined to colonial situations, no discussion of different forms of implementation of self-determination would be necessary, since only one form, that is 'external' self-determination, would be relevant.
3.
N. Berman, Sovereignty in Abeyance: Self-Determination and International Law, Wis. ILJ, Vol. 7, 1988, p. 51, at pp. 64-65.
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Therefore, the first point that needs to be addressed is whether the right of selfdetermination has a continuous character and if so, in what respect. § 2.1.
The continuing character of self-determination and its internal dimension
In addition to the fact that the 'equality theory' confuses the core meaning of self-determination with one modality of its implementation, the theory in itself has proved untenable. Indeed, as will be shown below, treaty law, resolutions and declarations of international organizations and conferences, as well as state practice, jurisprudence and doctrine clearly point to the continuing character of self-determination beyond the traditional colonial context. The ongoing character of self-determination is reflected in several relevant international instruments, such as the ICCPR, the Friendly Relations Declaration,4 the OSCE Helsinki Final Act,5 the African Charter on Human and Peoples' Rights,6 and the Vienna Declaration and Programme of Action adopted by the World Conference on Human Rights.7 In this respect, it seems noteworthy that a common feature of these instruments is that they all refer to "all peoples" and not merely to 'colonial' or 'oppressed' peoples as the holders of the right of self-determination, a terminology which in itself denotes a universal and continuous character of at least some aspects of the right. More in particular, Article 1(3) of the ICCPR is relevant for the validity of the right of self-determination beyond the colonial context: [t]he States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing Territories 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.8
4. 5. 6. 7. 8.
Friendly Relations Declaration, supra note 1. ILM, Vol. 14, 1975, p. 1292. OAU Doc. CAB/LEG/67/3 rev. 5, ILM, Vol. 58, 1982, p. 21. Entered into force on 21 Oct. 1986 (hereinafter 'the African Charter'). Adopted on 25 June 1993, UN Doc. A/CONF. 157/23, 12 July 1993 (hereinafter 'the 1993 Vienna Declaration'). It will be noted that the formulation of current Article 1(3) was used by the General Assembly as early as 1957. See UN Doc. A/Res/I 188 (XII), 11 Dec. 1957, Preamble, Para. 3. Moreover, it has been argued, and not without merit, that the use of the term 'peoples' in Article 1(2) in relation to the principle of 'permanent sovereignty over natural resources' cannot be limited to colonial peoples only, because said principle is of universal application. The reasoning continues by arguing that it can therefore hardly be maintained that the words 'all peoples' in Paragraph 1 have a limited or narrower meaning than those words in Paragraph 2. See J. Crawford, Outside the Colonial Context, in: W.J.A. Macartney (Ed.), SELF-DETERMINATION IN THE COMMONWEALTH, 1988, p. 1, at p. 5. See also L.B. Sohn, The New International Law:
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During the discussions in the Third Committee on the Draft Covenants on Human Rights with respect to the scope of (draft) Article 1, a considerable number of delegations expressed the view that "[m]uch of the discussion on article 1 had related the question of self-determination to the colonial issue, but that was only because the peoples of Non-Self-Governing and Trust Territories had not yet attained independence".9 It was maintained that "the right would be proclaimed in the covenants as a universal right and for all time". In addition, it has been pointed out by Cassese that [t]he original text of [Article 1] contained the words 'all peoples shall have the right of self-determination': the text which was finally agreed upon provides that 'all peoples have the right of self-determination'. In presenting the final draft, the spokesman pointed out that the tense of the verb had been changed 'from the future to the present, to emphasize the fact that the right referred to was a permanent one'.11
The use of the word 'including' in Paragraph 3 of the article singles out the obligation of some of the States Parties with respect to specific territories, but at the same time means that all parties to the Covenant are obliged to respect and promote the right of self-determination with respect to their own population. The reflection of the continuing character of self-determination in the
Protection of the Rights of Individuals Rather Than States, Am. U.L.Rev., Vol. 32, 1983, nr. 1, p. 48, at p. 50. 9. UN GAOR, 10th sess., Ann., 20 Sept. - 20 Dec. 1955, Doc. A/3077, 8 Dec. 1955, Report of the Third Comm., p. 33. Cf. UN Doc. A/C.3/SR.309, 9 Nov. 1950, para. 57 (Saudi Arabia); UN Doc. A/C.3/SR.310, 10 Nov. 1950, paras. 23-24 (Belgium); UN Doc. A/C.3/SR.311, 10 Nov. 1950, paras. 30-32 (Mexico); A/C.3/SR.362, 8 Dec. 1951, para. 11 (Afghanistan); UN Doc. A/C.3/SR.649,1 Nov. 1955, paras. 34-36 (Lebanon). See, generally, M.J. Bossuyt, GUIDE TO THE 'TRAVEAUXPREPARATOIRES'OFTHElNTERNATIONALCOVENANTONClVILANDPOLITICAL RIGHTS, 1987, esp. at pp. 41-45. 10. See UN Doc. A/C.3/SR.312, 13 Nov. 1950, para. 3 (Ethiopia); UN Doc. A/C.3/SR.364, 10 Dec. 1951, para. 17 (United States); UN Doc. A/C.3/SR.399, 23 Jan, 1952, para. 53 (Iran); UN Doc. A/C.3/SR.402, 24 Jan. 1952, para. 13 (Yugoslavia); UN Doc. A/C.3/SR.644, 26 Oct. 1955, para. 1 (Denmark); UN Doc. A/C.3/SR.650,2 Nov. 1955, para. 13 (Ecuador); UN Doc. A/C.3/SR.699, 3 Dec. 1956, paras. 12-13 (New Zealand), para. 31 (Lebanon). 11. A. Cassese, The Self-Detennination of Peoples, in: L. Henkin (Ed.), THE INTERNATIONAL BILL OF RIGHTS, 1981, p. 92, at p. 98 (emphasis in original). The original text of Article 1 as adopted by the Commission on Human Rights in 1952 held: "[a]ll peoples and all nations shall have the right of self-determination, namely, the right freely to determine their political, economic, social and cultural status". Official Records of the ECOSOC, 14th sess., Suppl. No. 4(E/2256), 1952, para. 91, quoted in: A. Cristescu, The Right to Self-Determination: Historical and Current Development on the Basis of United Nations Instruments, UN Doc. E/CN.4/Sub.2/404/Rev.l, 1981, p. 8, para. 45.
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ICCPR was confirmed by the Human Rights Committee when it stated that Paragraph 3, in the Committee's opinion, is particularly important in that it imposes specific obligations on States parties, not only in relation to their own peoples but vis-a-vis all peoples which have not been able to exercise or have been deprived of the possibility of exercising their right to self-determination. [...] The obligations exist irrespective of whether a people entitled to self-determination depends on a State party to the Covenant or not.
In accordance with its General Comment on Article 1 of the ICCPR, the Human Rights Committee has put questions to States parties on the implementation of Article 1 which did not concern traditional colonial situations,13 and States parties have reported on what they considered to be an implementation of Article 1 with respect to their own population.14 The precise background, scope and meaning of Paragraph 7, that is, the penultimate paragraph of Principle V ("The principle of equal rights and selfdetermination of peoples") of the Friendly Relations Declaration will be examined in more detail below and in Chapter 7. Here it suffices to note that this paragraph contains a clear reference to the fact that self-determination is not consumed once independence has been attained. It states [n]othing 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 selfdetermination 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.15
It is obvious that if self-determination would have been intended to apply to 12. Human Rights Committee, General Comment 12, Art. 1, 21st sess., 1984, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI\GEN\l\Rev. 1, 1994, p. 12 (emphasis added). See also, e.g., UN Doc. A/49/40,21 Sept. 1994, p. 51, para. 296 (in response to the periodic report of Azerbaijan the Committee recalled "that, under article 1 of the Covenant, [the principle of self-determination] applies to all peoples and not merely to colonized peoples"). 13. See, e.g., UN Doc. A/39/40, 20 Sept. 1984, para. 323 (Gambia); UN Doc. A/46/40, 10 Oct. 1991, para. 50 (Canada); UN Doc. A/45/40, 4 Oct. 1990, para. 542 (Zaire); UN Doc. A/47/40, 9 Oct. 1992, paras. 194-195 (Iraq). See also D. McGoldrick, THE HUMAN RIGHTS COMMITTEE, ITS ROLEINTHEDEVELOPMENTOFTHElNTERNATIONALCOVENANTONClVILANDPOLITICAL RIGHTS, 1991, PP. 247-268, esp. at pp. 252-253. 14. See, e.g., the Fourth Periodic Report of Colombia, UN Doc. CCPR/C/64/Add.3, 8 Oct. 1996; the Third Periodic Report of Peru, UN Doc. CCPR/C/83/Add. 1, 21 March 1995; the Fourth Periodic Report of Canada, UN Doc. CCPR/C/103/Add.5, 15 Oct. 1997; and the First Periodic Report of Georgia, UN Doc. CCPR/C/100/Add.l, 5 Nov. 1996. See also note 81, infra. 15. Principle V, Para. 7. See also the 1993 Vienna Declaration, supra note 7, Part I, Art. 2 (emphasis added).
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colonial situations only, the inclusion of the paragraph cited above would have been unnecessary. Apart from the fact that, as will be discussed below, the last sentence points to only one aspect of the right of self-determination, it is clear from its terms that all States, and thus not only colonial powers, must conduct themselves in compliance with the right of self-determination. But this is not all. They must also respect this right with regard to their own peoples.16 This position has been affirmed by the General Assembly in subsequent resolutions.17 The reference to the right of self-determination in Principle VIII of the Helsinki Final Act, which was adopted by the Conference on Security and Cooperation in Europe in 1975, adds support to the proposition that selfdetermination extends beyond decolonization as no situations of colonialism existed in Europe or northern America at the time.18 The argument that a reference to self-determination in the Final Act would therefore be unnecessary, was expressly rejected during the Helsinki Conference.19
16. The meaning and implication of the phrase "without distinction as to race, creed or colour" is discussed below. See p. 250 ff. 17. See UN Doc. A/Res/36/10, 28 Oct. 1981, Para. 1, where the General Assembly "[reaffirms that the universal realization of the right of all peoples, including those under colonial, foreign and alien domination, to self-determination is a fundamental condition for the effective guarantee and observance of human rights and for the preservation and promotion of such rights" (emphasis added). The same formula is used in subsequent resolutions adopted by the General Assembly on the issue of the universal realization of the right of peoples to self-determination. See, e.g., UN Doc. A/Res/37/42, 3 Dec. 1982; UN Doc. A/Res/38/16, 22 Nov. 1983; UN Doc. A/Res/39/18,25 Nov. 1984; UN Doc. A/Res/40/24, 29 Nov. 1985; UN Doc. A/Res/41/100, 4 Dec. 1986; UN Doc. A/Res/42/94, 7 Dec. 1987; UN Doc. A/Res/43/105, 8 Dec. 1988; UN Doc. A/Res/44/80, 8 Dec. 1989; UN Doc. A/Res/54/155, 29 Feb. 2000. Cf. also UN Doc. A/Res/36/34, Preamble, 18 Nov. 1981 (on Afghanistan: "[r]eaffirming [...] the inalienable right of all peoples to determine their own form of government [...]; UN Doc. A/Res/55/112, 1 March 2001 (on Myanmar: "[s]trongly urges the Government of Myanmar [...] to take all necessary steps towards the restoration of democracy, in accordance with the will of the people, as expressed in the democratic elections held in 1990, and to that end, without delay, to engage in a substantive dialogue with political leaders [...] and representatives of ethnic groups [...]"). In this respect, see also the statement of Italy on behalf of the members of the EC in the Third Committee regarding the representative character of the government of Afghanistan, UN Doc. A/C.3/45/SR.3, 8 Oct. 1990, p. 12 (the EC member States stressed "the need for an intra-Afghan dialogue, in which all sectors of the population would take part. Accordingly, they supported the SecretaryGeneral in his efforts to facilitate a settlement based on the right to self-determination of the Afghan people"). 18. Principle VIII, Para. 2 states: "[b]y virtue of the principle of equal rights and self-determination of peoples, all peoples always have the rights, 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". 19. G. Arangio-Ruiz, Human Rights and Non-intervention in the Helsinki Final Act, HR, Vol. 157, 1977, p. 195, at pp. 227-228. The phrase in 'full freedom' in Principle VIII of the Helsinki Final Act was intended to preclude coercion by a government with respect to the choice by peoples for their internal regime or policies. This was made explicit by the sponsor, the Netherlands and other supporting governments. See A. Cassese, Political Self-Determination - Old Concepts and New Developments, in: A. Cassese (Ed.), UN LAW/FUNDAMENTAL RIGHTS, TWO TOPICS
IN INTERNATIONAL LAW, 1979, p. 137, at pp. 151-152.
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The African Charter was adopted by the Assembly of Heads of States and Governments of the OAU in 1981, that is, at a time when the phenomenon of traditional colonialism had become nearly extinct on the African continent. The African Charter makes it clear that self-determination transcends colonialism. Article 20(1) states that "all peoples [...] shall have the unquestionable right to self-determination". It continues by emphasizing that accordingly all peoples "shall freely determine their political status and shall pursue their economic and social development according to the policy they havefreely chosen". In addition to the texts of the instruments mentioned above, several statements by States reveal the continuing character of self-determination. For instance, in addressing the scope of self-determination, the United Kingdom on behalf of the European Community and its member States declared to the Third Committee: [o]n the question of self-determination, the Twelve fully recognize that right, the exercise of which is an ongoing process and is indissociable from the other provisions of the [Human Rights Covenants].20
This position is generally endorsed in doctrine and corresponds to the often used characterization of the right of self-determination as an inalienable right of peoples.22 It must thus be concluded that self-determination has a universal
20. See UN GAOR, 47th sess., Third Committee, A/C.3/47/SR.3, 5 Oct. 1992, para. 22. See also the statement by the Australian Government during the 1993 session of the UN Working Group on Indigenous Populations: "[r]ealization of the right of self-determination is not limited in time to the process of decolonization nor is it accomplished solely by a single act or exercise. Rather it entails the continuing right of all peoples and individuals within each state to participate fully in the political process by which they are governed [...]". Quoted in: G. Alfredsson, The Right of Self-Determination and Indigenous Peoples, in: C. Tomuschat (Ed.), MODERN LAW OF SELF-DETERMINATION, 1993, p. 41, at p. 51. And see the statement of the Representative of the United Kingdom to the Third Committee of the General Assembly, 12 Oct. 1984, BYIL, Vol. 55, 1984, p. 432 ("self-determination is not a one-off exercise. It cannot be achieved for any people by one revolution [...]. It is a continuous process"). See also the statement of Greece on behalf of the members of the EC, UN GAOR, 43rd sess., Third Committee, A/C.3/43/SR.4, 10 Oct. 1988, p. 8, para. 30 ("[t]he fundamental right of selfdetermination was violated either by [colonialism], by the existence of a racist regime such as South Africa's or by foreign intervention or occupation, or by denying people regular opportunities to choose their governments and social systems freely"). 21. See, e.g., A. Rosas, Internal Self-Determination, in: Tomuschat (Ed.), supra note 20, p. 225; P. Thornberry, The Democratic or Internal Aspect of Self-Determination With Some Remarks on Federalism, in: Tomuschat (Ed.), supra note 20, p. 101, at pp. 119-120. 22. See, e.g., Human Rights Committee, General Comment 12, supra note 12, at p. 12; Dissenting Opinion Judge Tanaka, South West Africa cases (Ethiopia v. South Africa; Liberia v. South Africa), Second Phase, Judgment, ICJ Rep. 1966, p. 6, at p. 257; UN Doc. A/AC.109/PVC.1238, 2 Sept. 1983 (United Kingdom); UN Doc. A/AC.125/SR. 69, 4 Dec. 1967, p. 4 (Yugoslavia). See also ]. Klabbers and R. Lefeber, Africa: Lost Between Self-Determination and Uti Possidetis, in: C. Brölmann et al. (Eds.), PEOPLES AND MINORITIES IN INTERNATIONAL LAW, p. 37, at p. 45.
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and ongoing character and is thus not confined to colonial situations. Therefore, the next question which must be addressed is in what sense should the exercise of the right of self-determination be understood as an ongoing process ? It has been argued that the continuing entitlement to self-determination is nothing else (and nothing more) than a right of all peoples organized as independent States to choose and develop their political, social and economic structure according to their wishes and desires without outside, that is, third State interference.23 In other words, self-determination beyond the colonial context would merely refer to the right of peoples to be free from foreign or external domination, and would thus only have an 'external' dimension. It will be noted that this view in fact equates the right of self-determination with the principles of sovereign equality and non-intervention, that is, self-determination is in essence defined as a right of States. This is difficult to accept. Elsewhere in this study it has been seen that, in addition to States, groups can be the subject of rights under international law as well.24 This is certainly true for 'peoples' in the context of the principle of self-determination. In the first place, it cannot be denied that the relevant instruments clearly refer to peoples as the holders of the right of self-determination and refer to States as the main addressees of this right. Secondly, if in the post-colonial era self-determination would be equated with the principles of sovereign equality and non-intervention, it would, as Rosas observes, "make the whole principle, standing on its own merits almost meaningless". Indeed, as the same writer continues, "[o]ne 23. See, e.g., the statement of Guatemala in the 1968 Special Committee on Principles of International Law Concerning Friendly Relations and Co-operation Among States, UN Doc. A/AC.125/SR.91, 21 Oct. 1968, p. 108. To the same effect, see the statement of Cameroon in the same Committee, UN Doc. A/AC.125/SR.91, 21 Oct. 1968, p. 104. 24. See p. 14, supra. See also N. Lerner, GROUP RIGHTS AND DISCRIMINATION IN INTERNATIONAL LAW, 1991, pp. 37-38; M. Lachs, The Development and General Trends of International Law in Our Time, HR, 1980 IV, p. 9, at p. 49 ("[self-determination] constitutes today a right of all peoples, and 'peoples' have been raised to the level of beneficiaries of basic rights of international law"). 25. In this respect it has been emphasized that "the Charter and the two International Covenants expressly declare, [that self-determination is] a right of peoples. Not States. Not countries. Not governments. Peoples". Statement by the representative of the United Kingdom to the UN Commission on Human Rights, 9 Feb. 1988, BYIL, Vol. 59, 1988, p. 441. See also J. Crawford, The Rights of Peoples: Some Conclusions, in: J. Crawford (Ed.), THE RIGHTS OF PEOPLES, 1988, p. 159, at pp. 164, 167 ("the right of self-determination [...] is not vested in any government but is vested in the people concerned. [...] [T]he peoples in whom [the] right is vested are not inherently or necessarily represented by States or by governments of States for that purpose. In particular cases, governments may be agents through which [the right] can be vindicated. But they will be acting in a secondary capacity, rather than as the holders of the right"); Reference re Secession of Quebec, Supreme Court of Canada, ILM, Vol. 37, 1998, p. 1340, at pp. 1370-1372, paras. 123-124,129. See also UN Doc. A/AC.125/SR.113, 1 Sept. 1970, p. 22 (Italy: "[i]t would clearly be absurd to talk about the self-determination of States. Such a proposition would render the principle void of meaning"); UN Doc. A/AC.125/SR.68, 4 Dec. 1967, p. 17 (Ghana); UN Doc. A/AC.125/SR.107, 5 Nov. 1969, p. 76 (Australia).
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should not easily assume that a principle, which has already received so much attention, also in legal texts, does not have independent meaning".26 Selfdetermination is therefore generally considered to be a right of non-State entities, that is to say, 'peoples'. Accordingly, it must be concluded that beyond the colonial context, the right of self-determination means something different than the principles of sovereign equality and/or non-intervention. Yet it is equally true that it cannot be assumed that self-determination, as a continuing right, would refer to a right of secession. For this would amount to accepting the existence of an absolute right of secession, which is a position that does not find support in international law.27 Therefore - and apart from the generally accepted position, which will be discussed below, that the population of a State may at any time decide to create a new State by dissolving the old one or by merging with a third State28 - there is convincing evidence that the continuing character of self-determination in particular refers to an internal dimension or aspect of the right of self-determination, that is to say, to an implementation of self-determination within States, which will be called 'internal self-determination'. It was clearly this aspect of self-determination to which the Human Rights Committee referred in its General Comment on common Article 1 of the Human Rights Covenants. The Committee observed that [t]he right of self-determination is 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 [...]. Article 1 enshrines an inalienable right of all peoples as described in its paragraphs 1 and 2. By virtue of that right they freely 'determine their political status and freely pursue their economic, social and cultural development'. The article imposes on all States parties corresponding obligations [...]. With regard to paragraph 1 of article 1, States parties should describe the constitutional and political processes which in practice allow the exercise of this right.29
The Committee's remarks with respect to Paragraph 3 of Article 1, which was 26. Rosas, supra note 21, at pp. 228-229. 27. As has been pointed out by Emerson: [d]espite the fact that the self-determination of the World War I peace settlement seems clearly to have involved secession, and that it is nonsense to concede the right to 'all peoples' if secession is excluded, the customary verdict has been that self-determination does not embrace secession, at least as any continuing right. The reason is too obvious to require elaboration; except in the rarest of circumstances no state will accept the principle that at their own choosing some segment of its own people will be free to secede [...]". R. Emerson, Self-Determination, AJIL, Vol. 65, 1971, p. 459, at p. 464. 28. See Section 5 of this Chapter, infra. 29. General Comment 12, supra note 12 (emphasis added). See also Committee on the Elimination of Racial Discrimination, General Recommendation XXI, 15 March 1996, Para. 4.
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referred to above, follow the same line of reasoning and leave no doubt, also with respect to that Paragraph of the Article, that the Committee was addressing an internal dimension of self-determination. In addition, the internal dimension does not only follow from the Committee's Comment, but also from the fact that the inclusion of self-determination in a human rights treaty makes it difficult to exclude the application of self-determination in the relationship between the State and its population.30 In this respect a further point should be made. When India acceded to the ICCPR, it made a reservation with regard to Article 1 which held that the right of self-determination only applied "to peoples under foreign domination and that these words do not apply to sovereign independent States or to a section of a people or nation - which is the essence of national integrity".31 This reservation was met with objection by France, the Federal Republic of Germany and the Netherlands, all of whom stated that Article 1 was applicable to all peoples. 32 One could argue, however, that the scope and content of self-determination in the Human Rights Covenants is not necessarily the same as the scope and content of self-determination outside these treaties. Apart from the question of whether Article 1 is a reflection of customary international law, this proposition is certainly not correct as far as the acknowledgement of an internal dimension of self-determination is concerned, because the existence of such a dimension is supported convincingly by other relevant international instruments. In this respect, mention must be made of the acknowledgement of internal selfdetermination in Paragraph 7 of Principle V of the Friendly Relations Declaration, which was referred to above, and which Declaration has been earmarked as the most authoritative expression of the scope and meaning of the basic principles of today's international legal order.33 In addition, the internal aspect of self-determination is expressly referred to in Principle VIII of the Helsinki Final Act and is implicit in Article 20(1) of the African Charter. But the acknowledgment of the internal dimension is not limited to international instruments as such. The Supreme Court of Canada in Reference re Secession of Quebec stressed the internal aspect of self-determination and in fact qualified it as the principal implementation of self-determination in particular with respect to non-colonial
30. 31. 32. 33.
Rosas, supra note 21, at p. 243, UN Doc. CCPR/C/2/Rev. 2, 12 May 1989, p. 22. Id., at pp. 37-38. Tomuschat, supra note 2; Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States), Merits, ICJ Rep. 1986, p. 14, at pp. 99-103. See also the statements referred to in note 233, infra.
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situations. In the Court's view [t]he recognized sources of international law establish that the right to selfdetermination is normally fulfilled through internal self-determination - a people's pursuit of its political, economic, social and cultural development within the framework of an existing state.34
In a thorough study on self-determination, Aureliu Cristescu, Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, also recognized the existence of an internal dimension or aspect of self-determination when he observed that the right also implies that Governments owe their existence and powers to the assent of their people; the will of the people is the necessary basis of the Government's authority. It was with this in mind that the right to self-determination was incorporated in international instruments [...].35
United Nations practice points to the acknowledgement of the existence of an internal aspect of self-determination as well. In addition to the examples already mentioned,36 in the case of the white minority government in South Africa the Security Council held repeatedly that the South African government violated the right of self-determination of the black majority, a situation which could only be reversed through the establishment of a non-racial democratic society.37 While this is a 'colonial-type' situation,38 the emphasis on the internal dimension of self-determination goes well beyond such cases as is evidenced by the following statement of the members of the European Community with respect to the crisis in the former Yugoslavia at a time when the member States were still making an effort to find a solution for the crisis based on the maintenance of the external boundaries of the former Yugoslavia: [t]he Community and its member States call for a dialogue without preconditions between all parties on the future of Yugoslavia, which should be based on the principles enshrined in the Helsinki Final Act and the Paris Charter for a New Europe, in particular respect for human rights, including rights of 34. Reference re Secession of Quebec, supra note 25, at p. 1371 (para. 126). 35. Cristescu, supra note 11, at p. 119, para. 692. See also id., at p. 51, para. 319 ("[t]he principle of equal rights and self-determination of peoples comprises, for a people organized as an independent State, the right to take its own decisions concerning its political, economic, social and cultural system [and] the right to decide [its] own future [....] without any pressure, whether direct or indirect, internal or external [...]. This is an aspect of the principle which will always keep its validity since, if a people that had obtained its independence was subsequently deprived of internal self-determination, the principle would be completely undermined"). 36. See note 17, supra. 37. See Chapter 4, Section 5.2.2.(b), supra. 38. Id.
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minorities and the right of peoples to self-determination in conformity with the Charter of the United Nations and with the relevant norms of international law, including those relating to territorial integrity of States.39
The following conclusion presents itself: the principle of self-determination has an ongoing character which extends its applicability beyond the context of decolonization, and this ongoing character is essentially reflected in an internal dimension or aspect of self-determination. § 2.2.
The meaning of internal self-determination and its surplus value
With respect to the meaning of self-determination, Brownlie observed the following: the principle [of self-determination] appears to have a core of reasonable certainty. This core consists in the right of a community which has a distinct character to have this character reflected in the institutions of government under which it lives.
It is evident that Brownlie refers to the application of self-determination within the framework of an existing State. Indeed, as was stated above, beyond the traditional colonial context and on the basis of the continuing character of the concept, the field of application and implementation of self-determination is first and foremost that of intra-State relations. Within that context, internal selfdetermination relates to the relationship between a people and its own State or government41 and particularly to the implementation or realization of selfdetermination of a people within the State in which that people resides. Against this background, internal self-determination can generally be described as a mode of implementation of political self-determination which denotes a right of a people to participate (a right to have a say) in the decision-making processes of the State. In the following this will be referred to as the 'right of participation'. This description, which seems to be in accordance with the point of view of most scholars,42 is thus a translation of the concept of political self39. Declaration on the Situation in Yugoslavia, 5 July 1991. See also the EC Declaration on the Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union, 16 Dec. 1991, ILM Vol. 31, 1992, pp. 1485-1487. 40. I. Brownlie, The Rights of Peoples in Modern International Law, in: Crawford (Ed.), supra note 25, p. 1, at p. 5. 41. Thornberry, supra note 21, at p. 101. 42. See A. Eide, Second Progress Report on 'Possible ways and means of facilitating the peaceful and constructive solution of problems involving minorities', UN Doc. E/CN.4/Sub.2/l992/37, p. 33, para. 165 ("the most basic principle of self-determination is that of the right of popular participation in the government of the State as an entity"); T.M. Franck, R. Higgins, A. Pellet, M.N. Shaw & C. Tomuschat, The Territorial Integrity of Quebec in the Event of the Attainment
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determination, which was defined as the right of all peoples to govern themselves, to the legal-political relationship between a people and its own State. The degree of participation in the decision-making processes does not have to be the same in each and every situation, rather, as will be seen below, it may vary according to the specific circumstances of the case. However, on the basis of the raison d'être and objective of self-determination,44 the right of participation would need to extend to those matters which may directly or indirectly affect the protection, preservation, strengtheningor development of the cultural, ethnic, and/or historical identity - the "distinct character" in Brownlie's words - of the people concerned. Consequently, the right of participation would, in any case, relate to the determination or constitution of the political system of the State (pouvoir constituant). Since, as has been observed above,46 the right of self-determination is inalienable, this implies that a 'people' may change its form of political system at a later date. Here one may think, for instance, of the transformation of the political systems of the Eastern European States since the 1980s. In addition, the right of participation would also relate to the amendment of the constitution. And, it has been suggested, even to a right of
43. 44. 45.
46.
of Sovereignty, Opinion Submitted to the Committee to Examine Matters Relating to the Accession of Quebec to Sovereignty of the National Assembly of Quebec, Apr. 1992, para. 3.07 ("all people and parts of peoples are entitled to the recognition of their identity and to participate in the expression of the political will within the State"); J. Paust, Self-Determination: A Definitional Focus, in: Y. Alexander and A. Friedlander (Eds.), SELF-DETERMINATION: NATIONAL, REGIONAL, AND GLOBAL DIMENSIONS, 1980, p. 3, at p. 13 (internal selfdetermination is "the collective right of people to pursue their own political demands, to share power equally, and as a correlative right of the individual to participate freely and fully in the political process"); Klabbers and Lefeber, supra note 22, at p. 43 ("[i]n a multipeople state, it means that each people should be given the opportunity to participate in the decision-making process of the state"); Buchheit, SECESSION, p. 16 ("the right of all groups in a State to influence governmental behaviour in accordance with constitutional processes"); T.M. Franck, The Emerging Right to Democratic Governance, AJIL, Vol. 86, 1992, p. 46, at pp. 58-59 ("[selfdetermination] now entitles peoples in all states to free, fair and open participation in the democratic process of governance freely chosen by each state"). And see H. Hannum, Rethinking Self-Determination, Va. JIL, Vol. 34, 1993, p. 1, at pp. 33-35; P.H. Kooijmans, Zelfbeschikkingsrecht - Naar een Nieuwe Interpretatie?, in: N. Sybesma-Knol and J. van Bellingen (Eds.), NAAR EENNlEUWElNTERPRETATIEVANHETRECHTOPZELFBESCHIKKING, 1995, p. 157,at pp. 162164. Cf. also Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities, Working Group on Indigenous Populations, Explanatory Note, UN Doc. E/CN.4/Sub.2/1993/26/Add.l, para. 19 (the right of internal self-determination would entitle "a people to choose its political allegiance, to influence the political order in which it lives, and to preserve its cultural, ethnic, historical or territorial identity"). See pp. 222-223, supra. See p. 223, supra. See also Franck, Higgins, Pellet, Shaw & Tomuschat, supra note 42 (the right of self-determination [...] signifies, always and everywhere, that all peoples have the right to participate in the political, economic, social or cultural choices that concern them"). See note 22, supra.
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resistance against "tyranny and oppression".47 Yet, the scope of the right of participation cannot be limited to the aforementioned fields. The reason for this is that the right of self-determination is not confined to a people's freedom to determine its political status. As has been discussed, the right of selfdetermination includes a people's freedom to pursue its economic, social and cultural development, which necessarily and logically means that the right of participation must also extend to the general political decision-making process of the State, that is, to government as such.48 This conclusion is not surprising, however, especially against the background of the definition of political selfdetermination mentioned earlier. Based on the aforementioned description of internal self-determination, several options of exercising self-determination within a State can be envisaged, ranging from direct participation in the central decision-making processes of the State, to federalism and other forms of political autonomy. Therefore, an important feature of internal self-determination is that this mode of implementation does not lead to the change of the external or international boundaries 49 of the State as it does in the case of external self-determination. It is important to realise, however, that the implementation of selfdetermination within a State cannot be separated from the principle of equal rights of peoples and the linked principle of non-discrimination or nondomination of a group as such.50 Indeed, what is aimed at is the actual, and not merely the formal realization of self-determination within a State.51 Having described in general terms the meaning of internal self-determination, the question of the surplus value of the 'right' of peoples to internal selfdetermination will now be addressed. In this respect, it has sometimes been suggested that because the interests of a relevant group within a State may be protected through the system of individual human rights, there is no real need 47. Rosas, supra note 21, at p. 249; P.H. Kooijmans, Tolerance, Sovereignty and Self-Determination, NILR, 1996, p. 211, at p. 213; OPPENHEIM'S INT'L LAW, pp. 290-291, n. 32. Cf. also the Universal Declaration on Human Rights, Preamble, Para. 3, UN Doc. A/Res/217 A (III), 10 Dec. 1948. But see UN Doc A/AC. 125/SR.107, 4 Sept. 1969, p. 76 (Australia). 48. See also R. Higgins, International Law and the Avoidance, Containment and Resolution of Disputes, HR, 1991 V, p. 9, at pp. 164-165; Lachs, supra note 24, at pp. 49-50. 49. Klabbers and Lefeber, supra note 22, at pp. 42-43. 50. Charter of the United Nations, Art. 2(1); the Friendly Relations Declaration, Principle V, Para. 7; the 1993 Vienna Declaration, Part I, Art. 2; the African Charter, Art. 19; Dissenting Opinion Judge Kreca, Genocide case, ICJ Rep. 1996, p. 595, at p. 737; Kooijmans, supra note 47, at p. 214 ("[n]on-discrimination [...] is the basis, the hard core, of the right of self-determination"); Klabbers and Lefeber, supra note 22, at p. 43. See also the United Nations Declaration on the Elimination of All Forms of Racial Discrimination, UN Doc. A/Res/1904 (XVIII), 20 Nov. 1963, Art. 2 ("[n]o State [...] shall make any discrimination whatsoever in matters of human rights and fundamental freedoms in the treatment of [...] groups of persons [...] on the ground of race, colour or ethnic origin"). 51. See also Thornberry, supra note 21, at p. 116.
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for an internal dimension of self-determination52 and that, consequently, its existence as a legal norm applicable to collectivities must be questioned.53 This reasoning does not appear to be correct, however, and for a number of reasons. To begin with, it seems to overlook the fact that the identity of a group as such is not the same as the sum of the identities of its members. Group identity is a collective good, and the well-being (including the individual identity) of the members of a group is bound up with respect for the group identity.54 Individual human rights are therefore a necessary, but not necessarily a sufficient, condition for the protection, development and strengthening of the identity of a group. Apart from the fact that individual human rights such as those relating to a democratic political system (like the right to take part in the conduct of public affairs, the right to freedom of opinion, expression and association) were not intended to respond to demands for self-determination by collectivities, these individual rights may be of little relevance to situations in which democratically elected majorities repress or ignore the interests of a numerical minority, that is, in which the collective identity or the collective interests of the group are threatened.55 In addition, the granting of individual rights on the basis of equality of individual human beings, that is, without paying separate attention to collective interests of distinct groups, may eventually lead to the extinction of a distinct subgroup identity.56 Moreover, the realization of the right of self-determination is a conditio sine qua non for the effective guarantee and observance of individual human rights. 52.
J. Donnely, UNIVERSAL HUMAN RIGHTS IN THEORY AND PRACTICE, 1989, p. 148. See also, generally, ]. Donnely, Human Rights, Individual Rights and Collective Rights, in: J. Berting et al.
(Eds.), HUMAN RIGHTS IN A PLURALIST WORLD, INDIVIDUALS AND COLLECTIVITIES, 1990, P. 39. 53.
C. Tomuschat, Democratic Pluralism: The Right to Political Opposition, in: A. Rosas and J. Helgesen (Eds.), THE STRENGTH OF DIVERSITY: HUMAN RIGHTS AND PLURALIST DEMOCRACY, 1992, p. 27, at p. 39. 54. A. Margalit and J. Raz, National Self-Determination, The Journal of Philosophy, Vol. 87, 1990, p. 439, at pp. 447 and 449. Cf. also the Arbitration Commission of the International Conference on Yugoslavia which stated that "[w]here there are one or more groups within a State constituting one or more ethnic, religious or language communities, they have the right to recognition of their identity under international law". Opinion 2, ILM, Vol. 31, 1992, pp. 14971499, at p. 1498, para. 2. 55. See also Hannum, supra note 42, at pp. 60-61. 56. In 1969, the Canadian administration attempted to dismantle Canada's Indian reservation system in name of equal opportunity. Reservation lands would be individually held and freely alienable on a nondiscriminatory basis while local government would be elected by all residents regardless of origin. The Canadian government deemed "the granting of permanent political rights to a special class of citizens" incompatible with "the fundamental right of the Indian people to full and equal participation" in Canadian public life. This idea of an 'Indian-blind' Constitution reflected, as Binder states "blindness to the aspirations of actual Indians". Their protests resulted in blocking the Canadian administration's plan. G. Binder, The Case for Self-Determination, Stanford JIL, Vol. 29, 1993, p. 223, at p. 251.
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This has been recognized and stressed repeatedly by the General Assembly,57 the Human Rights Committee,58 the Commission on Human Rights,59 the Arbitration Commission of the International Conference on Yugoslavia,60 numerous States,61 as well as in doctrine.62 Moreover, the aforementioned sources have made it perfectly clear that this relationship is not limited to colonial situations only. As Kooijmans has pointed out, individual human rights constitute "the tools with which man can realize his right to individual selfdetermination, they enable him to shape his own life in accordance with his own objectives".63 Individual human rights are thus indispensable for individual liberty and individual identity. Hence domination or subjugation of a 'people' by a State or government constitutes a denial of the fundamental individual human rights of the members of the group. Therefore, because self-determination is a natural corollary of the principle of individual freedom and because the development and the protection of individual identity is bound up with the development and protection of the group identity, the realization of individual liberty and the protection of individual identity presumes and requires the freedom of a 'people' organized in the form of a State to govern itself. Accordingly, where the political decision-making process of a State is based on the right of participation of the 'people' concerned, this forms a necessary level of security against a potential abuse of power by the State (carence de 57. UN Doc. A/Res/43/105, 8 Dec. 1988, Para. 1 ("the universal realization of all peoples to selfdetermination [...] is a fundamental condition for the effective guarantee and observance of human rights and for the preservation and promotion of such rights"). In the past, the Assembly adopted numerous resolutions which stressed the indispensable character of self-determination for the effective guarantee and observance of human rights. See, e.g., UN Doc. A/Res/637 (VII), 16 Dec. 1952. 58. In its commentary on Article 1 of the ICCPR the Committee states: "[t]he right of selfdetermination is 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. It is for that reason that States set forth the right of selfdetermination in a provision of positive law in both Covenants and placed this provision as article 1 apart from and before all of the other rights in the two Covenants". General Comment 12, supra note 12, at para. 1. See also Ominayak and the Lubicon Lake Band v. Canada, Communication No. 167/1984, 26 March 1990, UN Doc. A/45/40, para. 13.3. 59. Resolution 3 (XXXI), 11 Feb. 1975. 60. Opinion 2, supra note 54, at p. 1498, para. 3. 61. See, e.g., UN Doc. A/C.3/SR.309, 9 Nov. 1950, paras. 52-53 (Afghanistan), para. 60 (Soviet Union); UN Doc. A/C.3/SR.310, 10 Nov. 1950, para. 33 (Poland); UN Doc. A/C.3/SR.399, 23 Jan. 1952, para. 45 (Ethiopia), para. 50 (Ireland); UN Doc. A/C.3/SR. 647, 28 Oct. 1955, para. 1 (Greece), para. 38 (Yugoslavia). 62. See Kooijmans, supra note 47, at pp. 214-215; S.P. Sinha, Is Self-Delermination Passé?, Colum. J. Transnat'l L., Vol. 12, 1973, p. 260, at p. 272. And see H. Gros Espiell, Implementation of United Nations Resolutions Relating to the Right of Peoples Under Colonial and Alien Domination to Self-Determination, UN Doc. E/CN.4/Sub.2/405, Rev. 1, 1980, p. 10 (para. 59); Cristescu, supra note 11, at pp. 32-33. 63. P.H. Kooijmans, Is There a Common Ground for a Human Rights Theory and a Human Rights Policy, Wiener Blatter zur Friedensforschung, No. 62/1, 1990, p. 10.
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souveraineté] and thus against unjust interference in the exercise of human rights by the members of that 'people'.64 The surplus value of internal selfdetermination for both the well-being of a 'people' and the well-being of its individual members is thus evident. The character of (internal) self-determination as a prerequisite for the effective exercise and enjoyment of individual human rights can therefore be earmarked as an important function of selfdetermination, which, it must be noted, was added to its original objective (the preservation and development of a group's collective identity) after World War II, parallel to the development of decolonization and the recognition of individual human rights under positive international law. But, although the need for respect of the right of self-determination for the effective exercise of individual human rights cannot be denied, the opposite is equally true. It must be noted that both the right of self-determination and individual human rights are founded on the recognition of human dignity. It therefore seems impossible to say that internal self-determination could be seen to be respected if fundamental human rights, and in particular the right to life, of the members of a 'people' are violated on a widespread scale by the parent State.65
§ 3.
THE SUBJECT OF INTERNAL SELF-DETERMINATION
Because the right of self-determination is a right of 'peoples', one is confronted with the complex question of what collectivities constitute 'peoples' as the subject of the right of internal self-determination. The question has provoked different and sometimes opposing views. It has been stated that definitions of the 'self have been hopelessly political and confused. "Yet, this does not mean that any analysis of the notion of 'peoples' is impossible. From the outset it should be noted that the source of confusion and disagreement regarding the meaning of the term 'peoples' has to a large extent been caused by the incorrect equation of the right of self-determination with 'an absolute right to attain statehood', that is, an erroneous equation of the raison d'etre and core meaning of self-determination with one (possible) mode of implementing self-determina64. Kooijmans, supra note 42, at p. 164. Cf. also T. Franck, The Democratic Entitlement, U. Rich. L. Rev., Vol. 29, 1994, p. 1, at p. 9. 65. To the same effect, see, e.g., UN Doc. A/C.3/47/SR.5, 8 Oct. 1992, para. 5 (Hungary). For a discussion of the importance of respect and promotion of individual human rights for the effective implementation and exercise of self-determination, see Cristescu, supra note 11, at pp. 36-37. See also Art. 55 of the UN Charter. 66.
M. Pomerance, SELF-DETERMINATION IN LAW AND PRACTICE,THE NEW DOCTRINE IN THE
UNITED NATIONS, 1982, pp. 18-23.
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tion. As a result, attempts have been made to limit the category of right holders drastically, during which the expression 'peoples' has on occasion been "stripped of its ordinary meaning and reconstructed as something quite different".67 It is beyond doubt that the notion of a 'people', not only in sociology and anthropology, but also in every-day life, primarily refers to a distinct ethnic group.68 In this respect it should be recalled that, in the aftermath of World War I, the first 'holders' of self-determination were distinct political and more or less ethnically homogeneous groups primarily defined by language and culture.69 As has been discussed in Chapter 5, after the establishment of the United Nations the right of self-determination (in its external dimension) was primarily applied to entire populations of dependent territories, despite the heterogeneous ethnic composition of the communities in most cases. Thus, in this context, ethnic identity was considered as essentially irrelevant. It is clear that the territorial definition of the subject of self-determination during this period of history had little to do with the ordinary meaning of the term 'peoples'. The entire population of a colony or other dependent territory was regarded as a 'people' in a strict legal sense and for legal purposes only. Yet, because self-determination cannot be limited to the period of decolonization, the particular application of self-determination during that historical period must be seen as the application of a general rule in a specific context, not as a limitation of the right rationae personae. As has been shown, self-determination extends beyond the colonial context as a continuous entitlement of 'peoples' in the relationship with their State or government, and consequently the holder of the right of self-determination cannot be limited to the inhabitants of dependent territories. If this is accepted, then what groups are considered 'peoples' for the purpose of internal selfdetermination? The following analysis will concentrate on those groups which are most often suggested as subjects of self-determination, namely (a) the entire population of existing States, (b) peoples as ethnic groups within a State and (c) 'minorities'.
67. B. Kingsbury, Claims by Non-State Groups in International Law, Cornell ILJ, Vol. 25, 1992, p. 481, at p. 499. 68. See also B. Vukas, States, Peoples and Minorities, HR, 1991 VI, p. 267, at p. 322; T. Veiter, Commentary on the Concept of National Minorities', HRJ, Vol. VII, 1974, p. 273, at p. 277. 69. R. Emerson, Self-Determination, AJIL, p. 459-, at p.463. See also K. Doehring, Self-Determination, in: B. Simma (Ed.), THE CHARTER OF THE UNITED NATIONS, A COMMENTARY, 1994, p. 56, at p. 64. And see pp. 192-193, supra.
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§ 3.1.
The territorial definition: the entire population of existing States
According to Higgins, a 'people' as the subject of internal self-determination "is to be understood in the sense of all peoples of a given territory".70 That territory, at least in the post-colonial era, is the territory of the State.71 Of all the different candidates for internal self-determination, the one which is proposed here is without a doubt the least controversial. The reason is obvious. If, as Higgins argues, the subject of self-determination is defined solely as the entire population of a given State, the possibility of a right to secession as a means of exercising self-determination by a certain segment of the population is necessarily excluded. Moreover, the subject of internal self-determination is relatively easy to determine. It will be noted that, because many States are ethnically heterogeneous, the use of the notion of a 'people' in this sense is different from its anthropological and social counterpart. Here, a 'people' is territorially defined, and ethnic considerations are essentially irrelevant: a community already politically organized as a State constitutes a 'people'. Therefore, as opposed to the ethnic notion of a 'people', this particular definition of a 'people' for the purpose of internal self-determination leads to a notion of 'peoplehood' in a legal sense. What this position actually refers to is the nation as a subject of internal self-determination.73 As is stated by Eide: [f]rom the perspective of international society, 'nations' are understood in a territorial sense. International law presumes the existence of States which are already constituted and generally recognised. The criteria for statehood contained in the 1933 Convention on the Rights and Duties of States Article 1 are still generally held to be valid [...]. From the standpoint of international law, the
70. Higgins, supra note 48, at p. 170. See also, e.g., Rosas, supra note 21, at p. 23; A. Eide, The National Society, Peoples and Ethno-Nations: Semantic Confusions and Legal Consequences, Nord. JIL, Vol. 64, 1995, p. 353, at p. 363; Crawford, supra note 8, at.p. 13; Franck, supra note 42. 71. R. Higgins, Post Modern Tribalism and the Right to Secession: Comments, in: Brölmann et al. (Eds.), supra note 22, p. 29, at p. 32. 72. Klabbers and Lefeber, supra note 22, at p. 41. The territorial definition resembles the definition of 'peoples' in the colonial context. It has led some to state that a 'people' in a legal sense refers to the inhabitants of those territories which have a separate international legal status. See, e.g., T. Musgrave, SELF-DETERMINATION AND NATIONAL MINORITIES, 1997, p. 151. 73. Cf. A. Cobban, THE NATION STATE AND NATIONAL SELF-DETERMINATION, 1969, p. 30 ("During the early modern period [...] the word nation changed its significance [...]. The possession of a separate government came to be the criterion of nationhood. [...] By the eighteenth century, in fact most of the cultural and linguistic significance had been emptied out of the word nation. It merely meant the state considered from the point of view of the ruled rather than the ruler"). The same conception appears to be used by John Stuart Mill. See J.S. Mill, CONSIDERATIONS ON REPRESENTATIVE GOVERNMENT, 1861, p. 293 (discussing the advantages for a Breton or a Basque to live in the State of France which would equally apply to" the Welshman or the Scottish Highlander, as members of the British nation"). And see p. 193, supra.
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'permanent population' is identical to the nation. 'Nationality' refers to the country in which a person is a citizen. From an international law perspective, the nationality of a citizen of Belgium is simply Belgian, not Flemish [or] Wallonian [...]".74
Considerable support exists for the position, expressed in doctrine, that at least nations as defined above are holders of the 'right' of internal self-determination. In addition to the fact that this view has been upheld by juridical decision,75 the General Assembly declared in Resolution 637 A of 16 December 1952 that "[t]he States Members of the United Nations shall uphold the principle of selfdetermination of all peoples and nations".76 Moreover, the penultimate paragraph of Principle V of the Friendly Relations Declaration (and of the provision on self-determination in the 1993 Vienna Declaration) clearly states that States are conducting themselves in compliance with the right of selfdetermination if they possess "a government representing the whole people belonging to the territory" 77 Article 1 of the ICCPR does not refer to the term nations. But the words 'all peoples' have to be understood as to include the entire population of States. The objection may be raised that, insofar as Article 1 was intended to apply to the entire population of States, it concerned an external (in the sense 74. A. Eide, Territorial Integrity of States, Minority Protection, and Guarantees for Autonomy Arrangements: Approaches and Roles of the United Nations, in: European Commission for Democracy Through Law of the Council of Europe (Venice Commission), LOCAL SELFGOVERNMENT, TERRITORIAL INTEGRITY AND PROTECTION OF MINORITIES, International Colloquium, Lausanne, 25-27 Apr. 1996, 1996, p. 75, at p, 82. For the same conception of a 'nation', see also M.N. Shaw, The Definition of Minorities in International Law, IYHR, Vol. 20, 1990, p. 13, at p. 14; H.O. Schoenberg, WE'RE NOT BANANAS!: THE CONCEPT OF 'PEOPLE' IN THE PRINCIPLE OF SELF-DETERMINATION AND ITS IMPLICATIONS FOR THE UNITED NATIONS, 1993, p. 58; Klabbers and Lefeber, supra note 22, at pp. 41-42; Veiter, supra note 68, at p. 277; Vukas, supra note 68, at p. 312, 316; Doehring, supra note 69, at p. 64; Y. Dinstein, Collective Human Rights of Peoples and Minorities, ICLQ, Vol. 25, 1976, p. 102, at pp. 103-104; Franck, supra note 42, at p. 58; Cristescu, supra note 11, at pp. 41-42 (paras. 280-283). But see B. Driessen, A CONCEPT OF NATION IN INTERNATIONAL LAW, 1992, pp. 13, 17 (defines nation in an ethnic (non-political) sense); but see the critical review of this study by M. van Walt van Praag, LJIL, Vol. 6, 1993, pp. 161-163. 75. Reference re Secession of Quebec, supra note 25, at para. 124. 76. UN Doc. A/Res/637 A (VII), 16 Dec. 1952, Para. 1. 77. See also, e.g., UN Doc. A/Res/581, 13 Feb. 1986, Preamble, Para. 7 (demanding "the immediate eradication of apartheid as the necessary step towards the establishment of a non-racial democratic society based on self-determination and majority rule through the full and free exercise of universal and adult suffrage by all the people in a united and non-fragmented South Africa"); UN Doc. S/Res/745, 1992, 28 Feb. 1992 (referring to "the assurance of the right to self-determination of the Cambodian people through free and fair elections"). 78. See, e.g., UN Doc. A/C.3/SR.311, 10 Nov. 1950, para. 35 (Mexico); UN Doc. A/C.3/SR.366, 12 Dec. 1951, paras. 24-26 (Liberia); UN Doc. A/C.3/SR.642, 24 Oct. 1955, para. 25 (the Netherlands); UN Doc. A.C.3/SR.647, 28 Oct. 1955, para. 26 (Australia); UN Doc. A/C.3/SR. 648, 31 Oct. 1955, paras. 1-2 (Colombia). See also, e.g., the Fourth Periodic Report of Colombia, supra note 14, at paras. 3 and 4. And see Cassese, SELF-DETERMINATION, pp. 59-60.
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of a right freely to choose one's own political system without outside interference) rather than an internal dimension of self-determination. However, Article 1 of the ICCPR must be read in connection with the other human rights provisions of the Covenant, particularly the right to freedom of thought (Article 18) and expression (Article 19), the right of peaceful assembly (Article 21), the right to freedom of association (Article 22), the right to take part in public affairs, to vote and to be elected (Article 25), as well as the provision on the prohibition of discrimination (Article 26). Therefore, the right of self-determination contained in Article 1 cannot but include an internal dimension. Moreover, the drafting history of Article 1 indicates that once the Western States agreed with the inclusion of a provision on self-determination in the Convention, emphasis was put by both Western and non-Western States on the internal dimension of self-determination, in the sense that it should "afford a right to be free from an authoritarian regime", 79 which right was primarily meant to belong to the entire population of a State. A recent survey of the reports submitted by States under Article 40 of the ICCPR indicates that a very great number of governments commented either directly or indirectly on the implementation of internal self-determination with regard to the entire population of their State.81 Although a regional and not legally binding instrument, the 1975 Helsinki Final Act constitutes another source of evidence for the thesis that the entire population of a State is regarded as a subject of internal self-determination. The traveaux préparatoires of the Act point out that the term 'peoples' in Principle VIII was primarily intended to refer to nations as such.82 Finally, the term 'peoples' in Article 20(1) of the African Charter refers without a doubt to the entire population of a State as the subject of the right
79. 80. 81.
Cassese, id, at p. 60. P. Thornberry, INTERNATIONAL LAW AND THE RIGHTS OF MINORITIES, 1991, p. 215. H. Quane, A Right to Self-Determination for the Kosovo Albanians?, LJIL, Vol. 13, 2000, p. 219, at pp. 221-222. The study is based on an analysis of the reports of 97 States Parties. Of the 97 States, 87 commented on self-determination. Of these, 69 States or 79% commented directed or indirectly on internal self-determination. For references to internal self-determination in recent reports, see, e.g., UN Doc. CCPR/C/95/Add.95 May 1997,para. 1-3 (Uruguay); UN Doc. CCPR/C/75/Add.2, 13 March 1997, para. 1-29 (Sudan); UN Doc. CCPR/C/95/Add.7, 29 Apr. 1997, para. 6-8 (Romania); UN Doc. CCPR/C/84/Add.6, 1 Dec. 1997, para. 11-12 (Ecuador); UN Doc. CCPR/C/95/Add.ll, 3 Dec. 1998, para. 35-42 (Chili); UN Doc. CCPR/C/8I/Add. 12, 23 Sept. 1998, para. 53 (Cambodia); UN Doc. CCPR/C/103/Add.7, 14 June 1999, para. 5 (Mongolia). 82. Cassese, supra note 19, at p. 151. Cassese argues, however, that the provision was meant to "refer only to groups characterized by the fact of living in sovereign countries and identifying with the population of these countries" (emphasis added). This limitation is questionable and will be discussed below.
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of self-determination.83 That this should be understood primarily as a confirmation of the right to internal self-determination of such a population has been emphasized by the African Commission on Human and Peoples' Rights,84 as well as by the States parties.85 It must therefore be concluded that international law strongly supports the standpoint that nations are subjects of internal self-determination. As has been stated above, the territorial definition of 'peoples' generally ignores ethnic, cultural and/or linguistic differences between distinct groups within a State. Because most nations are composed of different ethnic groups aiming at preserving and developing their specific lifestyle and other characteristics, it is now necessary to consider whether subgroups or segments of a nation are also regarded as 'peoples' under international law for the purpose of internal self-determination. § 3.2.
The 'ethnic' definition: subgroups within existing States
The Friendly Relations Declaration states in the penultimate paragraph of Principle V that a State is conducting itself in compliance with the right of selfdetermination if it has "a government representing the whole people to the territory", after which it adds "without distinction as to race, creed or colour". This wording may mean that, in addition to the entire population of the State, distinct groups within the State also have a right to participate in the decisionmaking process of the State. 'People' in this context would refer to the social and cultural or anthropological meaning of the term. Consequently, such a meaning envisages the possibility of 'multipeople States'. In addition to a right of participation in a more general sense, against this background one can clearly envisage some specific options for exercising internal self-determination such
83. See R.N. Kiwanuka, The Meaning of 'People' in the African Charter on Human and Peoples'Rights, AJIL, Vol. 82,1988, p. 80, atpp. 99-100; P. Thornberry, INTERNATIONAL LAW AND THE RIGHTS OF MINORITIES, 1991, pp. 20-21 (referring to the discussions at the Nairobi Conference convened by the International Commission of Jurists in December 1985). 84. See, e.g., Resolution on Nigeria, Para. 5, adopted by the Commission at its 16th sess., 25 Oct.-3 Nov. 1994, Banjul, The Gambia: "[c]alls upon the Nigerian military government to respect the right of free participation on government and the right to self-determination and hand over the government to duly elected representatives of the people without unnecessary delay". See also the Resolution on the Gambia, adopted at the same session. And see R. Murray, THE AFRICAN
COMMISSION ON HUMAN AND PEOPLES' RIGHTS AND INTERNATIONAL LAW, 2000, pp. 104-109. 85. See, e.g., First and Second Periodic State Report of Senegal, 1992, The African Commission on Human and Peoples' Rights, Examination of State Reports, 12th sess., Oct. 1992: Gambia, Zimbabwe and Senegal, App. II. And see the statements by the representative of Gambia during the examination of the State Report of Gambia, The African Commission on Human and Peoples' Rights, Examination of State Reports, 12th sess., Oct. 1992, pp. 17 and 21-22.
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as 'reserved' seats in a parliamentary organ, or concepts as federalism and autonomy. Of course, in extending the applicability of self-determination to subgroups within a State, one is confronted with a much more difficult process of identification of the subject than in the case of nations. Limiting the right to the entire population of a State is appealing, as it has the advantage of melding neatly with a recognized element of statehood: territory. But it cannot be denied that such an approach "takes little account of the complexity of the term 'people' or 'peoples', or the ambiguity of the relevant instruments".86 It must thus be asked whether the modern law of self-determination recognizes subdivisions of society as subjects of internal self-determination or whether, as has been argued, internal self-determination is limited to nations alone. From a theoretical point of view, the applicability of self-determination to subgroups appears to be a logical and necessary consequence of the raison d'etre of self-determination which, as has been seen, concerns amongst others the protection of the collective identity of a 'people' as a group. It is a fact that nearly all existing States are not ethnically homogeneous but contain one or more distinct ethnic groups, which are numerically inferior to the rest of the population of the State and which are thus normally in a non-dominant position. Therefore, it is submitted, the need for protection of the collective identity of subgroups is more substantial in this context than with respect to the nation as such, because the threat to the collective identity of the former is, potentially at least, greater. The exclusion of these groups from the concept of self-determination would thus be difficult to reconcile with this concept's raison d'être and objective. Another point is that the principle of territorial integrity is referred to in several relevant texts addressing the right of self-determination, such as the Friendly Relations Declaration, the Helsinki Final Act, the 1993 Vienna Declaration and the Charter of Paris for a New Europe of 1990,88 in the sense that the right of self-determination may "not 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".89
86. J. Dugard, INTERNATIONAL LAW, A SOUTH AFRICAN PERSPECTIVE, 2000, pp. 93-94. 87. See, e.g., Higgins, supra note 48, at p. 170; Crawford, supra note 8, at p. 13 (although he leaves room for the existence of a right of external self-determination for subgroups under certain circumstances). 88. Adopted by the Heads of State and Governments of the CSCE on 21 Nov. 1990, ILM, Vol. 30, p. 193 (hereinafter 'Charter of Paris'). 89. UN Doc. A/Res/2625 (XXV), supra note 1, Principle V, Para. 7. It should be noted that although the ICCPR does not refer to the principle of territorial integrity, the Human Rights Committee took the view that the meaning and scope of Article 1 of the ICCPR cannot be isolated from
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The fact that the right of self-determination must be interpreted in the light of the right of territorial integrity of States, in the sense that the possible means of exercising the right of self-determination are limited by the right of territorial integrity, must necessarily mean that subgroups within a State are envisaged as holders of the right of self-determination. This conclusion is supported by the fact that under international law no prohibition exists for nations to dissolve a State voluntarily and split up its territory, as in the case of Czechoslovakia in 1993.91 If self-determination would only refer to nations as the subject of the right, this would make the emphasis on the principle of territorial integrity largely redundant, and it is therefore a position that cannot be assumed. The argument that internal self-determination is not limited to 'nations' but extends to subgroups within a State, is furthermore supported by the fact that international instruments dealing with self-determination contain references to 'peoples' in addition to terms like 'nations' and 'States'.92 The standpoint that self-determination applies to subgroups was maintained explicitly by the United Kingdom during the drafting of the Friendly Relations Declaration. With regard to the provision which eventually became Paragraph 7 of Principle V of the Declaration, the United Kingdom made a proposal
other instruments concerning the right of peoples to self-determination, in particular Resolution 2625. See General Comment 12, supra note 12, para. 7. Cf. also the African Charter, Art. 29. Moreover, in the Preamble of the African Charter the States parties reaffirm "their adherence to the principles of human and peoples' rights and freedoms contained in the declarations, conventions and other instruments of [among others] the United Nations", which must necessarily include the Friendly Relations Declaration. This has also been the view of the African Commission on Human and Peoples' Rights. See African Commission on Human and Peoples' Rights, Communication 75/92, Katangese Peoples' Congress v. Zaire, Decision taken at its 16th Session, Banjul, The Gambia, 1994. 90. See also Reference re Secession of Quebec, supra note 25, at pp. 1370-1371 (para. 124). And see Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities, Working Group on Indigenous Populations, UN Doc. E/CN.4/Sub.2/AC.4/1996/2, 10 June 1996, para. 19 ("[i]t would have been unnecessary to make such a qualification unless it was understood that the population of a State could consist of a number of 'peoples', each possessing the right of self-determination"). 91. See Section 5 of this Chapter, infra. Cf. also E. de Vattel, THE LAW OF NATIONS, 1916, Book 1, Ch. 2, para. 16 ("since compacts may be broken by the common consent of the parties, if the individuals who compose a Nation unanimously agree to break the bonds which unite them, they may do so and thereby destroy the State or Nation"). Quoted in: Buchheit, SECESSION, p. 53. 92. Although during the drafting of the Human Rights Covenants the nation was probably conceived as the principal bearer of the right of internal self-determination, there is no reason to believe that the term "peoples" in Article 1(1) of the ICCPR is limited to nations. During the drafting it was thought that the term should be understood in its most general sense and that no definition was necessary. See UN Doc. E/CN.4/SR.256, 1 May 1952, p. 7 (Yugoslavia), p. 9 (Belgium); UN Doc. E/CN.4/SR.257, 6 May 1952, p. 9 (Lebanon).
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which stated: (1) [e]very State has the duty to respect the principle of equal rights and self-determination of peoples and to implement it with regard to the peoples within its jurisdiction [...]; (4) States enjoying full sovereignty and independence, and possessed of a representative government, effectively functioning as such to all distinct peoples within their territory, shall be considered to be conducting themselves in conformity with the principle as regards those peoples.
The proposal resembled a United States' proposal made one year earlier,94 and was both supported and refined by an Italian proposal.95 It has been maintained that the British view, both academically and officially, favouring a broad construction of both the right of self-determination and its subjects, constituted an attitude which reflected the consensus on the topic.96 On the other hand, Cassese has argued that insofar as Paragraph 7 of Principle V confers a right on subgroups in a sovereign State to have access to the political decision-making process, this is only true for racial or religious groups, and that "linguistic or national groups do not have a concomitant right".97 Apart from other arguments dealt with below, this interpretation first and foremost raises the point whether one can speak of a government which is representative of the people when, for instance, a democratically elected government subsequent to its election persistently excludes one or more linguistic or national groups within its territory from access to any level of the political decision-making process within the State. No-one would qualify such a government as being 'representative' of the whole people. Accordingly it would seem that prima facie the phrase "race, creed or colour" is meant to emphasize certain acts of discrimination rather than to provide for a carte blanche for excluding other groups from the decision-making process. Having said this, 93. UN Doc. A/AC.125/L44, 19 July 1967 (emphasis added). 94. UN Doc. A/AC.125/L32, 12 Apr. 1966, p. 2, Para. B ("[t]he existence of a sovereign and independent State possessing a representative Government, effectively functioning as such to all distinct peoples within its territory, is presumed to satisfy the principle of equal rights and self-determination as regards these peoples"). 95. This proposal stated: "States enjoying full sovereignty and independence, and possessed of a government representing the whole of their population, shall be considered to be conducting themselves in conformity with the principle of equal rights and self-determination of peoples as regards that population. Nothing in the foregoing paragraphs shall be construed as authorizing any action which would impair, totally or in part, the territorial integrity, or political unity, of such States". UN Doc. A/AC. 125/L80,1969, quoted in: Cassese, SELF-DETERMINATION, p. 116. 96. M. Sornarajah, Internal Colonialism and Humanitarian Intervention, Ga. J. Int'l & Comp. L., Vol. 11, 1981, p. 45, at p. 53. 97. Cassese, SELF-DETERMINATION, p. 114 (emphasis added).
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a return to Cassese's argument is now in order. On the basis of an analysis of state practice Cassese concludes that there is no evidence that religious groups as such possess a right of internal selfdetermination so that, as far as subgroups are concerned, the right would be limited effectively to racial groups. In support of this contention, Cassese refers to the practice of the Security Council and the General Assembly with respect to the condemnation of the policy of Apartheid by the white minority government of South Africa and the proclamation of independence by the white minority regime in Southern Rhodesia as constituting violations of the right of self-determination of the black majorities. The same author observes that the use of the terms 'race' and 'colour' in the penultimate paragraph "express an identical concept: race". This is, of course, correct, although it must be noted that the term 'race' should not be limited to the notion of 'colour'. Thus, if Cassese's argument is accepted, internal self-determination would, as far as subgroups are concerned, be confined to one specific, narrowly defined subgroup only. It is submitted, however, that this point of view cannot be maintained upon closer analysis and that the subject of internal self-determination includes ethnic subgroups other than Cassese's narrowly defined subgroups. For the present discussion it is important to point to the fact that the term 'race' in the penultimate paragraph of Principle V is not used in isolation. Rather, it is used in connection with the prohibition of making a distinction between groups on that basis. In other words, the paragraph refers to a prohibition of discrimination on the basis of race, that is, racial discrimination. 100 Therefore, the formula "without distinction as to race" cannot be interpreted without paying due regard to the most authoritative legal instrument dealing with the prohibition of racial discrimination, namely the International Convention on the Elimination of All Forms of Racial Discrimination of 1966.101 The Convention contains the most carefully prepared and widely accepted definition of 'racial discrimination'. Article 1 states [i]n this Convention, the term 'racial discrimination' shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin [...].
98. Id., at pp. 120-125. 99. Id., at p. 112. 100. Because differentiation between groups, even on the basis of race, is not prohibited under international law, the reference to the term 'distinction' must be interpreted as referring to the practice of arbitrary distinction, that is, discrimination. 101. UNTS, Vol. 660, 1969, p. 212 (hereinafter 'Racial Discrimination Convention').
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Although the Convention does not provide for a specific definition of 'race' as such, it serves to clarify the meaning of 'racial discrimination'.102 According to the definition in Article 1, discrimination on the ground of race is not limited to a distinction made on the ground of race or colour, but includes distinctions made on national or ethnical grounds. Thus, according to the Convention, the prohibition of racial discrimination refers to the prohibition of acts of discrimination among different social groups within a State if "they are based on motivations of a racial nature in the broad sense of the word".104 In this respect, reference should also be made to the UNESCO Declaration on Race and Racial Prejudice which uses the terms 'race' and 'ethnic groups' interchangeably.105 Although it must be taken into consideration that this definition of racial discrimination appears within the framework of the Convention, it should be recalled that the drafting of the 1966 Racial Discrimination Convention was (in addition to the atrocities committed during World War II106) substantially influenced and strongly motivated by the Apartheid policy in South Africa and the situation of racial discrimination in Southern Rhodesia.107 Yet, despite this important factor, the definition of racial discrimination used in the Convention is not limited to these kinds of discriminatory
102. H. Santa Cruz, Racial Discrimination, Study by the Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, UN Doc. E/CN.4/Sub.2/370/Rev.l, 1976, p. 25. 103. For Dutch jurisprudence supporting this view, see, e.g., Supreme Court of the Netherlands, 15 June 1976, NJ 1976, p. 551; Supreme Court of the Netherlands, 24 June 1975, NJ 1975, p. 450; District Court of Amsterdam, 11 March 1981, NJ 1981, p. 525. Moreover the District Court of Rotterdam equated the term 'race' with 'ethnic origin'. See District Court Rotterdam, 19 Feb. 1980, NJ 1980, p. 372. See also Commonwealth of Australia and Another v. State of Tasmania and Others, Australia High Court, Judgment, 1 July 1983, ILR, Vol. 68, 1985, p. 266, at pp. 437441. Art. 1(2) and (3) of the Convention make clear that the term 'national origin' in Paragraph 1 is not meant to refer to citizenship. The term was intended to refer to ethnic groups having a distinct culture, language and traditional way of life but living together with other groups in the same State. See, e.g., the statements made by the Polish, French, Austrian and American representatives in the Third Committee, UN Doc. A/C.3/SR.1034, 25 Nov. 1960, pp. 2-7. And see, generally, Lerner, supra note 24, at pp. 45-70. 104. N. Lerner, THE U.N. CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL
DISCRIMINATION, 1980, p. 28. 105. UNESCO Doc. 20C/3/1.1/2,27 Nov. 1978 (adopted unanimously). See, e.g., Arts. 2(1) and 9(2). See also Webster's New Encyclopedic Dictionary, 1994 (which describes 'race' as "a group of people of common ancestry or stock (the English race)"). As to the questionability of a scientific distinction between 'racial' and 'ethnical' groups, see also Shaw, supra note 74, at p. 29. 106. Lerner, supra note 104, at pp. 23-24. 107. This is reflected in the Convention. See, e.g., Preamble, Para. 9 ("[a]larmed by manifestations of racial discrimination still in evidence in some areas of the world and by governmental policies based on racial superiority hatred, such as policies of apartheid, segregation or separation") and Art. 3 ("States Parties particularly condemn racial segregation and apartheid and undertake to prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction"). See also UN Doc. A/Res/1904 (XVIII), 20 Nov. 1963 (United Nations Declaration on the Elimination of All Forms of Racial Discrimination), Preamble, Para. 8 and An. 5.
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situations. Moreover, the traveauxpréparatoires of the 1970 Friendly Relations Declaration make it abundantly clear that the Declaration's provisions on selfdetermination, and in particular Paragraph 7 of Principle V, were not based on, limited to, or particularly motivated by, such specific situations of racial discrimination. Of course, the traveauxpréparatoires do contain references by delegations to the situations in South Africa and Southern Rhodesia. One would not have expected otherwise in the context of a discussion on self-determination at a time when several resolutions were being adopted by both the Security Council and the General Assembly condemning the discriminatory policies of South Africa and the Smith regime of Southern Rhodesia as violations of the right of self-determination. Thus, if only for these considerations, a limitation of the phrase "without distinction as to race" to such specific situations seems doubtful and unjustified. It would result in an extremely narrow definition of the term 'race', which, especially in the context of racial discrimination, does not seem to be supported
108. In this respect, it is noteworthy that it is explicitly mentioned in the special study on the elimination of racial discrimination by the Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities that the study is based on the most all-inclusive meaning of racial discrimination as defined in the International Convention on the Elimination of All Forms of Racial Discrimination. See note 102 supra, at p. 25, para. 73. 109. In this respect, the numerous statements by the delegations that the right of self-determination constituted a principle of universal application should be emphasized. See, e.g., UN Doc. A/AC.125/SR.69, 4 Dec. 1967, p. 4 (Yugoslavia); UN Doc. A/AC.125/SR.69, 4 Dec. 1967, p. 12 (France); UN Doc. A/AC.125/SR.69, 4 Dec. 1967, p. 22 (Kenya); UN Doc. A/AC.125/SR.70, 4 Dec. 1967, p. 13 (Cameroon); UN Doc. A/AC.125/SR.91, 21 Oct. 1968, p. 107 (Guatemala); UN Doc. A/AC.125/SR.92, 21 Oct. 1968, p. 128 (United States); UN Doc. A/AC.125/SR. 101, 5 Nov. 1969, p. 32 (the Netherlands); UN Doc. A/AC.125/SR.104, 5 Nov. 1969, p. 44 (Czechoslovakia); UN Doc. A/AC.125/SR105, 5 Nov. 1969, p. 54 (United Kingdom); UN Doc. A/AC.125/SR.105, 5 Nov. 1969, p. 49 (Romania); UN Doc. A/AC. 125/SR. 106, 5 Nov. 1969, p. 62 (Soviet Union); UN Doc. A/AC.125/SR. 106, 5 Nov. 1969, p. 64 (France). The fact that the Security Council and the General Assembly considered the situations in South Africa and Southern Rhodesia to constitute a violation of the right of self-determination of the black majority is therefore to be regarded as a condemnation of specific examples of racial discrimination and a violation of internal self-determination, rather than a confirmation of an alleged limited category of subjects of the right of internal self-determination. With respect to the traveaux préparatoires Cassese (SELF-DETERMINATION, p. 116) finds support for his contention in a statement by the Kenyan representative in response to the draft proposal by the United Kingdom. The Kenyan representative observed that "[a]lthough the principle [applies] to all peoples, even in independent countries, it would be an interference in the domestic affairs of sovereign States, if the Commission drew up rules for the secession of, to use the words of the 1967 United Kingdom proposal, 'a territory which is geographically distinct and ethnically or culturally diverse from the remainder of the territory of the State administering it'. Kenya is a country of many different tribal, racial, ethnic and religious groups [...] and to enunciate the principle that each group is entitled to self-determination would be carrying that principle to an absurd extreme" (UN Doc. A/AC. 125/SR. 107, 5 Nov. 1969, p. 88). It is beyond a doubt, however, as is evident from the text itself, that in criticizing the United Kingdom's proposal, the Kenyan representative referred to secession as a means of exercising (external) selfdetermination and not to self-determination as a concept which is implemented within the boundaries of the State, that is to say, internal self-determination.
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under international law.110 With respect to the traveaux préparatoires of the Friendly Relations Declaration another point must be made. The proposals of the United Kingdom and the United States on self-determination sometimes met with strong criticism, especially from the developing and socialist countries. However, as was pointed out above, notwithstanding this criticism there was consensus on the fact that self-determination was a universal and permanent right which could not be limited to the colonial or racist context.111 In addition, while the position of the United Kingdom and the United States that a State was conducting itself in compliance with the right of self-determination if it possessed a government which was representative as to all distinct peoples of the State was explicitly supported by Australia,112 Ghana,113 Canada,114 France,115 Chili,116 and the Netherlands,117 none of the other participating States - with the exception of Cameroon118 - contested, rejected or questioned that part of the British and American proposals. In that respect it is noteworthy that when the final draft of the Declaration, which contained the wording "without distinction as to race, creed or colour"119 was discussed in the Special Committee, the Italian delegation expressed its gratitude to the delegations which contributed to the formulation of "the penultimate paragraph according to which the achievement of a government or regime of representative character fulfilled the principle of self-determination". 120 At this stage as well, not a single delegation expressed its disapproval of the interpretation given by the Italian delegation or stated that self-determination within existing States applied to the entire population and to racial groups, such as the black majority of South Africa, only. When, during the preceding discussions, concern was expressed, in particular by the developing and socialist States, with regard to any reference to subgroups as holders of the right of self-determination, this was mainly on the ground that they feared the inclusion of far too liberal a phrase which might
110. It is worth noting that Cassese admits that his narrow definition of 'race' is not beyond doubt. See Cassese, id., at pp. 112-113, n. 20. 111. See Section 2.1. of this Chapter, supra. 112. UN Doc A/AC.125/SR.70, 4 Dec. 1967, p. 6. 113. UN Doc. A/AC.125/SR.68, 4 Dec. 1967, pp. 17-19. 114. UN Doc. A/AC.125/SR.69, 4 Dec. 1967, pp. 11-12. 115. Id., at p. 15. 116. UN Doc. A/AC.125/SR.93, 21 Oct. 1968, p. 148. 117. UN Doc. A/AC.125/SR107, 5 Nov. 1969, p. 87. 118. Id., at pp. 70-71. 119. Which was the result of an amendment to the Italian proposal submitted by Lebanon. See UN Doc. A/AC/125. L.81 (1970), cited in: Cassese, SELF-DETERMINATION, p. 117. 120. UN Doc. A/AC.125/SR114, 1 Sept. 1970, p. 45.
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be interpreted as authorizing these subgroups to secede at will.121 In sum, the traveaux préparatories and the contextual interpretation of the Friendly Relations Declaration do not support Cassese's conclusion that internal self-determination was intended to be limited to 'racial' groups (defined in terms of physical appearance) and religious groups.122 Therefore, the most plausible explanation for the fact that the United Kingdom, the United States and Italy agreed with the insertion of the phrasing "race, creed or colour" is that it generally reflected their viewpoints on the matter as put forward in their proposals. The conclusion that Paragraph 7 of Principle V of the Friendly Relations Declaration was intended to cover at least racially and ethnically distinct groups within existing States for the purpose of internal self-determination is reinforced by the text of the 1993 Vienna Declaration.123 The Vienna Declaration reaffirms that all peoples have the right to self-determination and almost entirely repeats the wording of Paragraph 7 of the Friendly Relations Declaration, but then emphasizes that sovereign and independent States are conducting themselves in compliance with the principle of equal rights and self-determination if they possess "a Government representing the whole people belonging to the territory without distinction of any kind".124 The Declaration was endorsed by the General Assembly in Resolution 48/121125 and has been recalled in numerous subsequent resolutions adopted by the General Assembly concerning the right of self-determination. 126 Moreover, the applicability of internal self-determination to ethnic subgroups has been confirmed by the African Commission on Human and Peoples' Rights in its decision regarding Katangese Peoples 'Congress v. Zaire. 121. In this respect the statement of the Kenyan representative (supra note 109) is illustrative. See also, e.g., UN Doc. A/AC.125/SR.105, 5 Nov. 1969, p. 49 (Romania). 122. Moreover, if, with respect to internal self-determination, racial groups would be considered to have a special position under international law in comparison to other subgroups it is at least remarkable that no such special position is referred to in common Article 1 of the Human Rights Covenants or any other instrument containing provisions on self-determination. 123. See note 7, supra. 124. Id., Para. 2. The formulation resembles the wording of Article 2 of the Universal Declaration of Human Rights which holds that "[e]veryone is entitled to all rights and freedoms set forth in this Declaration, without distinction of any kind", and it continues by clarifying "such as race, colour, sex language, religion, political or other opinion, national or social origin, property, birth or other status". 125. UN Doc. A/Res/48/121, 20 Dec. 1993. 126. See, e.g., UN Doc. A/Res/51/118, 6 March 1997. The broad construction of 'representative government' has been stressed by the Committee on the Elimination of Racial Discrimination. In discussing the concept of internal self-determination the Committee observed that "[g]overnments are to represent the whole population without distinction as to race, colour, descent or national or ethnic origin". See note 29, supra. 127. See note 89, supra.
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The decision was taken with respect to a communication by the Katangese Peoples' Congress which claimed that Zaire denied the Katangese people its right of self-determination. The communication requested the Commission amongst others to recognize the Congress as a liberation movement, as well as to recognize Katangese independence. The Commission first observed that "[t]he issue in the case is not self-determination for all Zaireans as a people but specifically for the Katangese". After having considered that prima facie the Katangese people constituted a people for the purpose of self-determination the Commission pointed out that self-determination may be exercised in any of the following ways: independence, self-government, local government, federalism, confederalism, unitarism or any other form of relations that accords with the wishes of the people but fully cognizant of other recognised principles such as sovereignty and territorial integrity.
The Commission rejected the claim to secession under the prevailing circumstances in Zaire and observed that Katanga is obliged to exercise a variant of self-determination that is compatible with the sovereignty and territorial integrity of Zaire.128
This broader definition of the holder of the 'right' of internal self-determination is furthermore endorsed by both the Supreme Court of Canada 129 and the Constitutional Court of the Russian Federation.130 128. See also the Guidelines for National Periodic Reports of 1988 of the African Commission on Human and Peoples' Rights, which, with respect to Article 20, request information on the legislative and administrative machinery that exists to give effect to the provision that "all communities are allowed full participation in political activities and are allowed equal opportunities in the economic activities of the country both of which should be according to the choices they have made independently". Human Rights Law Journal, Vol. 11, 1990, p. 417, quoted in: Rosas, supra note 21, at p. 245, n. 63 (emphasis added). And see M.K. Addo, Political Self-Determination Within the Context of the African Charter on Human and Peoples' Rights, Journal of African Law, 1988, Vol. 32, p. 182, at pp. 185-186. 129. Reference re Secession of Quebec, supra note 25, at p. 1370, para. 124 ("[i]t is clear that a 'people' may include only a portion of the population of an existing state"). 130. See Tatarstan case, Constitutional Court of the Russian Federation, Judgment, 13 March 1992, Gazette of the Congress of People's Deputies of the RSFSR and the Supreme Soviet of the RSFSR, 1992, No. 13, Item 671, translated in: Statutes and Decisions, The Laws of the USSR and Its Successor States, May-June 1994, Vol. 30, No. 3, pp. 32-44 (hereinafter 'Statutes and Decisions'); G.M. Danilenko and W. Burnham, LAW AND LEGAL SYSTEM OF THE RUSSIAN FEDERATION, 1999, pp. 184-189. On 5 March 1992 the Russian Parliament asked the Russian Constitutional Court to rule on the constitutionality of a decision of Tatarstan to hold a referendum on the status of the Republic which was tantamount to a referendum on independence. The Court pronounced unconstitutional the referendum question on the status of Tatarstan, but not the referendum on legal status as such, because "the Republic of Tatarstan has the right to submit to vote the issue of its legal status, because this right follows from the
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In sum, it follows firstly that subdivisions or subgroups within the State are to be regarded, in addition to the entire population of the State, as holders of the 'right' of internal self-determination,131 and secondly, that these subgroups are not limited to racial groups132 but include ethnic groups, which is a position that has been widely supported in doctrine,133 within the United right of peoples to self-determination" (Danilenko and Burnham, id., at p. 186; Statutes and Decisions, supra, at p. 39). It also considered unconstitutional an amendment to the Tatarstan Constitution passed in April 1991, which implied that Tatarstan was not part of the Russian Federation. The argumentation of the Court was not limited to the lawfulness of the acts in relation to the (extensively) amended 1978 Constitution of the Russian Federation, however, but also involved considerations of international law. In confirming that the people of Tatarstan possess a right of self-determination, both under domestic and international law, the Court referred to common Article 1 of the Human Rights Covenants, General Assembly Resolution 2625, Article 29 of the Universal Declaration of Human Rights and to the relevant provisions in the OSCE instruments. Having examined the terms of the penultimate paragraph of Principle V of the Friendly Relations Declaration, the Court stated: "without denying the right of peoples to self-determination exercised by the people's free will, it is necessary to proceed from the requirement of international law that this right be accompanied by respect for the principle of territorial integrity and respect for human rights" (Danilenko and Burnham, id., at pp. 187-188; Statutes and Decisions, supra, at p. 41). Thus, although the Court rejected the Tatar claim to secession, it is clear that it confirmed the right of internal self-determination of the people of Tatarstan. In this respect cf. also Judge Ametistov's Separate Opinion in this case, Statutes and Decisions, supra, pp. 45-48, at pp. 45-46 ("[b]y putting to a referendum the question of changing the legal status of Tatarstan [within the Russian Federation], the Supreme Soviet of the republic exercises the right of the People of the Republic of Tatarstan to self-determination [...]. [T]he Russian Federation is obligated to ensure that the referendum is held, thereby fulfilling its obligations 'to promote the exercise of the right to self-determination and to respect this right' in accordance with the covenants on human rights"). Eventually, on 15 February 1994, the Republic of Tatarstan signed a formal Agreement of Federation with Russia which provided for a higher level of autonomy for Tatarstan in comparison to the other subjects of the Russian Federation. This was followed by similar agreements between the Federation and other republics. Cf. also the Dissenting Opinion of Judge Kononov in the Chechnya case, Judgment, VKS, 1995, No. 5, p. 3, translated. in: Danilenko and Burnham, id., pp. 192-197, at p. 197 ("by virtue of Art. 15(4) of the Constitution of the Russian Federation [the right of self-determination] is incorporated into the system of fundamental constitutional rights. Both Article 3, through the principle of democracy, and Article 66, contemplating the possibility of changing - in due order - the status of a subject of the Russian Federation, directly express this right"). See also M. Suksi, Constitutional Options for Self-Determination: What Works?, paper presented at a conference organized by the United Nations Association of the United States, entitled 'Options for Kosovo's Final Status: A Policy Conference', 12-14 Dec. 1999, Rome, pp. 1-28, at pp. 15-17, http://www.unausa.org/issues/kosovo-/rome/suksi.htm. 131. For this reason the position of Higgins that a 'people' must mean either "the entire people of a State or [...] all persons comprising distinctive groupings on the basis of race, ethnicity and perhaps religion" cannot be maintained. See Higgins, supra note 48, at p. 170 (emphasis added). 132. Strictly defined in terms of physical appearance. 133. See, e.g., Brownlie, supra note 40; Buchheit, SECESSION, pp. 9-11, 14; Dugard, supra note 86, at pp. 94-96; Dinstein, supra note 74, at p. 104; Franck, supra note 42, at p. 59; Hannum, supra note 42, at pp. 35-39; O. Kimmenich, A Federal Right of Self-Determination, in: Tomuschat (Ed.), supra note 20, p. 83, at p. 92; Klabbers and Lefeber, supra note 22, at pp. 38-42; M. Nowak,
UNO-PAKT ÜBER BURGERLICHE UND POLITISCHE RECHTE UND FAKULTATIVPROTOKOLL, CCPR-KOMMENTAR, 1989, p. 23; U. Umozurike, SELF-DETERMINATION IN INTERNATIONAL LAW, 1972, p. 192; M.N. Shaw, The Heritage of States: the Principle of Uti Possidetis Juris Today, BYIL, Vol. 67, 1996, p. 75, at pp. 121-123; J. Wilson, Ethnic Groups and the Right to SelfDetermination, Conn. JIL, Vol. 11, 1996, p. 433 , at pp. 464, 473; R Rosenstock, The Declaration
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Nations.134 and other international organizations or conferences, and in state practice.136 Now that it has been shown that international law recognizes subgroups as subjects entitled to internal self-determination which gives that the holder of this right cannot be limited to the entire population of a State, the question of the group characteristic of this subject of self-determination presents itself. This is, of course, particularly relevant for subgroups, because it may be evident that under the territorial and legal definition of 'peoples' which was discussed
on Principles of International Law Concerning Friendly Relations: A Survey, AJIL, Vol. 65, 1971, p. 713, at p. 732. 134. See, e.g., UN Doc. A/Res/441 (V), 2 Dec. 1950 (the Ewe tribe in West Africa); UN Doc. A/Res/1723 (XVI), 20 Dec. 1961 (Tibetans). Cf. also Security Council Resolution 724, UN Doc. S/Res/724, 15 Dec. 1991, Para. 7 (urging all States and parties to refrain from any action which may aggravate the conflict in Yugoslavia and delay a peaceful outcome "which would permit all the peoples of Yugoslavia to decide upon and to construct their future in peace"). In addition, the Draft Declaration on the Rights of Indigenous Peoples strongly supports the position that ethnic subgroups must be regarded as holders of the right of internal selfdetermination. The Draft Declaration was finalized by the UN Working Group on Indigenous Populations after nine years of preparation (UN Doc. E/CN.4/Sub.2/1994/2/Add.l, Ann., 20 Apr. 1994). The Declaration has been drafted from the perspective of indigenous peoples as subgroups within a State, that is, as a specific category of 'peoples' and as such entitled to selfdetermination of peoples (see in this respect the Explanatory Note, UN Doc. E/CN.4/Sub.2/l993/26/Add.l, 19 July 1993, Para. 23): "[i]ndigenous peoples have the right to self-determination in accordance with international law, subject to the same criteria and limitations as applied to other peoples in accordance with the Charter of the United Nations"). This is not only clear from the Explanatory Note but also from the text of the Draft itself. With respect to internal self-determination, Article 19 states: "[i]ndigenous peoples have the right to participate fully, if they so choose, at all levels of decision-making in matters which may affect their rights, lives and destinies through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions" (see also Arts. 3, 20, 31, 32 and 34). On indigenous peoples, see, generally, C.M. Brölmann and M.Y.A. Zieck, Some Remarks on the Draft Declaration on the Rights of Indigenous Peoples, LJIL, Vol. 8, 1995, p. 103; Wilson, supra note 133, at pp. 469-471; Alfredsson, supra note 20, pp. 41-54; D. Sanders, Self-Detennination and Indigenous Peoples, in: Tomuschat (Ed.),supra note 20, at p. 55. 135. See, e.g., EC Declaration on the Situation in Yugoslavia, 5 July 1991, supra note 39; Council of Europe, Parliamentary Assembly Resolution 233, 22 Apr. 1997 (Abkhazia); Vienna Declaration, CSCE Parliamentary Assembly, 8 July 1994, Para. 21 (which calls upon the Council of Ministers "to place discussion of self-determination and the related issues of territorial integrity and the stability of States on the agenda of the Permanent Committee, with a view to defining the reasonable limits to the pursuit of self-determination and setting guidelines so as to enable the territories where different national groups exist to implement innovative forms of self-government and guarantee, at the institutional level, the maintenance and development of the linguistic-cultural identities in those territories" (emphasis added)). 136. See text accompanying notes 234-250, infra. And see the State Party Reports under Art. 40 of the ICCPR such as UN Doc. CCPR/C/100/Add.l, 21 Nov. 1995 (Georgia); UN Doc. CCPR/C/95/Add.l, 5 Aug. 1994 (Spain); UN Doc. CCPR/C/84/Add.2, 22 Feb. 1995 (Russia); UN Doc. CCPR/C/81/Add.4, 24 Aug. 1994 (United States); UN Doc. CCPR/C/95/Add.2, 20 July 1994 (Ukraine); UN Doc. CCPR/C/103/Add.3, 8 Oct. 1996 (Colombia); UN Doc. CCPR/C/57/Add. 3, 1991 (Belgmm); UN Doc. CCPR/C/37, 15 Aug. 1986 (Denmark); UN Doc. CCPR/C/1/Add.32, 23 Aug. 1978 UN Doc. (Finland). To the same effect, see UN Docs. A./AC.125/SR.107, 4 Sept. 1969, pp. 84-85 (the Netherlands) and A/AC.125/SR.69, 4 Dec. 1967, p. 13 (France) .
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above, the 'group' which is the holder of the right of self-determination is usually not difficult to identify. Under international law, the holder of the right of self-determination is a group and not an individual human being. For the identification of the relevant groups or subgroups which are the holders of the right of internal selfdetermination the raison d'etre and main objective of self-determination is of particular importance. As has been pointed out elsewhere,137 the raison d'être and main objective of self-determination concerns the identity (the 'selmess') of a group as such, which, as was pointed out earlier as well, is more than just the sum of the identities of the individual members of the group. In particular because of this raison d'être and main objective, self-determination is generally regarded as a collective right,138 which does not, however, exclude the possibility that the right is and can be exercised and - theoretically at least - claimed139 by individual members of a group on behalf of that group.
137. See pp. 222-223, supra. 138. See, e.g., Ominayak and the Lubicon Lake Band v. Canada, supra note 58, at para. 32.1. See also M. Galenkamp, INDIVIDUALISM VERSUS COLLECTIVISM, THE CONCEPT OF COLLECTIVE RIGHTS, 1993, p. 19; Crawford, supra note 25, at p. 164; Kooijmans, supra note 42, at pp. 162163; Lerner, supra note 24, at p. 36. See also UN Doc. A/C.3/SR.309, 9 Nov. 1950, para. 62 (France); UN Doc. A/C.3/SR.310, 10 Nov. 1950, para. 30 (Brazil); UN Doc. A/C.3/SR.312, 13 Nov. 1950, para. 5 (Nicaragua); UN Doc. A/C.3/SR.398, 22 Jan. 1952, para. 40 (the Netherlands); UN Doc. A/C.3/SR.400, 23 Jan. 1952, para. 15 (Canada); id., para. 30 (Turkey); id., para. 39 (Czechoslovakia). 139. In this respect, mention must be made of the practice of the Human Rights Committee. In A.D. v. Canada (Communication No. 78/1980 (29 July 1982), ICJ Review, No. 33, 1984, p. 45) the Grand Captain of the Mikmaq tribal society stated that although he was the author of the communication, it was submitted on behalf of the Mikmaq people. It was claimed that the Government of Canada violated Article 1 of the ICCPR. The Human Rights Committee held that "the author has not proven that he is authorized to act as a representative on behalf of the Mikmaq tribal society. In addition, the author has failed to advance any pertinent facts supporting his claim that he is personally a victim of a violation of any rights contained in the Covenant" (para. 8.2.). In the Lubicon Lake Band case, the Human Rights Committee decided that the claim of Chief Ominayak (the leader of the Lubicon Lake Band, a band of Cree Indians) that Canada had violated Article 1 of the ICCPR was inadmissible because "the author, as an individual, could not claim under the Optional Protocol, to be a victim of a violation of the right of self-determination in Article 1 of the Covenant, which deals with the rights conferred on peoples, as such". The Committee further observed "[w]hile all peoples have the right of self-determination and the right freely to determine their political status, pursue their economic, social and cultural development and dispose of their natural wealth and resources, as stipulated in Article 1 of the Covenant, the question whether the Lubicon Lake Band constitutes a 'people' is not an issue for the Committee to address under the Optional Protocol to the Covenant. The Optional Protocol provides a procedure under which individuals can claim that their individual rights have been violated. These rights are set out in Part III of the Covenant, articles 6-27, inclusive". Ominayak and the Lubicon Lake Band v. Canada, supra note 58, at paras. 13.3 and 32.1, respectively (emphasis added). The Committee did thus not state that a claim under international law for respect of the right of self-determination made by a representative of a people on behalf of that people would juridically be impossible both in theory and practice. What it did state was that such a claim could not be considered by the Committee due to the jurisdictional limitation ratione personae in Article 2 of Optional Protocol I.
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Because the subject of self-determination is a group, the question should be addressed what is meant by the term 'group' for the purpose of internal selfdetermination, that is to say, apart from the entire population of a State. Obviously not every group or aggregate of individuals qualifies as a group for this purpose. An association of dentists is certainly a group, but not in the sense that the term is used in the context of the right of self-determination. Keeping in mind the specific raison d'être and main objective of self-determination as a collective right, it has been correctly pointed out that with respect to the identification of the subject under discussion, one must presuppose the existence of a collectivity as a distinct entity with certain group characteristics, which are non-reducible to the characteristics of the composing individuals. Reformulated with regard to the issue of group identity, this amounts to saying that the identity of the community has to go beyond the merely aggregated identities of the individual members. HO
In a memorandum of the United Nations Secretary-General on the Definition and Classification of Minorities, 141 the meaning of the term 'community' was examined. It was observed that "[c]ommunities" are "groups based upon unifying and spontaneous (as opposed to artificial or planned) factors essentially beyond the control of the members of the group". As Lerner points out, this is what makes a 'community' different from a 'society' or 'organization', which are terms which usually refer to "bodies established by the deliberate or voluntary action of their members" to promote or protect some interests. "Families, tribes, nations, peoples, cultural groups and religious groups", Lerner continues, "are communities".142 It follows that whereas a 'people' is a group or a community, a group or a community is not necessarily a 'people'. Groups are collective entities "that exist as units and not simply as aggregations of individuals".143 The very character of being a group is, according to Van Dyke, reflected in "a sense of belonging together, a we/they sense, a sense of solidarity vis-a-vis outsiders, a sense of sharing a common heritage and a common destiny, distinct from the heritage and destiny of others".144 As was shown above, the Friendly Relations Declaration must be interpreted as recognizing a 'right' of internal self-determination of 'peoples'. Moreover, it was argued that the notion of 'peoples' includes subgroups or 140. 141. 142. 143.
Galenkamp, supra note 138, at p. 112. UN Doc. E/CN.4/Sub.2/85, 1949, p. 4. N. Lerner, supra note 24, at p. 29. V. van Dyke, Collective Entities and Moral Rights: Problems of Liberal-Democratic Thought, The Journal of Politics, Vol. 44, 1982, p. 21, at p. 23. 144. Id., at p. 32.
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subdivisions of the nation. Because a 'people' constitutes a group, and because a 'people' may constitute a subgroup (conceivably with other subgroups) of a larger group which in turn may be territorially, politically and socially organized as a State, this necessarily implies that a 'people' in this sense must be distinct from other groups or communities and from the larger group or community, even though it forms part of the latter. As has been observed: [t]he most reasonable starting point here is an assumption that, at a minimum, any 'self must be distinct from the other selves inhabiting the globe.145 Indeed, because the raison d'être and main objective or purpose of the concept of self-determination is the protection, preservation, strengthening and development of the identity or individuality of a 'people', the applicability of self-determination therefore presumes the distinctiveness of that 'people'. It could be argued, however, that any effort to define the concept of 'people' under international law is fruitless, because 'peoplehood' cannot be determined on the basis of a definitive set of individually necessary and jointly sufficient conditions.146 Even if this would be true, it does not mean that the concept can have no place in international law. For the same applies with respect to such notions as 'race' or 'minority'. Yet, while there is not a uniform definition of a 'minority',147 this did not prevent the Human Rights Committee from considering Article 27 of the ICCPR to be applicable in concrete cases.148 With respect to the distinctiveness of a 'people', reference is generally made to both objective and subjective criteria or properties which, in their mutual relationship, would provide for a framework for the determination of the
145. Buchheit, SECESSION, p. 9. 146. On the basis of this feature the notion of a 'people' has been referred to as an example of a 'cluster concept'. See H. Beran, A Philosophical Perspective, in: W.J.A. Macartney (Ed.), SELFDETERMINATION IN THE COMMONWEALTH, 1988, p. 23, at p. 25. The notion of a cluster concept has been elaborated by, amongst others, D. Gasking, Clusters, Australian Journal of Philosophy, Vol. 38, 1960, p. 1. Generally, a cluster concept refers to a notion or term which is defined according to a set of criteria by some people and according to another set of criteria by other people without the necessary consequence of a conflict. When the first group of people considers something to be 'art' if it meets the criteria A, B and C and the second group of people considers it sufficient if the object meets criteria A and B, both groups of people will recognize an object as 'art' if it meets criteria A, B and C. At the same time, criteria A and B appear to be necessary but not sufficient requirements for an object to qualify as 'art', while criterion C is a relative criterion. 147. See Section 3.3. of this Chapter, infra. 148. See, e.g., Ominayak and the Lubicon Lake Band v. Canada, supra note 58, at paras. 13.4 and 32.2.
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existence of what will be called a 'collective individuality' of a (sub)group.149 This collective individuality would qualify that (sub)group as a people for the purpose of internal self-determination. 150 The criteria for 'peoplehood' in an ethnic sense can be summarized as follows:151 (1) a group of individual human beings who enjoy some or all of the following features: (a) a (historical) territorial connection, on which territory the group forms a majority; (b) a common history; (c) a common ethnic identity or origin;152 (d) a common language; (e) a common culture; (f) a common religion or ideology; (2) the belief of being a distinct people distinguishable from any other people
149. This implies a definition of 'peoplehood' or 'selfness' by contrast, which is common to the idea of 'group'. The definition by contrast is based on the reasoning that "there can be no 'me' if there is no 'you', so there can be no 'us' if there is no 'them'". See Wilson, supra note 133, at p. 440. 150. See also, e.g., Hannum, supra note 42, at pp. 35-36; R. A. Friedlander, Proposed Criteria for Testing the Validity of Self-Determination as it Applies to Disaffected Minorities, Chitty's Law Journal, Vol. 25, 1977, p. 335, at p. 336; Klabbers and Lefeber, supra note 22, at pp. 39-40. 151. See, e.g., Cristescu, supra note 11, pp. 40-41 (para. 279): "a) the term 'peoples' denotes a social entity possessing a clear identity and its own characteristics; b) it implies a relationship with a territory, even if the people in question has been wrongfully expelled from it and artificially replaced by another population; c) a people should not be confused with ethnic, religious or linguistic minorities, whose existence and rights are recognized in Article 27 of the International Covenant on Civil and Political Rights"; International Commission of Jurists, East Pakistan Staff Study, International Commission of Jurists Review, Vol. 8, 1972, p. 23, at p. 47 (summing up a list of "more important common features" having regard to "human communities recognized as peoples". These features "may be historical, racial or ethnic, cultural or linguistic, religious or ideological, geographical or territorial, economic and quantitative"); UNESCO, International Meeting of Experts on Further Study of the Concept of the Rights of Peoples, Final Report and Recommendations, 22 Feb. 1990, UN Doc. SHS-89/CONF.602/7, pp. 7-8. A people was described as: "1) a group of individual human beings who enjoy some or all of the following common features: a) a common historical tradition, b) racial or ethnic identity, c) cultural homogeneity, d) linguistic unity, e) religious or ideological affinity, f) territorial connection, g) common economic life; 2) the group must be of a certain number who need not be large; 3) the group as a whole must have the will to be identified as a people or the consciousness of being a people - allowing that groups or some members of such groups, though sharing the foregoing characteristics, may not have the will or consciousness; and 4) possibly the group must have institutions or other means of expressing its common characteristics and will for identity". See also Klabbers and Lefeber, supra note 22, at pp. 39-40; D. Murswiek, The Issue of a Right of Secession - Reconsidered, in: Tomuschat (Ed.), supra note 20, p. 21, at p. 37; I. Brownlie, International Law at the Fiftieth Anniversary of the United Nations, HR, Vol. 255, 1995, p. 9, at p. 59. And cf. Margalit and Raz, supra note 54, at pp. 443-447, 458. 152. Which would include some or all of the features mentioned under points (d)-(fl.
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inhabiting the globe, and the wish to be recognized as such, as well as the wish to maintain, strengthen and develop the group's identity.153 Point (2) can be referred to as the 'subjective' criterion154 and the features mentioned under point (1) as the 'objective' criteria for 'peoplehood'.155 It should be noted, however, that the term 'objective' does not mean characteristics totally unchangeable and independent from decisions, opinions and changes voluntarily undertaken by a people.156 'Peoplehood' is not a static concept. The collective individuality resulting from the existence of these objective and subjective properties - the existence of which is a factual rather than a legal question - distinguishes a (sub)group from other social and political groups, and indeed from "the other selves inhabiting the globe". In this sense, the collective individuality indicates a group's 'peoplehood', that is to say it reflects a group's self-identity which "outside observers take to be ethnic or associate with the term ethnic".158 Within the framework of the social and cultural or anthropological concept of a 'people', to be a people a group probably has to have most of the characteristics listed, but not, as was observed above, necessarily all. The identification of the required number of objective criteria in particular is usually "context-dependent",160 although the criterion of
153. The wish to maintain, strengthen and develop the group's identity reflects the wish for a common future. 154. This 'subjective' criterion is not only important for the qualification of a collectivity as a 'people', but also with respect to those situations wherein groups are qualified as 'peoples' for the purpose of self-determination without freely having expressed the desire to be recognized as such. The South African Homelands and the South African policies of territorial fragmentation with respect to South West Africa (Namibia) are striking examples. See Chapter 4, Section 5.2.2.(b), supra. 155. See also Berman, supra note 3, at pp. 90-92. Berman describes the origin of 'objective' and 'subjective' criteria and qualifies the combined test for 'peoplehood' on the basis of the two categories as "a moderate, non-partisan approach" which "appears to offer a reasonable way for limiting self-determination to a manageable group of cases". However, he also casts doubts with respect to the possibility of the simultaneous use of both categories without giving dispositive power to one of them. 156. Vukas, supra note 68, at p. 355. 157. Cf. Greco-Bulgarian Communities case, Advisory Opinion, 1930, PCIJ, Series B, No. 17, p. 4, at p. 22. 158. D. Ronen, THE QUEST FOR SELF-DETERMINATION, 1979, pp. 45-46. Cf. E. Cashmore,
DICTIONARY OF RACE AND ETHNIC RELATIONS, 1998, pp. 119-120: "[t]he actual term derives from the Greek ethnikos, the adjective of ethnos. This refers to a people or nation. In its contemporary form, ethnic still retains this basic meaning in the sense that it describes a group possessing some degree of coherence and solidarity composed of people who are, at least latently, aware of having common origins and interests. So [it] is not a mere aggregate of people or a sector of a population, but a self-conscious collection of people united, or closely related by shared experiences. Those experiences are usually, but not always, ones of deprivation". Thus, sociologically the meaning of the term 'ethnic' is broader than merely denoting common genealogical origins and a common culture. 159. See also Beran, supra note 147, at p. 25.
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territorial connection is most often mentioned as a necessary (but not sufficient) condition for 'peoplehood'.161 This seems to be affirmed in practice, because those subgroups which consider themselves to be entitled to political (internal) self-determination, such as, for instance, the Basques in Spain, the Scots in Great Britain, the Montenegrians in Yugoslavia, the Inuit in Canada, the Flemish in Belgium or the Moluccans in Indonesia, usually inhabit a distinct territorial unit which is considered by these groups as an indispensable factor of the group's identity and, indeed, for its continued existence. Thus, if a specific subgroup within a State can be qualified as a people in an ethnic sense on the basis of the abovementioned criteria, that subgroup would be a holder of the collective 'right' of internal self-determination. This does not mean, however, that the composition of a State's government must necessarily reflect all that State's peoples qua peoples.162 A people may be of the opinion that its collective identity is sufficiently protected by the applicability of, and respect for, specific minority rights and through the participation of its members in the decision-making process of the State in their capacity as members of the nation. Under these circumstances there is no immediate further legal obligation on the side of the State to provide for specific and extra guarantees. Accordingly, a State which would force a people to accept a specific distinct legal status within that State (say territorial autonomy), would thus violate the right of self-determination of that people. On the other hand, it may also be envisaged that a subgroup as such does not exercise its right of internal self-determination on the central level of decision-making but that it does exercise this right freely through some form of autonomy. In such a case as well there is at least a presumption that the right of internal self-determination is respected.
160. Klabbers and Lefeber, supra note 22, at p. 39. And cf. Crawford, supra note 25, at pp. 168-169. 161. P. Akhavan, Lessons From Iraqi Kurdistan: Self-Determination and Humanitarian Intervention Against Genocide, NQHR, Vol. 11, 1993, p. 41 , at pp. 58-59; Murswiek, supra note 151, at p. 37; Brownlie, supra note 151, at p. 59 ("[t]he essence is the existence of a population attached by residence and cultural history to a finite territorial area"). See also Crawford who observes that the International Court of Justice in the Frontier Dispute case (ICJ Rep. 1986, p. 554, and see p. 293 ff.) rightly used the principle of uti possidetis as a means of interpretation of the principle of self-determination of peoples, because "[h]uman communities, as presently conceived and structured, operate as territorial communities". J. Crawford, The General Assembly, the International Court and Self-Determination, in: V. Lowe and M. Fitzmaurice (Eds.), FIFTY YEARS OF THE INTERNATIONAL COURT OF JUSTICE, ESSAYS IN HONOUR OF SIR ROBERT JENNINGS, 1996, p. 585, at p. 603. This should, however, not be confused with the territorial definition of a 'people', as discussed in Section 3.1. of this Chapter, supra, according to which the existence of a permanent population within a defined state territory is sufficient for qualifying that population as a 'people' for the purpose of internal self-determination. 162. See also Hannum, supra note 42, at p. 17.
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Minorities
No single definition of the term 'minority' has yet been accepted either at an international level or at the level of domestic legislation. Several studies on minority rights have been undertaken, some of which were specifically aimed at formulating an all-embracing definition of 'minorities' in international law. But none of these studies have succeeded in either finding such a definition or in proposing one which was subsequently universally endorsed.163 The most logical reason, it seems, for this 'failure' is the existence of a great variety of minority groups and the difficulty of classifying them in a homogeneous manner. Although any detailed discussion of the international legal position of minorities and of minority rights is beyond the scope of this study,164 it seems necessary to at least address the issue of the apparent distinction between 'minorities' and 'peoples' under international law. The relevant international instruments indicate that a 'people' and a 'minority' are considered to be two different concepts,165 because only 'peoples' 163. In the Greco-Bulgarian Communities case the International Court has expressed the opinion that whether or not a particular community constitutes a minority is a question of fact and not of law. See Greco-Bulgarian Communities case, supra note 157. Cf. also Rights of Minorities in Upper Silesia (Minority Schools), Judgment No. 12, 1928, PCIJ, Series A, No. 15, p. 4, at p. 32 (hereinafter 'Minority Schools in Albania'). In this connection it is noteworthy that the Human Rights Committee has observed that "[t]he existence of an ethnic, religious or linguistic minority in a given State party does not depend upon a decision by that State party but requires to be established by objective criteria". See Human Rights Committee, General Comment 23, Art. 27, 15th sess., 1994, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI\GEN\Rev.l, para. 5.2. Such criteria have been suggested in several studies. In that respect reference is often made to the definition which was proposed by Capotorti, Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities (although it should be noted that this definition also contains a subjective criterion): "[a] group which is numerically inferior to the rest of the population of a State, in a non-dominant position, whose members - being nationals of the State - possess ethnic, religious or linguistic characteristics differing from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religion or language". See F. Capotorti, Study on the Rights of Persons Belonging to Ethnic. Religious and Linguistic Minorities, Study prepared by the Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, UN Doc. E/CN.4/Sub.2/384/Rev.l, 1979, p. 96, para. 568. 164. The literature on the status of minorities and minority rights is extensive. See, e.g., Capotorti, id.; D. Blumenwitz and G. Gornig (Eds.), MlNDERHEITEN- UND VOLKSGRUPPENRECHTE IN THEORIE UND PRAXIS, Band 12, 1993; Y. Dinstein and M. Tabory (Eds.), THE PROTECTION OF MINORITIES AND HUMAN RIGHTS, 1992; J. Packer and K. Myntti (Eds.), THE PROTECTION OF ETHNIC AND LINGUISTIC MINORITIES IN EUROPE, 1993; W.S. Heinz, INDIGENOUS POPULATIONS, ETHNIC MINORITIES AND HUMAN RIGHTS, 1988; Thornberry, supra note 83. 165. See ICCPR, Art. 1 and Art. 27; CSCE Helsinki Final Act, 1975, Principle VII and Principle VIII. See also the CSCE Charter of Paris of 1990. In none of the relevant international instruments specifically dealing with minority rights will one find a reference to the right of self-determination. See, e.g., European Charter for Regional or Minority Languages, 5 Nov. 1992, European Treaties, Vol. II, No. 148, p. 769; Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities, UN Doc. A/Res/47/135, 18 Dec. 1992; Council
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are said to be entitled to self-determination, not 'minorities'.166 As will be seen below, this is only correct to the extent that a 'minority' does not at the same time constitute a 'people'. Regarding the question of which factors are crucial in distinguishing the two groups, it seems that the most important element is formed by the characteristic of a collective individuality of a people. It has already been said that against the background of self-determination the notion of collective individuality reflects the 'selfness' of a collectivity as a result of which this 'self would be distinguishable from any other 'self' on the globe. This is not to say that 'minorities' do not possess a group identity. They do, and it is precisely for the protection of that identity that minority rights are granted to the members of a 'minority'. 167 Yet, it may be suggested that the of Europe, Recommendation 1201 on an additional protocol to the Convention on Human Rights and Fundamental Freedoms, Concerning Persons Belonging to National Minorities, adopted by the Consultative Assembly on 1 February 1993; Framework Convention for the Protection of National Minorities, Council of Europe, Strasbourg, 1 Feb. 1995, ETS No. 157. As to the provisions on minority rights adopted within the context of the OSCE, see, generally, CSCE/OSCE Provisions Concerning Persons Belonging to National Minorities, Prepared by the Office for Democratic Institutions and Human Rights, Warsaw, Oct. 1995. 166. Thus whereas a people would be the holder of the political right of self-determination, (persons belonging to) minorities would essentially be the holders of cultural rights only. See C. Tomuschat, Self-Determination in a Post-Colonial World, in: Tomuschat (Ed.), supra note 20, p. 1, at p. 15. See also Human Rights Committee, General Comment 23, Art. 27, supra note 163, at paras. 2 and 3.1; Cristescu, supra note 11, at p. 41, para. 279; Henkin et al. (Eds.), INTERNATIONAL LAW, CASES AND MATERIALS, 1993, pp. 304-305; Shaw, supra note 74, at p. 35; McGoldrick, supra note 13, at p. 15; Higgins, supra note 71, at p. 32. However, as was observed above, Higgins is of the opinion that in the post-colonial era, the term 'peoples' solely refers to the entire population of a State. The same author states that insofar as the members of minorities form part of the entire population of an existing State "they too, as individuals, are holders of the right of self-determination". R. Higgins, PROBLEMS AND PROCESS, INTERNATIONAL LAW AND HOW WE USE IT, 1994, p. 124. This is difficult to accept. As was discussed above, the right of self-determination is vested in the nation, but is exercised by its members, either directly or through representatives. For the view that a group is a 'minority' if a State is possessed of a representative government, while the same group constitutes a 'people' if the government of a State "engages in discriminatory and massive human rights violations, such as genocide, against the minority group in question", see Akhavan, supra note 161, at p. 59. This view is supported by Kooijmans. See Kooijmans, supra note 47, at pp. 215-216. Because, according to this view, no right of self-determination could lawfully be claimed by potentially existing subgroups as such as long as the right of internal self-determination of the encompassing nation is respected, respect for the indivisible right of political internal self-determination of the nation is in this conception essentially reduced to respect for individual civil and political human rights. Binder has called this view "the reductive view of self-determination" and convincingly argues that thus reduced, especially with respect to multipeople States, the right of selfdetermination hardly retains an element of collective self-identity (unless one would argue as this study will not - that the collective identity of the nation always equates with the collective identities of its segments). This does not seem to be reconcilable with the raison d'être, objective and function of the right of self-determination. See Binder, supra note 56, at pp. 246-269. See also pp. 239-242, supra. 167. This clarifies the use of compromise wordings in international texts which emphasize both the individualistic character of minority rights and the fact that these rights may be exercised in community with other members of the group. See, e.g., Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities, supra note 164, Art. 3;
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proposed definitions of 'minorities' also contain references to a distinct character of a 'minority'168 and that, consequently, the distinguishable feature of collective individuality is blurred. It is submitted, however, that the references in the proposed definitions of 'minorities' essentially concern the distinctiveness of a 'minority' in relation to the rest of the population (the majority) of the State wherein such a 'minority' resides. Thus, the characteristic of distinctiveness in the case of 'minorities' (which do not constitute a 'people' in an anthropological sense) does not relate to communities beyond the external borders of that State. In this respect the following should be considered. In many texts on minority rights use is made of adjectives like 'national', 'ethnic', 'religious', or 'linguistic'.169 These terms were already used in treaties on minorities in the interbellum period and their use seems to be inspired by the aim of distinguishing minority groups from each other for the purpose of conferring appropriate minority rights.170 Generally, the term 'national minority' has been interpreted in two ways. First, it has been suggested that the term refers to those minorities which "have the will to exercise as a group those rights which give minorities the possibility to take part in the policy-decisions process within a given territory or even in the national context of a State without being on an equal footing with other ethnics in this State".171 In other words, according to this view the term 'national' denotes the collective political ICCPR, Art. 27; Framework Convention, supra note 164, Art. 3(2). Moreover, the subjective factor of self-awareness or community feeling, that is, the belief of being a distinct group and the wish to be recognized as such, as well as the wish to maintain the group's identity and the urge to give (stronger) expression to that identity, is one of the basic criteria for qualifying a group as a 'minority' and for the existence and attribution of minority rights. As to the right to recognition of the identity of a minority, see also Opinion 2 of the Arbitration Commission of the International Conference on Yugoslavia, supra note 54. 168. See Minority Schools in Albania, supra note 163, at p. 17; Draft European Convention for the Protection of Minorities, Art. 2, Para. 1, Council of Europe, European Commission for Democracy Through Law, Proposal for a Convention for the Protection of Minorities, Doc. CDL(91)7, Strasbourg, 4 March 1991; Central European Initiative Instrument for the Protection of Minority Rights, Trieste, Centre for Information and Documentation, 1996, cited in: Vukas, supra note 68, at p. 349. See also Capotorti, supra note 163; Proposal Concerning a Definition of the Term 'Minority' Submitted by Mr. Jules Deschênes, Special Rapporteur of the SubCommission on Prevention of Discrimination and Protection of Minorities, UN Doc. E/CN.4/Sub.2/1985/31/Corr.l, 14 Aug. 1985, p. 16. And see the description of a national minority given by the High Commissioner on National Minorities, M. van der Stoel, in: The Foundation on Inter-Ethnic Relations, THE ROLE OF THE HIGH COMMISSIONER ON NATIONAL MINORITIES
IN OSCE CONFLICT PREVENTION, AN INTRODUCTION, 1997, p. 23 ("[...] a minority is a group with linguistic, ethnic or cultural characteristics which distinguish it from the majority"). 169. For a detailed discussion of these terms, see Vukas, supra note 68, at pp. 329-363. 170. However, this seems a difficult if not impossible task with respect to some particularities. For example, it is difficult to conceive the existence of a purely linguistic minority, as language is one of the basic elements of culture which in turn is in itself one of the constitutive elements of ethnicity. See Vukas, supra note 68, at p. 335; Thornberry, supra note 83, at pp. 161, 163. 171. See F. Ermacora, The Protection of Minorities Before the United Nations, HR, 1983 IV, p. 247, at p. 295.
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awareness of a 'minority'. In addition to the interpretation of the term 'national minority' in the sense described above, the term is also, and more often, used as a synonym for 'ethnic minority'. 172 Under international law, the term 'ethnic minority' at least includes those communities residing in one State while their kith and kin have freely established (possibly together with other ethnic groups) 173 their own State. 174 This State, especially when the kith and kin form a numerical majority within that State, is often referred to as the 'kin State'. In this respect one may think of the Hungarian minorities in Romania and Slovakia, the Russian minorities in, for instance, Estonia, Latvia and Ukraine, or the Serb minority in Croatia.175 This interpretation of the term 'national minority' clearly follows, for instance, from a letter of the OSCE High Commissioner on National Minorities to the Minister for Foreign Affairs of the Republic of Ukraine, in which the High Commissioner addresses the international and national legal
172. See the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities, UN Doc. A/Res/47/135, 18 Dec. 1992. See also, e.g., the Hungarian Act LXXVII, 7 July of 1993, Art. 1, Para. 2: "[t]he present law will be applied to all those persons having Hungarian citizenship, living within the territory of the Republic of Hungary, who consider themselves to be members of a national or ethnic minority and to all communities consisting of such persons. In the application of this Act, all those ethnic groups having been living on the territory of Hungary for at least one century, are to be regarded as national or ethnic minorities [...]". Act on the Rights of National and Ethnic Minorities, Budapest, Office for National and Ethnic Minorities, 1993. 173. Here one can think of, for instance, a federal State where the (majority of the) group in question is organized in the form of a federal constitutional unit. 174. Vukas, supra note 68, at p. 323; Eide, supra note 70, at p. 355. This interpretation of the term 'national' or 'ethnic minority' is the one which is supported by several States such as Germany, Bulgaria and Hungary. See also East-West Parliamentary Practice Project, Parliaments and the Protection of the Rights of Minorities in Multicultural Societies, Report, King Baudouin Foundation, 1994, p. 4. And see, e.g., the declarations of Denmark and Germany with respect to the meaning of the term 'national minority' in the Framework Convention for the Protection of National Minorities (Council of Europe, Strasbourg, 1 Feb. 1995, ETS No. 157). Denmark stated that it would apply the Convention to "the German minority in South Jutland of the Kingdom of Denmark", and Germany stated that it would apply the Convention, amongst others to "the Danes of German citizenship". Council of Europe, Human Rights Information Bulletin, No. 41, Doc. H/INF(98)1, p. 42. 175. As regards the Serb minority in Croatia (and Bosnia-Herzegovina), see Arbitration Commission of the International Conference on Yugoslavia, Opinion 2, supra note 54, at p. 1498, para. 2. And see Chapter 7, Section 5.3., infra. Although no Kurdish State exists, the Kurdish communities in Turkey, Syria, Iraq, Iran, Azerbaijan and Armenia must also be mentioned here. The Kurdish community as a whole would seem to qualify as a people for the purpose of internal self-determination in the respective States of their residence. However, and primarily for political reasons, the different sections of the Kurdish people residing in the aforementioned States are treated by the international community as national or ethnic minorities. Accordingly, the members of the Kurdish populations would, in principle, be entitled to individual minority rights only. Cf., e.g., UN Doc. S/Res/688, 5 Apr. 1991 (in which the Security Council carefully avoided the term 'people' and instead referred to "the Kurdish population" and "Kurdish populated areas"). See, generally, R. Falk, Problems and Prospects for the Kurdish Struggle, Mich. JIL, Vol. 15, 1993-1994, p. 591; Akhavan, supra note 161.
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position of national minorities and indigenous peoples.176 'The High Commissioner writes [w]hen referring to international and Ukrainian legal instruments regarding national minorities which are applicable to indigenous peoples, I do not intend to suggest that no distinction can be made between national minorities and indigenous peoples. An important difference is, in my view, that in contrast to a national minority, an indigenous people does not have a kin state. 177
In the case of national or ethnic minorities the lack of a collective individuality - which, it must be recalled, should be distinguished from their collective identity - is often evident. Many ethnic minorities. cannot (apart from the geographical factor) and, indeed, do not wish to be distinguished from their kith and kin residing in the kin State. It is precisely because of this 'onecommunity-feeling' that several situations involving ethnic minorities have led to irridentism. This, in turn, mainly explains the fact why the discussion on self-determination and minorities is often centred around the legal position of this specific category of 'minorities'.178 Thus, national or ethnic minorities, as these terms are most often used in practice, do not, and are not meant to refer to 'peoples' as subgroups within a State (that is, in the social and cultural or anthropological sense). It should be clear, however, that an ethnic group which is numerically inferior to the rest of the population of the State of residence, is either a national/ethnic minority or - if the group possesses a collective individuality - a people. In the latter case the group may be qualified as a 'minority-people', which means that the group and its members enjoy minority rights in addition to the right of internal self-determination. In this specific sense the notions of 'minorities' and 'peoples' overlap. So as not to leave any misunderstanding, it must be noted that 'minorities', like 'peoples', are not static concepts. Minorities, like peoples, are formed and dissolved (through, for instance, voluntary assimilation)179 according to the 176. On indigenous peoples as a particular category of peoples in an ethnic sense, see note 134, supra and the references mentioned there. 177. Letter of the OSCE High Commissioner on National Minorities to the Minister for Foreign Affairs of the Republic of Ukraine, OSCE Doc. REF.HC/4/97, 14 Apr. 1997. 178. As is evidenced by, for instance, the establishment of a High Commissioner on National Minorities within the context of the OSCE. 179. It has now been recognized that no one can be obliged to remain a member of a minority (or a people for that matter). See, e.g, Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE, 29 June 1990, Art. 32, ILM, Vol. 29, 1990, p. 1306. See also Arbitration Commission of the International Conference on Yugoslavia, Opinion 2, supra note 54, at p. 1498, para. 3. This means, amongst other things, that a minority may gradually dissolve as a result of the fact that its members prefer membership in another social group. On
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wishes of their members,180 and if not a people at present, a 'minority' may become or may be regarded as a people in the future. Thus, on the basis of the relevant international instruments mentioned above, concerning minorities and minority rights, it must be concluded that under positive international law at least national or ethnic minorities are excluded as subjects of the collective right of internal self-determination. This conclusion is without prejudice to the fact that making a distinction between peoples which are (as collectivities) entitled to the right of self-determination and national or ethnic minorities the members of which are entitled to minority rights only181 is probably morally deplorable, but it is nevertheless a reality under contemporary international law. On the other hand, it has sometimes been suggested that in view of recent practice, such as in the case of Kosovo where the Security Council explicitly stated that the future political status of Kosovo should be based on a "substantially greater degree of autonomy and meaningful self-administration", 182 there the relation between the concept of minorities and free association, see }. Packer, On the Definition of Minorities, in: Packer and Myntti (Eds.), supra note 164, pp. 23-65. 180. This is without prejudice to the fact that minorities may also be dissolved as a result of coercive policies of unwanted assimilation. 181. The modern legal status of minorities and their rights is essentially individualistic in character, in the sense that, in most cases, the holder of minority rights is not the group as such but 'a person belonging to a minority'. See, e.g., ICCPR, Art. 27; Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities, supra note 172. Although the League of Nations system of minority protection was not principally group-oriented but mainly ascribed rights to members of minorities, some measure of international personality of the minority as a group was recognized. The right of petition was granted not only to the members but also to the groups themselves. In addition, some minority treaties did confer rights to minority groups as such. The League system of minority protection was based on 'equality in law and fact', that is equal rights for all and special rights for the members of minorities (see Minority Schools in Albania case, supra note 163, at p. 17: "there would be no true equality between a majority and a minority if the latter were deprived of its own institutions, and were consequently compelled to renounce that which constitutes the very essence of its being a minority"). With the establishment of the UN, emphasis was put on the protection of individual human rights, which resulted in a merely individualistic approach towards minority rights protection, despite the fact that many minority rights, to have any meaning, have to be exercised in community with others. See, e.g., Capotorti, supra note 163, at pp. 16-41; Thornberry, supra note 83, at pp. 38-52, 173-177 (who, because of the latter aspect, qualifies the rights in Article 27 ICCPR as 'group rights'); A. Meijknecht, TOWARDS INTERNATIONAL PERSONALITY: THE
POSITION OF MINORITIES AND INDIGENOUS PEOPLES IN INTERNATIONAL LAW, 2001, Ch. 4; J. Herman, DE VOLKENBOND EN HET TOEZICHT OP DE VOLKENRECHTELIJKE BESCHERMING VAN NATIONALE MINDERHEDEN IN OOST-EUROPA, 1994. 182. UN Doc. S/Res/1160, 31 March 1998, Para. 5. See also UN Doc. S/Res/1199, 23 Sept. 1998, Preamble, Para. 12; UN Doc. S/Res/1203, 24 Oct. 1998, Preamble, Para. 8; UN Doc. S/Res/1244, 10 June 1999, Preamble, Para. 11. The latter resolution, however, uses the words "substantial autonomy and meaningful self-administration" which seems to be more to the point than the reference to a "substantially greater degree of autonomy" in the light of the lack of any such status of Kosovo under the 1992 Constitution of the Federal Republic of Yugoslavia and, thus, at the time of the adoption of the resolutions. The abolishment of the autonomous status was realized in several steps. On 23 March 1989, the Kosovar parliament was forced by Serbia to
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may be a development towards extending the right of internal self-determination to national or ethnic minorities. However, as regards the Security Council resolutions on Kosovo, it is significant that the Council carefully avoided the use of the term' self-determination'.184 Indeed, notwithstanding the demand approve the abolishment of its autonomous status under the 1974 Yugoslav Constitution. Subsequently under the 1990 Serbian Constitution (Arts. 108-112), the autonomous status of the province existed only in name. In the course of 1990, by a law adopted by the Serbian National Assembly, the Kosovar parliament and government were dissolved and all powers in the province reverted to Serbian authorities. Eventually the 1992 Constitution of the Federal Republic of Yugoslavia no longer contained any reference to Kosovo as an autonomous province. See, generally, M. Vickers, BETWEEN SERB AND ALBANIAN: A HISTORY OF KOSOVO, 1998; N. Malcolm, KOSOVO: A SHORT HISTORY, 1998. The demand for the restoration of territorial political autonomy is supported by various States and organizations. See, e.g., Council of Europe, Parliamentary Assembly, Recommendation 1384, 1998, Para. 3. 183. For instance, it has been argued that the Arbitration Commission of the International Conference on Yugoslavia recognized, although in ambiguous terms, that the Serbs in Croatia and BosniaHerzegovina were entitled (as a maximum) to internal self-determination. See M. Weller, The International Response to the Dissolution of the Socialist Federal Republic of Yugoslavia, AJIL, Vol. 86, 1992, p. 569, at pp. 591-592; and see Conference on Yugoslavia, Arbitration Commission, Opinion 2, supra note 54, at p. 1488, paras. 1 and 3. The text of the Opinion is vague enough to reach such a conclusion. On the other hand, such a view does not seem to be supported by state practice, in particular with respect to the Serb community in Croatia. Under the supervision of the international community, a Draft Convention was agreed upon by the relevant parties on 4 November 1991 in the context of the International Conference on the Former Yugoslavia under the chairmanship of Lord Carrington (the document is reprinted in: S. Trifunovska (Ed.), YUGOSLAVIATHROUGHDOCUMENTS.FROMITSCREATIONTOITSDlSSOLUTION, 1994, p.357 ff.). Although the Draft Convention did provide for a special (autonomous) status for the Serb community in Croatia with respect to those regions where they formed a majority or a substantial minority, the Convention avoids references to the Serb minority as such and instead consistently refers to "persons belonging to a national or ethnic group" (i.e. the Serb minority). See UN Doc. S/23169, 25 Oct. 1991, Ann. VI. This makes it difficult to accept that the international community had recognized a collective right of internal self-determination for the Serb minority in Croatia. Elsewhere it has been suggested that in the Owen-Vance and Owen-Stoltenberg process "the international community, de facto, has recognized that the Serbs and Croats of Bosnia-Herzegovina have a right of self-determination, which may express itself in autonomy or even secession". See T.M. Franck, FAIRNESS IN INTERNATIONAL LAW AND INSTITUTIONS, 1995, p. 167, n. 68. Even if this conclusion were correct, it would relate to internal selfdetermination only and not to secession. The pertinent refusal by the international community to recognize the claims to statehood by the Serb Republic of Bosnia-Herzegovina (the 'Republika Srpska') which was set up by the Bosnian Serb minority and the Republic Herceg-Bosna which was proclaimed by the Bosnian Croat minority, in combination with the insistence on the maintenance of the territorial integrity of the Republic of Bosnia-Herzegovina, can lead to no other conclusion than that a claim to secession was rejected. 184. Even so, nowhere in its report does the Independent International Commission on Kosovo refer to a right of self-determination of the Kosovo Albanians. The Commission's point of departure with respect to the future status of Kosovo is "the promise" of the Security Council in Resolution 1244. Because at the time of the writing of the report the FRY was still ruled by Slobodan Milosevic, and because of the historical developments since 1989, the Commission's advise as to the future status of Kosovo ('conditional independence') went beyond the framework of Security Council Resolution 1244, not because the Kosovo Albanians would be entitled to determine their political status on the basis of any international right of self-determination, but because, as the Commission observed, "the simple truth is that no Kosovar will accept to live under Serb rule, however notional again". The Independent International Commission on Kosovo, THE KOSOVOREPORT, CONFLICT, INTERNATIONAL RESPONSE, LESSONS LEARNED, 2000, P. 271.
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for the restoration of autonomy, the international community's policy with respect to Kosovo has been consistently phrased in terms of minority rights.185 It therefore seems more plausible that the international support for autonomy for Kosovo, as evidenced by the Council's statement, is based on the fact that an autonomy arrangement - if it is accepted by the national or ethnic minority in question either through their representatives, directly through a referendum or through long-standing practical acceptance - wins legitimacy under international law and thereby acquires an especially protected status under international law. On the basis of the Security Council resolutions on Kosovo it may be contended that such a status involves a prohibition of the weakening on the autonomy arrangement against the will of the minority concerned.186 In sum, in the preceding sections it has been shown that the entire population of existing States (nations) and ethnic subgroups possessing a collective individuality (peoples in a social and cultural sense or 'minoritypeoples') are considered to be the subjects ('peoples') entitled to internal selfdetermination. 'Minorities' not simultaneously constituting a 'people', that is, lacking a collective individuality, are excluded as distinct holders of the right of internal self-determination under contemporary international law.
§ 4.
INTERNAL SELF-DETERMINATION AS A RIGHT UNDER INTERNATIONAL LAW
As described in Section 2.2. of this Chapter, the continuing character of selfdetermination is primarily reflected in a right of participation in the political decision-making process of the State. Therefore, before any conclusions can be drawn as to the legal character of internal self-determination, it is necessary to consider the means and methods that fall under the broader terms 'right of participation'. Participation in the political decision-making process may be direct or indirect. Although in smaller polities direct participation by all members of a nation or people may be feasible, in larger polities, and these include the great majority of States, a simultaneous ongoing and direct participation in the decision-making process at the central level with respect to all matters (or even with respect to only those matters which affect a people directly) is in most cases physically impossible. On the other hand, this does not exclude such forms of direct participation like the referendum or plebiscite, nor does it exclude
185. See also Quane, supra note 81, at pp. 226-227. 186. Suksi, supra note 130, at p. 3.
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more direct participation at the regional or local level of decision-making. With respect to the central level of decision-making, indirect participation through, for instance, 'representative' government,187 is a realistic and workable alternative to direct participation. Direct and indirect participation at the central level as well as forms of autonomy and the holding of a referendum arguably reflect means of exercising internal self-determination. These means have been fully discussed by numerous authors and need not be addressed in detail here.188 However, as was seen above, the penultimate paragraph of Principle V of the Friendly Relations Declaration, as well as of the provision on self-determination in the 1993 Vienna Declaration, relate representative government to selfdetermination. It is therefore necessary to examine this relationship more closely. During the debates leading up to the adoption of the Friendly Relations Declaration, a consensus could be distilled with respect to the fact that a government which was 'representative' of the whole population of the State was to be seen as conducting itself in compliance with the right of (internal) self-determination of the population of that State. The proposals with respect to Paragraph 7 of Principle V which were submitted by the United Kingdom, the United States and Italy and which were discussed above, all referred to such a wording. Although not all States explicitly supported these wordings, many did, and none rejected or questioned the assertion of the requirement of 'representativeness'. The same holds true for the reaffirmation of the phrasing (with modification) in the 1993 Vienna Declaration. As such it may safely be said that the notion of 'representative' government is universally accepted in the sense that hardly any government, hardly any ideology, exists now or in the past which does not claim to represent the authority or will of its people.189 But what should be understood by 'representative' government? If a government claims to represent its people, this must necessarily mean that it claims to represent the population as a whole, that is, without distinction. Thus, truly representative government is a non-discriminatory government. Yet this is arguably only one aspect of representativeness'. In addition, and on the basis of the different human right treaties, it is possible to suggest that representative 187. The term 'representative' here refers to the representativeness of the government in its relation to the population of the State. Another meaning of 'representativeness' of a government relates to the government as the representative organ of the State. The two notions may, but do not necessarily, overlap. 188. See, e.g., H. Hannum, AUTONOMY, SOVEREIGNTY, AND SELF-DETERMINATION, 1996; R.
Lapidoth, AUTONOMY, FLEXIBLE SOLUTIONS TO ETHIC CONFLICTS, 1996; Y. Dinstein (Ed.), MODELS OF AUTONOMY, 1981. And see, e.g., B.Mann, THE PRINCIPLES OF REPRESENTATIVE GOVERNMENT, 1997; J. Denquin, REFERENDUM ET PLÉBISCITE: ESSAI DE THÉORIE GÉNÉRALE, 1976; S. Wambaugh, PLEBISCITES SINCE THE WORLD WAR, 1933. 189. Paust, supra note 42, at p. 9.
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government also refers to a specific form of government, that is, representative democratic government. This is certainly the position taken by the Human Rights Committee.190 This view emphasizes the fact that the collective right of internal political self-determination in Article 1, and the individual political rights mentioned in Article 25 of the ICCPR are inextricably bound up with each other. ' As Higgins, a former member of the Committee, points out: Article 25 provides that every citizen shall have the right to take part in the conduct of public affairs, to vote and to be elected at periodic elections on the basis of universal suffrage, and to have access to public service in his country. There is undoubtedly a close relationship between Article 1 and Article 25. But Article 25 is concerned with the detail of how free choice (necessarily implied in Article 1) is to be provided - by periodic elections, on the basis of universal surrrage.192
Although Higgins emphasizes that Article 1 and Article 25 are not identical but rather complementary, this view eventually leads to the conclusion that some of the 'details' laid down in Article 25 are a conditio sine qua non for compliance with the right of internal self-determination, not only under the Covenant - a position to which anyone would most likely subscribe - but also under general international law. The rationale underlying this conclusion is that without providing for all citizens the opportunity to vote and to be elected in periodic elections, there can first be no democracy,193 and secondly there can 190. See also J. Crawford, Democracy and International Law, BYIL, Vol. 64, 1993, p. 113, at p. 114. 191. The Committee notes: "[a]rticle 25 lies at the core of democratic government based on the consent of the people and in conformity with the principles of the Covenant. The rights under article 25 are related to, but distinct from, the right of peoples to self-determination. By virtue of the rights covered by article 1(1), peoples have the right to freely determine their political status and to enjoy the right to choose the form of their constitution or government. Article 25 deals with the right of individuals to participate in those processes which constitute the conduct of public affairs". Human Rights Committee, General Comment 25 (57), UN Doc. CCPR/C/21/Rev.l/Add.7, 27 Aug. 1996, para. 1 and 2. 192. Higgins, supra note 48, at pp. 165-166 (emphasis in original). She also notes that "selfdetermination requires that a free choice be afforded to the peoples, on a continuing basis, as to their system of government [...]. It has been made clear that this is virtually impossible to achieve in a one-party State". Id., at p. 165. The Human Rights Committee has indeed taken the standpoint that political pluralism is a necessary precondition for democracy as perceived under the Covenant. See Report of the United Nations Human Rights Committee to the General Assembly, 1990, UN Doc. A/45/40, paras. 542-546, 576-577. But see the position of the Committee in Andre Alphonse Mpaka-Nsusu v. Zaire, Communication No. 157/1983, UN Doc. A/41/40, 26 March 1986. 193. As has been pointed out by Marks, the criterion of free and fair elections has been qualified by several scholars, such as Franck, as the decisive criterion for democracy. Accordingly the expressions 'democratic entitlement', 'right to democracy', 'norm of democratic governance', 'entitlement to a participatory electoral process' and the 'right to free and fair elections' are employed with relative interchangeability. S. Marks, The End of History? Reflections on Some International Legal Theses, EJIL, Vol. 3, 1997, p. 449, at pp. 461-462. And see T.M. Franck, Democracy as a Human Right, in: L. Henkin and J. Hargrove (Eds.), HUMAN RIGHTS: AN
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be no free choice, the result of which is that there can be no question of a genuine exercise of internal self-determination. The conception of representative democratic government as implying representative legislative bodies acting under procedures of majority rule, freely elected under universal suffrage, competition for office, periodic elections and the rule of law, generally reflects the classical Western conception of democracy.194 Since the mid-1980s this conception has been accepted by an increasing number of States all over the globe. Crawford notes: [s]ince 1986 the world has itself undergone vast changes. In particular there has been a significant change in the democratic balance. In the last decade the proportion of States with democratic systems, however fragile or tentative, has increased sharply - a process beginning in Southern Europe, extending to Latin America and Eastern Europe, the Soviet Union and many of its former republics, and even to East Asia. In Africa, according to one analysis, there were only 4 democracies, as against 40 States with apparently stable non-democratic regimes, in 1989. By 1992, the number of democracies has increased to 18 and the number of non-democracies was reduced to 12. Significantly, there had also been a great increase (from 3 to 22) in the number of regimes in a stage of transition to democracy. These shifts towards democratic government have been qualified by the former United Nations Secretary-General, Boutros-Ghali, as "sufficiently similar to indicate a global phenomenon".196 Although in recent years this development has been negatively influenced through the practice in some States,197 democratization continues to take place in others.198 It is thus certainly true that at least since the mid-1980s 'representative' government has come to be identified more and more with representative or liberal democracy. And it is perhaps even true that a right to democratic governance is emerging.199 However, whether
AGENDA FOR THE NEXT CENTURY, 1994, p. 73, at p. 75. 194. This is to a large extent what Dahl has called a 'polyarchy'. See R.A. Dahl, DEMOCRACY AND ITS CRITICS, 1989, pp. 221-222. 195. Crawford, supra note 190, at pp. 121-122 (footnotes omitted). For an extensive treatment of these developments, see Franck, supra note 42. 196. B. Boutros-Ghali, An Agenda for Peace: Preventive Diplomacy, Peacemaking and Peacekeeping, UN Doc. A/47/277/5/24111, 17 June 1992, p. 2, para. 9. See also OAS Doc. AG/Res 1080, 210/1991, 5 June 1991, which states in its Preamble that the principles of the OAS Charter "require the political representation of [member] States to be based on effective exercise of representative democracy", quoted in: Franck, supra note 42, at p. 65-66. 197. Cf, e.g., the military coup d'état of 22 July 1994 in the Gambia. 198. Cf., e.g., the development in the Federal Republic of Yugoslavia after President Kostunica took office in October 2000. 199. Franck, supra note 42. Cf. also Resolution 1999/57 of the Commission on Human Rights entitled 'Promotion of the right to democracy', which in its Preamble recalls the wording of Article 1(1) of the ICCPR. It is recognized "that democracy, development and respect for all human rights and fundamental freedoms are interdependent and mutually reinforcing, and that democracy
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'representative' government must ex definitione be equalized with the Western conception of democratic government is, to say the least, seriously questionable. 'Representative' government was, and this should not come as a surprise, certainly not generally understood in this manner in 1970 when the Friendly Relations Declaration was adopted. An Italian proposal for what became the penultimate paragraph of Principle V of the Friendly Relations Declaration, which suggested that [s]overeign and independent States (enjoying a democratic government) (endowed with a democratic government) shall be considered as complying (fully with the principle of equal rights and self-determination of peoples)200
was not adopted, and the interpretation of the term 'representative' by the United Kingdom was criticized by some delegations during the discussions.201 Even today, there is no communis opinio that 'representative' government actually means the model of representative democracy as perceived by the West. Insofar as internal self-determination requires political participation by the subjects of the right, it has correctly been pointed out that in this respect "some minimum requirements might be covered by Article 1, while on the other hand, the right of internal self-determination arguably does not go quite as far as Article 25 of the Civil and Political Covenant".202 . The thesis that 'representative' government would necessarily entail the Western conception of representative democracy could be subject to the
is based on the freely expressed will of the people to determine their own political, economic, social and cultural systems and their full participation in all aspects of their lives". UN Doc. E/CN.4/Res/l999/57, 28 Apr. 1999 (vote: 51 to 0, with 2 abstentions (China and Cuba)). 200. UN Doc. A/AC.125/SR.111, 1 Sept. 1970, p. 10. 201. During the discussions in the Special Committee on the draft of the Friendly Relations Declaration, the Burmese representative expressed doubts with respect to the linking of selfdetermination with representative government in the way this was done by the United Kingdom (and the United States) in its proposal on the principle of self-determination. According to the Burmese representative, the proposal implied "a mild attempt to impose certain of [the sponsor's] own political persuasions on the constitutional law and practice of other States". See UN Doc. A/AC.125/SR.68, 4 Dec. 1967, p. 9. In response the United Kingdom representative pointed out: "[t]he use of the word 'representative' in paragraph 4 [of the draft proposal] was not intended to mean that only one system of government properly met the criterion". See UN Doc. A/AC.125/SR/69, 4 Dec. 1967, p. 19. And note the United States observation with respect to the term 'representative' that "the United States [...] understood that the Charter, as originally conceived, did not impose upon Members of the United Nations the duty to adopt a certain type of government". See UN Doc. A/AC.125/SR/92, 21 Oct. 1968, p. 133. 202. Rosas, supra note 21, at pp. 249-250. See also Alfredsson, supra note 20, at p. 51. Rosas' proposition seems to be supported by the fact that self-determination, as a fundamental condition for the effective exercise and enjoyment of individual human rights, is generally regarded as a non-derogable right under the ICCPR, whereas the electoral rights in Article 25 can be derogated from under the conditions mentioned in Article 4 of the ICCPR. But see Art. 23 j() Art. 27(2) of the American Convention on Human Rights, UNTS, Vol. 1144, p. 123.
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criticism that, as a preordained choice, it leaves no free choice to the peoples concerned as to their form of government, which would in itself be contrary to political self-determination.203 In effect, this would annihilate the essential feature of self-determination which is, as was observed elsewhere in this study, the principle of 'free choice' as emphasized by the International Court in the Western Sahara case.204 Moreover, by necessarily linking internal self-determination to a Western style of democratic government, such an interpretation leaves virtually no room for a population's own perception of the representative character of its government and for a people's own (traditional) procedures. It is inherent in the notion of political self-determination that both the form in which consent is expressed and the form of manifestation of a political and social organization of human beings may vary within the framework of 'representativeness' and 'legitimacy'.205 Even Rousseau acknowledged that a 'legitimate' government based on consent might include a monarchy.206 Within the context of the notion of internal self-determination one might envisage a sliding scale with respect to the actual form and procedure by which the right of participation is expressed and exercised.207 Thornberry has correctly pointed out that "[t] here are clearly strong and weak senses of 'representation' - from merely speaking for or on behalf of a represented group, to continually 'making present' their views, a much stronger sense". ° And as has been observed by Salmon: [t]he real difficulty of the matter is to define how a people exercises its internal right to self-determination. [...] In the Western countries it is generally believed that the only right answer is a system of liberal regime coupled with market economy. Such reasoning is purely ideological; there are many regimes in the
203. See also Doehring, supra note 69, at p. 69. 204. Western Sahara case, ICJ Rep. 1975, p. 13, at pp. 31-33; and see Chapter 5, Section 3.4.3., supra. 205. Cf., e.g., Arts. 19 and 20 of the Draft Declaration on the Rights of Indigenous Peoples, supra note 135 (Art. 19: "[i]ndigenous peoples have the right to participate fully, if they so choose, at all levels of decision-making in matters which may affect their rights, lives and destinies through representatives chosen by themselves in accordance with their own procedures [...]"; Art. 20: "[i]ndigenous peoples have the right to participate fully, if they so choose, through procedures determined by them, in devising legislative or administrative measures that may affect them"(emphasis added). 206. Packer, supra note 179, at pp. 49-50. See J.J. Rousseau, Du CONTRAT SOCIAL, 1762, pp. 243-249. 207. For a more detailed discussion of different forms and/or degrees of participation in decisionmaking processes against the background of different cultures, see, e.g., D. Berg-Schlosser and R. Siegler, POLITICAL STABILITY AND DEVELOPMENT: A COMPARATIVE ANALYSIS OF KENYA,
TANZANIA, AND UGANDA, 1990; L.W. Pye and M.W. Pye, ASIAN POWER AND POLITICS, THE CULTURAL DIMENSIONS OF AUTHORITY, 1985. 208. Thornberry, supra note 21, at p. 116.
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It might be contended that Western style democracy offers substantial guarantees for the observance of individual human rights. But even if this were true, it does not mean that this particular form of government is the only means for protecting human rights and human dignity. Representative democracy as defined by Western States must not be understood as an end in itself, but rather as one of several means possible for realizing certain ends and for protecting certain values. Thus, even if it would be accepted that a right to democratic governance is emerging, this would mean that peoples would be entitled to choose a Western styled democratic form of government if they so wish, and that States would be obliged to respect such a choice. It does certainly not mean that democratic government as perceived in the West now forms some sort of compulsory system of government for States, nations, peoples or their members.210 In sum, under general international law internal self-determination seems to require the existence of a 'representative' government, which arguably includes Western conceptions of representative democratic governance,211 but 209. J.J.A. Salmon, Internal Aspects of the Right to Self-Determination, in: Tomuschat (Ed.), supra note 20, p. 253, at p. 280. 210. See also Brownlie, supra note 151, at p. 73. It is thought that this is also Franck's opinion when he states: "[w]hen [the ICCPR] came into force, the right of self-determination entered its third phase of enunciation: it ceased to be a rule applicable only the specific territories [...] and became a right of everyone. It also, at least for now, stopped being a principle of exclusion (secession) and became one of inclusion: the right to participate. The right now entitled peoples in all states to free, fair and open participation in the democratic process of governance freely chosen by each state". Franck, supra note 42, at pp. 58-59. 211. Cf. the remark by the representative of Chile: "consent [of the people] normally found expression in representative democracy, but it did not preclude other forms of government as long as they continued to attribute some measure of importance to consent", UN Doc. A/AC.125/SR.93, 21 Oct. 1968, p. 148. See also Hannum, supra note 42, at p. 17. Although representative government is likely to include the Western conception of democratic government, it must be noted that even in the case of 'traditional democracies' such as the United Kingdom, criticism has been expressed as to the degree of respect for the right of internal self-determination. See R. McCorquodale, Negotiating Sovereignty: The Practice of the United Kingdom in Regard to the Right of Self-Determination, BYIL, Vol. 66, 1995, p. 283, at p. 317 ("the United Kingdom [...] has an unwritten constitution with no entrenched fundamental rights; a rule of law in which Parliament is supreme; a hereditary monarchy; an unelected upper house of Parliament; a 'firstpast-the-post' electoral system; and a highly centralized government, to mention but a few of
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may also include other forms of government which are considered to be representative by the people concerned.212 In the assessment of the question of representativeness, the opinion of the relevant peoples should be the point of departure. 213 A minimum requirement seems to be that the claim to representativeness by a non-oppressive government is not contested or challenged by (part of) the population. 214 Thus, the notion of 'representativeness' assumes that government and the system of government is not imposed on the population of a State, but that it is based on the consent or assent of the population and in that sense is representative of the will of the people, regardless of the forms or methods by which the consent or assent is freely expressed. Although opinion may differ as to what is meant exactly by 'representative' government, it seems possible to draw some conclusions as to what forms of government would not meet the formulated standard of representativeness in the Friendly Relations Declaration and the 1993 Vienna Declaration. Put another way, what forms of government may be regarded as not conducting themselves in compliance with the right of self-determination with respect to their own population? This would certainly include those situations where a government does not allow a people or certain peoples (or the members of these peoples) residing in the State to participate in any way, that is either directly
the aspects of its system which could be considered as limiting internal self-determination"). 212. See also UN Doc. A/Res/54/168, 25 Feb. 2000. Paragraph 7 of the Preamble recognizes "the richness and diversity of political systems and models for electoral processes in the world, based on national and regional particularities and various backgrounds" and operative Paragraph 2 reaffirms "the right of peoples, without external interference, to determine methods and to establish institutions regarding electoral processes and that, consequently, States should ensure, in accordance with their constitutions and national legislation, the necessary mechanism and means to facilitate full and effective popular participation in those processes". And see the Dutch Advisory Committee on Human Rights, Advisory Opinion 16, Indigenous Peoples, 1993, pp. 23-24. Often Western conceptions of democracy are equated with popular sovereignty. However, as has been pointed out by Jones "[t]he doctrine of popular sovereignty does not entail a commitment to democracy. To be committed to democracy is to be committed to the rightness of a particular form of government. To be committed to the doctrine of popular sovereignty is to be committed to the rightness of whatever form of government a people chooses for itself. P. Jones, Human Rights, Group Rights, and Peoples' Rights, HRQ, Vol. 21, pp. 80-107, at p. 103, n. 38. 213. Although the question of 'representativeness' is thus largely context-dependent, attention should also be given - in addition to the view of the government itself - to reactions and statements by third States as well as by both intergovernmental and non-governmental organizations with respect the representative character of the government in question for the purpose of internal self-determination. 214. This does not, of course, mean that any decision which is taken by the government in question should necessarily be based on the consent or assent of the entire population. In systems of majority decision-making the decision would be legitimate if supported by the majority (of the representatives) of the population of a State, and if the decision does not discriminate between the majority and the minority.
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or indirectly, in the central decision-making processes of that State.215 The same would apply to those situations in which the numerical majority in the State systematically discriminates a minority-people, or when the government violates the human rights, most notably the right to life,216 of the members of a nation or a minority-people on a widespread scale.217 In none of these cases it can be reasonably asserted that the government effectively represents the whole population of the State without distinction and thus that such a nation or people enjoys "the right freely to determine [...] [its] political status, and freely to pursue [its] economic, social and cultural development".218 Although, theoretically, in a Western-style representative democracy the entire population is entitled to participate in the elections of representatives who, in their turn, participate in the political decision-making process on behalf of the population, this does by no means mean that this form of governance is automatically a sufficient guarantee for genuine respect for the right of internal self-determination of a people which constitutes a numerical minority within a State. Of particular importance in this respect is the aspect of nondiscrimination which was already mentioned above. Because self-determination is vested in a group, the minority in a State would normally be bound by any decision taken by the majority. One has often sought to justify majority decision-making procedures on the basis of moral considerations or as a method inherent in the collective right of self-determination. True as this may be, practical considerations often seem to be decisive. Because a group "has to adopt some laws and to elect someone to govern", often, as Tesón observes, "the most practical and plausible way of doing this is to resort to majoritarian procedures". 219 However, the so-called 'tyranny of the majority' is an inherent threat and possibility of such a decision-making procedure, the result of which may be a highly unrepresentative but still democratically elected government.220 A power-sharing regime whereby, for instance, a certain number of seats in parliament are reserved for representatives of a minority-people, as in the case
215. As was the case in Southern Rhodesia under the Smith regime, and in the context of the Apartheid system in South Africa. 216. The prohibition of arbitrary deprivation of life is generally regarded as jus cogens. See, e.g., Human Rights Committee, General Comment 24 (52), UN Doc. CCPR/C/21/Rev. l/Add.6, 11 Nov. 1994, para. 10. 217. As in the case of East-Pakistan (Bangladesh) in 1971. See Chapter 7, Section 3.3.1, infra. 218. See also J. Paust, Self-Determination: A Definitional Focus, in: Y. Alexander and R.A. Friedlander (Eds.), SELF-DETERMINATION: NATIONAL, REGIONAL AND GLOBAL DIMENSIONS, 1980, p. 3, at p. 7. 219. F.R. Tesón, Two Mistakes About Democracy, PASIL, Apr. 1-4, 1998, p. 126, at p. 129. 220. See, generally, L. Guinier, THE TYRANNY OF THE MAJORITY: FUNDAMENTAL FAIRNESS AND REPRESENTATIVE DEMOCRACY, 1994; N. Lerner, Minorities vs. the Tyranny of the Majority, IYHR, Vol. 26, 1996, p. 75.
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of Ethiopia,221 as well as other grants of participatory rights regarding the central decision-making procedures, are purely formal in such a situation, and ineffective for the protection of the collective identity of that people and the individual rights of its members. It should be clear that there is nothing inherently wrong with the procedure of majority decision-making, but, as Hannum observes, if the procedure and its result is used to justify bigotry and discrimination, it loses the legitimacy it might otherwise acquire as a mechanism to ensure basic rights to equality and participation in government. Under such circumstances, it may be necessary to grant special measures of protection to safeguard the collective individuality of a people and the individual rights of its members. Such special measures might cover various constitutional solutions or arrangements, including territorial political autonomy. Because territorial autonomy is arguably a special form of exercising internal self-determination, a few remarks must be made with regard to this concept and its legal status. In the abovementioned situation, the reason for a claim or need for special protection is rooted in the repeated discrimination of a people by the majority, resulting in a threat to the identity of the people in question. Although demands for autonomy usually arise in situations involving discrimination, it must be noted that even in situations in which the members of a people enjoy individual human rights, a people and its members may demand autonomy "as a means of reinforcing their own identity beyond that of being merely citizens of the State".223 The concept of autonomy denotes the right to act upon one's own discretion in certain matters.224 Territorial political autonomy refers to a certain degree of formal and actual independence in governmental affairs enjoyed by a group differing from the majority of the population in the State, but constituting the majority in a specific region or area. It is also called governmental autonomy.225 The powers of the autonomous entity usually include 221. 222. 223. 224.
See note 238 ,infra. Hannum, supra note 188, at p. 246. Id., at p. 474. Lapidoth, supra note 188, at p. 33. She further notes: "etymologically, the term autonomy derives from two Greek words: auto, meaning self, and nomos, law or rule. Thus, the original meaning of the word was the right to make one's own laws". Id., at p. 29. 225. See H.J. Steiner and P. Alston, INTERNATIONAL HUMAN RIGHTS IN CONTEXT, 1996. p. 991; H. Hannum and R.B. Lillich, The Concept of Autonomy in International Law, AJIL, Vol. 74, 1980, p. 858, at p. 860; Lapidoth, supra note 188, at p. 33. Sohn has called this form of autonomy "full autonomy": L.B. Sohn, The Concept of Autonomy in International Law and Practice of the United Nations, Israel L. Rev., Vol. 15, 1980, p. 58, at p. 61. An example of territorial political autonomy is formed by the Basque Country. See, generally, J.M. Castelle and G. Jauregui, Political Autonomy and Conflict Resolution: the Basque Case, in: K. Rupesinghe and V.A. Tishkov (Eds.), ETHNICITY AND POWER IN THE CONTEMPORARY WORLD, 1996, p. 210; M. Guibernau, Spain:
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legislation, administration and sometimes adjudication with regard to those matters which fall under the responsibility of the entity. Territorial political autonomy in most cases concerns cultural matters as well as economic and social and economic affairs. A related governmental system based on territorial organization is the federal system, which may or may not be combined with territorial political autonomy.226 Whereas territorial political autonomy is usually concerned with powers in a broad range of affairs relevant to the people in question, a lower degree of autonomy is envisaged in the form of self-administration (or administrative autonomy) by which a group is entitled, in addition to participation in decision-making processes at the central, regional and local level, to establish its own institutions through which the group can preserve and promote its own customs, traditions, language and religion.227 The specific surplus value of autonomy regimes is that they, at least theoretically, provide a means through which a group that is numerically inferior to the rest of the population of the State may protect the individual rights of its members and preserve, develop and strengthen its collective identity.228 Thus, autonomy when granted to a minority-people may lead to a more effective exercise of internal self-determination of the group concerned.229 Yet, as was pointed out above, autonomy may not be forced on
226.
227.
228.
229.
Catalonia and the Basque Country, Parliamentary Affairs, Vol. 53, 2000, p. 55; Hannum, supra note 188, at pp. 268-272. And see note 234, infra. As in the case of the former SFRY which, in addition to six federal republics, included two autonomous provinces: Kosovo and Vojvodina. The former Soviet Union forms another example under which the two notions were combined. A federal system can, in principle, be distinguished from territorial political autonomy in the sense that the former is an administrative-institutional system usually applied to the entire territory of a State regardless of the ethnic composition of the administrative units (as in the case of the Federal Republic of Germany), whereas the latter is usually established with respect to regions or areas within the State that have a particular ethnic character. Lapidoth, supra note 188, at p. 50. Exceptions to this distinction exist, however, as is shown by such States as the former Yugoslavia, the former Soviet Union, Russia, Belgium and Ethiopia. See also Eide, supra note 74, at pp. 76-77. One may also distinguish 'personal' or 'cultural' autonomy, which is usually granted to the members of ethnic, religious, or linguistic minorities and includes powers to regulate cultural matters. As the term suggests, this type of autonomy applies to all members of a group regardless of the place of their residence within the State This type of autonomy is not widespread and because a minority-people normally has a territorial connection and base, demands for autonomy usually relate to territorial political autonomy. This is without prejudice to the fact that territorial and personal autonomy can be combined, especially because it is rare for all members of a minority-people to reside within a specific area of a State. Autonomy is not a guarantee in itself as is shown by, for instance, the fate of the Kurdish people in Iraq despite the provisions on territorial political autonomy in Iraqi law. See Iraq Constitution of 1970, Art. 5(8)(c) and Act No. 33, 11 March 1974 (as amended through 1983), reprinted in: H. Hannum (Ed.), DOCUMENTS ON AUTONOMY AND MINORITY RIGHTS, 1993, pp. 317-324. For an interesting study regarding several factors which influence the success or failure of an autonomy arrangement, see K. Nordquist, Autonomy as a Conflict-Solving Mechanism - An Overview, in: M. Suksi (Ed.), AUTONOMY: APPLICATIONS AND IMPLICATIONS, 1998, p. 59. An explicit acknowledgement of autonomy as a means of exercising self-determination was, for instance, made by Georgia in its First Report under Article 40 of the ICCPR: "[Georgia's]
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a subgroup. Some groups and their members wish only to participate on an equal basis in the majority society, without being forced to abandon their own identity, and do not want to be singled out through the establishment of "a segregated 'autonomous' community".230 As to the legal status of autonomy, it is generally agreed that, just as there is no general right to the holding of a referendum, no general right to autonomy or obligation for States to grant autonomy has been recognized under positive international law.231 International law does not oblige States to adopt any specific form of administrative-institutional structure. It prescribes them to respect and promote the right of self-determination of their population and peoples, but at the same time grants them a substantial margin of appreciation as to the choice of the specific measures through which the right of internal self-determination is exercised. Territorial political autonomy is therefore only one of several means or options to exercise self-determination within a State's borders. The specific circumstances surrounding a people's demand for a specific form and degree of self-determination and autonomy are relevant for the justifiability of the demand. The fact that a people has a right to freely determine its political status suggests, however, that good faith negotiations are contemplated. In the absence of legal remedies for peoples in most national legal systems and on the international level, negotiations between the parties represents the only dispute settlement mechanism for determining the appropriate degree of self-determination for a people within a State. Although the obligation for all States to respect and promote the right of self-determination of peoples does not dictate the degree of self-determination which should be accorded to a people - beyond the obligation to have a representative government - the obligation by necessary implication does seem to entail a duty for States to negotiate in good faith with the relevant peoples over which they respect for the above-mentioned principle [of self-determination] is further confirmed by the existence upon its territory of autonomous entities [...]". See note 14, supra. See also the Fourth Periodic Report of Ukraine, UN Doc. CCPR/C/95/Add.2, 20 July 1994, para. 30. 230. Hannum, supra note 188, at p. 474. In such cases personal autonomy might be an option. 231. Lapidoth, supra note 188, at p. 177; Hannum, supra note 188, at p, 506; Kingsbury, supra note 67, at pp. 502 and 504 ("in some circumstances the group's well-being can be secured only where it is self-governing [...]. [S]elf-government is thus justified instrumentally, the case for an intrinsic justification is much harder to make"); Brölmann and Zieck, supra note 134, at p. 111. However, as will be shown in Chapter 7, a minority-people is entitled to implement its right of selfdetermination 'externally' through unilateral secession under certain circumstances. Therefore, and without prejudice to the principle that there is no general right to autonomy, it may be argued that if a people is under certain circumstances entitled to unilateral secession, it may, under such circumstances, also opt for autonomy. This is supported by the Friendly Relations Declaration which states in Paragraph 4 of Principle V that "the emergence into any other political status freely determined by a people" constitutes a mode of implementing the right of self-determination in addition to the establishment of an independent State, the free association with or integration in an independent State.
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exercise jurisdiction, so as to reach an agreement on the necessary level of protection within the framework of self-determination which is justified under the relevant circumstances of the case. Such an agreement could, thus, entail territorial autonomy. In this respect, as has been observed earlier, autonomy arrangements are not ends in themselves but are better understood as contingent and sometimes contextually necessary ways to protect a collective identity of a subgroup and the individual human rights of its members, and to achieve desired ends such as peaceful coexistence.232 As has been shown above, self-determination has been recognized as a right of peoples beyond the colonial context in the Human Rights Covenants of 1966, the Friendly Relations Declaration, the Helsinki Final Act and the African Charter. Moreover, the relevant instruments indicate that the right has been recognized with respect to all peoples and that it should be respected and promoted by all States. It has been established that this right of all peoples to self-determination has a continuous character, that this ongoing right must have a separate meaning, and as such is primarily applicable within States, that is to say, in the relationship between a State and the population of that State. In addition to the right to choose the form of government and the right to participate in the amendment of the constitution, the implementation of selfdetermination in this intra-State relationship includes a right of participation of 'peoples' in the decision-making processes of the State. For the purpose of internal self-determination, the notion of 'peoples' in any case covers nations and minority-peoples as defined above. The exercise of this right of participation may be direct or indirect, and arguably includes the Western model of representative democratic government (insofar as its practical implementation conforms to the general requirement of non-discrimination), but must necessarily leave room for other forms of government which are considered to be representative by the people concerned and which are established and act in accordance with those people's own procedures. Moreover, it may additionally include such forms as federalism, power-sharing (like reserved seats in parliament), autonomy and the holding of referenda. On the basis of this analysis, it is perhaps even a tenable argument that the status of internal self-determination as a legal right under general international law was already recognized during the discussions leading up to the adoption of the Human Rights Covenants and the Friendly Relations Declaration233 and 232. H. Steiner, Ideals and Counter-Ideals in the Struggle Over Autonomy Regimesfor Minorities, Notre Dame L. Rev., Vol. 66, 1991, p. 1547, quoted in: H.J. Steiner and P. Alston, supra note 225, at p. 998. 233. See, e.g., Poland, UN Doc. A/AC.125/SR. 113, 1 Sept. 1970, pp. 20-21; USSR, UN Doc. A/AC. 125/SR. 114,1 Sept. 1970, p. 29 (the Friendly Relations Declaration 'involved a codification of the principle of self-determination"); Argentina, UN Doc. A/AC. 125/SR. 114, 1 Sept. 1970,
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that this status was confirmed in subsequent international instruments. But even if one would question its legal status under positive international law at the beginning of the 1970s, under contemporary international law state practice indicates that the 'internal' aspect of self-determination can no longer be excluded from self-determination as a positive legal right. Here one may think of the global trend towards representative or constitutional democracy and the negotiations on constitutional reforms, such as those which have been conducted in States such as Belgium, Canada, Ethiopia and South Africa and the Federal Republic of Yugoslavia. One should also recall the numerous implicit and explicit references to internal self-determination in the reports of the parties to the ICCPR.234 Furthermore, it was seen that autonomy arrangements constitute another or additional form for effective or enhanced political participation by minoritypeoples in the decision-making processes of a State, as well as for the protection of the collective identity of that people. If autonomy is granted to a subgroup which qualifies as a minority-people as defined above, this may thus form an indication for recognition or confirmation of internal self-determination as a right of peoples in a multipeople State. In several of these cases, autonomy arrangements are accompanied by participatory rights of a people at the central state level of decision-making, often through elected representatives who represent the people as such. In addition to the territorial autonomy for the Basques in Spain which was referred to above,235 mention may be made of the arrangements in, for instance, Colombia,236 Denmark (Greenland),237
234. 235. 236.
237.
p. 31 ("[a]lthough the declaration was not mandatory, it was based on texts accepted unanimously by the Special Committee as constituting the expression of international law in that regard"); Venezuela, UN Doc. A/AC. 125/SR. 114, 1 Sept. 1970, p. 34 ("[t]he body of rules the Committee had formulated could legitimately be regarded as the most up-to-date expression of the scope and interpretation of the Charter of the United Nations, the basis of international law as it was understood and practised by the civilized nations of the world today"). See notes 81 and 134, supra. See Autonomy Statute of the Basque Country, Organic Law 3/1979 of 18 Dec. 1979, reprinted in: Hannum, supra note 228, at pp. 156-178. Colombian Constitution of 1991, Arts. 7, 10, 171, 176, 320 and 329. Reprinted in: G.H. Flanz (Ed.), CONSTITUTIONS OF THE COUNTRIES OF THE WORLD, IV, 1995, p. 1. And see the Fourth Periodic Report of Colombia under the ICCPR, UN Doc. CCPR/C/103/Add.3, 9 July 1996. In 1978, a territorial political autonomy arrangement was established for Greenland following expressed desires by the Greenlanders for more autonomy. See Greenland Home Rule Act, Danish Act No. 577, 29 Nov. 1978, reprinted in: Flanz (Ed.), supra note 236, V, 2/1985, pp. 59-66. The Commission on Home Rule in Greenland which was established with the aim to draft recommendations, including a new Home Rule Bill, for Home Rule in Greenland stated that "the Greenlanders are fighting not for national independence but for an identity of their own, or rather for better possibilities of strengthening and developing their identity through increased self-responsibility". Reprinted in: id., at p. 68. This is subsequently reflected in Section 1(1) of the Act. The Danish Constitution also provides in special provisions for representation of Greenland in the Folketing (Danish Parliament) (Arts. 31(5) and 32(5)), id., at p. 57. Cf. also the autonomy regime for the Faroe Islands, Act Respecting the Home Government of the Faroe
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Ethiopia,238 France (Corsica),239 India (regarding, for instance, Nagaland), 240 Indonesia (Aceh),241 Moldova (Gagauzia),242 Norway (Sami),243 Russia (regarding, for instance, Tatarstan 244 and Bashkortostan245), the Philippines
Islands (Home Rule Act), Danish Act No. 137, 23 March 1948. reprinted in: id., at pp. 87-88. 238. See the Constitution the Federal Democratic Republic Ethiopia of 21 Aug. 1997, Arts. 46 and 47 (which state that Ethiopia is a federal State comprised of nine federal component States, and that those federal parts "shall be structured on the basis of settlement patterns, language, identity and consent of the people"), Art. 39 (Para. 1: "[e]very nation, nationality and people in Ethiopia shall have the [...] right to self-determination [...]", and Para. 3: "[e]very nation, nationality or people in Ethiopia shall have the unrestricted right to administer itself; and this shall include the right to establish government institutions within the territory it inhabits and the right to fair representation in the federal and state governments"), and Art. 61 (which deals with the so-called Council of the Federation which according to Para. 1 "shall be composed of representatives of nations, nationalities and peoples of member States of the Federation". Para. 2 states that "[e]ach nation, nationality, people shall have at least one representative [...]", which according to Para. 3 "may be elected by parliaments of the respective states. The parliaments may elect the representative either by themselves or through direct elections by the people"). Reprinted in: A.P. Blaustein and G.H. Flanz (Eds.), CONSTITUTIONS OF THE COUNTRIES OF THE WORLD, Booklet 2, p.1. 239. See Loi No. 2002-92, 22 Jan. 2002 relative a la Corse, JO, No. 19, 23 Jan. 2002, p. 1503. On 20 July 2000, the French Prime Minister Jospin unveiled a two-staged 'framework' settlement for territorial political autonomy for Corsica. The plan, which was disputed, involved language rights and legislative powers for a Corsican Assembly regarding economic, developmental, educational, cultural and environmental matters. In January 2002, the French Parliament approved a law which gives Corsica limited law-making powers in the aforementioned fields. 240. Constitution of India, 26 Jan. 1950 as Amended to the 78th Amendment Act, 1995, Part XXI, Art. 371 A. Reprinted in: Flanz (Ed.), supra note 236, VIII, Release 97-6, 1997, p. 1. 241. See, e.g., Aceh Autonomy, NYT, 20 July 2001; Indonesia's House Passes Bill on Special Aceh Autonomy, AP, 19 July 2001. 242. Article 111 of the Constitution of 1994 of Moldova gives provisions for territorial autonomy for the Gagauz region. The Gagauz Autonomy Act was adopted by the Moldovan Parliament on 23 December 1994 and led to the establishment of the Gagauz Autonomous Region (GagauzYeri). The Preamble of the Act clarifies that its aim is to provide for the preservation of the Gagauz national identity, the flourishing of the Gagauz language and culture, and to secure political and economic independence to the Gagauz people. Article 1 of the Act defines that, being a manifestation of the right of self-determination of the Gagauz people, Gagauz-Yeri is an autonomous unit of special status and, as such, an integral component of the Republic of Moldova. See ]. Chinn and S.D. Roper, Territorial Autonomy in Gagauzia, Nationality Papers, Vol. 26, No. 1, 1998, p. 87. 243. An elected Sami Parliament has been established, modelled on the one in Finland, with advisory functions and with the aim to facilitate Sami participation in government. The organ is meant to be endowed with administrative and regulatory functions in the near future. See Sanders, supra note 134, at pp. 64-67; Hannum, supra note 188, at pp. 255-258. The Human Rights Committee noted that "[a]s the Government and Parliament of Norway have addressed the situation of the Sami in the framework of the right of self-determination, the Committee expects Norway to report on the Sami people's right to self-determination under article 1 of the Covenant, including paragraph 2 of that article". UN Doc. CCPR/C/79/Add.ll2, 5 Nov. 1999, para. 17, and see also para. 10 . 244. Treaty Between the Russian Federation and the Republic of Tatarstan on Delimitation of Jurisdictional Subjects and Mutual Delegation of Authority Between the State Bodies of the Russian Federation and the State Bodies of the Republic of Tatarstan, 15 Feb. 1994. See http://www/kcn.ru/-tat_en/politics/dfa/inform/treaty.htm. See also Arts. 12, 72, 130-133 of the Constitution of the Russian Federation of 12 Dec. 1993. Reprinted in: Blaustein and Flanz (Eds.), supra note 238, XV, Release 94-3, 1994, p. 1.
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(Mindanao),246 South Africa,247 the Sudan,248 and the United Kingdom (Scotland and Wales).249 Mention must also be made of federal state forms in which the administrative division of the territory is essentially based on ethnic considerations, such as Russia, the Federal Republic of Yugoslavia and Ethiopia, all of which also indicate the acknowledgement of internal self-determination as a right of peoples. Finally, one must point to the willingness of States to grant territorial political autonomy to peoples within their territory and the negotiations which are conducted in that respect as in Georgia (regarding, for instance,
245. See Compact of the Russian Federation and the Republic Bashkortostan "On the demarcation of matters of jurisdiction and the mutual delegation of powers between the organs of state power of the Russian Federation and the organs of state power of the Republic Bashkortostan", 3 Aug. 1994. Available at http://www/kcn.ru/-tat_en/politics/dfa/inform/treaty.htm. 246. Constitution of the Republic of the Philippines of 1986, Art. 10, s. 1, 15-21. Reprinted in: Flanz (Ed.), supra note 236, XV, 1986, p. 163. And see Act No. 6734, Providing for an Organic Act for the Autonomous Region in Muslim Mindanao, 1 July 1989. Reprinted in: Hannum, supra note 228, at pp. 430-459. 247. See Art. 235 of the South African Constitution which states: "[t]he right of the South African people as a whole to self-determination, as manifested in this Constitution, does not preclude, within the framework of this right, recognition of the notion of self-determination of any community sharing a common cultural and language heritage, within a territorial entity in the Republic or in any other way, determined by national legislation", Constitution of the Republic of South Africa, 1996. Reprinted in: Flanz, supra note 236, XVI, Release 97-7, 1997, p. 1. 248. See the Fourth Constitutional Decree, 1991, which was promulgated on 4 February 1991 and provided for a federal system dividing the Sudan into nine States to guarantee a fair distribution of power and wealth (UN Doc. CCPR/C/75/Add.2, 13 March 1997, Ann. 4). By way of the Twelfth Constitutional Decree of 1995, southern Sudan was divided in ten federal States. The Decree provides for extensive powers in social, economic and cultural matters for these States (id., Ann. 5). The Political Charter of 10 April 1996 gave the inhabitants of the States in Southern Sudan the right to decide on their political future by referendum (id., Ann. 8). 249. Scottish and Welsh 'peoplehood' and their entitlement to internal self-determination was, in addition to the establishment of central government institutions devoted exclusively to the affairs of Scotland and Wales, formally acknowledged by the United Kingdom by offering referenda on devolution in 1979 and in 1997. The latter referendum resulted in, amongst others, the establishment of Scottish and Welsh Parliaments. See Government of Wales Act 1998 (c. 38), reprinted in: Flanz (Ed.), supra note 236, XIX, Booklet 6, p. 9, and the Scotland Act 1998, reprinted in: id., XIX, Booklet 5, p. 7. For a discussion of these cases, see McCorquodale, supra note 211, esp. at pp. 294-298; R. Grote, Regionalautonomie für Scotland and Wales - das Vereinigte Königreich auf dem Weg zu einem födralen Staat?, ZaöRV, Vol. 58, 1998, p. 109; T.K. Hervey, Which Rights, Whose Rights? Identification and Protection of Minorities in British Law, in: Packer and Myntii (Eds.), supra note 164, p. 123; Royal Commission, White Paper, The Reorganisation of Central Government, 1970, Cmnd. 4506, para. 10. The Irish population of Northern Ireland forms a minority within the United Kingdom, but arguably does not constitute a distinct people as such. Yet, the United Kingdom has acknowledged the internal dimension of self-determination for the (majority of the) population of Northern Ireland in the form of, amongst others, a right of veto with respect to a possible future unification of the northern and southern part of the island of Ireland. See the agreement between the United Kingdom and the Republic of Ireland, also known as the Downing Street Declaration of 15 December 1993, and see the Northern Ireland Act 1998, Part I, Art. 1(1), both reprinted in: Flanz (Ed.), supra note 236, XIX, Booklet 4, p. 7.
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Abkhazia).250 It is true that some States still contest the legal character of the right of internal self-determination. However, the fact that internal self-determination has not yet been fully implemented in all parts of the world does not undermine its universal validity. To consider the opposition by clearly oppressive regimes as evidence of the absence of a customary rule of internal self-determination is unacceptable.251 Moreover, such a position ignores the fact that statements of general principle, especially if formulated in terms like 'all peoples' and 'all States' - as in the case of the relevant instruments and declarations which, as had been shown above, primarily deal with the internal dimension of the right of self-determination - must "be presumed to reflect or even develop the existing general law, rather than to diverge from it".252 In short, international instruments, state practice, jurisprudence and doctrine point to the conclusion that internal self-determination must be qualified as a right of nations and peoples under general international law. Moreover, the essential position which this right takes with respect to, amongst others, the protection and development of group identity and individual human
250. In 1991 the Soviet Union disintegrated and Georgia became an independent State. The government of Georgia declared all laws adopted during Soviet times null and void, and reinstated its 1921 Constitution on 21 February 1992. These steps effectively abolished the autonomous status of Abkhazia which it enjoyed within the Soviet Union. In response, the Abkhazian leadership initially claimed a federal status for Abkhazia. On 4 April 1994, the 'Declaration on Measures for a Political Settlement of the Georgian-Abkhazian Conflict' was signed in Moscow. According to this document, Abkhazia would enjoy substantive rights as a territorial political autonomous entity within Georgia. The political process was given no followup, however. In 1995, the new Georgian Constitution was adopted which does not explicitly provide for a special status for Abkhazia, but leaves this possibility open after the restoration of Georgian jurisdiction over the region (Art. 2(3)). On 22 April 1997, the Parliamentary Assembly of the Council of Europe stressed the importance of extensive autonomy status for Abkhazia as one of the basic elements of a political settlement (Resolution 233, 22 Apr. 1997). For a detailed discussion of the Abkhazian case, see Chapter 7, Section 5.2., infra. 251. See also Dissenting Opinion Judge Tanaka, South West Africa cases, supra note 22, at p. 291. And, to the same effect, see Tesón, supra note 219, at pp. 127-128. Cassese, for instance, is of the opinion that under contemporary international law the right of the entire population of existing States to internal self-determination is a conventional norm only (that is to say, under the ICCPR). See Cassese, SELF-DETERMINATION, pp. 102-108, pp. 323-324. But see id., at pp. 302-322 and p. 346 ff. (observing that there may be an emerging customary right to "pluralistic representative democracy" for this group). Currently 148 States are parties to the ICCPR (Office of the United Nations High Commissioner for Human Rights, Status of Ratification of the Principal International Human Rights Treaties as of 8 Feb. 2002). Some States not party to the ICCPR are party to another instrument which confirms the right of peoples to internal selfdetermination, such as the Comoros, Djibouti, Eritrea, Liberia, Mauritania, and Tanzania, which are all parties to the African Charter. Kazakhstan is a participating State of the OSCE. 252. J. Crawford, Book Review, AJIL, Vol. 90, 1996, p. 331, at p. 332 (reviewing A. Cassese, SELFDETERMINATION OF PEOPLES: A LEGAL REAPPRAISAL, 1995).
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rights qualifies it as a right with an erga omnes character253 and as a right which must be respected erga omnes.254
§ 5.
THE RIGHT OF EXTERNAL SELF-DETERMINATION: MEANING AND EXERCISE
External self-determination is a mode of implementation of the right of selfdetermination through the formation of an independent State, the integration in, or association with a third State.255 This mode of implementation of selfdetermination by a people thus leads to a modification of the external boundaries of the State in which that people resides. It is this feature of external self-determination which forms an important distinction with respect to internal self-determination. Different means exist with regard to the exercise of external self-determination. External self-determination may be exercised through the dissolution of a State, the union or merger of a State with another State, and through secession. The de facto re-establishment of the independence of an already existing State by a people after that State has been under foreign occupation in violation of international law may also be added. The right of self-determination of the population of a State the territory of which has been annexed, as in the case of the annexation by Iraq of Kuwait in 1990, is now undisputed under international law.256 The same holds true for the exercise of external selfdetermination by the nation through peaceful dissolution, union or merger.257
253. East Timor case, ICJ Rep. 1995, p. 92, at p. 102. 254. Barcelona Traction case, ICJ Rep. 1970, p. 6, at p. 32. On the distinction between rights erga omnes and obligations erga omnes, see R. Lefeber and D. Raic, Frontiers of International Law, Part One: The Chechen People, LJIL, Vol. 9, 1996, p. 1, at pp. 5-6. Rosas has argued that internal selfdetermination can be regarded as a norm of jus cogens. See Rosas, supra note 21, at p. 247. Indeed, as was seen in Chapter 4, the far-reaching legal consequences which result from a violation of the internal dimension of the right of self-determination (such as the obligation of nonrecognition as in the case of Southern Rhodesia's UDI and the South African Homelands) do support its jus cogens character. See Chapter 4, Section 6, supra. Moreover, if, as has been observed by the Human Rights Committee, the right of self-determination is an essential condition for the effective guarantee and observance of, among others, the fight to life (see note 58, supra), and the latter is earmarked by the Committee as a norm of jus cogens (see note 216, supra), it is difficult to deny that, by necessary implication, the right of internal self-determination does not have the same character. See also Cassese, SELF-DETERMINATION, pp. 133-140. However, Cassese is of the opinion that only certain specific elements of the right of internal selfdetermination can be considered to be jus cogens, namely the right freely to choose one's rulers and the right of racial groups to have access to government. 255. See Friendly Relations Declaration, Principle V, Para. 4. 256. See, e.g., id., Principle I, and Principle V, Para. 5. 257. See, e.g., id., Principle V, Para. 4. And see Helsinki Final Act, Principle VIII ("all peoples always have the right [...] to determine [...] their [...] external political status").
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In the case of union or merger (as in the case of the United Arab Republic)258 and in the case of peaceful dissolution, the population of a State exercises its right of external self-determination either directly through techniques or procedures such as the holding of a referendum, or through the representative government of the State as in the case of Czechoslovakia in 1993.259 There is no rule of international law, including the principle of territorial integrity, which prohibits the entire population of a State260 from dissolving the State and dividing its territory.261 In this respect the following 258. The United Arab Republic was established by Egypt and Syria following a plebiscite on 21 February 1958. The United Arab Republic continued the UN membership of Egypt as a single member. On 13 October 1961, Syria, having resumed its status as an independent State, resumed its separate membership in the UN. On 2 September 1971, the United Arab Republic changed its name to the Arab Republic of Egypt. Mention can also be made of the reunification of Germany. However, this concerned the special case of a 'divided' State. The unification of Germany took place as a result of the conclusion of the Treaty on the Establishment of German Unity between the Federal Republic of Germany (FRG) and the German Democratic Republic (GDR) on 31 August 1990 (entered into force on 3 Oct. 1991). The unification was effected under the Constitution of the FRG by way of accession of the GDR on 3 October to the territory of the FRG through which the GDR ceased to exist as a separate State. See ILM, Vol. 30, 1991, pp. 457-503; F.G. von der Dunk and P.H. Kooijmans, The Unification of Germany and International Law, Mich. JIL, Vol. 12, 1991, p. 510. 259. Cf. the following remark by the representative of Czechoslovakia to the Third Committee of the General Assembly: "[t]he right to self-determination was also of vital importance for Czechoslovakia, where the disintegration process of the common State of the Czechs and Slovaks represented in fact one of the forms of its implementation", UN Doc. A/C.3/47/SR.4, 7 Oct. 1992, para. 43. See also S. Massa, Secession by Mutual Assent: a Comparative Analysis of the Dissolution of Czechoslovakia and the Separatist Movement in Canada, Wis. ILJ, Vol. 14, 1995, p. 183. It has been questioned, however, in particular by Crawford, whether the dissolution process was in conformity with the 'feature' of self-determination, that is, whether the principle of 'free choice' was respected by the authorities of Czechoslovakia. See Crawford, supra note 252, at p. 333. However, apart from the fact that in these cases international law does not require the holding of a referendum (see below) and that the decisions were taken by representative governmental bodies, the argument that a substantial part of the population in both parts of the Federation did in fact oppose the break-up does not seem very convincing in the light of the possibility of the reunification of the two States and the absence of any steps in that direction in either one of the two States. See, generally, J. Musil (Ed.), THE END OF CZECHOSLOVAKIA, 1995. 260. Although the nation is the holder of the right of external self-determination, the eventual decision will effectively be based on the will of the majority in most cases. 261. Other suggested examples of dissolution are the break-up of the Soviet Union and the break-up of the Socialist Federal Republic of Yugoslavia. The case of the Soviet Union is to a large extent sui generis. Of the fourteen former Soviet Republics, eleven Republics participated in the AlmaAta conference of 21 December 1991 (that is, all former Soviet Republics except for the Baltic States which were already recognized as independent States; also Georgia did not participate). At that conference the Republics adopted five declarations, the first of which stated that "with the formation of the Commonwealth of Independent States, the Union of Soviet Socialist Republics ceases to exist". At the same time, however, it was declared that the eleven signatory States supported Russia taking over the USSR membership in the UN, including permanent membership in the Security Council. The declaration did not meet with any objections from the international community. Yet, this recognition of state continuity of a dissolved international person is a legally uncomprehensible construction. If Russia continued the legal personality of the Soviet Union, this would mean that the Republics, except for Russia, had seceded from the Soviet Union. For reasons of Soviet domestic politics, this position was not feasible. Therefore,
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point is important. In the cases of the break-up of the Soviet Union and Yugoslavia most constituent Republics deemed it fit to hold a referendum before they declared independence.262 In the 'Declaration on the Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union' drawn up by the European Community and its member States,263 a number of conditions were spelled out which had to be satisfied before recognition would be accorded. Recognition would only be granted to those Republics which respected the "rule of law, democracy and human rights" and which provided for "guarantees for the rights of ethnic and national groups and minorities". The Arbitration Commission of the International Conference on Yugoslavia made it clear that these conditions implied that any exercise of external selfdetermination had to based on the internal dimension of self-determination. When the Commission had to advise the member States of the European Community on the question of whether or not the Republics of the former Yugoslavia satisfied the conditions set down in the Guidelines and thus could be recognized as States, it was confronted with the complex situation in BosniaHerzegovina.264 In that case, no referendum was held involving the whole population of the Republic. The independence of Bosnia-Herzegovina and the request for recognition had to be based, according to the Presidency and the Government of the Republic, on an amendment of the Constitution on 31 July 1990 which proclaimed the Republic to be a sovereign State. Although the Government had informed the Commission about the possible future political cooperation of Bosnia-Herzegovina with Serbia and Croatia, the Commission observed that these plans were not underwritten by the Serbian population of the Republic. Furthermore, the Commission noted that the Republic's Constitution provided that "the citizens exercise their powers through a representative Assembly or by referendum". In addition, and outside the institutional framework of the Republic, a plebiscite was held among the and although legitimized through recognition, the continuity of the legal personality of the Soviet Union by Russia should essentially be explained in political terms. See Y.Z. Blum, Russia Takes Over the Soviet Union's Seat at the United Nations, EJIL, Vol. 3, 1992, p. 354; R. Mullerson, The Continuity and Succession of States by Reference to the Former USSR and Yugoslavia, ICLQ, Vol. 42, 1993, p. 473. The dissolution of Yugoslavia is discussed elsewhere in this study. See pp. 356361, infra. 262. A referendum was held in Georgia on 31 March 1991, in Turkmenia on 26 October 1991, in Ukraine on 1 Dec. 1991, in Uzbekistan on 29 Dec. 1991, in Slovenia on 23 Dec. 1990, in Croatia on 19 May 1991, in Macedonia on 8 September 199, and in Bosnia-Herzegovina on 1 March 1992. See also A. Cassese, Self-Determination of Peoples and the Recent Break-up of USSR and Yugoslavia, in: R.St.J. MacDonald (Ed.), ESSAYS IN HONOUR OF WANG TlEYA, 1993, p. 131, at pp. 138, 141-142. 263. Declaration on the Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union, supra note 39. And see Chapter 4, Section 10, supra. 264. This case is discussed in more detail in Chapter 8, Section 2.4., infra.
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Serbian population on 10 November 1991 which had made clear that the Serbs opted for a "common Yugoslav State". On 2 January 1992, an 'Assembly of the Serbian people of Bosnia-Herzegovina' had proclaimed the independence of the 'Serbian Republic of Bosnia-Herzegovina'. The Arbitration Commission therefore concluded that under these circumstances the expression of the will of the populations of Bosnia-Herzegovina to set up the Socialist Republic of Bosnia-Herzegovina as a sovereign and independent State could not be regarded as fully established. This assessment could be reviewed if appropriate guarantees were provided by the Republic applying for recognition, possibly by means of a referendum of all the citizens of the SRBH without distinction, carried out under international supervision.265
The practice in the context of the break-up of the Soviet Union and Yugoslavia both by the new States themselves as well as by third States, and as upheld by the Arbitration Commission, suggests that the respect for the internal dimension of self-determination is regarded as a conditio sine qua non for a lawful exercise of external self-determination.266 However, this does not mean that the result of the exercise of external self-determination must be based on the procedure of the referendum per se. Rather, it can be based on any procedure or technique which can be held to reflect the will of the people concerned. This condition would normally be satisfied if the proclamation of independence (or the wish for integration or association) is issued by a representative government which has been elected democratically or which can otherwise be deemed to represent the wishes of the people. However, if on the basis of the factual circumstances doubts exist as to the genuine expression of the will, additional measures, such as the holding of a referendum under international supervision, may be required. Having said this, a return to the means through which external selfdetermination can be exercised and other legal principles which are relevant in that respect is now in order. It was observed earlier that it is now undisputed that the entire population of a State is entitled to exercise its right of external self-determination through dissolution, union or merger. Because the right is exercised by the nation, there can be no conflict with the principle of territorial 265. Opinion 4, 11 Jan. 1992, ILM, Vol. 31, pp. 1501-1503, at p. 1503. 266. Cassese, supra note 262, at p. 144. See also Weller supra note 183, at p. 593; Shaw, INTERNATIONAL LAW, p. 146; R. Bieber, European Community Recognition of Eastern European States: A New Perspective for International Law?, PASIL, 1992, p. 374, at p. 377. One may note the similarities between this requirement in the post-colonial era and the principle that the application of the right of self-determination "requires a free and genuine expression of the will of the peoples concerned" during the period of decolonization. See p. 211, supra. For the consequences of the requirement for the formation of States, see Chapter 8, Section 3.2., infra.
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integrity. Secession is another means through which the right of external selfdetermination may be exercised. However, as will be discussed in Chapter 7, the existence of a right of secession by a people forming a numerical minority within an existing State is not undisputed, except for those cases where a constitutional right to secession exists or where subsequent approval has been obtained by the former sovereign. Should the right of external self-determination include a right of unilateral secession, there is clear field of tension between such a right, which is after all aimed at unilateral territorial change, and the right of States to maintain their territorial integrity. The principle of territorial integrity has sometimes been equated with the international legal principle of uti possidetis.267 The meaning and function of the latter principle was addressed by a Chamber of the International Court of Justice in the Case Concerning the Frontier Dispute against the background of the exercise of the right of external self-determination.268 The Chamber observed that "[a]t first sight", the principle of uti possidetis "conflicts outright with [...] the right of peoples to self-determination". ' Because there can be no conflict between the right of external selfdetermination and the principle of territorial integrity if the former is exercised by the entire population of a State through dissolution, union or merger, it must be that the Chamber was of the opinion that the principle of uti possidetis did not equate to the principle of territorial integrity as has been suggested in doctrine. Because of the Chamber's observation and the equation of both principles in doctrine, it is clear that the meaning and scope of both principles is relevant for the interpretation and scope of the right of self-determination. The issue is addressed in the next Section.
§ 6.
THE PRINCIPLES OF TERRITORIAL INTEGRITY AND UTI POSSIDETIS
The term and concept of 'territorial integrity' emerged in the period immediately following the end of World War II. Article 10 of the Covenant of the League of Nations provided that member States "undertake to respect and preserve as against external aggression the territorial integrity and existing political independence of all Members of the League". Territorial integrity is now one of the key principles of the Charter of the United Nations where it is mentioned in Article 2(4) in relation to the prohibition of the threat or use 267. T.M. Franck, Postmodern Tribalism and the Right to Secession, in: Brölmann et al. (Eds.), supra note 22, p. 3, at p. 4 ff. 268. Case concerning the Frontier Dispute (Burkina Faso/Mali), Judgment, ICJ Rep. 1986, p. 554 (hereinafter 'Frontier Dispute case'). 269. Id., at p. 567.
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of force. Subsequently, the principle has been mentioned in several international instruments such as the Charter of the Organization of American States (Article 1,12 and 20), the Charter of the OAU (Preamble), the Helsinki Final Act (Principles I, II, IV and VIII) and the Charter of Paris. The United Nations has affirmed the principle in many resolutions including the Friendly Relations Declaration270 and the Definition of Aggression.271 As has been pointed out, in most general terms the concept of territorial integrity denotes "the material elements of the State, namely the physical and demographic resources that lie within its territory (land, sea and airspace) and are delimited by the State's frontiers". More specifically, territorial integrity refers to the effective control over and possession of territory by a State. Therefore, the forced loss of control of the State over (part of) its land, airspace or sea in any case implies impairment of that State's territorial integrity. It is now generally accepted that the right of a State to respect for its territorial integrity is a corollary of State sovereignty. As such, it points to the inviolability of a State's territory and it includes the right of the State to protect itself from unlawful intervention and to maintain the unity of its territory with all lawful means, including if necessary the use of armed force. Although, traditionally, international law has linked the principle of territorial integrity to the threat or use of force against a State by another State, the concept is broader and will be relevant whenever the effective control over or possession of a State's territory is subject to challenge either originating from within or without the State. This is implicit in the fact that in the relevant instruments, the principle of territorial integrity is linked to the right of selfdetermination of peoples within existing States.273 Indeed, the normal exercise of the right of self-determination is within the boundaries of a State. It must moreover be noted that the right of territorial integrity is not applicable to the territory of States only. Resolution 1514 stipulated 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".274 It was already seen that the principal reason for the inclusion of this provision was to defeat attempts by some States
270. Principle I, Principle V, Para. 7 and 8, Principle VI (d). 271. Definition of Aggression, UN Doc. A/Res/3314 (XXIX), 14 Dec. 1974, Art. 1. 272. C.L. Rozakis, Territorial Integrity and Political Independence, EPIL, Vol. 10, 1987, p. 481, at p. 481. 273. See Chapter 7, Section 3.2.1., infra. 274. UN Doc. A/Res/1514, 14 Dec. 1960, Para. 6 (emphasis added).
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to carve up the territories under their administration.275 In addition, the right of external self-determination of colonial peoples was in practice interpreted in the light of the principle of territorial integrity, which meant that the division of a colonial territory, and thus the impairment of the territorial unity was not accepted, in the absence of consent of the majority of the population of the territory.276 In effect this meant that the holder of the right of external selfdetermination was limited to the entire population of colonial territories and that segments of that population were excluded as holders of such a right. Thus, with regard to colonial and other dependent territories, the principle of territorial integrity is also applicable prior to independence, while in other situations the principle will be applicable once statehood has been achieved. Until now, the above observations concerned the meaning of the right of territorial integrity and the effects of that right on the scope and interpretation of the right of external self-determination in particular. But to what extent is the enforcement of the right of territorial integrity itself limited by other principles and rights under international law? As has been shown in Chapter 2, there is no such thing as absolute sovereignty in international law. This means that the State, in exercising its right of territorial integrity, is not shielded from the applicability of relevant legal obligations under international law. It is indeed widely accepted that, even in times of public emergency, the right or principle of territorial integrity is limited by other international legal principles and rules, the most important of which, at least in the context of this study, are the right of internal self-determination of peoples,277 the fundamental rules and principles of human rights law (in particular the right to life),278 the prohibition 275. See, e.g., the following resolutions regarding the attempts of South Africa to fragment Namibia: UN Doc. A/Res/2403 (XXIII), 16 Dec. 1968; UN Doc. S/Res/264, 20 March 1969; UN Doc. S/Res/301, 20 Oct. 1971; S/Res/366, 17 Dec. 1974. See also UN Doc. A/Res/32/9F, 4 Nov. 1977, Para. 3(d). And see Dugard, RECOGNITION, pp. 117-122. 276. See pp. 207-209, supra. 277. Apart from the question of jus cogens, the right of derogation under Article 4 of the ICCPR arguably concerns the Covenant's individual rights only. Only one State (Nicaragua in 1982) listed Articles 1 to 5 among the provisions from which it had derogated. It was subsequently clarified that this was a mistake. The Revised Declarations did not include derogation from Article 1. See McGoldrick, supra note 13, at 259, n. 3. The fact that self-determination is considered as a conditio sine qua non for the effective exercise of all individual human rights, as well as the fact that the right is also mentioned in the ICESCR, supports its non-derogable character. See also Rosas, supra note 21, at pp. 247-248. 278. The right of life as laid down in Article 6 of the ICCPR is a non-derogable right according to Article 4 of the Covenant. The non-derogable character of the right is also recognized in the European Convention on Human Rights (Art. 15(2) and the American Convention on Human Rights (Art. 27(2)). As has been observed above, the prohibition of arbitrary deprivation of life is generally regarded as jus cogens. See, e.g., Human Rights Committee, General Comment 24 (52), UN Doc. CCPR/C/21/Rev.l/Add.6, 11 Nov. 1994, para. 10. A related point is that the use of armed force is inherently limited by the principle of proportionality whether or not the armed force is used in an internal or international armed conflict, or in a situation which does not qualify as either one of these conflicts, and regardless of the question whether or not the
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of genocide and the basic rules of international humanitarian law applicable in armed conflict.280 In sum, and apart from the relationship between the right of external self-determination and the right of territorial integrity in the context of unilateral secession, which will be discussed in the next Chapter, it is clear that there is a mutual relationship between the right of self-determination and the right of territorial integrity in the sense that the permitted exercise and scope of application of the one must be interpreted in the light of the other. This brings us to the meaning and scope of the principle of uti possidetis juris. This principle is a rule which establishes succession to boundaries which were of an administrative nature. As is stated by Shaw [i]n essence, the doctrine [of uti possidetis juris] provides that new States will come to independence with the same borders that they had when they were administrative units within the territory or territories of one colonial power [...]. The principle [...] functions in the context of the transmission of sovereignty and the creation of a new independent State and conditions that process.281
According to the law on state succession, when there is a change of sovereignty the existing international boundaries of the territory involved operate under the principle of the continuity of international boundaries, which principle is essentially based on the precept of territorial stability. When an international boundary is established in accordance with international law, either by treaty deployed forces are military forces. As such the use of force by the Serbian security forces and the Yugoslav Army in Kosovo was condemned by the Security Council as being 'excessive and indiscriminate'. See UN Doc. S/Res/1199, 23 Sept. 1998, Preamble. To the same effect, see Parliamentary Assembly of the Council of Europe, Recommendation 1360,18 March 1998, Para. 1. See also theOSCE Code of Conduct on Politico-Military Aspects of Security, Art. 36, reprinted in: ILM, Vol. 34,1995, p. 764. And see D. Raic, The Code, Humanitarian Law, and Human Rights, in: G. de Nooy (Ed.), COOPERATIVE SECURITY, THE OSCE, AND ITS CODE OF CONDUCT, p. 41. 279. See the Convention on the Prevention and Punishment of the Crime of Genocide, Art. 1 and ICCPR, Art. 6(3). See also, e.g., E.H. Pircher, DER VERTRAGLICHE SCHUTZ ETHNISCHER SPRACHLICHER UND RELIGIÖSER MINDERHEITEN IM VÖLKERRECHT, 1979, p. 230. 280. The International Court of Justice qualified the basic rules of international humanitarian law applicable in armed conflict as "intransgressible" in character. See Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Rep. 1996, p. 226, at p. 257. With reference to this observation of the Court, the ILC has suggested that these norms have a jus cogens character. See Report of the ILC, 53rd sess., 23 Apr.-1 June and 2 July-10 Aug. 2001, UN GAOR, 56th sess., Supp. No. 10, A/56/10, ch. IV.E.2 (which includes the Commentaries to the Draft Articles on Responsibility of States for International Wrongful Acts, adopted by the Drafting Committee on second reading, UN Doc. A/CN.4/L.602/Rev.l, 26 July 2001), p. 284. In the Chechnya case, the Russian Constitutional Court held that while the Russian Government was entitled to use of force to protect its territorial integrity, Russia was bound by international rules in the exercise of that right and in particular by Protocol II Additional to the Geneva Conventions of 1949. See Chechnya case, supra note 130, at pp 195-196. The use of force by the Russian army in Chechnya in 1994-1996 and in 1999-2000, even if intended to maintain the territorial integrity of Russia, was widely condemned as being at least disproportional. See pp. 374-375, infra. 281. Shaw, supra note 133, at pp. 97-98.
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or as a result of acquiescence, such a boundary is protected and assumes finality and permanence.282 Such boundaries become objectivized from the time of their establishment in the sense that they continue in time irrespective of any changes of sovereignty on either side of the boundary.283 On the other hand, the precept of stability does not rule out any subsequent modification of the boundary, but this may happen only by peaceful means and by agreement. Whereas the status of international boundaries in the process of a change of sovereignty is relatively clear, the case is more problematic when some or all of the new State's boundaries are administrative boundaries. Although, initially, it was not developed with the problem of the continuity administrative boundaries in mind, the doctrine of uti possidetis has gradually developed in that direction and is now proposed as a solution to that problem. The doctrine of uti possidetis juris has its origins in Roman law and emerged on the international plane in the context of decolonization. In Roman law, the principle designated an interdict of the Praetor which forbade the alteration of the existing state of possession of immovables as between two contending individuals. This meant that the possessor had the right to be free from any disturbance by the adversary on the strength of his possession.284 As such the Praetor held uti nunc eas aedas, quibus de agitur, nec vi nec clam nec precario alter ab altero possidetis, quo minus ita possideatis, vim fieri veto.285
This phrase is generally known as 'uti possidetis, ita possideatis' or 'as you possess, so may you possess'. The essence of the principle in Roman law was that it avoided taking up "the final disposition of the property but, rather, shifted the burden of proof during the proceedings to the party not holding the land. This represented an advantage for the possessor, who became the defendant in the case, even if he had wrongly removed the plaintiff from the
282. Case concerning the Temple of Preah Vihear (Cambodia v. Thailand), Merits, Judgment, 15 June 1962, ICJ Rep. 1962, p. 6, at p. 34 (hereinafter 'Temple case'); Beagle Channel Arbitration (Argentina v. Chili), Arbitral Award, 18 Feb. 1977, ILR, Vol. 52, p. 121, at p. 131; Shaw, supra note 133, at p. 112. 283. Case Concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, 24 Feb. 1982, ICJ Rep. 1982, p. 18, at p. 66; Vienna Convention on Succession of States in Respect of Treaties of 1978, Art. 11. 284. J.B. Moore, COSTA RIGA - PANAMA ARBITRATION: MEMORANDUM ON UTI POSSIDETIS, 1913, pp. 5-8. 285. Quoted in: id., at p. 6: "[w]hichever party has possession of the house in question, without violence, clandestinely, or permission in respect of the adversary, the violent disturbance of his possession I prohibit".
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land".286 It is clear that the concept of uti possidetis thus used presumed, if only until a settlement was reached, the preservation of the possessory status, that is, the maintenance of the status quo, even if there were a measure of injustice therein. Uti possidetis was transferred to the issue of decolonization and related matters regarding boundaries in Latin America, and was thus applied in an entirely different context than envisaged under Roman law. As a doctrine sanctifying the administrative lines of former colonies, it was first applied to South America in 1810 and later to Central America in 1821. The aim of the principle mainly concerned two issues: firstly, and principally, the prevention of a renewal of European colonization based on the argument that some parts of the former colonial territories constituted terrae nullius which were open for occupatio, and secondly, the prevention of boundary disputes between the new States.287 Hyde observes [w]hen the common sovereign power was withdrawn, it became indispensably necessary to agree on a principle of demarcation, since there was a universal desire to avoid resort to force, and the principle adopted was a colonial uti possidetis; that is, the principle involving the preservation of the demarcations under the colonial regimes corresponding to each of the colonial entities that was constituted as a State.
As such, uti possidetis reflected the principle of the continuity of boundaries even though it was concerned with administrative boundaries. The preservation of the colonial administrative demarcations after the change of sovereignty implied the transformation of these boundaries into international boundaries. A corollary of the latter aspect was that uti possidetis constituted a method of demarcation of international boundaries. In those situations where difficulties existed with regard to the determination of the exact location of the administrative lines according to the law of the colonial power, the principle was supplemented in the practice of international tribunals with uti possidetis de facto (which was primarily concerned with display of authority or effectivités). 289 On the basis of the application and use of uti possidetis juris by the Latin American
286. S.R. Ratner, Drawing a Better Line: Uti Possidetis and the Borders of New States, AJIL, Vol. 90, 1996, p. 590, at p. 593. 287. Affaire des Frontières (Colombo v. Vénézuéliennes), Arbitral Award of the Swiss Federal Council of March 24, 1922, RIAA, Vol. 1, p. 227, at p. 228; Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), Judgment, ICJ Rep. 1992, p. 351, at p. 387 ("the principle of uti possidetis is concerned as much with title to territory as with the location of boundaries; certainly a key aspect of the principle is the denial of the possibility of terra nullius"). 288. C.C. Hyde, INTERNATIONAL LAW, CHIEFLY AS INTERPRETED BY THE UNITED STATES, Vol. I, 1947, p. 499, n. 3. 289. Frontier Dispute, supra note 268, at pp. 586-587; Brownlie, supra note 151, at p. 69.
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States there is no doubt that the principle developed into a rule of customary law with respect to that region. The doctrine of uti possidetis juris was subsequently applied in the context of the decolonization of Africa where it focused primarily on the continuity of boundaries and not so much on the demarcation of boundaries. The most important reason for this is that the context of the African decolonization differed from the Latin American experience. In addition to the absence of terrae nullius on the African continent at the time of decolonization, a more important factor was the point that the African colonies were in most cases much more ethnically heterogeneous than the Latin American colonies. Yet this factor was seldom taken into account when the colonial powers demarcated the colonial territories. It has been observed that the boundaries on the African continent - as they were drawn in most cases with little or no consideration for elements as ethnicity, geography, historical tribal life styles or economic convenience - were more artificial than elsewhere in the world.290 Not only were the African boundaries drawn arbitrarily, they were also perceived by many as alien and unjustified. As Shaw observes "it was precisely because of the precariousness of colonial boundaries in their geographical, historical and ethnic context that the principle of uti possidetis operating as a guarantee of devolved boundaries fell upon such fertile ground".291 On the occasion of the inaugural summit conference of the OAU, the Prime Minister of Ethiopia stated that "it is in the interest of all Africans now to respect the frontiers drawn on the maps, whether they are good or bad, by the former colonizers".292 This view was supported by the representative of Mali who noted we must take Africa as it is and we must renounce any territorial claims if we do not wish to introduce what we might call black imperialism in Africa [...]. African unity demands of each one of us complete respect for the legacy that we have received from the colonial system, that is to say, maintenance of the present frontiers of our respective States.
By following this line of thought the principle of uti possidetisjuris was affirmed in the Cairo Declaration, which was adopted in 1964 by the Heads of States
290. Separate Opinion Judge Ajibola, Case Concerning the Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, 3 Feb. 1994, ICJ Reports, 1994, p. 6, at pp. 52-53. 291. Shaw, supra note 133, at p. 102. 292. Proceedings of the Summit Conference of Independent African States, Addis Ababa, May 1963, Vol. 1, Section 2, OAU Doc. CIAS/GEN/INF/43, quoted in: A.C. McEwen, INTERNATIONAL BOUNDARIES OF EAST AFRICA, 1971, p. 24. 293. Id.
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and Governments of the OAU.294 The Declaration proclaimed that "all Member States (vis a vis each other) pledge themselves to respect the borders existing on their achievement of their national independence". In its Judgment a Chamber of the International Court adjudicating upon the question of the frontier dispute between Burkina Faso and Mali, as referred to above, noted with respect to the status of uti possidetis juris the principle is not a special rule which pertains solely to one specific system of international law. It is a general principle, which is logically connected with the phenomenon of the obtaining of independence wherever it occurs [...]. The fact that the new African States have respected the administrative boundaries and frontiers established by the colonial powers must be seen not as a mere practice contributing to the gradual emergence of a principle of customary international law, limited in its impact to the African continent as it had previously been to Spanish America, but as the application in Africa of a rule of general scope.295
Thus, the application of the principle in practice and the confirmation of the principle by the OAU should not, according to the Chamber, be interpreted as a geographical extension of the principle but as the application of a customary rule which was previously applied in another continent only.296 As to the meaning and effect of the principle the Chamber stated [t]here are several different aspects to this principle, in its well known application in Spanish America. The first aspect, emphasized by the Latin genitive juris, is found in the pre-eminence accorded to legal title over effective possession as a basis of sovereignty [...]. However there is more to the principle of uti possidetis than this particular aspect. The essence of the principle lies in its primary aim of securing respect for the territorial boundaries at the moment when independence is achieved. Such territorial boundaries may be no more than delimitations between different administrative divisions or colonies all subject to the same sovereign. In that case, the application of the principle of uti possidetis resulted in administrative boundaries being transformed into international frontiers in the full sense of the term [...]. International law - and consequently the principle of uti possidetis - applies to the new State (as a State) not with retroactive effect, but immediately and from that moment onwards. It applies to the State as it is, i.e., to the 'photograph' of the territorial situation then existing. The principle of uti possidetis freezes the territorial title; it stops the clock, but does not put back the hands.297
294. OAU Doc. AHG/Res. 16(1), 1964. It has been suggested that, although not in so many words, the doctrine of uti possidetis can be read in the constituent document of the OAU. The relevant articles would be Arts. 2(l)(c) and 3(3). See Klabbers and Lefeber, supra note 22, at p. 57. 295. Frontier Dispute case, supra note 268, at p. 565. 296. Shaw, supra note 133, at pp. 103-104. 297. Frontier Dispute case, supra note 268, at pp. 566 and 568 (emphasis in original). It should be noted that the Permanent Court of Arbitration in the case between Guinea-Bissau and Senegal observed that the principle of uti possidetis as applied to Africa "a un sens plus large car il
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It is moreover generally accepted that the principle was also adopted in relation to territorial disputes in Asia.298 Although no express mention is made in the Temple case of the principle of uti possidetis, the International Court affirmed the principle of stability of boundaries and the statements of the Court leave no doubt that the territorial dispute was discussed against the background of the principle of uti possidetis juris.299 Is uti possidetisjuris thus a rule which has universal application, that is, with respect to all situations involving the creation of new States? It may be suggested that the core of the reasoning of the Chamber of the International Court in the Frontier Dispute case was not concerned with the phenomenon of decolonization as such but with the general phenomenon of the attainment of independence.300 Yet the fact that the case was generally concerned with aspects relating to decolonization, as well as the fact that the parties to the case had expressly agreed to request the Chamber to resolve the dispute on the basis of the principle of uti possidetis in particular, has led to reservations and expressions of doubt with respect to the applicability of the principle beyond decolonization.301 It seems that such doubts can no longer exist as a result of the practice in non-colonial situations and in particular in the context of the break-up of the former Yugoslavia and the former Soviet Union. Regarding the Yugoslav conflict the European Community and its member States declared that they would not accept any outcome of that conflict which would violate the principle that "all established borders, whether internal or external" cannot be changed
298. 299.
300.
301.
concerne aussi bien les limites entre des pays nés d'un même empire colonial que celles qui à l'époque coloniale avaient déjà un caractère international du fait qu'elles séparaient des colonies appartenant à des empires coloniaux différents". See Affaire de la Délimitation de la Frontière Maritime Entre la Guinée-Bissau et le Sénegal, Arbitral Award, 31 July 1989, RIAA, Vol. XX, p. 121, at p. 143. The Court of Arbitration thus equated the principle of uti possidetis with a principle which is concerned with the continuity of boundaries whether or not these boundaries are international boundaries. In the Frontier Dispute case, the Chamber of the International Court did not go that far but seemed to conclude that uti possidetis provides the general framework for the continuity of international boundaries. Shaw, supra note 133, at pp. 104-105; Brownlie, supra note 151, at p. 70. See Temple case, supra note 282, 320, at p. 16. See also the standpoint of Thailand in that case stating "[a]ux termes du droit international coutumier en matière de succession d'Etats, si le Cambodge succède à la France pour ce qui touche au tracé des frontières [...]". Memorials, Vol. I, p. 145. See Franck, Higgins, Pellet, Shaw & Tomuschat, supra note 42, at para. 2.32. And see J. de Pinho Campinos, L'Actualite de l'Uti Possidetis, in: Société Française pour le Droit International, LA FRONTIÈRE, Colloque de Poitiers, Editions A. Pedone, Paris, 1980, p. 95, at p. 105 (who suggests that the principle "semble avoir été appliqué, outre le cas des Républiques sud-américaines, lors de l'accession à 'indépendance des Etats-Unis d'Amérique, de la Belgique, de la Pologne, de la Tchécoslovaquie, de la Finlande, de l'Etat Libre d'Irlande, des Etats Baltes, du Panama, du Pakistan, de l'Angola, entres autres"). See, e.g., Hannum, supra note 42, at p. 55.
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by the use of force.302 The CSCE expressed this view by stating that "no territorial gains or changes within Yugoslavia brought about by violence are acceptable",303 and this Declaration was recalled by the Security Council in Resolution 713.304 Moreover, one of the conditions for recognition of statehood of the former Yugoslav (and Soviet) Republics laid down in the EC Guidelines on Recognition is "respect for the inviolability of all frontiers which can only be changed by peaceful means and by common agreement".305 It will be noted that the precept of stability of boundaries was thus applied to the internal federal administrative divisions of Yugoslavia as well, and as such implied the principle of continuity of boundaries in the event of change of sovereignty. The applicability of uti possidetis juris to the break-up of the Socialist Federal Republic of Yugoslavia was expressly recognized in Opinion 3 of the Arbitration Commission of the International Conference on Yugoslavia. The Commission observed, with reference to the Frontier Dispute case, that the principle of uti possidetis constituted a general principle of international law which was not confined to situations of decolonization.306 Uti possidetis was also deemed applicable to the dismemberment of the Soviet Union. In addition to the reference to the inviolability of all frontiers in the Guidelines on Recognition of the European Community, in the Charter of the Commonwealth of Independent States the signatory States agreed to retain the administrative boundaries of the Republics as they were when they formed part of the Soviet Union.307 In addition, in the case of the dissolution of Czechoslovakia in 1993, the two sides agreed that the administrative border between the Czech Republic and the Slovak Republic as it existed on the moment of independence would be the international boundary between the two new States.308 302. EC/US/USSR Declaration on Yugoslavia, The Hague, 18 Oct. 1991 (emphasis added). 303. Declaration of 3 Sept. 1991 (emphasis added). The United States expressly stated that "[t]he United States accepts the pre-crisis republic borders as the legitimate international borders of Bosnia-Herzegovina, Croatia and Slovenia". White House Press Release, 7 Apr. 1992. See also Press Release of the Canadian Secretary of State for External Affairs, 7 Oct. 1991. 304. UN Doc. S/Res/713, 25 Sept. 1991. 305. EC Guidelines on Recognition, supra note 39. 306. Opinion 3, 11 Jan. 1992, ILM, Vol. 31, 1992, pp. 1499-1500, at p. 1500 ("[e]xcept where otherwise agreed, the former boundaries become frontiers protected by international law. This conclusion follows from the principle of respect for the territorial status quo and, in particular, from the principle of uti possidetis"). The Commission adopted this view despite the arguments raised by the 'rump' presidium of Yugoslavia (at that time effectively consisting of Serbia and Montenegro) in a memorandum submitted to the Arbitration Commission in which it was denied that uti possidetis could apply to the internal boundaries of Yugoslavia. See Weller, supra note 183, at p. 590. 307. Charter of the Commonwealth of Independent States, 22 June 1993, ILM, Vol. 34, 1995, p. 1279. 308. J. Malenovsky, Problèmes Juridiques Liés à la Partition de la Tchécoslovaquie, y Compris Tracé de la Frontière, Annuaire Français de Droit International, Vol. 39, 1993, p. 305, at p. 328.
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The weight of both opinion and practice seems to be in favour of the view that the principle of uti possidetis juris should now be regarded as a principle of customary international law connected with the phenomenon of the obtaining of independence, at least when it involves a colonial or other dependent territory and federal administrative units.309 However, this does not by definition exclude the possibility of the applicability of the principle to other situations such as administrative divisions of unitary States. A question which must now be addressed is whether, as has been suggested, uti possidetis must be equated with the principle of territorial integrity or not? The only correct answer must be in the negative.310 Apart from colonial and other dependent territories, the principle of territorial integrity is applicable after a territorial entity has established itself as a State under international law. In that context the principle of territorial integrity is of a continuing character. The principle of uti possidetis on the other hand, has a temporary nature. It operates at the moment of transition of sovereignty, and in the absence of agreements between the parties with regard to a different line than the uti possidetis line, the principle 'freezes' the territorial situation existing at the moment of independence. Thus, in those cases where the principle of uti possidetis is applicable, it is attached to the territorial aspect of a State's formation. Accordingly, in such a situation the principle is responsible for the territorial definition of the State to which the principle of territorial integrity will apply.311 What, then, is the relationship between the principle of uti possidetis juris and the right of self-determination of peoples ? For, in the Frontier Dispute case, the Chamber observed that "[a]t first sight this principle [of uti possidetis] conflicts outright with another one, the right of peoples to self-determination".312 After having stated that the African States have deliberately consented to the maintenance of their colonial frontiers which decision was essentially motivated by considerations of a collective desire for stability and international peace, the Chamber noted that the same considerations induced the African States "to take account of [uti possidetis juris] in the interpretation of the principle of self-determination of peoples".313 Indeed, by using the principle 309. Shaw, supra note 133, at p. 111; M.N. Shaw, Peoples, Territorialism and Boundaries, EJIL, Vol. 8, 1997, p. 478, at p. 500; Franck, Higgins, Pellet, Shaw & Tomuschat, supra note 42, at para. 2.48; Mullerson, supra note 261, at p. 486; Separate Opinion Judge Ajibola, Territorial Dispute (Libya Arab Jamahiriya/Chad), supra note 290, at p. 89. 310. See also T. Bartoš, Uti Possidetis. Quo Vadis?, The Aust. YIL, Vol. 18, 1997, p. 37, at p. 40; Higgins, supra note 71, at p. 34. 311. See also Shaw, supra note 133, at pp. 124-125; Higgins, supra note 71, at p. 34; J. Castellino, INTERNATIONAL LAW AND SELF-DETERMINATION, 2000, p. 122. 312. Frontier Dispute case, supra note 268, at p. 567. 313. Id.
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of uti possidetis as a means of interpretation of the right of (external) selfdetermination there is ultimately no conflict between the two norms. In the post-colonial context, a tension or conflict between the two principles would potentially exist in the case of the exercise of external self-determination by a minority-people within an existing State. The applicability of uti possidetis in these processes means however, that a collectivity which constitutes a majority within a certain administrative unit of a State and which is entitled to external self-determination (like the Ukrainian people in the context of the break-up of the Soviet Union), has the right to exercise its right of external self-determination with regard to that administrative unit. This means that while the right of external self-determination is vested in the collectivity, the territorial scope or object of this right is geographically limited. As such the contradiction is only apparent: uti possidetis is a modality of the exercise of self-determination by a group (that is, a people in an ethnic sense, such as the Ukrainian people or the Czechs) which is entitled to the right of external self-determination. 314 As a result, neither the self-determination unit nor third States are entitled to modify unilaterally the existing territorial situation at the moment of independence. There is nothing unusual about such a limitation on the exercise of external self-determination, because the right of self-determination does not, of course, operate in a legal vacuum. No-one would suggest that in the exercise of external self-determination (the members of) a people would be entitled to commit genocide against another group living within the boundaries of the prospective State. And, as is stipulated by Article 5 of the ICCPR, the right of selfdetermination must be exercised in such a way that it respects the individual human rights which are contained in the Covenant.315 Another point is relevant. It is important to note that the principle of uti possidetis is not a mandatory principle in the sense that the principle prohibits the change of the relevant boundaries before or after independence.316 In addition to the specific temporary character of the principle, it is notjus cogens. International law, including the principle of territorial integrity, does not prohibit the change of existing international boundaries after independence by
314. See also Brownlie, supra note 151, at p. 72. 315. See also Thornberry, supra note 21, at p. 137. 316. See, e.g., Hyde, supra note 288, at p. 499, n. 3; Ratner, supra note 286, at pp. 599-601. Examples of a modification of external boundaries of an existing State have been discussed above (e.g. Soviet Union, Czechoslovakia). An example of a modification of the existing (administrative) boundaries prior to independence is formed by, for instance, the case of British Somaliland (which was an NSGT) and Italian Somaliland (forming a Trust Territory), which merged to form the Somali Republic on 1 July 1960 after holding a plebiscite. See UN Doc. A/Res/1418 (XIV), 5 Dec. 1959. See also the examples mentioned in Chapter 5, Section 3.4.2., at pp. 209-210, supra.
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consent and by peaceful means.317 Moreover, as will be discussed in Chapter 7, it may be suggested that international law allows for unilateral territorial changes through unilateral secession under specific circumstances. However, in such a case the field of tension is formed by the principle of territorial integrity rather than by the principle of uti possidetis. With regard to preindependence changes of boundaries, it was suggested in Chapter 5 that in the case of colonial territories it was permitted to modify the existing administrative boundaries prior to independence if that was the wish of the population of the territory in question. But here also the relevant principle of potential conflict was not so much uti possidetis, but territorial integrity. Finally, the principle of uti possidetis is of no relevance to a change in administrative boundaries within existing States as these will normally be regulated by that State's constitutional law. The principle of uti possidetis only operates in those situations where the parties agree on its applicability or, in the absence of such an agreement, if no agreement with regard to a different method or principle has been reached. But it would be wrong to suggest that the application of the principle of uti possidetis would automatically result in the 'best possible' boundary. The principle is rooted in the broader principle of territorial stability and as such it has been preferred over the unilateral drawing of boundaries along ethnic lines. The fact that the principle to a large extent ignores 'original conditions' is understandable, because if a theory of natural frontiers or 'original conditions' were to be adopted, there is not a single State anywhere the boundaries of which would not be threatened. Therefore, the principle of uti possidetis has been regarded by most States, old and new, as a practical and at least temporary measure or solution with respect to the status of boundaries in the process of the succession of States. Yet, if all relevant parties agree, this does not prevent them from drawing a 'better' line at any point in the futuree 3 1 8
§ 7.
CONCLUSIONS AND OBSERVATIONS
In this Chapter is has been shown that self-determination extends beyond decolonization, in the form of internal self-determination. The internal aspect of self-determination can no longer be excluded, if indeed it ever could, from the right of self-determination. It has also been shown that under contemporary international law this internal dimension is recognized as a right of nations
317. See also Land, Island and Maritime Frontier Dispute, supra note 287, at pp. 401 and 408. 318. See also id., at p. 396.
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(in the sense of the entire population of a State) and subgroups within a State, that is, peoples in a social and cultural or anthropological sense (the 'ethnic' definition). It is thus clear that self-determination is not equal to 'the creation of a State', which is a standpoint still heard in some quarters and which has an extremely negative effect on the implementation of self-determination within existing States. Fear of separatist claims as a result of the recognition of a subgroup as a people has led States to ignore claims for (more) internal selfdetermination of peoples within their borders. This often leads to situations in which such groups change their claims from internal to external selfdetermination, resulting in a chain-reaction which often involves the use of armed force by both sides. It has been shown that internal self-determination is important in several respects. Firstly, the right of internal self-determination has been earmarked as a conditio sine qua non for the effective exercise and enjoyment of individual human rights. Secondly, the obligation to respect the right of internal selfdetermination has become a crucial factor in the evaluation of the legitimacy and representativeness of the government of a State. And finally, it was observed that respect for the internal dimension of self-determination is a conditio sine qua non for a lawful exercise of external self-determination. External self-determination, if exercised by the nation through such means as dissolution, merger or union does not conflict with the right of territorial integrity of the State. This is, of course, different with regard to an alleged right of unilateral secession. The field of tension between such a 'right' and the right of States to preserve their territorial status quo may be evident. Several subgroups within existing States, such as the Abkhaz319 and the Anjouanese, 320 have proclaimed their own State on the basis of this alleged right of secession. Yet no recognition of these claims to statehood has been forthcoming, even in those cases where the 'government' of the entity exercises effective control over the territory involved. The traditional theories on recognition and statehood do not suffice to explain these situations, neither can they be explained on the basis of the doctrine of the obligation of non-recognition and the suggested modern and additional criteria for statehood which were identified in that context, because none of these criteria was violated in the process of the formation of the territorial entities concerned. It should therefore be considered whether the explanation regarding the denial of the claim to a right of unilateral secession and to statehood is to be found in the law of self-determina-
319. See Chapter 7, Section 5.2., infra. 320. See p. 422, infra.
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tion itself. In other words, does international law, and the law of self-determination in particular, contain rules with respect to the phenomenon of secession outside the colonial context, and if so, do these rules affect the formation of States in international law? The next Chapter examines the law of selfdetermination in relation to secession, after which the relation between the law of self-determination, including any rules relating to secession, and the law of statehood will be addressed in Chapter 8.
Chapter 7
Secession
§ 1.
INTRODUCTION
As was observed in Chapter 6, in its external dimension the right of political self-determination is implemented through the formation of an independent State, or through the integration in or association with an independent State. Secession is a means by which external self-determination may be exercised. Secession may be defined as the separation of part of the territory of a State carried out by the resident population with the aim of creating a new independent State or acceding to another existing State.2 Unilateral secession is the separation of part of the territory of a State which takes place in the absence of the prior consent of the previous sovereign.3 The 'right' of unilateral secession under international law therefore refers to the right of a people to separate a part of the territory of the parent State on the basis of that people's right of self-determination.4 The potential holder of any right of secession would therefore be a subgroup within a State, which subgroup is the subject of the right of self-determination, or, in other words a people in the ethnic sense. It was seen that the right of self-determination has survived the era of decolonization.5 Self-determination is an ongoing right as far as it is exercised internally. In addition, beyond the colonial context there is no doubt that peoples possess a right of external self-determination and that this may be
1. 2.
3. 4. 5.
Secession is thus but one such means. Other means are, for instance, dissolution (peaceful or consensual) and merger/union. C. Haverland, Secession, EPIL, Vol. 10, 1987, p. 384, at p. 384. This definition presumes that the territory in question forms part of the territory of the parent State not only de facto but also de jure. Thus, in those cases wherein a territory has been incorporated in a State's territory in violation of a rule of the then applicable international law which blocks the acquisition of a valid title to the territory in question, the separation of that territory at a later date falls under the heading of the restoration of the legal status quo ante rather than secession. See also Crawford, CREATION OF STATES, p. 246. This is apart from the fact that, as will be shown later, a right to secession may be granted under national law. See Chapter 6, supra.
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exercised through consensual dissolution of a State or through consensual merger with another State. But what about secession? In the periods following World Wars I and II, self-determination was understood as sanctioning unilateral secession, but this was limited to the dismemberment of the defeated Central Powers and the dismantling of the colonial empires.6 The principal question is thus whether the law of self-determination in the post-colonial era validates a right of secession for peoples in existing States. If international law does not recognize the existence of such a right, what then are the consequences for the interpretation and the validity of the right of self-determination? On the other hand, if international law does recognize the existence of such a right, does it recognize an absolute right to secede or does it limit such a right by imposing certain conditions which must be fulfilled before the right will be applicable? In answering these questions, Section 2 opens the discussion by introducing opposite philosophical-legal standpoints with respect to the justifiability of a 'right' of secession. The search for a right of secession commences in Section 3 through the analysis of, amongst others, international legal instruments, doctrine and judicial decisions. State practice with respect to successful secessions will also be addressed in this Section. Criteria for a right of secession are discussed in Section 4 and three cases of unsuccessful secessions are examined in Section 5. Section 6, to conclude, contains some final observations and conclusions.
§ 2.
THEORETICAL APPROACHES TO A RIGHT OF SECESSION
In legal-philosophical doctrine, one can generally discern two conflicting positions with respect to the fact whether a right of secession exists under international law or whether such a right should be recognized. The first view, which includes the theory of national self-determination and so-called 'choice theories', defends an unconditional or absolute right of secession. The second view maintains that if such a right is accepted, it can only be of a conditional character. The adherents of a full-blooded theory of national self-determination claim that minority-peoples have a right to self-determination, including a right to an independent State in which the members of the minority-people form the
6.
See Chapter 5, Sections 3.3.-3.4., supra. See also T.M. Franck, FAIRNESS IN INTERNATIONAL LAW AND INSTITUTIONS, 1995, p. 158. To the same effect, see R. Emerson, Self-Determination, AJIL, Vol. 65, 1971, p. 459, at p. 464.
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majority. This means that each group in a multi-people State which can be qualified as a 'people' would be entitled to secede when it wishes to do so. The choice theory also advocates an unconditional right to secede. It has several variations which together have been referred to as 'plebiscitary right theories'. Choice theories are essentially based on the same sort of justifications which are used for justifying democracy, and they hold that any group within a given part of the territory of an existing State which can muster a majority in favour of secession would be entitled to do so whether or not the group is a 'people' and whether or not the group has been exposed to serious harm within this State.9 This would be justified because since the legitimacy of government is based on the consent of the governed, the governed have the inalienable right to withdraw that consent whenever they wish. l() These theories are, in effect, nationalist theories shorn of the complications of ethnicity.11 Although appealing for separatist movements, both the national selfdetermination theory and the choice theory have not found many adherents in international legal philosophy and in international law. Apart from the irreconcilability of both theories with the parallel existence of the right of territorial integrity of the State,12 the theory of national self-determination cannot be maintained if only because of its lack of internal logic. Several steps would be needed to get from the fact that a group believes itself to be a 'people' or 'nation' to the normative conclusion that it may or should have its own State. If an ethnic subgroup within a State would be entitled to create a State because of the mere fact of being a separate ethnic group "it is", as Norman states "difficult to imagine what it is about specifically national difference that can necessitate such a strong conclusion".13 As to choice theories, these are primarily based on individual rights within the context of liberal democratic thought. Yet it is generally recognized that a 'right' to secession is a collective right. It is therefore difficult to accept a justification or legitimation of secession which is solely based on individual rights of democracy and autonomy and which is therefore entirely detached from any collective good of the group in question. 7.
W. Norman, The Ethics of Secession as the Regulation of Secessionist Politics, in: M. Moore (Ed.),
8. 9.
A. Buchanan, Democracy and Secession, in: Moore (Ed.), supra note 7, p. 14, at p. 15. See, e.g., D. Philpott, Self-Determination in Practice, in: Moore (Ed.), supra note 7, p. 79; H. Beran, THE CONSENT THEORY OF POLITICAL OBLIGATION, 1987. H. Hannum, Rethinking Self-Determination, Va. JIL, Vol. 34, 1993, pp. 1, at p. 43 (referring to this theory as the 'liberal democratic theory of secession'). See also Norman, supra note 7, at p. 37. As to the theory of nationalism, see Chapter 5, Section 2.2., supra. As to the meaning of the principle of territorial integrity, see Chapter 6, Section 6, at pp. 293-296 supra. Norman, supra note 7, at p. 36 (emphasis in original).
NATIONAL SELF-DETERMINATION AND SECESSION, 1998, p. 34, at p. 35.
10. 11. 12. 13.
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The rival theory which suggests a conditional or qualified right of secession appears to be more logical and convincing. This theory holds that an international legal right of secession, if it exists or would be recognized, would arise only in response to serious and persisting wrongs suffered by a people at the hand of the parent State.14 As has been elaborated by Buchheit, such thoughts on a qualified right of secession can already be found in early natural law theory.15 Although the natural law approach had difficulties to cope with rights of collectivities as such, the growth of a 'federalist' theory of social structure in the sixteenth century resulted in the fact that collectivities were given a place within natural law.16 It was subsequently recognized that such collectivities had a right to secede, but this would only be applicable if necessary for the group's continued existence. In a similar way, Hugo Grotius conceded a right to minority secession under extreme circumstances. According to Grotius a segment of the State's population cannot unilaterally withdraw from the State "unless it is evident that it cannot save itself in any other way". This view, which in effect points to the requirement of substantial oppression and suffering before a right to secession may arise, has received the support of other influential theorists like Emmerich de Vattel.18 And although John Locke did not discuss a right of secession as such, he used the same train of thought when elaborating on the condition when a right of resistance may arise. According to him such a right would only be applicable where the legislative power assumes a tyrannical character.19 Whatever the legal status of a right of secession, at this point it can already be concluded that from the point of view of international law, the existence of an absolute right to secession cannot be presumed because of the fundamental position of the right of territorial integrity of States. Little would remain of this right if a minority-people within the State would be entitled to secede at will. While there is thus a presumption against the existence of an absolute right of secession, there is no cogent reason either to presume that the right to territorial integrity of States always prevails over the right of self-determination. 14. For a modern exponent of this view, although only recognizing a 'moral' right of secession, see A. Buchanan, SECESSION: THE MORALITY OF POLITICAL DIVORCE FROM FORT SUMTER TO LITHUANIA AND QUEBEC, 1991; A. Buchanan, Theories of Secession, Philosophy and Public Affairs, Vol. 26, No. 1, 1997, p. 30. 15. Buchheit, SECESSION, pp. 46 et seq. 16. Buchheit refers to Johannes Althusius (1557-1638) as one of the most explicit proponents of this view. Id., at p. 49. 17. H. Grotius, DE JURE BELLIS AC PACIS LlBRI TRES (1646), 1925, II, c. VI, para. 4. 18. E. de Vattel, THE LAW OF NATIONS, 1916, Bk. I, Ch. 4, para. 54 ("when the injuries are manifest and atrocious"). 19. J. Locke, TWO TREATISES OF GOVERNMENT, 1764, para. 168. See also id., at paras. 208-209.
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Rather, the relevant international instruments seem to suggest that the two rights limit each other and must be interpreted accordingly. Cobban observed that [t]he truth seems to be that if we take the right of sovereignty on the one hand, and the right of secession on the other, as absolute rights, no solution is possible. Further, if we build only on sovereignty, we rule out any thought of selfdetermination, and erect a principle of tyranny without measure and without end, and if we confine ourselves to self-determination in the form of secessionism, we introduce a principle of hopeless anarchy into the social order. The only hope, it seems, must be in a combination of the two principles, allowing each to operate within its proper field, and recognising neither as an absolute right, superior to the rights of individuals, which are the true end of society.20
Indeed, an interpretation of the right of self-determination and the right of territorial integrity which would require a minority-people to remain within a State even if that State's conduct seriously infringes the right of internal selfdetermination of that people - possibly even to the extent that the continued physical existence of that people as such becomes threatened - and thus violates the right of that people to govern itself, that is, freely to determine its political status and future, would effectively reduce the right of self-determination to a hollow shell. For, logically, the guarantee of the right of self-determination implies the guarantee of a people's freedom and ultimately its (continued) existence.21 Yet, the result of an interpretation of the right of self-determination to the effect that it always gives precedence to the territorial integrity of the State, that is, a resolute rejection of any right of secession as part of the right of self-determination, is that the guarantee is, eventually, nothing more than a mere formal phrase. This is a position which cannot be assumed in the light of the repeatedly emphasized fundamental character and position of the right of self-determination both for the collective identity of peoples and for the individual human rights of their members. Because of this factor, and because of the consideration that in all situations which involve a violation or obstruction of a people's right to internal selfdetermination by the parent State there are no international and, in almost all cases, also no national legal remedies to enforce the right, as well as the fact that there is no legal obligation for the international community to enforce the
20. A. Cobban, THE NATION STATE AND NATIONAL SELF-DETERMINATION, 1969, p. 138. 21. Cf. Chapter 5, Section 4, at p. 223, supra. See also D. Murswiek, The Issue of a Right of Secession - Reconsidered, in: C. Tomuschat (Ed.), MODERN LAW OF SELF-DETERMINATION, 1993, p. 21, at p. 26.
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right irrespective of the gravity of the violation,22 it would seem unavoidable - theoretically at least - that the right of self-determination has to include a right of secession as a measure of last resort through which the right of selfdetermination can be implemented and realized. Put differently, a legal right of self-determination seems to require, at least under exceptional circumstances, the right of a people to unilateral separation from the parent State in order to protect its collective identity and the fundamental human rights of its members, as well as to restore its freedom. However, although such a right may be justified morally, it remains to be seen if, and if so to what extent, a right of secession has actually been recognized or acknowledged in practice.
§ 3.
ACKNOWLEDGMENT OF A RIGHT OF SECESSION
§ 3.1.
Recognition of a right of secession under national law or approval by the central government
It is undisputed that a people is entitled to secession if such a right is provided for in the constitution of the parent State. In addition to the 1947 Constitution of Burma, such a right was, for instance, contained in Article 72 of the 1977 Constitution of the Soviet Union, 24 Article 1 of the 1974 Constitution of the SFRY25 and in the 1968 Constitution of Czechoslovakia.26 Today such 22.
See R. Lefeber and D. Raic, Frontiers of International Law, Part One: The Chechen People, LJIL, Vol. 9, 1996, p. 1. 23. Under that constitution the States representing the minority peoples within the Union of Burma were given the right to secede after an interval of ten years from the time the constitution came into force, and in contrast to the Soviet model, the processes by which this might be accomplished were spelled out in some detail. See Constitution of the Union of Burma, 1947, Chapter X, Arts. 201-206, reprinted in: Constituent Assembly of Burma, CONSTITUTION OF THE UNION OF BURMA, 1948. And see R. Emerson, FROM EMPIRE TO NATION: THE RISE TO SELFASSERTION OF ASIAN AND AFRICAN PEOPLES, 1960, p. 300. 24. For the 1977 Constitution of the former Soviet Union see Sowjetunie, Verchovnyj Sovet SSSR, Constitution of the Union of Soviet Socialist Republics Adopted at the Seventh (Special) Session of the Supreme Soviet of the USSR, Ninth Convocation, on 7 October 1977, 1977. Article 72 provided for a right of secession for the Union Republics only. It may be questioned, however, whether or not this was actually a substantive legal right because of the absence of any formal system of implementation. This situation did not change until 1990 when a law was passed which ought to provide for an implementation procedure. But, because of the extremely procedural complexities involved, it has been rightly questioned by Cassese if the law was aimed at implementing the right of self-determination or "rather intended to pose a set of insurmountable hurdles to the implementation of the principle". See A. Cassese, Self-Determination of Peoples and the Recent Break-Up of USSR and Yugoslavia, in: R.St.J. Macdonald (Ed.), ESSAYS IN
HONOUR OF WANG TIEYA, 1993, p. 131, at p. 137. 25.
The 1974 Constitution of the former SFRY is reprinted in: W.B. Simons, THE CONSTITUTIONS OF THE COMMUNIST WORLD, 1980, p. 428 ff. According to traditional Yugoslav constitutional doctrine, however, the Yugoslav Constitution did not guarantee unilateral secession as a legal right of the constituent peoples of Yugoslavia. In that respect it may be noted that border readjustments of the Federation were only permitted with the consent of all six republics and
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provisions can be found in Article 39 of the 1994 Ethiopian Constitution,27 Article 113 of the 1984 Constitution of Saint Christopher and Nevis28 and under the Moldovan legal order. 29 On the other hand, in the absence of a constitutional provision on (unilateral) secession, a people may be entitled to secede if it obtains the approval from the central government. Past cases include the case of the secession of Singapore from Malaysia30 in 1965 and the secession of Eritrea
26.
27.
28.
29.
30.
the two autonomous territories (Art. 5). See also B. Bagwell, Yugoslavian Constitutional Questions: Self-Determination and Secession of Member Republics, Ga. J. Int'l & Comp. L., Vol. 21, 1991, p. 489. See Czechoslovakia, THE CONSTITUTION OF THE CZECHOSLOVAK SOCIALIST REPUBLIC OF 1968, 1987. The Constitution recognized the inalienable right of self-determination of the Slovak and Czech nations "even to the point of separation" (Preamble). As in the cases of the former Soviet Union and the former Yugoslavia, no provision was made for an implementation procedure with respect to this 'right of separation'. Constitution of the Federal Democratic Republic of Ethiopia, 21 Aug. 1995, reprinted in: A.P. Blaustein and G.H. Flanz (Eds.), CONSTITUTIONS OF THE COUNTRIES OF THE WORLD, Booklet 2, p. 1. Article 39 (1) states: "[e]very nation, nationality or people in Ethiopia shall have the unrestricted right to self-determination up to secession". Paragraph 4 of the same Article provides for the procedure which must be followed in case "a nation, nationality or people" wishes to secede. See, generally, D. Demissie, Self-Determination Including Secession vs. the Territorial Integrity of Nation-States: A Prima Facie Case For Secession, STL Rev., Vol. 20, 1996, p. 166. Subject to provisions on the requirement of the holding of a referendum in the island of Nevis Paragraph 1 of the Article states: "[t]he Nevis Island Legislature may provide that the island of Nevis shall cease to be federated with the island of Saint Christopher and accordingly that this Constitution shall no longer have effect in the island of Nevis". See the Constitution of Saint Christopher and Nevis, reprinted in: Blaustein and Flanz Eds.), supra note 27, XVI, 1984, p. 1. Moldovan legislation provides for a right of secession for the autonomous territorial entity of Gagauzia (Gagauz-Yeri in Gagauz). The Law on the Special Legal Status of Gagauzia was adopted by the Moldovan Parliament on 23 December 1994 on the basis of Article 111 of the 1994 Constitution of the Republic of Moldova. Section 1 of this Law contains a right of secession for the Gagauzi people in the event that the status of the Republic of Moldova as an independent State changes, that is, when a union between Moldova and Romania would occur. The relevant text is quoted in: UNDP, National Human Development Report Republic of Moldova, 1996, Ch. 2, para. 2.3. The Gagauz, a population of Turkish origin but with the Orthodox Christian faith, are hence recognized, at least under the national legal order of Moldova, as a distinct people entitled to certain institutional arrangements. In 1995, the Moldovan government offered a comparable status to the Transdniestr region which has not been under the control of the central government since 1992 when the Dniestr Republic National Guard, backed by the 14th Soviet Army which was stationed in Tiraspol, prevented the Moldovan troops from gaining control over the region. On 2 September 1990, pro-Soviet (russophone) forces on the left bank of the Dniestr claimed that their human rights (in particular the right to use the Russian language in official communications) were being violated by the central government of Moldova and established a Dniestr Moldovan Soviet Socialist Republic as a constituent part of the USSR. Although the Dniestr authorities claimed that the proclamation of 'sovereignty' should not be seen as a drive for full independence, the offer by the Moldovan government has not yet been accepted by the leaders of the Dniestr region. See, generally, P. Kolst0 and A. Malgin, The Transnistrian Republic: A Case of Politicized Regionalism, Nationalities Papers, Vol. 26, 1998, p. 103. In 1962, a referendum was held in Singapore on the terms of a merger between the Federation of Malaya, Singapore, Sarawak and North Borneo (now Sabah). The referendum showed the people's overwhelming support for the plan to go ahead with the merger. In September 1963,
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from Ethiopia31 in 1993. Perhaps another, more recent, example is formed by the secession of Slovenia from the SFRY in 1991. Yet the fact that the implicit approval by the Yugoslav government is to be derived, amongst others, from the subsequent de facto acceptance of the secession makes this example essentially different from the other examples mentioned.32 Furthermore,
a UN mission reported that a majority of the peoples of Sarawak and Northern Borneo were in favour of joining Malaysia. The Federation of Malaysia was created on 16 September 1963 and was composed of the said territories. The merger proved to be short-lived. Because of political friction and conflicts (with ethnic overtones) between the Malaysian government and the Singapore federal government, the latter informed the Malaysian central government on 6 August 1965, of its decision to separate Singapore from Malaysia. On 9 August 1965 the Malaysian Parliament passed a bill favouring separation. See, generally, N.M. Fletcher, THE
SEPARATION OF SINGAPORE FROM MALAYSIA, 1969; Ministry of Culture of Singapore, SEPARATION: SINGAPORE'SSEPARATIONFROMTHEFEDERATIONOFMALAYSIA9THAUGUST, 1965, 1965.
31. Eritrean separatism had its roots in World War II. With Italy's defeat in that war, Italy's colonies of Eritrea, Italian Somaliland and most of Lybia were placed under temporary British administration. In the Treaty of Peace with Italy of 1947, Italy renounced all claims to the three territories. It was furthermore stated that the final disposition of the territories was to be determined by France, the United Kingdom, the United States and the Soviet Union before 15 September 1948. In the case of no agreement being reached by that date, the Treaty provided for the question to be taken up by the UN. As no agreement was reached, the question was referred to the UN. In 1952, the UN sought to satisfy the Eritrean demand for self-determination by creating an Ethiopian/Eritrean federation (see UN Doc. A/Res/390 (V) of 2 Dec. 1950). The federation was, however, unilaterally dissolved by Haile Selassie in 1962. This fact and Selassie's imperial rule over Eritrea resulted in the formation of the Eritrean Liberation Movement in 1958 and the Eritrean Liberation Front from which the Eritrean People's Liberation Front (EPLF) was formed in 1961. The ignoring of Eritrea's demand for self-determination continued under president Mengistu Haile Miriam. In 1991, as a direct result of the withdrawal of Soviet support and military supplies to the Ethiopian central government, the EPLF troops eventually succeeded in defeating the central government's forces in Eritrea. After the fall of the Mengistu's regime and with the agreement of the Ethiopian transitional government, a UN-monitored referendum on independence was held in Eritrea in April 1993, in which an overwhelming majority of the Eritrean population voted in favour of independence. As a result, the Eritrean authorities declared Eritrea an independent State on 27 April 1993. The new State was admitted to the UN on 28 May 1993 (UN Doc. A/Res/47/230). See, generally, THE UNITED NATIONS AND THE INDEPENDENCE OF ERITREA, The United Nations Blue Book Series, Vol. XII, Department ofPublic Information, United Nations, 1996; G.H. Tesfagiorgis, Self-Determination: Its Evolution and Practice by the United Nations and its Application to the Case of Eritrea, Wis. ILJ, Vol. 6, 1987, pp. 75-125; R. Iyob, THE ERITREAN STRUGGLE FOR INDEPENDENCE: DOMINATION, RESISTANCE, NATIONALISM, 1941-1993, 1995; M. Haile,Legality of Secessions: the Case of Eritrea, Emory Int'l L. Rev., Vol. 8, 1994, p. 479. 32. Slovenia declared its independence on 25 June 1991. Under orders from the Serb-dominated federal Secretariat for National Defence, but without the approval of the collective Presidency, units of the Yugoslav National Army (JNA) occupied strategic points in Slovenia on the pretext of defending Yugoslav territorial integrity against an illegal secession. After a few days of unexpected stiff resistance by the Slovenian militia, a cease-fire was agreed upon on 7 July under the auspices of the EC. On 19 July, the federal presidency ordered the JNA to withdraw from Slovenia. When Slovenia, after a three-month moratorium period, reasserted its independence on 8 October, the JNA made no response, which may be interpreted as a de facto recognition of the secession. See also S. Terrett, THE DISSOLUTION OF YUGOSLAVIA AND THE BADINTER COMMISSION, 2000, p. 32. See, generally, M. Weller, The International Response to the Dissolution of the Socialist Federal Republic of Yugoslavia, AJIL, Vol. 86, 1992, p. 569. For a more detailed discussion of the Yugoslav crisis, see p. 344 ff., infra.
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examples exist where the central government has expressed beforehand that it will accept the separation of a part of the State if the people concerned clearly express the wish to secede. Here one might mention, amongst others, the position of the Canadian government with respect to a Quebec referendum on secession, the stance of the government of Sudan with respect to south Sudan,34 and the position which was taken by the Yugoslav government after the fall of the Milosevic regime with respect to a possible secession of Montenegro.35 Although, from an international legal point of view, few difficulties exist with respect to an entitlement to secession in cases of a provision in national legislation or approval by the government of the parent State,36 one is confronted with a much more problematic situation when both grounds are absent,37 and a people asserts that it possesses a unilateral right to secede under international law, that is to say, based on the right of self-determination of peoples. The question whether such a unilateral right exists must now be considered. § 3.2.
International instruments, doctrine and judicial decisions
§ 3.2.1.
International instruments
One will search in vain for an explicit prohibition of unilateral secession in international instruments. The same is true for the explicit recognition of such
33. Responding to the question of Canada's position on the Quebec referendum on secession, the representative of Canada in the Human Rights Committee stated that "the Government would respect the clear decision of the people of Quebec. It hoped, however, that Quebec would remain a part of Canada". See Human Rights Committee, Press Release, UN Doc. HR/CT/530, 1738th mtg., 26 March 1999. 34. The representative of Sudan in the Human Rights Committee stated that "South Sudan had the right of self-determination according to an agreement signed in April 1997 between the Government and seven of the eight rebel groups in the south. [...] If the people of south Sudan voted for secession, the Sudanese Government would respect this decision". See Human Rights Committee, Press Release, UN Doc. HR/CN/882, 25 March 1999. 35. See Kostunica Paves Way for Yugoslav Split, The Times, 18 Jan. 2001; Montenegro Vote Spurs Separatists, IHT, 24 Apr. 2001. In March 2002 an agreement was reached with regard to a new constitutional structure which gives Montenegro considerable autonomy. Also the name of the State is changed into Serbia and Montenegro. The question of independence has been postponed. See Serbia and Montenegro Sign a Plan for Yugoslavia's Demise, NYT, 15 March 2002; Montenegro Voorlopig Niet Zelfstandig, NRC Handelsblad, 14 March 2002. 36. However, different considerations apply if such approval is obtained in violation of the right of self-determination as, for instance, in the case of the South African Homelands. Such a violation blocks any entitlement to statehood and thus to secession. See Chapter 4, Section 5.2.2.(b), supra. 37. Or, if despite a constitutional provision on secession no unilateral right to secede is granted under that constitution.
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a right. The only international instruments which, arguably, contain a reference, and then only implicit, to a right of secession are the Friendly Relations Declaration38 and the 1993 Vienna Declaration.39 Because the texts of the relevant parts of the Declarations are the same - with one significant exception -, the following discussion will mainly address the text of the Friendly Relations Declaration. The Friendly Relations Declaration has been characterized as "the most authoritative statement of the principles of international law relevant to the questions of self-determination and territorial integrity".41 The Declaration states in Paragraph 7 of Principle V, after affirming that all peoples have the right of self-determination, that [n]othing in the forgoing 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 selfdetermination 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.
The text of the Friendly Relations Declaration regarding the principle of selfdetermination, including Paragraph 7, was the subject of much discussion in the Special Committee on Principles of International Law ConcerningFriendly Relations and Co-operation Among States during its sessions between 1966 and 1970. As the title of the Declaration suggests, the instrument is primarily concerned with "Friendly Relations and Co-Operation Among States".42 Because of this it must be assumed that the negative formulation in Paragraph 7 that the principle of self-determination "shall not 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
38. UN Doc. A/Res/2625 (XXV), 24 Oct. 1970. 39. Adopted on 25 June 1993, UN Doc. A/CONF. 157/23, 12 July 1993. 40. As was observed in Chapter 6, with respect to a representative government the provision in the 1993 Vienna Declaration uses the terms "without distinction of any kind" instead of "without distinction as to race, creed or colour" as in the case of the Friendly Relations Declaration. 41. International Commission of Jurists, East Pakistan Staff Study, International Commission of Jurists Review, Vol. 8, 1972, pp. 23-62, at pp. 44. To the same effect, see C. Tomuschat, Yugoslavia's Damaged Sovereignty over the Province of Kosovo, in: G.P.H. Kreijen et al. (Eds.),
STATE, SOVEREIGNTY AND INTERNATIONAL GOVERNANCE, 2002 (forthcoming); W. OfuateyKodjoe, Self-Determination, in: O. Schachter and C.C. Joyner (Eds.), UNITED NATIONS LEGAL ORDER, Vol. 1, ASIL, 1995, p. 349, at p. 360. 42. Emphasis added.
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[...]" was intended to be addressed to third States.43 It might be argued therefore a contrario that third States would be entitled to support a people which attempts to secede even if such support would eventually lead to the infringement of the territorial integrity of the target State. But this would only be permissible if the target State does not conduct itself in compliance with the right of self-determination of the people concerned, and such support would have to be in accordance with the other principles contained in the Friendly Relations Declaration.44 At the outset it must be emphasized that the text of Paragraph 7 has been accepted against the background of intensive discussions in the Special Committee with regard to the existence or non-existence of a right of secession under international law. These discussions must therefore be taken into consideration for an understanding of the scope and meaning of the paragraph. Although the text of the paragraph may be interpreted in several ways, it is clear that it does not exclude a right of secession. It might therefore be argued that the provision is either neutral with respect to secession or, albeit implicitly, acknowledges the legitimacy of secession under certain circumstances, that is, a conditional or qualified right of secession. The latter position has been taken by Cassese and many others. Cassese has stated that [c]lose analysis of both the text of the [Friendly Relations] Declaration and the preparatory work warrants the contention that secession is not ruled out but may be permitted only when very stringent requirements have been met.45
He continues by stating that such a situation may exist when the central authorities of a sovereign State persistently refuse to grant participatory rights to a people, grossly and systematically violate their fundamental rights, and deny the possibility of a peaceful settlement within the framework of the existing State.46 The same view has been taken by the International Commission of Jurists in its Staff Study with regard to the events in East Pakistan in the
43. See also, e.g., Draft Report of the 1967 Special Committee on Principles of International Law Concerning Friendly Relations and Co-Operation Among States, M. Zahovic, Rapporteur, UN Doc. A/AC.125/L.53/Add.3, 18 Aug. 1967, pp. 15, 24. And see Friendly Relations Declaration, General Part, Para. 2. 44. Id. 45. Cassese, SELF-DETERMINATION, p. 118. To the same effect, see, e.g., F.L. Kirgis, Jr., The Degrees of Self-Determination in the United Nations Era, AJIL, Vol. 88, 1994, p. 304, at pp. 305-306; M. Akehurst,AMODERN INTRODUCTION TO INTERNATIONAL LAW, 1987, p. 296;S.R.Chowdhury, The Status and Norms of Self-Determination in Contemporary International Law, in: H. Meijers and E.W. Vierdag (Eds.), ESSAYS ON INTERNATIONAL LAW AND RELATIONS IN HONOUR OF A.J.P. TAMMES, Vol. XXIV, Spec. Issue 1/2, 1977, p. 72, at p. 80; V.S. Mani, BASIC PRINCIPLES OF MODERN INTERNATIONAL LAW, 1993, p. 277. 46. Cassese, SELF-DETERMINATION, at p. 119.
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early 1970s, and has recently been confirmed by the Canadian government in the context of the judgment of the Canadian Supreme Court in Reference re Secession of Quebec.48 On the basis of the discussions in the Special Committee, it may be argued that Paragraph 7 implicitly endorses the legitimacy of secession in the case of unrepresentative or discriminatory governments. Here the argument would run as follows. The permissibility of "action" by third States which may "dismember or impair the territorial integrity" of the parent State must be linked to the justifiability of secession. While it was not the object of the Friendly Relations Declaration to address the existence of a right of secession under international law, the issue is dealt with indirectly in Paragraph 7 in the context of the permissibility of "action" by third States in those cases where the right of selfdetermination is seriously violated by the parent State with respect to a people residing within its borders. This circumstance is determinative of the legitimacy of the secession attempt and would raise the situation to the level of international concern. This, in turn, would permit third State "action" in support of that attempt. The travaux préparatoires with respect to the principle of self-determination in the Friendly Relations Declaration contain support for this argument. In the light of the discussions in the Special Committee it is possible to discern two diametrically opposed positions with respect to a right of unilateral secession. On the one hand, there were States which expressed the opinion that the right of self-determination did not entitle minority-peoples to secede. The representative of the United Kingdom, for instance, stated that "his delegation could find nothing in the language of the Charter about the principle of equal rights and self-determination to support the claim that part of a sovereign
47. International Commission of Jurists, supra note 41, at pp. 45-46. 48. Factum of the Attorney General of Canada, 27 February 1997, http://canada.justice.gc.ca/en/news/nr/1997/factum/tdm.html, para. 152 ("[t]he exercise of the external aspect of self-determination under the 1970 Declaration on Friendly Relations is governed by the principle of respect for territorial integrity. According to the penultimate paragraph on self-determination, the right of self-determination does not authorize or encourage any action, such as unilateral secession, that would 'dismember or impair, totally or in part, the territorial integrity of political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples" (emphasis added)). 49. To a certain extent, this reasoning follows the same train of thought underlying Paragraph 5 of the Friendly Relations Declaration which also links the legitimacy of external support to the legitimacy of a people's struggle for self-determination. Paragraph 5 is, however, concerned with colonial peoples and peoples under alien subjugation, domination and exploitation. It states: "[e]very State has the duty to refrain from any forcible action which deprives peoples referred to above in the elaboration of the present principle of their right of self-determination and freedom and independence. In their actions against, and resistance to, such forcible action in pursuit of the exercise of their right to self-determination, such peoples are entitled to seek and receive support in accordance with the purposes and principles of the Charter".
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independent State was entitled to secede".50 On the other hand, several other States, most notably those of the communist bloc, favoured a very broad construction of the right of self-determination. In their view, the right of selfdetermination would include at all times a right of secession.51 It was, however, clear that neither position would gain enough support in the Special Committee for eventual inclusion in the Declaration. A suggestion to break this impasse was made by the representative of the Netherlands who stated that [t]he real problem [is] whether the firm determination to safeguard the concept of the territorial integrity of sovereign States should go so far as to exclude under all circumstances the possibility of the existence or emergence of the right to selfdetermination [that is, a right of secession, DR] on the part of a given people within a given State [...]. So long as adequate provision was made against abuse, the Committee would not serve the cause of justice by excluding the possibility that a people within an existing or future State would possess sufficient individual identity to exercise the right of self-determination. If, for example in the opinion of the world community - basic human rights and fundamental freedoms which imposed obligations on all States, irrespective of their sovereign will, were not being respected by a certain State vis-a-vis one of the peoples living within its territory, would one in such an instance - whatever the human implications - wish to prevent the people that was fundamentally discriminated against from invoking its right to self-determination? [...] The concept of selfdetermination was based on the right of collective self-expression and it was conceivable that there were cases, albeit exceptional, where a people within a State had, or might have in future, the right of self-determination.
Against this background it may thus be argued that Paragraph 7 must be interpreted as reconciling the opposing views in the Special Committee with respect to a right of unilateral secession under international law. In other words, it may thus be argued that Paragraph 7 of the Friendly Relations Declaration implicitly acknowledges a qualified right of secession within the framework of 50. UN Doc. A/AC.125/SR.69, 4 Dec. 1967, p. 19. However, the United Kingdom's position was not as rigid as it seems. According to the United Kingdom the existence of a right of selfdetermination was still questionable in the 1960s, but it held that "if a 'right' of self-determination were held to exist it could be [...] held to authorize the secession of a province or other part of the territory of a sovereign and independent state"). See UN Doc. A/5725/Add. 4, 22 Sept. 1964, p. 74. 51. See, e.g., UN Docs. A/AC. 125/SR. 106, 5 Nov. 1969, p. 62 (Soviet Union) and A/AC.125/SR.40, 27 July 1966, p. 10 (Yugoslavia). 52. UN Doc. A/AC. 125/SR. 107, 5. Nov. 1969, pp. 85-86. Cf. also UN Doc. A/AC/125/SR.69,4 Dec. 1967, pp. 22-23 (Kenya: "[s]elf-determination must not be used as a licence for the fragmentation or emasculation of sovereign States exercising their sovereignty under conditions of equal rights for all their people. As set out in the Charter, the principle did not sanction an unjustifiable claim to secession by a minority group which traditionally formed part of an independent sovereign State" (emphasis added)); UN Doc. A/AC.125/SR.68, 3 Aug. 1967, p. 12 (Ghana); UN Doc. A/AC.125/SR.44, 27 July 1966, para. 12 (United States: "no rational international legal order could exist if the Charter were taken to sanction an unlimited right of secession by indigenous peoples from sovereign and independent States" (emphasis added)).
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the legality of inter-State conduct. In effect, this means that the justifiability of any attempt at secession by a people is made dependent on the legitimacy and conduct of the government of the parent State and that this must be taken into consideration in determining the lawfulness of third State action in support of that people's right of self-determination. Paragraph 7 therefore limits the general obligation contained in Paragraph 8 of Principle V of the Friendly Relations Declarations that "[e]very State shall refrain from any action aimed at the partial or total disruption of the national unity and territorial integrity of any other State or country". The qualified right of secession would thus come into existence when the parent State does not act in compliance with the right of internal self-determination. Following this reasoning, a link between internal and external selfdetermination is identified: a serious and persistent violation of the former constitutes a ground for the applicability of the latter which in that case may be exercised through unilateral secession. The link between internal self-determination and external self-determination is also made in a report on the right of self-determination of peoples submitted by the Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, Hector Gros Espiell. Although the scope of analysis in the report was confined to peoples under colonial and alien domination, the Rapporteur acknowledged a right of secession for peoples in existing States under certain circumstances: [i]f [...] beneath the guise of ostensible national unity, colonial and alien domination does in fact exist, whatever legal formula may be used in an attempt to conceal it, the right of the subject people concerned cannot be disregarded without international law being violated. The [Friendly.Relations] Declaration uses particularly apt language in spelling out this idea: it reaffirms the need to preserve the territorial integrity of sovereign and independent States, but ties this concept to the requirement that the States must be 'possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour'.53
Because a right of secession will come into existence only if the right of selfdetermination cannot be exercised internally, this line of reasoning suggests 53. UN Doc. E/CN.4/Sub.3/405/Rev.l, 1980, p. 10, para. 60. This view was shared by the other Rapporteur on the right of self-determination, Cristescu: "[t]he principle of equal rights and self-determination [...] does not grant an unlimited right of secession to populations living in the territory of an independent State [...]. The right of secession unquestionably exists, however, in a special but very important case: that of peoples, territories and entities subjugated in violation of international law. In such cases, the peoples have the right to regain their freedom and constitute themselves as independent sovereign States". A. Cristescu, The Right to SelfDetermination: Historical and Current Development on the Basis of United Nations Instruments, UN Doc. E/CN.4/Sub.2/404/Rev.l, 1981, p. 26, para. 173.
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that at a certain point, the right of internal self-determination converts into a right of external self-determination. Until that point, however, the exercise of the right of self-determination is limited by the right of territorial integrity of States. Thus, while the obligation to respect the principle of territorial integrity in the penultimate paragraph is addressed to third States, the principle is linked to the interpretation, and hence the exercise, of the right of self-determination, which must normally be implemented within the external boundaries of the parent State. This conclusion is supported by subsequent practice. In the OSCE Charter of Paris, for instance, the participating States declare [w]e reaffirm the equal rights of peoples and their right to self-determination in conformity with the Charter of the United Nations and with the relevant norms of international law, including those relating to territorial integrity of States.
The fact that this provision must be interpreted not only as an obligation for third States to respect the principle of territorial integrity, but also as a limitation on the exercise of self-determination by peoples, is made clear in the Declaration on the Situation in Yugoslavia issued by the member States of the European Community on 5 July 1991: [the Community and its member States] stress again that it is only for the peoples of Yugoslavia themselves to decide on the country's future [...]. The Community and its member States call for a dialogue [...] between all parties on the future of Yugoslavia, which should be based on [...] the right of peoples to self-determination in conformity with [...] the relevant norms of international law, including those relating to territorial integrity of States (Charter of Paris).55
The text is clear in that the implementation of the right of self-determination by "the peoples of Yugoslavia" must be in conformity with the principle of territorial integrity. This does not mean that "the peoples of Yugoslavia" as such are regarded as the (additional) addressees of the principle of territorial integrity, although on occasion this has been explicitly or implicitly argued in practice.56 What it means is that the scope and implementation of the right of 54. See also, e.g., F. Capotorti, Cours Général de Droit International Public, HR, 1994 IV, p. 13, at p. 36. 55. Reprinted in: S. Trifunovska (Ed.), YUGOSLAVIATHROUGH DOCUMENTS: FROM ITS CREATION TO ITS DISSOLUTION, 1994, pp. 310-311, at p. 310. An identical formulation is used in the socalled Brioni Accord which was concluded between the Yugoslav parties and which provided for a three month suspension of the proclamations of independence of Croatia and Slovenia. Joint Declaration, 7 July 1991, reprinted in: id., at pp. 311-315, at p. 312. See also p. 351, infra. 56. See, e.g., the position of the Canadian Government in the context of Reference re Secession of Quebec, Reply of the Attorney General of Canada to Written Responses of the Amicus Curiae to Questions From the Supreme Court of Canada, 13 March 1998, http://canada.justice.gc.ca/en/ps/co nst/agrej.html, para. 15 ("the language of international instruments governing self-determination
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self-determination must be interpreted in the light of the fundamental principle of territorial integrity of States under international law, which necessarily excludes the thesis that self-determination includes an absolute right of unilateral secession. Paragraph 7 of Principle V of the Friendly Relations Declaration, and the almost identical provision in the 1993 Vienna Declaration, would therefore reflect, albeit implicitly, a general principle that the right of (external) selfdetermination is limited by the right of territorial integrity of States. This means that States are entitled to resist attempts at unilateral secession by peoples within their borders if they are carried out in the absence of special circumstances which serve to legitimize such claims. However, the right of territorial integrity is in its turn limited by international law. It must be exercised in conformity with that State's obligations under, inter alia, the law of selfdetermination, the law concerning human rights and humanitarian law. Consequently, if the penultimate paragraph of Principle V of the Friendly Relations Declaration implicitly acknowledges the existence of a right of unilateral secession for peoples within existing States it is necessarily a qualified right. A people is only entitled to secede from an existing State, under certain exceptional circumstances for the purpose of safeguarding that people's collective identity and the fundamental individual rights of its members, as well as to restore its freedom. If such circumstances do not exist the principle of territorial integrity is to prevail, which means that the right of self-determinais not addressed exclusively to states. The 1970 Declaration on Friendly Relations, as well as other instruments, rule out reliance on self-determination as the basis for any action that would impair the territorial integrity of states" (emphasis in original)). Cf. also the statement by the so-called rump presidency of the SFRY: Assessments and Positions of the SFRY Presidency Concerning the Proclamation of the Independence of the Republic of Croatia and Slovenia, Belgrade, 11 October 1991, reprinted in: RIA, Vol. XLII, 1991, p. 12 ("[t]hese acts [i.e., the declarations of independence and sovereignty by Croatia and Slovenia] constitute a flagrant violation of the territorial integrity of the SFR of Yugoslavia [...]"). And cf. UN Doc. S/Res/896, 31 Jan. 1994, Para. 4, with respect to the conflict between Abkhazia and Georgia where the Security Council "[c]alls upon all concerned to respect the sovereignty and territorial integrity of the Republic of Georgia, and stresses the importance it attaches to such respect" (emphasis added). 57. See Chapter 6, Section 6, at pp. 295-296, supra. To the same effect, see M.N. Shaw, Re: Order mCouncilP.C.1996-1497of30Septemberl996,Aug. l997,in:Supplément au Dossier, Rapports d'Experts de l'Amicus Curiae, p. 18, para. 44; A. Pellet, Avis Juridique sur Certaines Questions de Droit International Soulevées par le Renvoi, in: id., at p. 42, para. 38 ("un État peut tenter de s'opposer aux revendications sécessionistes auxquelles il est affronté; cette conclusion est exacte, mais cela ne signifie pas qu'il puisse le faire par tous les moyens"); T.M. Franck, Opinion Directed at Question 2 of the Reference re Secession of Quebec in Amicus curiae, 1997, in: id., at p. 17, para. 3.3. ("by all lawful means"); L. Wildhaber, Response to Expert Reports of the Amicus Curiaein Reference re Secession Quebec, 1998, http://canada.justice.gc.ca-/en/ps/const/wilrpt.html, para. 4 ("[u]n État a le droit de s'opposer á la sécession par tous les moyens légitimes. Ce faisant, il droit bien entendu respecter le droit international humanitaire et les droits de l'homme les plus élémentaires").
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tion must be exercised within the external boundaries of the parent State. Thus, where the parent State respects the right of internal self-determination of a people and the human rights of its members, any act of unilateral secession aimed at the implementation of the right of self-determination externally would amount to an abuse of right and a violation of the law of self-determination. The view that a right of unilateral secession exists only under certain exceptional circumstances will be referred to in this study as the 'qualified secession doctrine'.58 § 3.2.2.
Doctrine
The existence of such a qualified right of secession has received strong support from writers.59 The position is shared by Judges Ryssdal and Wildhaber of the 58. Because of the requirement of exceptional circumstances and because of its remedial character, the view supporting the above interpretation of the law of self-determination does not only regard the right of unilateral secession as a qualified right, but also as a sanctioning right. The latter is not, however, directed at the change of the central government as such (which might after all enjoy the support of the majority), but only at neutralizing that portion of governmental authority which is directed at the people in question. See Buchheit, SECESSION, p. 221. 59. See, e.g., Capotorti, supra note 54, at p. 36 ("en outre il faut que ce peuple n'ait pas la possibilité de participer démocratiquement a la vie de l'Etat, mais qu'il se trouve déjà dans une position politique de dépendance"); Cassese, SELF-DETERMINATION, p. 118; K. Doehring, SelfDetermination, in:B.Simma (Ed.),THECHARTEROFTHEUNITEDNATlONS,ACOMMENTARY, 1994, p. 56, at p. 66 (in case of discrimination through "evident and brutal violation of fundamental human rights"); R. Emerson, The Logic of Secession, Yale LJ, Vol. 89, 1979-1980, p. 802, at pp. 808-809 (in case of discriminatory treatment or oppression); J.A. Frowein, SelfDetermination as a Limit to Obligations Under International Law, in: Tomuschat (Ed.), supra note 21, p. 211, at p. 213; U. Umozurike, SELF-DETERMINATION IN INTERNATIONAL LAW, 1972, p. 199 (if a majority or a minority insists on committing an international crime such as genocide or enforces a wholesale denial of human rights as a deliberate policy against the other part, "the oppressed party may have recourse to the right of self-determination up to the point of secession"); O. Kamenu, Secession and the Right to Self-Determination, An OAU Dilemma, Journal of Modern African Studies, Vol. 12, 1974, p. 355, at p. 361 (in case of "definite and substantial grievances" and when all other political arrangements have been exhausted or repudiated); J. Klabbers and R. Lefeber, Africa: Lost Between Self-Determination and Uti Possidetis, in: C. Brölmann et al. (Eds.), PEOPLES AND MINORITIES IN INTERNATIONAL LAW, p. 37, at p. 48 (in case of a serious and persistent violation of the right of internal self-determination and after the exhaustion of judicial remedies); P.H. Kooijmans, Tolerance, Sovereignty and SelfDetermination, NILR, XLIII, p. 211, at p. 215 (in case of the denial of internal self-determination in such a way that a people "cannot enjoy its identity, or [is] even prevented from preserving it"); T. Marauhn,Anspruch auf Sezession?, in: H.J. Heintze (Ed.), SELBSTBESTIMMUNGSRECHT DERVOLKER-HERAUSFORDERUNGDERSTAATENWELT, 1997, p. 105, at p. 1ll("nur bei einer evidenten und eklatanten Verletzung fundamentaler Menschenrechte [...] gegen die keine innerstaatliche Abhilfe möglich ist"); R. McCorquodale, Self-Determination: A Human Rights Approach, ICLQ, Vol. 43, 1994, p. 857, at pp. 880-881 (in case of an unrepresentative and oppressive government); S. Oeter, Selbstbestimmungsrecht im Wandel: Überlegungen zur Debatte um Selbstbestimmung, Sezessionsrecht und 'vorzeitige' Anerkennung, ZaöRV, Vol. 52, 1992, p. 741, at pp. 764-765 (in case of the violation and frustration of internal self-determination, serious violations of human rights, or genocide); Murswiek, supra note 21, at pp. 26-27 (in case of "intolerable discrimination" or a threat against the existence of a people); Shaw, supra note 57,
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European Court of Human Rights who state: [i]n recent years a consensus has seemed to emerge that peoples may also exercise a right of [external] self-determination if their human rights are consistently and flagrantly violated or if they are without representation at all or are massively under-represented in an undemocratic and discriminatory way.60 A comparable reasoning has been suggested by Buchheit who argues that a separatist claim may be legitimate in the case of "a denial of political freedom and/or human rights".61 Consequently, the question whether a right of secession exists is, in addition to such political conditions as the effect of the separation on the remaining State, dependent on the degree of oppression of the people concerned. This is what Buchheit has labelled a "remedial right of secession". In determining whether or not that right is applicable the focus of attention is [...] on the condition of the group making the claim. Remedial secession envisions a scheme by which, corresponding to the varying degrees of oppression inflicted upon a particular group by its governing State, international law recognizes a continuum of remedies ranging from protection of individual rights, to minority rights ending with secession as the ultimate remedy. At a certain point, the severity of a State's treatment of its minorities becomes a matter of international concern [which] may finally involve an international legitimation of a right to secessionist self-determination as a self-
at pp. 18-19, paras. 44, 46, 49-50 ("in a very exceptional situation" which exists if the governmental authorities were to launch a sustained and brutal armed attack upon those claiming secession, in a manner that far exceeds reasonable proportionality"); B. Vukas, States, Peoples and Minorities, HR, 1991 VI, p. 267, at pp. 422-423 (in those situations wherein "fundamental human rights and freedoms are endangered, or the position of a people could be considered as being under 'foreign domination', that is under the domination of another people") ;R.C.A. White, Self-Determination: Time for a Re-Assessment?, NILR,Vol. XXVIII, 1981, p. 147, at pp. 160-161 (in case of a denial of self-determination to a people by the State of which it forms part, which denial "must amount to a sustained campaign of discrimination making it unreasonable to expect that people to be able to attain self-determination within the existing state"); 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', Moscow, 12-14 July 2000, Para. II (d) ("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 and which does not ensure representation of all its peoples in its government without discrimination"). But see Hannum, supra note 10, at p. 42; J. Crawford, State Practice and International Law in Relation to Secession, BYIL, Vol. 69,1998, p. 87; America's Regional Conference (of independent legal experts) on Secession and International Law, Conclusions and Recommendations, Santa Clara, 31 Jan. - 2 Feb. 2001, para. 10. 60. Concurring Opinion of Judge Wildhaber Joined by Judge Ryssdal, European Court of Human Rights, Loizidou v. Turkey (Merits), Judgment, 18 Dec. 1996, Reports of Judgments and Decisions of the European Court of Human Rights, 1996 VI, p. 2216, at p. 2241. They continue by saying that "[i]f this description is correct, then the right of self-determination is a tool which may be used to re-establish international standards of human rights and democracy". See also Wildhaber, supra note 57. 61. Buchheit, SECESSION, p. 94 (referring to the Friendly Relations Declaration).
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The qualified secession doctrine not only maintains that a conditional right of unilateral secession exists, but also that a conditional prohibition of unilateral secession exists. The latter is implicit in the exceptional circumstances required for secession to be permitted under the right of self-determination. Moreover, it is important to note that the existence of a qualified right of secession is seen by the majority of writers as an integral and necessary component of the right of self-determination. Indeed, given the fact that self-determination is, firstly, recognized as a legal right by the international community, secondly, that its principal objective is to guarantee the effective development and preservation of the collective identity of a people as well as the effective enjoyment of the individual human rights of its members, and thirdly, that the guarantee of the right of self-determination logically implies the guarantee of that people's freedom and existence, it is difficult to accept that self-determination would not encompass a conditional right of unilateral secession. In this respect it must be recalled that no international legal remedies exist for minority-peoples through which they may enforce their right of self-determination. Therefore, little would remain of the right and its objective if the right is seriously violated by the parent State and yet no effective and realistic remedy is available for the people concerned under that the legal and political system of that State. In such a situation, unilateral secession is clearly the ultimum remedium. Some commentators have suggested a variation on the qualified secession doctrine. In this version, a right to territorial separation of a people within an existing State is closely linked to certain elements of the traditional concept of colonialism. These elements or characteristics are considered to be applicable in certain circumstances to peoples within the borders of metropolitan States. This view is referred to here as the 'internal colonialism approach'.63 One of the proponents of this view notes [s]o far as distinct groups inhabiting a specified territory within the State are concerned, one possibility is that these may be treated in such a way by the
62. Id., at p. 222. 63. It will be noted that this approach calls to mind the argument by Belgium (the 'Belgian thesis') which was put forward in the early 1950s and according to which Chapter XI of the UN Charter (Declaration Regarding Non-Self-Governing Territories) would extend to those parts of a metropolitan State inhabited by peoples whose degree of actual subordination to the rest of the population of the State in the midst of which they lived, placed them in a "colonial situation". Accordingly, these territories would be non-self-governing. See UN GAOR, 4th Comm., 9th Sess., 419th mtg, 2 Nov. 1954, para. 20. The Belgian government referred to such cases as the Kurds, the Nagas and the Karens. See Belgian Government Information Service, THE SACRED MISSION OF CIVILISATION: THE BELGIAN THESIS, 1953.
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central government that they may become in effect non-self-governing territories with respect to the rest of the State. This was arguably the case with East Bengal. According to General Assembly Resolution 1541 (XV), Principle IV, a territory is prima facie non-self-governing if it is geographically separate and ethnically distinct from the 'country administering it'. Geographical separateness has usually been taken to require separation across land or sea (as was indeed the case with East Bengal), but there is no good reason why other defining characteristics, including historical boundaries or defacto boundaries established through the hostile action of the government in question might not also be relevant. But geographic and ethnic distinctiveness is of itself not enough: it is also necessary that the relationship between the State as a whole and the territory be one which arbitrarily places the latter in a position or status of subordination. Measures discriminating against the people of a region on grounds of their ethnic origin or cultural distinctiveness may thus define the territory concerned as nonself-governing according to these criteria. [However,] situations of internal colonialism (such as East Bengal) are very much the exception.64
Franck formulates the internal colonialism approach in a similar manner:65 [in case of] a minority within a sovereign state - especially if it occupies a discrete territory within that state - [which is] persistently and egregiously denied political and social equality and the opportunity to retain its cultural identity [...] it is conceivable that international law will define such repression, prohibited by the Political Covenant, as coming within a somewhat stretched definition of colonialism. Such repression, even by an independent state not normally thought to be 'imperial' would then give rise to a right of 'decolonization'.66
64. J. Crawford, Outside the Colonial Context, in: W.J.A. Macartney (Ed.), SELF-DETERMINATION IN THE COMMONWEALTH, 1988, p. 1, at pp. 13-14. See also Crawford, CREATION OF STATES, pp. 99-202. However, in the context of Reference re Secession of Quebec it is not clear if Crawford had 'internal colonialism' situations in mind only when he stated that "[t]he position of peoples, entitled to internal (and in extreme cases external) self-determination, is not to be confused with the position of any and all groups seeking to secede from a state". See J. Crawford, Response to Expert Reports of the Amicus Curiae, 8 Jan. 1998, p. 11, para. 13 (emphasis added), available at http://canada.justice.gc.ca/en/ps/const/crarpt.doc. 65. T.M. Franck, Postmodern Tribalism and the Right to Secession, in: Brölmann et al. (Eds.), supra note 59, p. 3, at pp. 13-14; Franck, supra note 6, at pp. 160-161. For other adherents of the internal colonialism approach, see, e.g., M. Sornarajah, Internal Colonialism and Humanitarian Intervention, Ga. J. Int'l&Comp. L., Vol. 11, 1981, p. 45, at pp. 52-55; P. Akhavan, Lessons From Iraqi Kurdistan: Self-Determination and Humanitarian Intervention Against Genocide, NQHR, Vol. 11, 1993, p. 41, at p. 59. Despite a puzzling analysis of the problem of the existence of a right of secession, it appears that this position is shared by R. Mullerson, Self-Determination of Peoples and the Dissolution of the USSR, in: Macdonald (Ed.), supra note 24, p. 567, at pp. 570, 573-574 (who qualifies "self-determination of peoples in the European context of the 1990s" as "not completely out of the decolonisation process", in particular "the processes of dissolution of Yugoslavia and the Soviet Union" could be considered "as mutatis mutandis continuation of processes of decolonisation"). 66. However, in his capacity of amicus curiae in Reference re Secession of Quebec, Franck acknowledges the existence of a situation giving rise to a right to secede which goes well beyond internal colonialism. He notes the existence of "exceptional situations in which a minority people may have a right to secession tenable in law and politics due to their demonstrable inability to achieve established rights of self-determination guaranteed by law", which he refers to as "a remedial right to secede". Franck, supra note 57, at pp. 10-11, para. 2.13. See also Franck, Opinion Directed
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It will be noted that there is a striking resemblance between this approach and the qualified secession doctrine. According to both there must exist a serious frustration of the right of self-determination and/or human rights violations before the subgroup is entitled to territorial separation. In this respect the internal colonialism approach seems to support the existence of a qualified right of secession. But one cannot help feeling that the attempts by these commentators to defend a qualified right of territorial separation through the 'stretching' of concepts and definitions appears to be somewhat artificial. A particular situation within an existing State might bear a resemblance to traditional colonialism which may justify the application of a single legal principle in both cases. Indeed, as was observed in Chapter 5, the application of the right of selfdetermination to colonial territories and peoples was a specific application of a general rule. However, this does not alter the fact that the first situation concerns a people within the internationally recognized boundaries of an existing State whereas the latter is a Non-Self-Governing Territory to which the law of decolonization applies. The essential point is thus not, it is submitted, whether or not a situation resembles colonialism, but whether or not it involves a serious and persistent denial of internal self-determination and/or widespread violations of fundamental human rights. According to a majoritarian view in doctrine, such a situation, whatever its label, gives rise to a right of secession under international law. § 3.2.3.
Judicial decisions and opinions
The existence of a qualified right of secession also enjoys support in judicial decisions and opinions. In this respect mention must be made of the opinions delivered by two bodies of experts, the Commission of Jurists and the Commission of Rapporteurs in the Aaland Island dispute. Both Commissions were appointed by the Council of the League of Nations with the task of giving an advisory opinion on the legal aspects of the Aaland Island question. During the Paris Peace Conference, the representatives of the Aaland Islands, technically under the jurisdiction of Finland, had expressed the wish to secede from Finland and to be integrated into Sweden "on the ground of the right of peoples to self-determination as enunciated by President Wilson".67 With respect to the legal status of self-determination the Commission of Jurists opined that the principle of self-determination had not yet attained the status at Response of Professor Crawford and Wildhaber, Supplement à la Duplique, Rapports Additionnels des Experts de l'Amicus Curiae, 22 Jan. 1998, para. 2 ("international law does not today give a right of secession except in repressive situations"). 67. Foreign Relations of the United States, THE PARIS PEACE CONFERENCE, Vol. 4, 1943, p. 172.
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of a positive rule of international law, although it had been recognized in a number of international treaties. As to secession it observed that "[p]ositive international law does not recognize the right of national groups, as such, to separate themselves from the State of which they form part by the simple expression of a wish, any more than it recognizes the right of other States to claim such separation". In cautious language, the Commission continued by saying that it did not give an opinion "concerning the question as to whether a manifest and continued abuse of sovereign power, to the detriment of the population of a State, would, if such circumstances arose, give to an international dispute, arising therefrom, such an international character that its object should be considered as one which is not confined to the domestic jurisdiction of the State concerned".68 In any case, the Commission observed, such a situation was not applicable in the case at hand. The second Commission, the Commission of Rapporteurs, denied the existence of any absolute entitlement to secession by a segment of the population of a State: [i]s it possible to admit as an absolute rule that a minority of the population of a State, which is definitely constituted and perfectly capable of fulfilling its duties as such, has the right of separating itself from her in order to be incorporated in another State or to declare its independence? The answer can only be in the negative. To concede to minorities, either of language or religion, or to any fractions of the 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.'
But the Commission did not to rule out a right of secession under all circumstances: [t]he separation of a minority from the State of which it forms part and its incorporation in another State can only be considered as an exceptional solution, a last resort when the State lacks either the will or the power to enact and apply just and effective guarantees [of religious, linguistic and social freedom].70
Under the prevailing circumstances, the Commission was of the opinion that the culture of the population of the Aaland Islands should be protected by granting the islands autonomy under Finnish jurisdiction. Eventually, the dispute was resolved by the Council of the League in favour of Finnish
68. The Aaland Island Question, Report of the Committee of Jurists, LNOJ, Spec. Supp., No. 3, 1920, p. 5. 69. The Aaland Islands Question, LN Doc. B7.21/68/106, 1921, p. 28. 70.
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sovereignty over the islands, but not unless the Finnish government would provide in guarantees to assure the population "the preservation of their language, of their culture, and their local Swedish tradition".71 A more recent judicial decision with respect to the question of secession has been given by the African Commission on Human and Peoples' Rights in Katangese Peoples' Congress v. Zaire.72 In 1992, the President of the Katangese Peoples' Congress, the only political party representing the people of Katanga, submitted a communication under Article 65(5) of the African Charter on Human and Peoples' Rights in which the Commission was requested to recognize the Katangese Peoples' Congress as a liberation movement and the right of the Katangese people to secede from Zaire. The Commission first observed that the right of self-determination was applicable in this case and subsequently clarified that that right might be exercised in a variety of ways, including "independence, self-government, federalism, confederalism, unitarism or any other form of relations that accords with the wishes of the people, but fully cognizant of other recognised principles such as sovereignty and territorial integrity".73 It then continued: [t]he Commission is obligated to uphold the sovereignty and territorial integrity of Zaire, a member of the OAU and a party to the African Charter on Human and Peoples' Rights. 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 13(1) 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.74 An a contrario reading of the decision makes it clear that the Commission was of the opinion that in the case of serious violations of human rights and a denial of internal self-determination, the Katangese people would be entitled to exercise a form of self-determination which would lead to the disruption of the territorial integrity of Zaire. In the absence of such conditions, the Commission held that according to the international law of self-determination Katanga was under an obligation to implement the right of self-determination internally.
71. Resolution adopted by the Council at its Thirteenth Session, LNOJ, Supp. No. 5, 1921, p. 25. 72. African Commission on Human and Peoples' Rights, Communication 75/92, Katangese Peoples' Congress v. Zaire; Decision taken at its 16th Session, Banjul, The Gambia, 1994, (hereinafter 'Katanga case'). See also pp. 255-256, supra. 73. Katanga case, supra note 73, at para. 26. 74. Id., at paras. 27-28.
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A more cautious approach was adopted by the Supreme Court of Canada in Reference re Secession of Quebec. As has been stated elsewhere in this study, in the view of the Court the right of self-determination applied to minoritypeoples within existing States at least in the form of internal selfdetermination.75 With respect to the right of external self-determination, the Court observed that there are certain defined contexts within which international law does allow the right of self-determination to be exercised externally, which would potentially include secession. It subsequently pointed out that the first undisputed context in which external self-determination was applicable is that of traditional colonial situations and that another clear case was formed by a people which is subject to alien subjugation, domination or exploitation outside the colonial context.76 The Court continued by noting that a number of commentators have asserted a third circumstance where external selfdetermination would be applicable: [a]lthough this third circumstance has been described in several ways, the underlying proposition is that, when a people is blocked from the meaningful exercise of its rights to self-determination internally, it is entitled, as a last resort, to exercise it by secession. The Vienna Declaration [and Programme of Action of 1993] requirement that governments represent 'the whole people belonging to the territory without distinction of any kind' adds credence to the assertion that such a complete blockage may potentially give rise to a right of secession.
The Court therefore summarized its findings as follows: the international law right to self-determination only generates, at best, a right to external self-determination in situations of former colonies; where a people is oppressed, as for example under foreign military occupation; or where a definable group is denied meaningful access to government to pursue their political, economic, social and cultural development. In all three situations, the people in question are entitled to a right to external self-determination because they have been denied the ability to exert internally their right to self-determination.78
In sum, although the Supreme Court of Canada did not clearly express its own opinion with respect to the existence of a right of unilateral secession under international law,79 it was more inclined to accept the existence of such a right 75. See pp. 235-236 and p. 256, note 129, supra. 76. Reference re Secession of Quebec, Supreme Court of Canada, ILM, Vol. 37, 1998, p. 1340, at p. 1372 (paras. 131-133). 77. Id., at para. 134. 78. Id., at p. 1737, para. 138. 79. But this is explained by the Court through its finding that the third suggested circumstance was "manifestly inapplicable" in the case of Quebec. Hence any further inquiry would have been unnecessary. However, the Court only referred to the fact that "the population of Quebec cannot
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(viz. the Court's remark with respect to the 1993 Vienna Declaration) than to reject it. In that respect the Court emphasized that such a right would be applicable only in circumstances involving a serious denial of internal selfdetermination. § 3.2.4.
Observations
There is thus considerable support for both the position that the right of selfdetermination is limited by the right of territorial integrity of States and for the position that the right of self-determination encompasses a qualified right of secession. Within the framework of the qualified secession doctrine, there is general agreement on the constitutive parameters for a right of unilateral secession which may be summarized as follows:80 (a) there must be a people which, though forming a numerical minority in relation to the rest of the population of the parent State, forms a majority within an identifiable part of the territory of that State; (b) the people in question must has suffered grievous wrongs at the hand of the parent State from which it wishes to secede (carence de souveraineté), consisting of either (i) a serious violation or denial of the right of internal self-determination of the people concerned (through, for instance, a pattern of discrimination), and/or (ii) serious and widespread violations of the fundamental human rights of the members of that people; and (c) there must be no (further) realistic and effective remedies for the peaceful settlement of the conflict. § 3.3.
Successful secessions and international practice
There are few examples since 1960 in which the international community has recognized a claim to a right of secession sought to be justified on the basis
plausibly be said to be denied access to government" and concluded that a fortiori the Canadian government represented the whole people belonging to the territory without distinction. Although both propositions may be entirely correct, the second does not automatically, and certainly not manifestly, follow from the first. Access to government and even participation in government does not rule out discrimination of the people in question. Therefore, it seems that a further analysis of the circumstances against the background of the third category would have been justified. 80. In addition to the criteria mentioned by the sources referred to in the preceding discussion, see also, e.g., A. Heraclides, Secession, Self-Determination and Nonintervention: in Quest of a Normative Symbiosis, JIA, Vol. 45, 192, p. 399, at pp. 411-414; O. Schachter, Sovereignty - Then and Now, in: Macdonald (Ed.), supra note 24, p. 671, at p. 684.
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of the right of self-determination of peoples under international law. Two cases in which the claims to secession were recognized are the emergence of Bangladesh and Croatia. These two cases will therefore be examined in more detail below. Some other cases which have sometimes been suggested as examples of secession81 will not be considered in this Section, because they do not qualify as unilateral secessions, such as the creation of Slovenia and FYROM,82 the creation of Eritrea,83 and the creation of new States out of the former Soviet Union.84 Bosnia-Herzegovina presents different problems and will therefore be examined elsewhere.85 Although the secessions of Bangladesh and Croatia were successful, it must be noted, however, that the mere fact of a successful secession is not as such conclusive evidence of its legality, any more than its failure is in itself conclusive evidence with respect to its illegality. Yet, there are at least three reasons why the two aforementioned cases require detailed analysis in the context of this study regarding the existence of a right of unilateral secession. Firstly, these cases contain (comparable) grounds, in particular in the form of a denial of internal self-determination in combination with the existence of widespread violations of fundamental human rights, which according to the doctrine of a qualified right of secession may give rise to a right of unilateral secession. Secondly, the circumstances of these cases indicate that the international community has accepted these grounds for, as well as the fact of, these successful secessions. Finally, it could be maintained that the applicability of a right of secession explains the international community's position with regard to the statehood of the entities concerned, because both entities did not satisfy the criterion of effective government both when they proclaimed independence and when they were recognized as States by the majority of the international community. Until the secession of Bangladesh, the international community's record with respect to claims of secession has not been particularly favourable for those who attempted to secede. The attempt at secession of Katanga from the Congo 81. See, e.g., D. Z. Cass, Re-Thinking Self-Determination: A Critical Analysis of Current International Law Theories, Syr. JIL & Com., Vol. 18, 1992, p. 21. 82. In these cases the central Yugoslav government acquiescenced in, and therefore approved of, the secessions. As to Slovenia see note 32, supra, and for FYROM see pp. 105-106, supra. 83. The secession of Eritrea from Ethiopia was eventually approved by the government of Ethiopia. See note 31, supra. 84. The break-up of the Soviet Union must be qualified as dissolution and is not a result of unilateral secessions, although some republics did claim secession prior to the formal dissolution of the Soviet Union. See p. 290, note 261, supra, and Chapter 8, Section 2.1., infra. The achievement of independence by the Baltic States is best viewed as a restoration of the status quo ante and not as unilateral secession, because the latter presumes that the territory forms de jure part of the territory of the parent State. See note 2, supra. And see p. 68, note 72, supra. 85. See Chapter 8, Section 2.4., infra.
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in 1960 immediately after the Congo received independence and which was carried out with the support from Belgium was not recognized and was indeed condemned by the Security Council. ' The attempt of secession by Biafra from Nigeria in 1967 was not discussed in the United Nations, but the OAU did address the conflict. In a short resolution the heads of the member States reaffirmed their adherence to the principle of territorial integrity of States.87 The secession did gain some support though. Biafra was recognized by five States.88 Moreover, France called for the resolution of the conflict "on the basis of the right of peoples to self-determination".89 Eventually, the war ended on 12 January 1972 when the Biafran army's chief of staff surrendered and declared that "[t]he Republic of Biafra ceases to exist".90 As a result, the determination of the legitimacy of the secession attempt became of less importance, at least from a practical point of view. It has been argued, however, 86. The actions of the UN were primarily directed against the external intervention by Belgian troops. Yet, opinions differ as to whether or not the Security Council condemnation in Resolution 169 (see UN Doc. S/Res/169, 24 Nov. 1961) implied a prohibition of secession under international law. The Council "completely" rejected "the claim that Katanga is a 'sovereign independent nation"' and strongly depreciated "the secessionist activities illegally carried out by the provincial administration of Katanga, with the aid of external resources and manned by foreign mercenaries". It continued by declaring that "all secessionist activities against the Republic of the Congo are contrary to the Loi fondamentale and Security Council decisions" and specifically "demands that such activities which are now taking place in Katanga shall cease forthwith". It has been suggested that the condemnation referred to the legal principle proclaimed in Paragraph 6 of General Assembly Resolution 1514 (Declaration on the Granting of Independence to Colonial Countries and Peoples) which states that "any attempt aimed at the partial or total disruption of the national unity of a country in incompatible with the Purposes and Principles of the Charter of the United Nations" (see Dugard, RECOGNITION, p. 89). Apart from the fact that at the time of the secession, the Congo was already an independent State (an argument which would support the position that Resolution 1514 was not applicable in this case), clearly no reference is made in the Security Council Resolution to the fact that the secession was in violation of general international law (as opposed to its violation of Security Council resolutions). See also R. Higgins, THE DEVELOPMENT OF INTERNATIONAL
LAW THROUGH THE POLITICAL ORGANS OF THE UNITED NATIONS, 1963, pp. 109, 230-231.
87.
88. 89. 90.
It may, therefore, very well be argued that Katanga's attempted secession was primarily condemned by the Security Council for reasons of municipal illegality, which would be in accordance with its previous resolutions on the matter and the reports by Secretary-General Dag Hammarskjöld. For a detailed discussion, see Buchheit, SECESSION, pp. 141-153. However, if it was intended to condemn the secession attempt as such for its illegal character under international law, such condemnation can be explained on the basis of the qualified secession doctrine, because the secession could by no means have been considered as an ultimum remedium. OAU Resolution on Situation in Nigeria, OAU Doc. AHG/Res.51 (IV), adopted at the Fourth Ordinary Session of the Assembly of the Heads of State and Government of the OAU, held at Kinshasa, 11-14 Sept. 1967, Paras. 1 and 2, reprinted in: ILM, Vol. 6, 1967, p. 1243. See, generally, D.A. Ijalaye, Was Biafra at Any Time a State in International Law?, AJIL, Vol. 65, 1971, p. 551. These five States were Gabon, Haiti, Ivory Coast, Tanzania and Zambia. Statement of the French Secretary of Information, 31 July 1968, quoted in: Buchheit, SECESSION, p. 170. Buchheit, id., at p. 168.
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and not without merit, that the amount of human suffering and the exhaustion of remedies for the effective implementation of self-determination within Nigeria did qualify the case of Biafra as a legitimate case of secession according to the doctrine of a qualified right of secession.91 The ground for the absence of general recognition should therefore largely be explained not in legal but in political terms, in particular with reference to the fear for a further disintegration of Nigeria and indeed the whole African continent. In 1970, the Secretary-General of the United Nations, U Thant, stated that [a]s far as the question of secession of a particular section of a Member State is concerned, the United Nations attitude is unequivocal. As an international organisation, the United Nations has never accepted and does not accept and I do not believe it will ever accept a principle of secession of a part of a Member State.93 This firm statement was tested very soon as a result of the crisis in Pakistan and the subsequent emergence of Bangladesh. § 3.3.1.
Bangladesh94
The State of Pakistan was created in 1947 as a result of the partition of India and the British departure from the Indian subcontinent. The basis for this State was set down already in the Lahore Resolution of 1940 which was adopted by the Muslim League and which demanded that "the areas in which the Muslims were numerically in a majority, as in the north-western and eastern zones of India, should be grouped to constitute 'independent States' in which the constituent units shall be autonomous and sovereign". The unitary State of Pakistan consisted of two territorial units which were separated by 1200 miles of Indian territory. ' West Pakistan was in geographical terms much larger than 91. Id., at pp. 172-174. 92. See also L.S. Eastwood, Jr., Secession: State Practice and International Law After the Dissolution of the Soviet Union and Yugoslavia, Duke JCIL, Vol. 3, 1993, p. 299, at pp. 309-310. 93. UN Monthly Chronicle, No. 2, 1970, p. 36. 94. A substantial amount of historic facts briefly discussed in this Section have been described in more detail in studies on the formation of Bangladesh. See, e.g., S.R. Chowdhury, THE GENESIS
OF BANGLADESH, A STUDY IN INTERNATIONAL LEGAL NORMS AND PERMISSIVE CONSCIENCE, 1972; R. Sisson and L.E. Rose, WAR AND SECESSION, PAKISTAN, INDIA AND THE CREATION OF BANGLADESH, 1990.5refl/foV.O.Bartkus,THE DYNAMIC OF SECESSION, 1999, pp. 124-131, 154-158. 95. Quoted in: Chowdhury, supra note 94, at p. 5. 96. It must be noted that territorial separation is, in itself, not a reason for a political and humanitarian crisis such as the one which erupted in Pakistan in the early 1970s. The territory of several States is not geographically continuous (such as, for instance, that of Denmark, Malaysia, the Netherlands and the United States). In the case of Pakistan, this geographical feature was, against the background of the other features involved, not as such a source of
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East Pakistan (East Bengal) but had a substantially lower population density than its smaller counterpart. The two units did not possess a common language, culture, economy or history, but were united by a common religion, Islam. From the inception of Pakistan there were serious political and economic disparities between West and East Pakistan. In terms of proportionate share of occupation in the civil service and military forces, the East Pakistanis were seriously under-represented: after twenty-one years of independence the East Pakistanis occupied some fifteen per cent of the central government services.98 In addition, since 1947 there was an uneven economic development of the two parts which was evidenced by the increasing gap in average income between West and East Pakistan. Also, the majority of public investment funds was spent in West Pakistan." In 1958, civilian rule was replaced by a military government under the presidency of General Ayub Khan, the chief of the military. The new regime immediately took several repressive measures among which the banning of political parties. According to Ayub Khan, Pakistan had to be reformed to a 'basic democracy', which in fact meant that virtually all power became vested in the function of the president. Although the Khan regime declared that it would solve the disparities between West and East Pakistan, in practice nothing really changed. When in 1962 political parties were allowed to function again, the Awami League, the dominant political party of the Bengali community under the leadership of Sheikh Mujibur Rahman, demanded full autonomy for East Bengal as the only way of resolving the disparity between Pakistan's two parts.100 In 1966, Rahman proposed his famous six-point programme which was subsequently accepted by the Awami League and which eventually became the principal East Bengali proposal for a permanent constitutional solution of the chronic problems between East and West. The central and crucial point
97. 98.
99. 100.
conflict but more a factor which complicated rather than helped the political and economic cooperation and integration of the communities in the East and the West. In a 1970 census the population of East Pakistan was 77 million and that of West Pakistan 50 million. Bartkus, supra note 94, at p. 125. See Chowdhury, supra note 94, at pp. 9-11; V.P. Nanda, Self-Determination Outside the Colonial Context: The Birth of Bangladesh in Retrospect, in: Y. Alexander and R.A. Friedlander (Eds.), SELF-DETERMINATION: NATIONAL, REGIONAL, AND GLOBAL DIMENSIONS, 1980, p. 193, at pp. 196-197. For instance, according to statistics from official and other sources over the period 1947-1970 (which are reprinted in: BANGLA DESH DOCUMENTS, 1972, pp. 15-22) West Pakistanis made up 84 per cent of Central Civil Service, 85 per cent of the Foreign Service and 95 per cent of the Army. Only one East Pakistani was appointed a cabinet minister in the Pakistani government, holding the finance portfolio for four days. Chowdhury, supra note 94, at pp. 11-19; Nanda, supra note 98, at pp. 197-198; Buchheit, SECESSION, pp. 199-200; Bartkus, supra note 94, at pp. 125-126. Chowdhury, supra note 94, at p. 42.
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of the six-point programme was the point relating to the constitutional transformation of Pakistan into a federation "on the basis of the Lahore Resolution and the parliamentary framework of government with supremacy of a legislature directly elected on the basis of adult franchise". The central federal government would deal with two matters only: defence and foreign affairs. 101 For the rest the federal parts would be fully autonomous, each of the two federal parts would have the power to negotiate foreign trade and aid, and measures had to be taken to prevent the flow of capital from one part to the other (through, for instance, the introduction of two separate convertible currencies). In addition, the federal parts would be entitled to maintain a militia or paramilitary force. The six-point programme gained more and more support in East Pakistan, which undermined the political philosophy of Ayub Khan. The latter eventually stood down on 25 March 1969 and handed over power to the Army Commander-in-Chief Yahya Khan. He promised the holding of general elections to a National Assembly of Pakistan, which would be entrusted with the task of drafting a new constitution. The elections held in December 1971 led to an overwhelming victory for the Awami League in East Bengal on the basis of the six-point programme. The Awami League captured 160 out of 162 seats allotted to East Bengal in the National Assembly. With a total amount of 300 seats, the outcome of the elections would have given the Awami League a majority in the National Parliament. This, in turn, most probably would have led to the federalization of Pakistan. In West Pakistan, the Pakistan People's Party (PPP), under the leadership of Zulfikar Ali Bhutto (who was the former Minister for Foreign Affairs under the Ayub regime) secured 81 out of 138 seats allotted to West Pakistan. The eventual goal of the Awami League (decentralization of governmental power through federalization) contrasted sharply with the aim of a strong central government favoured by the PPP. Initially, however, Bhutto took a cooperative stance with regard to the framing of an agreed constitution, but he repeatedly emphasized that this would not happen at the cost of Pakistan's territorial unity.102 In response Rahman stated that the new constitution could only be based on the six-point programme. The first signs of an emerging political conflict between the two blocks became clear when Bhutto declared on 20 December 1970 that no constitution could be framed, nor could any central federal government be run, without his party's cooperation. During the month of January 1971, several talks took place between Rahman and Bhutto. On 13 February 1971, president Yahya Khan fixed 3 March as the date for the inaugural session of the National Assembly 101. For the text of the six-point programme, see BANGLADESH DOCUMENTS, supra note 98, at pp. 66-82. 102. Chowdhury, supra note 94, at p. 59.
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at Dacca. But on 1 March Yahya Khan suddenly postponed the inaugural session of the National Assembly without setting a new date, which led Rahman to call for civil disobedience in East Bengal. The call was followed overwhelmingly by the people of East Bengal. The East Bengali people started to lose faith in the politics of the central government, and it is in this period that a shift in public opinion toward a more separatist orientation can be identified.103 In reaction to the peaceful actions by the people of East Bengal, Yahya Khan ordered the Army to move into East Bengal and a curfew was imposed. Already during this period the first Awami League supporters and other civilians were killed by the Pakistani Army. Thus, on the one hand, Yahya Khan faced a continuing non-violent protest in East Bengal as well as the fact that the majority of the political parties in Pakistan felt that Rahman should form an interim government preparatory to the framing of a new constitution. On the other hand, there was Bhutto's lack of actual cooperation in the finding of a solution for the crisis, based on the election results (which would mean that the PPP would have to agree with the role of opposition party). Furthermore, already by that time there was a large-scale military involvement in East Bengal. Between 16 and 25 March, Yahya Khan at least pretended to follow a constructive and cooperative approach in the crisis. However, with hindsight, it cannot but be concluded that Yahya Khan had soon decided to solve the matter by military means because of the large-scale and well-planned military operation against East Bengal which began in the night of 25-26 March. Within the first 24 hours of the military campaign, thousands of civilians were killed and widespread violations of other fundamental human rights were committed by the Army. In response Rahman proclaimed the independence of Bangladesh on 26 March. On the same, day Rahman and other Awami League leaders were taken into custody. On 10 April 1971, the leaders of the Awami League who were not imprisoned adopted the Proclamation of Independence Order which was declared to be operative retrospectively from 26 March 1971.104 The Order made it clear that the proclamation of independence was a last resort measure for safeguarding the Bengali people, and that it was based on "the legitimate right of self-determination of the people of Bangladesh". The atrocities committed during the military operation by the Pakistani Army are a matter of common knowledge and have been documented elsewhere.105 Over one million Bengalis were killed and some 10 million were driven into exile in India. 103. Nanda, supra note 98, at p. 195. 104. For the text of the proclamation, see BANGLADESH DOCUMENTS, supra note 98, at pp. 281-282. 105. See, e.g., International Commission of Jurists, supra note 41, at pp. 26-41.
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India became directly involved in the conflict through a pre-emptive attack by (West) Pakistani warplanes on airfields in India on 3 December 1971. Not only did India respond with armed force to the military action, but it also recognized the independence of Bangladesh on 6 December. Because the Pakistani Army capitulated on 16 December 1971, the Indo-Pakistan war lasted less than two weeks. Although India's assistance did thus not play a significant role in the decision to secede, it proved essential for the subsequent success of the secession of Bangladesh. Between January and May 1972, Bangladesh was recognized by some 70 States.106 The Security Council first took up the Pakistan crisis on 4 December 1971, after open warfare between India and Pakistan had become a fact. The members of the Council could not agree on a resolution, however, and the matter was referred to the General Assembly under the 'Uniting for Peace Resolution'.107 The Assembly thereupon adopted Resolution 2793, which called for an immediate cease-fire and demanded the withdrawal of both Pakistani and Indian troops from each other's territory.108 On 21 December, the members of the Security Council did find an agreement on the text of a resolution which » 109 called for a cease-fire and the withdrawal of troops "as soon as practicable". In effect, this meant that Indian troops were not required to withdraw immediately from Bangladesh because of the dangers of reprisals in that country. India defended its military action on several grounds. In the first place, India argued that the military operation could not be regarded as an intervention, because Bangladesh was an independent State. It was thus implicitly held by India that its military action was meant to secure that State's independence.110 In addition, India argued that its action was justified to 106. In addition to India only Bhutan recognized Bangladesh prior to January 1972, namely on 7 December 1971. J.J.A. Salmon, Naissance et Reconnaissance du Bangla-Desh, in: MULTITUDO LEGUM, IUSUNUM. MÉLANGES EN HONNEURDE WlLHELM WENGLER, 1973, p. 467, at pp. 478479. Bangladesh was admitted to UN membership on 17 September 1974 (UN Doc. A/Res/3203 (XXIX), 17 Sept. 1974). The postponement of the admission had nothing to do with the statehood of Bangladesh, which was generally accepted, or the mode of its creation, but was a result of opposition from China, a friend of West Pakistan. China insisted that Bangladesh did not comply with Security Council resolutions concerning the withdrawal of troops and the release of prisoners of war. Since a State should accept the obligations of the UN Charter, Bangladesh was, according to China, not qualified to be admitted to the UN. Accordingly, a draft resolution on the admission of Bangladesh of 20 August 1972 was not adopted as a result of a Chinese veto. See UN Ybk., Vol. 26, 1972, pp. 215-220. See also the position taken by Pakistan which maintained that Bangladesh "failed to show that it was a peace-loving State". Id., at p. 216 (emphasis added). 107. UN Doc. S/Res/303, 6 Dec. 1971. 108. UN Doc. A/Res/2793, 8 Dec. 1971. 109. UN Doc. S/Res/307, 21 Dec. 1971, Para. 1. 110. See UN Doc. S/PV.1606, 4 Nov. 1971, p. 11, paras. 97-100 and p. 13, para. 124.
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prevent loss of life and to facilitate external self-determination."111 According to India, it was beyond doubt that the right of self-determination was applicable to the people of East Bengal now that the policy of the central Pakistani government had to be qualified as a form of neo-colonialism.112 At this point, it must be noted that the condemnations in both the Security Council and the General Assembly resolutions on the Pakistan-India-Bangladesh conflict did not, as Franck correctly observes, concern India's assertion that a people had a right to rebel against a clearly discriminatory regime, but, rather, concerned India's "claim to be entitled to act unilaterally as that population's vindicator".113 As to the existence of a right of unilateral secession, the following may be observed. From the standpoint of the prevailing doctrine of a qualified right of secession, the question whether the people of East Bengal were entitled to secede from Pakistan can only be answered in the affirmative. Supporters of a qualified right of secession agree that if there is one case which qualifies for a right of unilateral secession it would be Bangladesh. 114 Indeed, if the situation of Bangladesh is evaluated in the light of the criteria for a right of secession as suggested by the qualified secession doctrine, there can be no question that all criteria were satisfied. The case of Bangladesh has to be treated as a post-colonial situation in which a people initially seeks to implement its right of self-determination within the parent State's borders, and ultimately outside them. The postcolonial character is evidenced by the fact that after 1947, East Bengal was never recognized as a Non-Self-Governing Territory by the United Nations. It is generally agreed that the situation of East Bengal was one of the clearest cases of 'carence de souveraineté', 115 that is to say, a clear illustration of a postcolonial situation in which a distinct and clearly identifiable group of people was seriously discriminated, ultimately completely excluded from the government of the State, and the victim of massive violations of fundamental human rights, including the right to life. In this respect it must be noted that the case of Bangladesh took place shortly after the adoption of the Friendly Relations 111. See, e.g., id., at p. 18, para, 185; UN Doc. S/PV.1608, 6 Dec. 197.1; UN Doc. S/PV.1611, 12 Dec. 1971, at p. 10, para. 95. And see T.M. Franck, supra note 65, at p. 14. 112. UN Doc. S/PV.1606, 4 Dec. 1971, p. 16, para. 168. 113. Franck, supra note 111, at p. 14. The position that the unilateral character of the Indian action would be a valid point of criticism was clearly rejected by the Indian representative at the UN when he stated: "refugees were a reality. Genocide and oppression were reality. The extinction of all civil rights was a reality. Provocation and aggression of various kinds by Pakistan from 25 March onward were a reality. Bangladesh was a reality, as was its recognition by India. The Security Council was nowhere near reality". UN Monthly Chronicle, Jan. 1972, p. 25. 114. See, e.g., International Commission of Jurists, supra note 41, at pp. 49-52. 115. See, e.g., Crawford, CREATION OF STATES, pp. 116-117.
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Declaration by the General Assembly in 1970, which acknowledges the existence of a right of all peoples, including subgroups within a State, to govern themselves through the implementation of the right of self-determination within the boundaries of the parent State.116 There is no doubt that the Bengalis constituted a 'people' in an ethnic sense," and thus a subgroup entitled to the right of internal self-determination. Moreover, the Bengalis formed a majority within East Pakistan which was certainly an 'identifiable part' of the territory of Pakistan. In the light of the suggested criteria for a right of secession it is of particular importance that, despite the existence of a government the composition and policies of which were clearly discriminating with respect to the Bengali people, the latter continued to channel their efforts into reforming the existing institutions within a unified Pakistan in a peaceful manner. Because there were no international nor national legal remedies available, the only means for the Bengalis to effectuate self-determination within Pakistan consisted of negotiations. This cooperative and constructive attitude began to change only when any form of internal self-determination was completely denied through the postponement of the inaugural session of the National Assembly. Yet, even under those circumstances, Rahman still sought to find a solution to the crisis without calling the territorial integrity of Pakistan into question. The claim for separation was ultimately made as a last resort measure against the background of the historical grievances of the Bengalis, the massive deployment of the Army in East Bengal and the subsequent gross and serious violations of fundamental human rights after 25 March 1971, as well as the absence of any other realistic option for the realization of internal self-determination. It seems reasonable to argue that the extreme amount of suffering of the Bengalis has played a significant role in the international community's evaluation of the legitimacy of the claim to secession. On the other hand, it cannot be assumed that therefore, the required minimum amount of suffering must equal the extremes of the case of Bangladesh, for then, as Buchheit observes, "one could paint a rather demonic picture of international opinion demanding sanguinary evidence of a people's suffering [...] before a claim to separation from their tormentors will be considered legitimate".118 The position and practice of the international community in the case of Croatia indicates that before a claim to secession is deemed to be legitimate, a people must have suffered grievous wrongs at the hand of the parent State. 116. See Chapter 6, supra. 117. See Nanda, supra note 98, at pp. 205-208; International Commission of Jurists, supra note 41, at pp. 46-49. And see Chapter 6, Section 3.2., at pp. 262-263, supra. 118. Buchheit, SECESSION, p. 213.
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However, the same practice also points to the fact that the threshold with respect to the required amount and scale of suffering is indeed lower than the one which may be suggested on the basis of the extremes in the case of Bangladesh. § 3.3.2.
Croatia119
The examination of the case of Croatia which proclaimed independence in 1991 will be carried out in three steps. First, the events leading to the crisis in the former Yugoslavia will be briefly described. The second step consists of two points: (1) the analysis of the question of whether the international right of selfdetermination was deemed to be applicable to the Yugoslav case and (2) whether the formation of Croatia was a result of secession from the SFRY or a result of the latter's dissolution. If Croatia seceded from the SFRY, the third step in the analysis becomes necessary, namely the examination of the question of whether the Croats were entitled to unilateral secession under the qualified secession doctrine. (a) History The original habitat of the Croats must have been near the Carpathian Mountain chain. It is thought that German tribes named the Carpathians 'Harvalda' and thereby named the inhabitants Harvati, Horvati, Hrvati or Chrobaten (Croats). The Croats settled along the Adriatic coast in the EastRoman provinces of Dalmatia and Pannonia which were granted to them by the East-Roman Emperor Heraclius. In the sixteenth and seventeenth century, the Turks invaded and conquered large parts of the Balkans, including Croatia and Hungary, which at that time were connected through a personal union. The Turkish expansion resulted in the establishment of the so-called Military Borderland (Vojna Krajina) along the Croatian border with the Ottoman Empire. This was a thin strip of unoccupied Hungarian and Croatian land which was defended by the Habsburg dynasty through the creation of a protective cordon, a martial zone under the direct rule of the Habsburg War Council. The Turkish devastation of the Croatian border areas resulted in a massive migration of the Croatian population to the south, west and north.120 119. For a detailed account of Yugoslav and Croatian history see, e.g., J.R. Lampe, YUGOSLAVIA AS HISTORY, TWICE THERE WAS A COUNTRY, 1996; I. Banac, THE NATIONAL QUESTION IN YUGOSLAVIA: ORIGINS, HISTORY, POLITICS, 1984; S. Gazi, A HISTORY OF CROATIA, 1973; B. Covic (Ed.), CROATIA BETWEEN WAR AND INDEPENDENCE, 1991. 120. The Military Borderland was dissolved in 1881 after which the area fell under the authority of the Croats. However, the establishment of the Military Borderland had important consequences for historical land claims by Serbs who settled in the area after the Croatian diaspora.
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In 1699, Croatia became, together with Hungary, part of Austria. After the Ausgleich in 1867, Croatia was incorporated into the Hungarian part of the Habsburg Empire. The consequences of World War I concerning the Habsburg Empire and Wilsonian self-determination, led to the Corfu Declaration122 of 20 July 1917 which proclaimed the determination of Serbs, Croats and Slovenes to form a united and independent State which would be a constitutional, democratic, and parliamentary monarchy headed by the Serbian Karadjordjevic dynasty. On 29 October 1918, after the dissolution of the Habsburg dual monarchy, Slovenia and Croatia seceded from Austria and Hungary respectively and formed an independent State which "was ready to enter into a common state with Serbia and Montenegro". 123 This integration took place on 1 December 1918. The resulting unitary State which was called the Kingdom of the Serbs, Croats and Slovenes (and which was subsequently named Yugoslavia in 1928), did not even meet the basic desires of those, especially the Croats and Slovenes, who wanted a federal state organization. It soon became clear that in particular the Croatian wish for a decentralized political organization conflicted with Serbian political domination and the Serbian aim for political centralization; a conflict which would continue to influence the relationship between the two communities in the years ahead. Serbia's upper hand in the Yugoslav State, created between 1918 and 1921, can be explained by, on the one hand, its army's survival of the war which made it possible to establish such a large new State, and on the other by the disintegration of Austria-Hungary and Italy's ardent territorial claims which more or less forced Croatian and Slovenian leaders to come to Belgrade on essentially Serbian terms.124 On 6 April 1941 Germany attacked Yugoslavia. Within two weeks Yugoslavia was occupied. It was administratively partitioned between Germany, Italy and Bulgaria. In one-third of the territory of Yugoslavia, the so-called See further Section 5.3. of this Chapter, infra. 121. See Chapter 5, Section 3.1., supra. In Point X of Wilson's Fourteen Points it was held explicitly that "[t]he peoples of Austria-Hungary, whose place among the nations we wish to see safeguarded and assured, should be accorded the freest opportunity of autonomous development". Point XI stated: "Rumania, Serbia, and Montenegro should be evacuated; occupied territories restored [...]". 122. Reprinted in: Trifunovska, supra note 55, at pp. 141-142. 123. Banac, supra note 119, at p. 128. See also I.J. Lederer, YUGOSLAVIA AT THE PARIS PEACE CONFERENCE: A STUDY IN FRONTIERMAKING, 1963, pp. 25-26. 124. Lampe, supra note 119, at p. 99; E.L. Teric, The Legality of Croatia's Right to Self-Determination, Temple ICLJ, Vol. 6, 1992, p. 403, at p. 405. Under the secret Treaty of London, the Allied Powers of World War I had promised several portions of territories of the Habsburg Empire to other States. Only a few provisions which granted territorial concessions to Italy became public. This prompted the Slavs to form a unified Slavic front mainly to prevent new foreign domination.
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Independent State of Croatia (Nezavisna Drzava Hrvatska, NDH) was established by German and Italian forces. This puppet State,125 which encompassed most part of present-day Croatia and Bosnia-Herzegovina, was proclaimed on 10 April 1941, barely four days after the invasion. It was formally led by a small Ustasa minority headed by Ante Pavelic. This regime became responsible for massive killings and deportations in particular of Serbs, Jews and gypsies which resided within the NDH's borders. In 1945, under the leadership of the Croat Josip Broz (Tito), the communist and multi-ethnically composed Partisans liberated Yugoslavia from its occupiers. In the 1945 elections Tito won overwhelmingly and a new, communist regime rose to power which made it one of its first priorities to settle civil war accounts through widespread executions.126 The monarchy was abolished and the 1946 Constitution declared a federal State composed of six republics: Slovenia, Croatia, Serbia, Montenegro, Bosnia-Herzegovina and Macedonia, and two autonomous entities: the Autonomous Province of Vojvodina and the Autonomous Region of Kosovo-Metohija, both of which were included in Serbia.127 The new Yugoslav State under the presidency of Tito was highly politically centralized and characterized by one political party on all levels: the Communist Party. There was no place for organized opposition and state and party functions were closely interlocked. The country remained unified during the post-war period due to economic prosperity and the Communist Party's monopoly of power under the leadership of Tito. In fact, the local governments of the republics existed primarily to implement the laws and the decisions of the central organs. When the economy took a downturn in the 1960s, tension rose between the greater (Slovenia and Croatia) and lesser developed regions of Yugoslavia. Accompanying the economic tensions was a revival of independent republican nationalist aspirations. Not only were the republics dissatisfied with the fact that they in effect subsidized the lesser developed regions in the federation,128 Croats openly voiced cultural complaints with respect to the creation of a common Serbian-Croatian orthography and dictionary. In the common dictionary, Serbian variations of these two grammatically identical languages
125. See Socony Vacuum Oil Co. Claim, United States International Claims Commission, 1954, 21 ILR, p. 55 ff., cited in: Crawford, CREATION OF STATES, pp. 63-64. See also Chapter 3, Section 3.5.2., at p. 81, supra. 126. In the period 1945-1946 some 100,000 Slavs, many of whom were Croats, were killed by the communist regime. Lampe, supra note 119, at pp. 223-224; Teric, supra note 124, at p. 407, n. 36. 127. Article 2 of the 1946 Yugoslav Constitution. The difference between the Province and the Region was that the latter was denied, amongst others, its own parliament and Supreme Court. 128. M. Djilas, THE UNPERFECT SOCIETY: BEYOND THE NEW CLASS, 1969, pp. 145-146.
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were consistently chosen over Croatian variations which resulted in the belief that Croatia's genuinely separate and longer literary. tradition would become forfeit in the process.129 Although the outburst of nationalism in Croatia was quelled by Tito in 1971 as he also did with respect to a nationalistic uprising in Kosovo in 1968, these developments restated existing threats to a strong, Serb-dominated central government and they did influence the restructuring of the Yugoslav constitutional system along the lines of political and economic decentralization. This process ultimately crystallized in the 1974 Constitution. Under this constitution, more powers became vested in the federal republics which even obtained the power of veto over federal legislation in several fields. The constitution laid the foundations for socialist self-management and guaranteed full equality of all peoples and national minorities within Yugoslavia. Emphasis was put on Yugoslavia as a State created by revolution rather than a national State of the South Slavs. There is no doubt that the Albanians in Kosovo were the principal direct beneficiaries of this policy. Kosovo was upgraded from a 'Region' to a 'Province' (as Vojvodina had been since 1945) and both Kosovo and Vojvodina were accorded the status of constituent members of the Yugoslav federation.130 The result was that, in effect, the gap between the republics and the autonomous territories was substantially narrowed, as the two provinces were both granted a seat in the collective Presidency, had their own party organization, National Assembly, constitution, high court, flag and other state symbols, university, own bank and the like. It speaks for itself that, given what was said above, virtually none of these developments was favoured by Serbia.131 Against the background of the idea of national unity, the 1974 Constitution provided for a collective organ, the Presidency.132 The Presidency represented the federation at home and abroad.133 In addition to such powers as the right of promulgating federal statutes by ukases, the right to propose to the SFRY
129. Lampe, supra note 119, at p. 299. 130. Constitution of the SFRY of 1974, Art. 1. Reprinted in: W.B. Simons (Ed.), THE CONSTITUTIONS OF THE COMMUNIST WORLD, 1980, p. 428 ff. 131. The constitutional rights of the two Provinces lead to the paradox that, although forming an integral part of the Republic of Serbia, the two Provinces often voted against Serbia's position in federal organs. See N. Jerkovic, Kosovo and Metohija - An Integral Part of the Republic of Serbia and FRY: Documents and Facts, RIA, Sluzbeni list, Vol. 1, 1995, p. 13. This 'problem' was solved by Serbia from 1988 onwards when, after several steps which increased the Serbian say with respect to the regions, the autonomous status of Kosovo and Vojvodina was abolished in 19891990. See p. 347 ff., infra. 132. The idea had been introduced by Tito in 1970. According to Tito, the inability of the government to overcome interrepublican conflict necessitated the creation of an authoritative, integrative institution. S.L. Burg, CONFLICT AND COHESION IN SOCIALIST YUGOSLAVIA, POLITICAL DECISION MAKING SINCE 1966, 1983, pp. 117-121. 133. 1974 Constitution, supra note 130, Article 313.
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Assembly adoption of internal and foreign policy, the passage of laws and other enactments, the collective Presidency was the supreme body in charge of state security as well as the administration and command of the armed forces. Moreover, in times of war or immediate danger of war, it was entitled to enact degrees with the force of law on questions falling within the competence of the Federal Assembly.134 In effect, the Presidency was the most powerful organ of the federation.135 It was composed of a member of each republic and autonomous province. The Presidency elected from among its members a President and a Vice-President for a term of one year.136 In addition to being head'of State the President was, on behalf of the Presidium, in charge of the command of the armed forces.137 The special system of rotation of the function of President appears to have emerged from Tito's personal concern and the concern of other members of the leadership to arrange for Tito's succession before his death, that is, it was a means for preventing inter-ethnic tensions and conflict between the different peoples and national minorities in Yugoslavia. With respect to the thirty-five years since World War II there is little doubt that the unity of the ethnically heterogeneous Yugoslavia was preserved as a result of the policies of the Tito regime and Western financial support (to prevent Yugoslavia from becoming a member of the Warsaw Pact). Tito died on 4 May 1980. The decade that followed Tito's death was characterized by another decline of the economy. The second oil crisis and the world wide recession in the first part of the 1980s resulted in a decrease of Yugoslavia's ability to obtain foreign loans. The economic situation fuelled antifederalist and anti-redistribution sentiments in both Croatia and Slovenia. In addition, the 1980s in Yugoslavia was a decade singularly lacking strong Titolike political leadership and a period that saw ethnic hostility becoming a major factor of concern both at the federal and at the regional level. A mixture of interrelated events in the late 1980s formed the interlude of the process of the break-up of the SFRY. First, tensions rose between Croatia and Serbia and between the Kosovo Albanians and the Serb leadership after a Memorandum of the Serbian Academy of Arts and Sciences of 1986 although not officially published - became public in that same year. In the Memorandum, three demands were put forth: (a) annulment of all 'confederal' 134. Id., Art. 317. 135. Although the Presidency formally could make proposals of laws to the Assembly only, an eventual and persistent rejection of such a proposal by the Assembly could lead to the latter being dissolved. See id., Art. 319. In practice, therefore, almost all proposals made by the Presidency were passed by the Assembly. 136. A special provision was made for Tito who was elected President for an unlimited term of office. See id., Art. 333. 137. Id., Art. 328.
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elements in the federal constitution, (b) annulment of the constitutional position of Kosovo and Vojvodina and (c) strengthening of the central government's powers.138 In 1987, with the coming to power in Serbia of the nationalist leader Slobodan Milosevic, the other republics became increasingly alarmed by the possibility of Serbian attempts to dominate within Yugoslavia. One of the principal points on the political agenda of Milosevic was to abolish the political autonomy of both Vojvodina and Kosovo. This policy, which was in line with the abovementioned Memorandum, was publicly denounced by Croatia and Slovenia who accused Serbia of striving for the creation of a 'Great-Serbia'. Put differently, it was believed that Serbia was attempting to restore the Yugoslav political landscape which existed prior to World War II. In violation of the Yugoslav Constitution, the Serbian government eventually succeeded in its efforts to bring the two Provinces back under direct Serbian rule. After repeated mass rallies, the Vojvodina leadership resigned at the end of 1988 to be replaced by pro-Serbian politicians. In 1989, under extreme pressure from Belgrade, the Assemblies of Vojvodina and Kosovo approved amendments to a new constitution of Serbia. The amendments took away the Provinces' right of veto on constitutional changes in Serbia, and removed part of the legislative, executive and judicial powers of the Province authorities.139 These changes were confirmed a year and a half later, on 28 September 1990, when the Serbian Assembly passed the new constitution of the Republic of Serbia.140 In combination with the fact that the Montenegrin government resigned on 11 January 1990 to be succeeded by a regime of clearly pro-Serbian nature, the net result of these developments was that Serbia obtained considerably more say in federal institutions, like the collective Presidency, now that the two constituent provincial units were represented in these institutions by (pro-) Serbian politicians and Serbia could rely on the support of the Republic of Montenegro. Because of the fact that Bosnia-Herzegovina contained a substantial Serbian minority, Serbia could at least block federal decision-making and possibly even out-vote the other republics (that is, Croatia, Slovenia and Macedonia). When it is taken into consideration that the Slovenes and Croats were under-
138. B. Magas, THE DESTRUCTION OF YUGOSLAVIA, TRACKING THE BREAK-UP 1980-1992, 1993, p. 49 ff; Covic, supra note 119, at pp. 42-43. 139. N. Malcolm, KOSOVO: A SHORT HISTORY, 1998, p. 344 ff. 140. }. Teokarevic, Neither War Nor Peace: Serbia and Montenegro in the First Half of the 1990's, in: D.A. Dyker and I. Vejvoda (Eds.), YUGOSLAVIA AND AFTER: A STUDY IN FRAGMENTATION, DESPAIR AND REBIRTH, 1996, p. 179, at p. 182; M. Vickers, BETWEEN SERB AND ALBANIAN: A HISTORY OF Kosovo, 1998, p. 245 ff
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represented and the Serbs over-represented in the civil service and the army,141 it requires little imagination to understand that these developments and their political consequences gave rise to enormous tensions between the Yugoslav republics, in particular between the two greatest rivals: Croatia and Serbia. For two reasons the end of the Cold war also played an important role in the process of the break-up of Yugoslavia. In the first place, now that the Cold War was over, there remained little political need for the continuation of Western financial support to Yugoslavia. The result was that Yugoslavia became the victim of an even more serious economic crisis than in the previous years. As has been observed above, the federal government had always been very concerned with welfare distribution for the purpose of (more) national unity. Yet, the costs related to this regional redistribution policy were at the expense of the relatively wealthy and developed republics, that is to say, in particular Slovenia and Croatia, which felt exploited.142 Hence the increasing wish for more autonomy of Croatia and Slovenia at the end of the 1980s and in the beginning of the 1990s. Another consequence of the end of the Cold War was the democratic wave, and more precisely the wave of anti-communist political and economic reform that swept across Europe. Against the background of (a) the developments in Vojvodina and Kosovo, (b) the Serbian wish for a strong federal government, (c) the economic crisis and the Croatian and Slovenian perception of economic exploitation, and (d) the under-representation of Croats and Slovenes in federal institutions, the spirit of democratization led to the emergence of leaders in Croatia and Slovenia who favoured economic efficiency, more autonomy, and political and economic liberalism. By contrast, in Serbia political leaders emerged who claimed the maintenance of communism and centralization of power. In 1990, the first multi-party elections were held in Yugoslavia (except for Kosovo and at the federal level). In Croatia it was the opposition Croatian Democratic Union (HDZ) which surprisingly gained a solid parliamentary majority under Franjo Tudjman, who became president of the republic. In Serbia, on the other hand, it was the communist party (the Socialist Party of Serbia) of Milosevic which won the elections. Tudjman and his party proceeded to produce a new constitution for Croatia and demanded greater 141. See, e.g., Burg, supra note 132, at p. 113. For instance, in 1969, while constituting some 40 per cent of the total population of Yugoslavia, 72 per cent of the professional staff in the state administration and 83 per cent of the professional staff in governmental commissions and institutes was made up of Serbs. With respect to the judicial and prosecutory sector, 64 per cent of the leading officers were Serbs. No significant changes occurred with regard to these ratios in the subsequent years. 142. V. Bojicic, The Disintegration of Yugoslavia, Causes and Consequences of Dynamic Inefficiency in Semi-Command Economies, in: Dyker and Vejvoda (Eds.), supra note 140, p. 28, at p. 43; H. Lydall, YUGOSLAVIA IN CRISIS, 1989, pp. 192-193; Burg, supra note 132, at pp. 27-28.
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autonomy for the federal republics through the restructuring of the SFRY along the lines of a confederation. The plan was supported by Slovenia but blocked immediately by Serbia. The latter argued that the large numbers of Serbs living in other republics than Serbia would become national minorities in foreign countries if the plan would be accepted. The nationalist rhetoric of the Croatian regime and the threat of erosion of the interests and rights of the Serbian minority - forming twelve per cent of the Croatian population -, together with the memory of the genocide perpetrated by the fascist Croatian government against Serbs during World War II, led Serbia and the Serbs in Croatia to depict Tudjman as a prospective mass murderer.143 In anticipation of expected Croatian independence, the Serbian minority in the Knin area along the Dalmatian coast decided to block all access roads leading to their region as well as the economic important railroad Zagreb-Split in August 1990. The federal President and Commander-in-Chief, the Serb Borisav Jovic, who was closely affiliated with Milosevic, stated that a civil war had to be prevented and explicitly did not deploy the Yugoslav National Army (JNA) to restore order. In essence, this inaction marked the beginning of the war in Croatia and determined the respective roles of the parties involved. A referendum on autonomy within Croatia among the Serbs in Northern Dalmatia and Eastern Lika (the area which later became called Kninska Krajina) was held on 19 August 1990. The outcome led to a proclamation of (cultural) autonomy on 1 October 1990. When the Croatian Assembly adopted the new Croatian Constitution on 22 December 1990 (which deprived the Serbs in Croatia of their 'constituent nation' status by referring to them as a national minority), the Serbian authorities in the Kninska Krajina proclaimed that they did no longer recognized the jurisdiction of the Croatian Department of Internal Affairs. In addition, other areas in Croatia in which Serbs constituted a majority or a substantial minority began to arm themselves, and declared autonomy and unity with Serbia. The situation was aggravated when Serbia and its allies in the collective Presidency blocked the installation of the Croatian candidate, Stipe Mesic, for the post of federal President on 15 May 1991.144 Until this Serbian obstruction, the voting process for the rotation of the presidency had been a merely constitutional formality. 145 The direct result of the obstruction was that the JNA 143. C. Sudetic, Evolution in Europe: Ethnic Rivalries Push "Yugoslavia to Edge, NYT, 14 October 1990; W. Vermeer, Joegoslavië en de Serven 1918-1991: van Mozaïek tot Burgeroorlog, Internationale Spectator, 1992, No. 2, p. 63, at p. 66. 144. Serbs Veto Election of Croat as President, The Times, 16 May 1991. Already in March 1991, in anticipation of the coming rotation in the Presidency, Serbia had replaced the Albanian representative of Kosovo in the Presidency (Riza Sapunxhiu) by a Serb (Sejdo Bajramovic). 145. Teric, supra note 124, at p. 425.
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could subsequently operate with considerable freedom because of the lack of a Commander-in-Chief. A few days later, on 19 May 1991, a referendum was held in Croatia on the question of Croatian independence in which an overwhelming majority of the voters voted in favour of independence.146 In the meantime, no progress was made at the political level and on the ground the situation deteriorated as a result of increased fighting between the Serbian minority in Croatia and the Croatian police and security forces. The situation eventually led to the proclamation of independence adopted by the Croatian parliament on 25 June 1991.147 On the same day, Slovenia proclaimed its independence.148 In addition to calling the declarations of independence unconstitutional and illegitimate, the Yugoslav legislature's immediate reaction to the secession announcements was to call for the federal army to "undertake measures to prevent the division of Yugoslavia and changes in its borders".149 Under orders from the Serb-dominated federal Secretariat for National Defence, but without the approval of the collective Presidency, units of the JNA occupied strategic points in Slovenia. After a few days of unexpectedly stiff resistance by the Slovenian territorial defence forces the federal government announced a ceasefire in Slovenia unilaterally. Although the cease-fire was respected in Slovenia, the situation in Croatia was escalating fast. Numerous battles were reported between the Serb minority and the Croatian government forces. The JNA 146. Of the voters 93 per cent voted for independence. For the text of the referendum questions, see Trifunovska, supra note 55, at p. 299. In Slovenia a referendum on independence was held on 23 December 1990. Also in this case an absolute majority voted in favour of independence. 147. The Preamble of the proclamation states: "proceeding from the inalienable, unconsumable, indivisible and untransferable right of the Croatian nation to self-determination, including the right of disassociation and association with other nations and States, and from the sovereignty of the Republic of Croatia rested in all its citizens, - executing the will of the people as expressed at the referendum of May 19th, 1991, in view of the fact that the SFRY did not function as a State founded on constitutionality and the rule of law, and that human rights, the rights of national minorities and the rights of the federal units are being flagrantly violated, bearing in mind that Yugoslavia's federal system does not make it possible to resolve the state-political and economic crisis, and that no agreement has been reached among its constituent republics that would make it possible to transform the federal state into a union of sovereign states". Paragraph I continues by stating that "[t]he Republic of Croatia is hereby proclaimed a sovereign and independent State". See Constitutional Decision on the Sovereignty and Independence of the Republic of Croatia, Zagreb, 25 June 1991, Preamble, reprinted in: Trifunovska, supra note 55, pp. 299-301, at p. 299. See also Declaration on the Establishment of the Sovereign and Independent Republic of Croatia, Zagreb, 25 June 1991, reprinted in: id., at pp. 301-304. 148. The Declaration is reprinted in: Trifunovska, id., at pp. 286-290. 149. B. Harden, Yugoslav Regions Assert Independence; Secession of Slovenia, Croatia Prompts Calls for Army Intervention, Washington Post, 26 June 1991. For the condemnation of the proclamations of independence by the SFRY Presidency, see the declaration adopted on 27 June 1991, reprinted in: RIA, Vol. XLII, 1991, p. 3.
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intervened, ostensibly as a neutral, peacekeeping force preventing further conflict. However, already at this stage of the conflict it became clear that the JNA supported the Serbs because it secured the territory occupied by the Serb minority and it did not prevent further occupation of Croatian territory by Serb irregulars. Indeed, gradually the JNA became actively involved in that process.150 It is around this time that the international community, primarily in the form of the European Community, offered its good offices to the parties and soon adopted the role of mediator in the conflict. No international recognition of the proclamations of independence followed. Instead, on 5 July 1991, the European Community called "for a dialogue without preconditions between all parties on the future of Yugoslavia".151 On 30 June, the European Community dispatched a troika of foreign ministers (Jacques Poos of Luxembourg, Gianni de Michelis of Italy and Hans van den Broek of the Netherlands) which met informally with the leaders of Slovenia, Croatia and the federal government and brokered a cease-fire agreement, that, in exchange for the withdrawal of JNA troops to their barracks, imposed a three-month moratorium on Slovene and Croat independence.152 Mesic was still elected President of the SFRY and the cease-fire/withdrawal as well as the moratorium on independence were formalized in an agreement reached on 7 July 1991 between the federal, Croat and Slovene authorities at Brioni (the 'Brioni Accord').153 In addition to provisions on border security and withdrawal of the JNA, Slovenia and Croatia reaffirmed the moratorium of three months (that is, until 8 October 1991) on their proclamations of independence pending negotiations on their future relations. To that end the parties agreed that negotiations should begin urgently, no later than August 1st, on all aspects of the future of Yugoslavia without preconditions and on the basis of the principles of the Helsinki Final Act and the Paris Charter for a New Europe (in particular respect for human rights, including the right of peoples to self-determination in conformity with the Charter of the United Nations and with the relevant norms of international law, including those relating to territorial integrity of States).154
In accordance with the Brioni Accord, the federal government, headed by Prime Minister Markovic (a Croat), adopted a draft agreement - for the moratorium 150. L. Silber and A. Little, THE DEATH OF YUGOSLAVIA, 1995, p..147; Terret, supra note 32, at p. 31. 151. Declaration on the Situation in Yugoslavia, supra note 55. 152. A. Hanson, Croatian Independence From Yugoslavia, 1991-1992, in: Greenberg et al. (Eds.),
WORDS OVER WAR, MEDIATION AND ARBITRATION TO PREVENT DEADLY CONFLICT, 2000, p. 76, at p. 83. 153. Europe Documents, No. 1725, 16 July 1991, pp. 16-19. 154. Id., at p. 17.
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period - on 24 July which stipulated the right of the peoples of Yugoslavia to self-determination "until secession". However, the Brioni Accord turned out to be a phyrric victory. The conflict in Croatia escalated considerably almost immediately after the signing of the Accord. During the moratorium period, Serb paramilitary forces increased their hold over disputed Croatian territory through their access to arms and equipment from the JNA and Serbia. After Ratko Mladic (who later commanded Serb forces in the Bosnian war) was posted to head the JNA corps in Knin, the JNA began to openly fight alongside the Serb irregulars, providing weapons and infantry support to the paramilitary fighters.156 In August the situation in Croatia had erupted into a total war, in which the JNA made use of tanks, mortars, air force jets and the marine. This was accompanied by widespread violations of human rights, including the right to life, the destruction of towns and villages as well as of cultural and religious objects, and 'ethnic cleansing"158 of Croats and other nationalities inhabiting the areas of Croatia in which Serbs constituted a majority or a substantial minority. ' A statement of the European Community of 28 August 1991 condemned this violence and specifically directed the condemnation towards Serbian paramilitary forces and "elements of the Yugoslav National Army [...] 155. Vecernji List, 25 July 1991, p. 2; Europe Documents, No. 5542, 26 July 1991. 156. Hanson, supra note 152, at p. 86. 157. See, e.g., Final Report of the United Nations Commission of Experts established pursuant to Security Council Resolution 780 (1992), Ann. IV, The Policy of Ethnic Cleansing, Prepared by M. Cherif Bassiouni and P. M. Manikas, Part II, Para. III, UN Doc. S/1994/674/Add.2 (Vol. V), 28 Dec. 1994; S. Woehrel and J. Kim, Croatia: Background and Current Issues, Congressional Research Service Report, 3 Dec. 1992; Croatian Medical Journal, Vol. 33, War Supp. 2, 1992 (describing in detail civilian deaths and massacres); No Hiding From the Chetniks, The Times, 31 July 1991; Air Force Attacks Village, The Times, 31 July 1991; Dozens Die as Fighting Intensifies in Croatia, NYT, 29 July 1991; Fighting Rages on in Croatia, Financial Times, 23 Aug. 1991; Yugoslav Army Kills Dozens in Assault on Croatian Town, The Times, 27 Aug. 1991. Three confidential reports were written in January 1992 by an independent international research team and were concerned with the last four months of 1991. They describe a systematic campaign of violence, wholesale massacres and looting by the JNA and the Serbian irregulars with the purpose of driving out the Croats from their places of residence. Mention is made of widespread violations of human rights, including "barbarian" violations of international humanitarian law such as the widespread practice of mutilation of Croatian corpses, as well as the malicious destruction of churches and hospitals. See Atrocities Yugoslav Army, The Washington Post, 17 Jan. 1992; Gruweldaden Joegoslavisch Leger, NRC Handelsblad, 18 Jan. 1992; Leger Zaait Verderf in Kroatië, De Volkskrant, 18 Jan. 1992. Many Croatian areas which were occupied by the Serb irregulars with the support of the JNA were not accessible at the relevant time. In the period following 1995, that is, after the Croatian government had 'liberated' these occupied territories, more than a hundred mass graves with a total of almost 3,000 bodies were registered in these areas. See Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Yugoslavia), 1999, p. 6. 158. See, e.g., UN Doc. A/Res/49/43, 9 Dec. 1994. And see Final Report of the United Nations Commission of Experts, supra note 157. For an analysis of the concept of 'ethnic cleansing', see D. Petrovic, Ethnic Cleansing - An Attempt at Methodology, EJIL, Vol. 5, 1994, p. 342. 159. Areas such as Banovina, Banija, Kordun, Eastern Slavonia, Eastern Lika and Northern Dalmatia. See also Section 5.3. of this Chapter, infra.
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lending their active support to the Serbian side".160 Until November 1991, an estimated 10,000 people, the majority of which were Croats, were killed in the conflict.161 By August 1991, about 350,000 refugees were registered in Croatia, and this figure rose to 600,000 by November 1991 (approximately twelve per cent of the total population of Croatia), of which the majority were Croats from the Serb-occupied territories,162 constituting about one third of Croatian territory. The escalation of the conflict made it almost impossible to conduct meaningful negotiations on the future of Yugoslavia within Yugoslav federal institutions. This prompted the European Community to announce the establishment of a peace conference on Yugoslavia which was opened on 7 September 1991. However, at the same time the fighting continued and intensified. The Yugoslav marine blocked the access to Croatian harbours and a major ground and air offensive was launched by the JNA towards several Croatian cities, including Vukovar, Vinkovci and Osijek without distinction being made between military and civilian objects. Eventually, the city of Vukovar was completely destroyed. On 1 October 1991, the JNA invaded the district of Dubrovnik and laid siege to the town. Dubrovnik was a city with virtually no defence against the Yugoslav forces and, it should be noted, without a substantial Serbian minority. Thus, the attack and destruction of the town could neither be justified on grounds of military necessity,163nor as necessary for the protection of a Serb minority against the Croats. Two days later, on 3 October, a bloodless coup d'etat was conducted by the representatives of Serbia, Montenegro, Vojvodina and Kosovo in the collective Presidency under the 160. EC Bulletin 7/8-1991, p. 107. A few days later, an EC envoy confirmed that the JNA clearly supported the Serb irregulars in Croatia stating that it was "difficult to reconcile that the army is acting as a buffer", Envoy Accuses Army of Aiding Serbs, NYT, 30 Aug. 1991, quoted in: Teric, supra note 124, at p. 417, n. 135. 161. G. Nikic (Ed.), CROATIA BETWEEN AGGRESSION AND PEACE, 1994, p. 43 (citing statistics of the Information and Research Department of the Croatian Ministry of Health and the Croatian Red Cross); Croatian Medical Journal, Vol. 33, War Supp. 2, 1992. This figure rose to 20,000 in the beginning of 1992. See Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Yugoslavia), supra note 157, at p. 8. See also ICTY Case No. IT-01-50-1, The Prosecutor of the Tribunal Against Slobodan Milosevic, Croatia, Initial Indictment, 8 Oct. 2001. 162. Report on the Situation of Human Rights in the Territory of the Former Yugoslavia, submitted by Mr. Tadeusz Mazowiecki, Special Rapporteur of the Commission on Human Rights, UN Doc. E/CN.4/1992/S-1/10, 27 Oct. 1992, para. 13; Vance Report of 25 Oct. 1991 issued through the Report of the Secretary-General Pursuant to Paragraph 3 of Security Council Resolution 713 (1991), UN Doc. S/23169, 25 Oct. 1991, paras. 15-18, and Ann. IV; Application of the Convention on the Prevention and Punishment of the Crime of Genocide, supra note 157, at pp. 6 and 8. 163. Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780 (1992), UN Doc. S/1994/674, 27 May 1994, Part IV, Section J ("Destruction of Cultural Property").
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pretext of "an immediate danger of war". It was announced that the collective Presidency would henceforth take decisions on the basis of the votes of solely these four members and that the collective Presidency would take over certain tasks which constitutionally fell within the competence of the Federal Parliament. 164 In effect, this meant that decision-making in both the collective Presidency and the federal Parliament was taken over by Serbia and Montenegro. While the international community had already moved away from its initial neutral stance as a result of increasing evidence of partiality on the part of the JNA,165 these events pressed the international community to take a position in the conflict. Accordingly, the usurpation of power by Serbia and Montenegro (leading to the so-called 'rump Presidency') was forcefully condemned by the European Community166 and the CSCE.167 It was furthermore declared that the JNA had "resorted to a disproportionate and indiscriminate use of force" and that it had "shown itself to be no longer a neutral and disciplined institution".168 Because of these events, Croatia reasserted its proclamation of independence on 8 October, the day after the lapse of the Brioni moratorium. However, international recognition of Croatia as a State under international law was withheld until the beginning of 1992. An important reason for the delay of recognition of Croatia and Slovenia was concern about the internal political situation in the former Soviet Union in the final months of 1991. It was generally believed that the recognition of the secessionist claims in the context of the former Yugoslavia could have substantial negative consequences for the developments in the former Soviet Union, which was engaged in a serious political crisis about the future of the State. The situation changed dramatically, however, with the Soviet Union's recognition of the independence of the Baltic States on 6 September 1991 and the declaration at the tripartite meeting of Russia, Ukraine and Belarus at Minsk on 8 December that the Soviet Union had ceased to exist, a declaration later affirmed by the other republics at the Alma-Ata meeting. Freed from the risk of creating a precedent for the Soviet 164. See also Declaration on Yugoslavia, Informal Meeting of Ministers of Foreign Affairs, Haarzuilens, 5 October 1991, reprinted in: Trifunovska, supra note 55, at p. 351. 165. Cf. note 160, supra. 166. Declaration on Yugoslavia, supra note 164. 167. Resolution adopted by the Committee of Senior Officials of the CSCE on the Situation in Yugoslavia, Prague, 10 Oct. 1991. 168. Declaration on Yugoslavia, Informal Meeting of Ministers of Foreign Affairs, Haarzuilens, 6 Oct. 1991, reprinted in: Trifunovska, supra note 55, at pp. 351-352. See also Declaration of the European Community and its Member States on Dubrovnik, 27 October 1991 ("[t]he repeated attacks on Dubrovnik have given the lie to the assertion that JNA only acts to relieve besieged garrisons or to protect Serbian communities").
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Union, the members of the European Community took a more favourable stance towards the issue of recognition of Croatia and Slovenia, although there was considerable disagreement with respect to the timing of recognition. Germany in particular favoured immediate recognition but other members of the European Community remained hesitant. There was, however, majority support for the position that an uncoordinated process of recognition should be prevented. On 16 and 17 December, the European Community published two Declarations to reflect a common position of the member States on recognition: a Declaration on the Guidelines for the Recognition of New States in Eastern Europe and in the Soviet Union, ' and a Declaration on Yugoslavia.170 The first Declaration detailed a number of requirements which were to be satisfied before recognition would be granted. After confirming their attachment "in particular [to] the principle of self-determination", the European Community member States expressed their readiness to recognize "those new States which [...] have constituted themselves on a democratic basis". They continued by stating that recognition of these States was conditional on their demonstrating "respect for the rule of law, democracy and human rights", and providing evidence that they guaranteed "the rights of ethnic and national groups and minorities in accordance with the commitments subscribed to in the framework of the CSCE". In the second Declaration, the member States of the European Community agreed to recognize all Yugoslav Republics which declared before 23 December that they wished to be recognized as independent States, that they accepted the commitments in the Guidelines and that they also accepted the so-called Draft Convention or Carrington Convention prepared during the peace conference on Yugoslavia. 171 The date set for possible recognition was 15 January 1992. It was also decided that the requests for recognition would be submitted through the Arbitration Commission of the International Conference on Yugoslavia for approval before the implementation date. However, after the publication of the Guidelines, Germany made it clear that it had already decided to recognize Croatia and Slovenia, even before the Commission had delivered its opinions. At the same time it stated that it would delay the implementation of that decision until 15
169. Hereinafter EC Guidelines on Recognition. 170. Both documents are reprinted in: ILM Vol. 31, 1992, pp. 1485-1487. See also Chapter 4, Section 10, supra. 171. UN Doc. S/23169, Ann. VI, 25 Oct. 1991. The Draft Convention which was prepared in November 1991 contained provisions regarding, amongst others, human rights and the rights of national or ethnic groups, including territorial autonomy (which provisions were in particular included with respect to the status of the Serb minority in Croatia).
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January 1992.172 In its Advisory Opinion on the recognition of Croatia, the Arbitration Commission observed that Croatia did not satisfy all the conditions set down by the European Community for recognition because some provisions of the Draft Convention were not fully incorporated in Croatian legislation.173 Based on this Opinion, the Chairman of the Council of Ministers of the European Community, Van den Broek, suggested that Croatia could take a possible way out through a formal declaration in which it should be stated that these shortcomings would be resolved.174 Accordingly, on 13 January President Tudjman issued a formal written statement addressed to the President of the Arbitration Commission assuring it that Croatia would implement the relevant provisions contained in the Draft Convention.175 As a result, the European Community announced on 15 January that the Community and its member States had decided to proceed with the recognition of both Slovenia and Croatia.176 Croatia was subsequently recognized by 76 States177 before its admission to the United Nations on 22 May 1992.178 (b) Secession and/or dissolution of the SFRY? The first point which should be noted is that the break-up of Yugoslavia took place against the background of an applicable right of self-determination under international law. This was not only the view of academics170 and of the Arbitration Commission of the International Conference on Yugoslavia,180 but also of the international community. For instance, the Declaration on the Situation in Yugoslavia which was adopted by the Council of Ministers of the
172. Terret, supra note 32, at p. 82. In the meantime other, non-member States of the EC, already decided to grant recognition: Estonia (31 Dec. 1991), Iceland (19 Dec. 1991), Latvia (14 Dec. 1991) and Ukraine (11 Dec. 1991). See Croatian Ministry of Foreign Affairs, Povratak na vanjske poslove, 1997-1998. The recognition of Croatia by Lithuania on 30 July 1991 was, in the light of the Brioni Accord, beyond any doubt premature and an unlawful intervention. 173. Opinion 5, 11 Jan. 1992, ILM, Vol. 31, 1992, pp. 1503-1505. See also pp. 431-434, infra. 174. Mogelijhe Uitweg Voor Kroatië, NRC Handelsblad, 11 Jan. 1992. 175. The letter states: "[i]n view of some misunderstandings concerning the position of the Republic of Croatia towards the consistent implementation of the Treaty Provisions for the Convention of the [sic] Hague, allow me to inform you as follows: The Republic of Croatia reiterates its readiness to fully accept all the provisions of Article II, paragraph 2 c, of the Hague document". On file with author. 176. Statement by the Presidency on the Recognition of Yugoslav Republics, reprinted in: Trifunovska, supra note 55, at p. 501. 177. Department for Foreign Affairs of the Republic of Croatia, supra note 172. 178. See UN Doc. A/Res/46/238, 22 May 1992. 179. See, e.g., Terret, supra note 32, at pp. 268-273; Weller, supra note 32, at p. 606; McCorquodale, supra note 59, at p. 861. 180. Opinion 2, ILM, Vol. 31, 1992, pp. 1497-1499.
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European Community on 5 July 1991 and which was referred to above,181 states that "it is only for the peoples of Yugoslavia themselves to decide on the country's future". 182 .The use of the term "the peoples of Yugoslavia" was clearly meant to refer to the right of self-determination as is made explicit further on in the same Declaration when the European Community calls for negotiations between these peoples which "should be based on [...] respect for [...] the right of peoples to self-determination". Later, on 6 October 1991, the European Community and its member States again stressed the applicability of the right of self-determination when it was stated that [t]he right of self-determination of all peoples of Yugoslavia cannot be exercised in isolation from the interests and rights of ethnic minorities within the individual republics.183
Moreover, the importance of self-determination as the legal basis for the independence of, amongst others, Croatia, is implicit in the first paragraph of the EC Guidelines on Recognition, which states that recognition is based on the "attachment" of the members of the European Community "to the principles of the Helsinki Final Act and the Charter of Paris, in particular the principle of self-determination".> 184 Furthermore, when Germany pressed for early recognition of Slovenia and Croatia, the Secretary-General of the United Nations, Javier Perez de Cuellar, addressed a letter to the chairman of the Council of Ministers of the European Community in which he expressed his concern with respect to an early, selective recognition of the Yugoslav republics, which could, according to the SecretaryGeneral, widen the conflict.185 In response, the German Foreign Minister, Hans Dietrich Genscher, pointed out Germany's view that a refusal of recognition would lead to further escalation of the use of force by the JNA.186 The Secretary-General responded by stating the following: [l]et me recall that at no point did my letter state that recognition of the
181. Supra note 55. 182. The same terminology was used by the Security Council in its Resolution 724 when it urged "all States and parties to refrain from any action which contribute to [...] impeding or delaying a peaceful and negotiated outcome to the conflict in Yugoslavia, which would permit all the peoples of Yugoslavia to decide upon and to construct their future in peace". UN Doc. S/Res/724, 15 Dec. 1991 (emphasis added). 183. Declaration on Yugoslavia, supra note 168. 184. See also Terret, supra note 32, at pp. 80-81. The EC Guidelines on Recognition were essentially followed by the United States. See US Dept. of State, Dispatch, Vol. 13, No. 3, 13 Apr. 1992, p. 287. 185. UN Doc. S/23280, 10 Dec. 1991, Ann. IV. 186. Text of Exchange Between U.N. Chief and Genscher, Reuter, 14 Dec. 1991.
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In addition to these statements and opinions, Croatia, Slovenia and Macedonia (FYROM) deemed the right of self-determination to be applicable to their cases 1l.188 as well. Although there can be no doubt that the Yugoslav crisis unfolded against the background of the right of self-determination, disagreement and confusion exists with respect to the question of whether the Yugoslav crisis has to be treated under the heading of dissolution or under the heading of unilateral secession. Traditionally, a distinction is made between dissolution or extinction of a State on the one hand and unilateral secession on the other. This distinction is based on state practice in such cases as the secession of Bangladesh from Pakistan, the secession of Singapore from Malaysia arid the peaceful extinction of Czechoslovakia. Although there is no logical need, this distinction has been so strict in traditional doctrine that it seems that the two situations are mutually exclusive. The first situation, dissolution, is said to exist when no part of the State can be regarded as the continuation of the legal personality of the 'old' State. Thus, all States which have come into being on the territory of the 'old' State are regarded as equal successors of that 'old' State which has ceased to exist (as in the case of Czechoslovakia). Whether or not this particular situation is present is a matter of fact. Relevant, although not by definition determinative, objective factors in determining whether a part of a State must be regarded as its legal continuation or whether the old State has dissolved, include the total amount of square kilometres of the remaining territory and the number of remaining residents.189 Where there are substantial changes in the entity 187. Id. When Germany eventually did decide to grant recognition, it was stated in the relevant decision of the Bundeskbinett that: "[m]it diesen Beschlüssen wird dem Umstand Rechnung getragen, daß eine Reihe jugoslawischer Republiken sich in freier Selbstbestimmung auf demokratischer und rechtstaatlicher Grundlage für die Unäbhangigkeit ausgesprochen haben". See Bulletin des Presse- und Infbrmationsamtes der Bundesregierung, No. 145, 21 Dec. 1991, p. 1183. 188. The Croatian Constitution of 1990 in its Preamble declared its position to be "[proceeding [...] from the inalienability and indivisibility, non-transferability and non-consumability of the right of the Croatian nation to self-determination [...]"(reprinted in: Trifunovska, supra note 55, p. 25I ff.). Likewise the Slovenian proclamation of independence is stated to be based on "the right of the Slovene nation to self-determination"(reprinted in: id., at p. 286), and in the Declaration for the Sovereignty of the Socialist Republic of Macedonia it is stated that the establishment of the Macedonian State was based on "the right of the Macedonian people for self-determination [...]". Quoted in: Terret, supra note 32, at p. 269. 189. In this respect it is worth to note that the Sixth Committee of the General Assembly observed in 1947 that a State does not cease to be a member of the UN from the mere fact that its constitution or frontiers have been modified. See UN GAOR, 6th Comm., 2nd Sess., 43rd mtg.,
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concerned, international recognition of an entity's claim to the continuation of the legal personality of the 'old' State may be needed.190 In the second situation, that of unilateral secession, it is said that the separating entity becomes a new State whereas the remaining part of the State continues the legal personality of the existing State (as in the case of Pakistan and Bangladesh). In other words, such a situation would merely involve the diminution of a State's territory.191 However, too rigid an approach towards these kinds of situations must be avoided, which means that, as has been pointed out by the General Assembly's Sixth (Legal) Committee "[e]ach case must [...] be judged on its merits".192 With respect to the break-up of the SFRY, Lord Carrington, the President of the Conference on Yugoslavia, addressed a letter to the Arbitration Commission on 20 November 1991 (that is, well after Croatia and Slovenia had reaffirmed their proclamations of independence) in which he requested the opinion of the Commission on the question of whether those Yugoslav republics which have declared or would declare themselves independent should be considered as being established as States as a result of unilateral secession from the SFRY or as a result of the dissolution of the SFRY.193 It is thus clear that the request, which was based on a difference of opinion on the issue between Serbia and Montenegro and the other former republics, is phrased in a way which reflects the traditional distinction between dissolution and secession. However, both the advisory opinions of the Arbitration Commission as well as the proclamations of independence by Croatia and Slovenia point to the incorrectness of a strict distinction between dissolution and secession.194 On 29 7 Oct. 1947, p. 38. 190. Crawford, CREATION OF STATES, p. 406. 191. The UN had been confronted with these questions already in 1947 when it made the discussed distinction in the light of the case of British India - an original member of the UN - which became independent in 1947 and which was simultaneously partitioned into two States, India and Pakistan. With respect to this situation, the UN Secretariat pointed out that "[f]rom the viewpoint of international law, the situation is one in which a part of an existing State breaks off and becomes a new State. On this analysis, there is no change in the international status of India; it continues as a State with all the treaty rights and obligations, and consequently, with all the rights and obligations of membership in the United Nations. The territory which breaks off, Pakistan, will be a new State; it will not have the treaty rights and obligations of the old State, and it will not, of course, have membership in the United Nations". See UN Press Release PM/473, 12 Aug. 1947. See also UN Doc. A/CN.4/149 and Add.l, 3 Dec. 1962. 192. UN GAOR, 6th Comm., supra note 189, at p. 39. 193. Conference on Yugoslavia Arbitration Commission, Opinion 1, ILM, Vol. 31, pp. 1494-1497, at p. 1494. 194. This was already pointed out by Shaw in 1986 when he stated: "[w]hether the federation dissolves into two or more states also brings into focus the doctrine of self-determination in the form of secession. Such a dissolution may be the result of an amicable and constitutional agreement or may occur pursuant to a forceful exercise of secession." M.N. Shaw, INTERNATIONAL LAW, 1986, p. 139.
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November 1991, the Commission, after analysing the factual circumstances of the Yugoslav case, came to the conclusion that "the Socialist Federal Republic of Yugoslavia is in the process of dissolution".195 Later, in its opinion of 4 July 1992, the Commission observed that since its Opinion of 29 November, the federal authority could no longer be effectively exercised because the majority of the Yugoslav republics had constituted themselves as independent States and had been recognized as such by the international community. In addition, the Commission continued, Serbia and Montenegro had established a new State (the Federal Republic of Yugoslavia) and had adopted a new constitution on 27 April 1992. The Commission moreover recalled the Security Council's statement in its Resolution 757 that "the claim by the Federal Republic of Yugoslavia [...] to continue automatically the membership of the former Socialist Federal Republic of Yugoslavia in the United Nations has not been generally accepted".196 On the basis of these facts the Commission concluded that "the process of dissolution of the SFRY referred to in Opinion 1 of 29 November 1991 is now complete and that the SFRY no longer exists".197 These opinions leave no doubt that, according to the Commission, the SFRY was still in existence on the date of the (reaffirmed) proclamations of independence by Croatia and Slovenia. Indeed, these acts of Croatia and Slovenia set in motion the process of dismemberment of the SFRY, which eventually culminated in the latter's extinction. Accordingly, the proclamations of independence by the two republics must be seen as acts of unilateral secession which, in combination with other factors, led to the dissolution of the SFRY. This view has support in doctrine,198 and is furthermore supported by the positions
195. Opinion I, supra note 193, at p. 1497, para. 3 (emphasis added). 196. UN Doc. S/Res/757, 30 May 1992. 197. Conference on Yugoslavia Arbitration Commission, Opinion 8, 4 July 1992, ILM, Vol. 31, pp. 1521-1523, at p. 1523, para. 4. This was also the standpoint of the Security Council which, in Resolution 777, rejected Serbia and Montenegro's claim that they were the legal continuation of the SFRY and stated that "the state formerly known as the Socialist Federal Republic of Yugoslavia has ceased to exist". See UN Doc. S/Res/777, 19 Sept. 1992, Preamble. Although this conclusion was not taken over by the General Assembly (see UN Doc. A/Res/47/1, 22 Sept. 1992) - a step which led to legal and political confusion about the question of continuity - the matter was eventually solved by the FRY which, after the change of the political regime in the country at the end of 2000, applied for membership in the UN (UN Doc. A/55/528-S/2000/1043, 27 Oct. 2000) which necessarily meant the revocation of the claim to continuity of legal personality. 198. See, e.g., Weller, supra note 32, at p. 606; Franck, supra note 57, at pp. 11-12, paras. 2.14-2.15; J. Dugard, Secession: Is the Case of Yugoslavta a Precedent for Africa?, African JICL, Vol. 5, 1992, p. 163, at pp. 166-174; Murswiek, supra note 21, at pp. 30-32; I. Brownlie, International Law at the Fiftieth Anniversary of the United Nations, HR, Vol. 255, 1995, p. 9, at p. 68; A. Whelan, Wilsonian Self-Determination and the Versailles Settlement, ICLQ, Vol. 43, 1994, p. 99, at p. 114.
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of the two republics, as reflected in their proclamations of independence199 and through their acceptance of the Brioni Accord.200 It may therefore be concluded that the right of self-determination was applicable to the crisis in the former Yugoslavia and that the formation of the Croatian State was a result of unilateral secession. (c) Entitlement to unilateral secession? The question which must now be addressed, is whether or not the circumstances at the time of the proclamation of independence of 25 June 1991 would, according to the doctrine of a qualified right of secession, give rise to a right of secession under international law for the Croatian people.201 The only correct answer must in the negative. It is true that there is little to suggest that the Croats do not constitute a people for the purpose of self-determination. In addition to the fact that the Croats meet the objective and subjective criteria for peoplehood, it was seen that the international community deemed the right of self-determination applicable to the "peoples" of Yugoslavia. This was also the position of the Yugoslav government. 202 It is also true that the Croatian people had sought to find a solution for the Yugoslav crisis which excluded secession and which was based on a transformation of the Yugoslav State into a confederation. Accordingly, the Croats had opted for a means of realizing self-determination short of secession, which is one of the conditions for the existence of a right of unilateral secession. And it cannot be denied that the 199. As to Croatia, see the Constitutional Decision on the Sovereignty and Independence of the Republic of Croatia, supra note 147, Art. II ("[b]y this act the Republic of Croatia initiates proceedings for disassociation from the other republics and from the SFRY" (emphasis added)). In this respect Article 135 of the Croatian Constitution as promulgated on 22 December 1990 stated: "[t]he provisions of this Constitution concerning association shall also relate to conditions and procedure for disassociation (secession) of the Republic of Croatia [...]". See note 188, supra. See also the Declaration on the Establishment of the Sovereign and Independent Republic of Croatia, supra note 147 ("[b]eing established as an independent and sovereign state the Republic of Croatia [...] is now changing its status and its state-law relations with the Socialist Republic of "Yugoslavia" (emphasis added)). As to Slovenia, see the Republic of Slovenia Assembly Declaration of Independence, reprinted in: Trifunovska, supra note 55, at p. 286 ('the people of the Republic of Slovenia have decided to establish an independent state, the Republic of Slovenia, which will no longer be part of the Socialist Federal Republic of Yugoslavia" (emphasis added)). 200. As was discussed above, the Brioni Accord was based on the suspension of the proclamations of independence of Croatia and Slovenia for three months. Accordingly, the Accord was premised on the idea that the legal personality of the SFRY had remained intact and would remain intact during the moratorium period. 201. In the Declaration on the Establishment of the Sovereign and Independent Republic of Croatia reference is also made to the Constitution of the SFRY which would have granted the right of self-determination, including the right to secession, to the member Republics. However, both the absence of a procedure to implement this right as well as a textual and contextual interpretation of the SFRY Constitution do not make this a legally convincing basis for a unilateral right of secession. See also, e.g., Bagwell, supra note 26. 202. Terret, supra note 32, at pp. 269-270.
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election of the Croatian candidate for the Presidency was blocked. However, as to this latter situation it would have been possible to propose another Croatian candidate for the function. In any case, this situation, serious as it may have been from a constitutional point of view, cannot, in itself, justify an act of such impact as unilateral secession. Also when this situation is considered against the historical background of the political and economic relations between the different peoples in Yugoslavia, it is difficult to see how the circumstances preceding 25 June 1991 could be regarded as being of such gravity that secession would be necessary, proportional and the only remaining remedy for enforcing and effectuating the right of self-determination of the Croatian people. This was also the opinion of the international community under the supervision of which the Brioni Accord was concluded, in which Croatia and Slovenia committed themselves to search for solutions short of secession. This brings us to the next point. As was observed, the actual date of the proclamation of independence and the formation of the Croatian State is not 25 June but 8 October 1991. On the latter date the situation was entirely different. The events in the months preceding 8 October include an outright violation of the right of internal selfdetermination of the Croatian people through the coup d'etat, and widespread violations of fundamental human rights as a result of the indiscriminate and disproportionate use of force and the policy of 'ethnic cleansing'. Moreover, and apart from the coup d'etat, it is, in the light of these persistent human rights violations, difficult to state that the Croats were at the same time 'freely determining their political status'. Therefore, these widespread and serious violations as such indirectly undermined, and thus violated, the right of selfdetermination of the Croatian people. When, in addition to these factors, it is recalled that the Croats had indeed attempted to find a solution for the crisis which was not based on secession - an effort which was reinforced through the acceptance of the Brioni Accord - and that no compromise solution was feasible because of the rigid stance of Serbia and Montenegro, one has to conclude that the threshold of the doctrine of a qualified right to secession had been met and that the Croats did possess a right of unilateral secession under international law at the critical date, that is, 8 October 1991. § 3.3.3.
Acknowledgement of the existence of a qualified right of unilateral secession under international law
It is submitted that the international community's recognition of Bangladesh and Croatia is in effect a mere confirmation of the prevailing doctrine of a qualified right of secession because, as was shown above, in both cases secession
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was used as an ultimum remedium. Moreover, and in addition to the specific circumstances which were present in the said cases and which arguably gave rise to a right of secession, the existence of such a right in these cases is supported by another argument which concerns the relationship between statehood, self-determination and the principle of effectiveness. Although this relationship is discussed in more detail in the next Chapter,203 the following point is relevant for the present discussion. It is a fact that both Bangladesh and Croatia were considered to be States and their recognition lawful despite the fact that no effective government existed either at the date of the proclamation of independence or at the time when most States granted recognition. As to the case of Bangladesh, this seems obvious at least until the Indian use of force in December 1971. Moreover, after India's involvement it was not until the end of March 1972 that Indian troops left the country. 204 The Government of Bangladesh had, however, explicitly requested that these troops remain in the country for the purpose of helping the government in restoring and securing law and order. This was implicitly approved by the Security Council,205 because it feared that reprisals would be taken against West-Pakistanis in East-Pakistan while the Government of Bangladesh was still unable to secure a safe environment. According to traditional international law, Bangladesh would not have been a State, and recognition would have been premature as well as an unlawful intervention, until all Indian troops had left the country by the end of March 1972 and until the control of the territory was in the hands of the Bangladeshi Government itself. 206 Despite this, Bangladesh was recognized by more than fifty States before the end of March 1972 against which no State (except for the Pakistani Government) had raised objections. If Bangladesh was thus considered to be a State and its recognition lawful, traditional international law fails to provide for an explanation of this situation. The point is illustrated even more clearly by the case of Croatia because the Croatian government was still engaged in an armed struggle over one-third of its territory, not only when it proclaimed independence, but also when it was widely recognized and even when it was admitted to United Nations membership. Under those circumstances, the statehood of Croatia could hardly have been considered a fait accompli.207 However, no State, save for the Yugoslav
203. 204. 205. 206.
See Chapter 8, Section 2.2., infra. Salmon, supra note 106, at pp. 477, 490. See UN Doc. S/Res/307, supra note 109. See Chapter 3, Section 3.3., supra. In this respect one should recall the opinion of the International Committee of Jurists with respect to the statehood of Finland in 1917-1918. See p. 63, supra. To the same effect, see Salmon, supra note 106, at p. 490.
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'rump'-government, maintained that the recognition of Croatia formed a violation of the principle of non-intervention and would thus be unlawful. Also the Security Council did not condemn any of the acts of recognition. From a legal point of view, the actions and attitude of the international community can only be explained on the basis of the existence and acknowledgement of an applicable right of secession. In this respect the following should be recalled. In Chapter 5 it was shown that against the background of decolonization, the applicability of the right of external self-determination results in an exclusive right or title to govern the relevant territory and that this right may compensate for the lack of the exercise of effective governmental power (the 'compensatory force principle'). The case of Bangladesh and in particular the case of Croatia clearly show that this principle is equally applicable beyond the context of decolonization. Because recognition of statehood is essentially declaratory in nature, it must be concluded that both Bangladesh and Croatia were already deemed to be States 208 under international law when they were recognized as such. Their existence as States under international law and their recognition by the international community despite an ineffective government can therefore not be based on anything but the existence and acknowledgement of a right of external self-determination and a resulting exclusive title to exercise authority over the relevant territory and its inhabitants. In effect and as a consequence of the applicability and exercise of a right of unilateral secession, the parent State has lost its title with respect to the relevant territory and thus can no longer legitimately claim respect for the principle of non-intervention in relation to third States' actions regarding the seceding entity. ' A fortiori, the acts of recognition of Bangladesh and Croatia as States under international law were not, and could not be considered to be, premature 207. Yet, this point has been stressed by many. See, e.g., Crawford, Response to Expert Reports of the Amicus Curiae, supra note 64, at para. 20. 208. It will be recalled that, as has been seen in Chapter 2, this equally applies for the constitutive theory. In the said Chapter it was pointed out that the constitutive theory maintains that recognition confers legal personality to a State, not that recognition creates a State. For, the State must necessarily exist prior to recognition. See Chapter 2, Section 3.1., at p. 30, supra. 209. See also Weller, supra note 32, at p. 609; Murswiek, supra note 21, at pp. 30-31; Oeter, supra note 59, at p. 769. 210. The precise moment of the parent State's loss of title in the case of unilateral secession is clear in theory, but may be difficult to determine in practice. The same difficulty applies in other situations as well, such as the precise moment of state succession in the case of the dissolution of a State in the absence of an agreement between the constituent entities. Apart from the fact that the event is normally a result of a process or development over a period of time, the question of the moment of the loss of title is ultimately a matter of fact and any conclusion therefore requires the consideration of all the relevant circumstances of the case. 211. Emerson, supra note 59, at p. 809. See also Weller, supra note 32, at p. 604; Oeter, supra note 59, at p. 769.
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and in violation of the principle of non-intervention, which clarifies the absence of any condemnation on the side of the international community with respect to the act of recognition of statehood. On the other hand, the cases of Bangladesh and Croatia convincingly demonstrate the correctness of the position taken above, namely that there is no such thing as an absolute right of secession just as there is no such thing as an absolute right to statehood. A right of external self-determination which may be exercised through unilateral secession is granted by international law to a minority-people within an existing State only in certain exceptional circumstances as a measure of last resort for realizing that people's right of selfdetermination. It must be noted, however, that, legally speaking, and in particular from the point of view of the principle of self-determination, the proposition of an applicable right of secession in the context of Bangladesh and Croatia is not as revolutionary as it seems. For, it should be clear that the prevailing circumstances in these cases parallel two other circumstances which are generally accepted as giving rise to a right of external self-determination, namely traditional colonial situations and peoples subject to alien subjugation, domination or exploitation outside of a traditional colonial context. A common feature in the cases discussed above and in cases which fall under one of the said categories is the fact that the ability of a people to exercise its right of selfdetermination internally is somehow totally frustrated.212 There is no cogent reason to presume that the discriminatory treatment of a people in a contiguous area is any more justified than the subjugation of a people living in a different part of the globe. Therefore, the position that once international law grants a right of self-determination to a people, this people possesses a right to secede unilaterally if it finds itself in a situation in which its right of (internal) selfdetermination is seriously and persistently violated, either directly, or indirectly through widespread violations of the fundamental human rights of the members of the people concerned, appears to be a consistent one. Indeed, the analyses in both Section 2 of this Chapter and in this Section suggest that there is a strong presumption in favour of the existence of a qualified or remedial right of secession for minority-peoples within existing States. As has been seen there is a considerable weight of opinion in favour of the existence of such a qualified right and this position is not contradicted by state practice; to the contrary, this position was confirmed in the cases of Bangladesh and Croatia. In sum, the recognition practice of States with respect to the statehood of both Bangladesh and Croatia has confirmed the doctrine of a qualified right 212. Reference re Secession of Quebec, supra note 76, at pp. 1372-1373. See also Brownlie, supra note 198, at p. 59.
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of secession. It may therefore be concluded that outside the colonial context a right of unilateral secession exists for a minority-people within an existing State in certain specific circumstances which at least include similar ones as those which were present in the cases of Bangladesh and Croatia. In that respect, as will be seen below, the same practice has not only confirmed the doctrine of a qualified right of secession, but also refined or concretized some of the conditions for a right of unilateral secession which have been suggested by that doctrine. The next Section will therefore examine the criteria for the existence of a right of unilateral secession under international law in the light of the practice discussed above, and more generally against the background of the law of self-determination as discussed in the previous chapters.
§ 4.
CUMULATIVE CRITERIA FOR A RIGHT OF UNILATERAL SECESSION
§ 4.1.
Minority-people
Because secession is an instrument or mechanism for exercising external selfdetermination, the subject of the right to secession must be a 'people'. And since secession involves the separation of part of the territory of a State, a 'people' must denote a people constituting a numerical minority in relation to the rest of the population of the State but a numerical majority within a certain coherent territory. Both the case of Bangladesh and the case of Croatia affirm this condition. At this point, the following must be noted. Although, as was shown in Chapter 6, respect for the internal dimension of self-determination is a conditio sine qua non for a lawful exercise of external self-determination (which denotes the requirement of exercising external self-determination through a representative government or by means of a plebiscite or referendum), this requirement is not a condition for the existence of a right of unilateral secession. Once it has been established that the right of unilateral secession is applicable, the next question is whether its exercise is capable of causing the intended legal effect. The issue of respect for the internal dimension of self-determination by the entity which exercises external self-determination is concerned with the latter question, not with the former..213 It is true, however, that both the requirement of 'peoplehood' and the requirement of respect for the internal dimension of self-determination lead to the same result if they are not met, namely a legal nullity. This seems 213. The two elements are confused in theory, however. See, e.g., Schachter, supra note 80, at p. 684.
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obvious with respect to 'peoplehood', because a group which is not the holder of a right of secession, such as a national or ethnic minority,214 cannot make use of it. As to the effect of the non-fulfilment of the internal-self-determination requirement, as well as the absence of 'peoplehood', reference can be made to the case of Southern Rhodesia. This case has been discussed elsewhere. § 4.2.
Territorial bond
Because a right of unilateral secession was defined as a right of a minoritypeople to separate a part of the territory of the parent State on the basis of that people's right of self-determination, the existence of a right to secession necessarily requires the existence of a bond between the people in question and an identifiable land base. Also here one should not confuse the legitimacy of the geographical scope of the claim to secession with the right's existence. As has been observed in Chapter 6, in the Frontier Dispute case the Chamber of the International Court of Justice observed that the principle of uti possidetis must be taken into account in the interpretation of the right of external selfdetermination.216 This means that a people constituting a majority within a certain administrative unit and entitled to external self-determination has the right to exercise its right of external self-determination with regard to that administrative unit. Consequently, while the right of external self-determination is vested in the people, the territorial scope or object of the right is geographically limited. Therefore, although a unilateral attempt to extend the geographical scope of the right of external self-determination beyond the existing boundaries of the administrative unit is illegitimate, this is without prejudice to the existence and applicability of a right of external self-determination as such.217 § 4.3.
A direct or indirect violation of the right of internal self-determination
The cases of Bangladesh and Croatia affirm the position that if the right of internal self-determination is persistently and seriously violated and if there is no (longer a) realistic prospect of finding a solution for the situation within 214. See Chapter 6, Section 3.3., supra. 215. See Chapter 4, Section 5.2.2.(a), supra. 216. See Chapter 6, Section 6, at pp. 303-304; and see Case Concerning the Frontier Dispute (Burkina Faso/Mali), Judgment, ICJ Rep. 1986, p. 554, at p. 567. 217. For instance, the territorial claim of Armenia with respect to Nagorno-Karabakh, an Armenian enclave in Azerbaijan, was without prejudice to the existence of a right of external selfdetermination of the Armenian people against the background of the dissolution of the USSR.
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the borders of the State, the internal aspect of self-determination converts into the external aspect of that right which may be exercised through unilateral secession. It has been discussed elsewhere that internal self-determination can Tos be violated in several ways.;.218 Together with the analysis of the cases of Bangladesh and Croatia it is now possible to identify the following acts which - in combination or otherwise - qualify as, or lead to, a violation of internal self-determination: (a) governmental conduct constituting a formal denial of a people's right to internal self-determination (Bangladesh after the suspension of the first session of the National Assembly and Croatia after the coup d'etat), or (b) a policy of indirect discrimination denoting a situation in which a people is formally granted the right of internal self-determination, but is denied (the exercise of) this right in practice (that is, the situation which is acknowledged in Paragraph 7 of Principle V of the Friendly Relations Declaration through the emphasis on the principle of non-discrimination),219 or (c) a widespread and serious violation of fundamental human rights, most notably the right to life (Bangladesh, Croatia) which would certainly include the practice of genocide (arguably Bangladesh) and the practice of 'ethnic cleansing' (Croatia). Ad (a) The general legal principles of necessity, proportionality and subsidiarity dictate that the formal denial of internal self-determination must have a more or less sustained character. It will be noted that, at a certain point, in the cases of both Bangladesh and Croatia the possibility of exercising the right of internal self-determination by the peoples concerned was suspended without any indication that this situation would be reversed in the short term. Ad (b) With respect to this situation, the question must be asked what degree of discrimination - in combination with the fulfilment of the other conditions - gives rise to a right of secession? On the basis of the raison d'être and objective of the right of self-determination, the right of territorial integrity of the State and the general principles of necessity and proportionality, it is clear that it is not simply any quantity and quality of discrimination that gives
218. See pp. 242, 279-281, supra. 219. As in the case of East-Pakistan prior to the national elections and in the case of the Kurdish people in Iraq. The Iraqi Kurds formally enjoy territorial political autonomy, but this is denied in practice. See Iraq Constitution of 1970, Art. 5(8)(c) and Act No. 33, 11 March 1974 (as amended through 1983), reprinted in: H. Hannum (Ed.), DOCUMENTS ON AUTONOMY AND
MINORITY RIGHTS, 1993, at pp. 317-324.
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rise to a right of secession. The discrimination must be of such an extent that it threatens the maintenance of the collective identity of the people concerned. For instance, a policy of forceful assimilation of a people (a policy which has even been earmarked as genocide ') meets the required degree of discrimination without a doubt. But it seems equally clear that less dramatic situations may also seriously threaten the maintenance of the collective identity of a people. Here one may think of a majority policy of consistently out-voting the relevant people in those decision-making procedures of the State which directly affect the interests of that people ('tyranny of the majority'), or of a situation in which the relevant people is under-represented massively in the political decision-making and other organs of the State, as was the case with the Bengali people. Naturally, where the absence of representation or participation is a result of the free choice of the people concerned (for instance, as a result of the voluntary withdrawal of representatives from state organs in cases in which there is no direct or indirect discrimination or obstruction of the exercise of internal self-determination), this feature, as such, does not lead to an unrepresentative or discriminatory government. Ad (c) It seems undeniable that, even in a case in which provision is made for constitutional or other rights ensuring representative and non-discriminatory participation by a people in national, regional, and/or local decision-making processes, there can be no question of free determination of the political status and future by that people if the fundamental rights of its members are violated seriously and on a widespread scale. This is, of course, true in particular for the right to life. Clearly, a massive and indiscriminate use of (military) force against a people is a serious threat to this people's survival as well as to the protection and the evolution of its identity. Because these are fundamental objects of the guarantee of the right of self-determination, conduct such as this is a flagrant violation of that right. The respect for the right of internal selfdetermination and the respect for fundamental human rights are thus inextricably bound up with each other.221 In this regard the situation mentioned under point (c) is of direct relevance for the right of the State to maintain its territorial integrity, even by using armed force if necessary, when it is confronted with an illegal attempt to secede. This is an indisputable right of States. Yet, it was already seen that in exercising this right, a State must respect other norms of international law, including the
220. Australian Human Rights and Equal Opportunity Commission, Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families ('Bringing Them Home Report'), 1997, Part 4, Section 13. 221. See also Chapter 6, Section 2.2, at pp. 240-242, supra.
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right of self-determination, human rights and the rules of humanitarian law.222 A State may thus forfeit its right to protect and maintain its territorial integrity concerning a part of its territory "if the governmental authorities were to launch a sustained and brutal armed attack upon those claiming secession, in a manner that far exceeds reasonable proportionality".223 However, it is implicit in the law of self-determination and the doctrine of a qualified right of secession that a people claiming secession cannot provide itself with the right to secede. This means that when a people brings itself to such a position deliberately (for instance, through the deployment of military equipment and troops in civilian areas), in which the governmental authorities - if the suppression of the secessionist effort is to be effective at all - cannot avoid civilian casualties, in other words when the majority of the casualties are evidently provoked by the people itself (or its legitimate representatives), this will not lead to a right of secession even if the other conditions have been met. It speaks for itself that disproportionate use of armed force, massacres, rape, 'ethnic cleansing', looting and the like are violations of international law which do not fall under the heading of self-provoked circumstances. § 4.4.
Exhaustion of all effective judicial remedies and realistic political arrangements for the purpose of realizing the right of internal self-determination
The fact that the right of self-determination is limited by the right of territorial integrity of States and that the right of unilateral secession is considered to be an ultimum remedium suggests that before recourse may be had to secession for the purpose of ending oppression and effectuating the right of selfdetermination outside the State, less drastic alternatives which may lead to the realization of the same objective must be first pursued by a minority-people. Put differently, the legitimacy of a claim to secession can be given credence only when it is demonstrated that all other possible legal guarantees and political arrangements that may be capable of ensuring the aggrieved group the right of self-determination short of outright independence have been exhausted or rejected by the dominant majority.224 This requirement departs from the assumption that there is still a realistic possibility of peaceful coexistence between the majority and the minority-people if appropriate guarantees for the enjoyment of the right of internal self-determination are provided for. In cases
222. See pp. 295-296, supra. 223. Shaw, supra note 57. 224. See also Kamanu, supra note 59, at p. 361.
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where such peaceful coexistence has become a pure fiction, other considerations apply which will be discussed below.225 The requirement of exhaustion of effective judicial remedies and realistic political arrangements thus demands that both local and international peaceful solutions must be exhausted by the people concerned, and it thus essentially refers to the general principle of law of subsidiarity. At this place it should be recalled, however, that under contemporary international law there are no judicial remedies for a people to enforce its right of self-determination on the international plane, and that at the national level, such judicial remedies are exceptionally rare. ' Therefore, what remains are non-judicial methods, most particularly negotiations, through which the right of internal self-determination may be realized. The requirement of the exhaustion of judicial and political solutions is strongly emphasized by the doctrine of a qualified right to secession227 and is also borne out by practice. In the case of the secession of Bangladesh, the Bengali people first sought to realize their right of self-determination within the confines of the Pakistani State. The same holds true for the Croatian people. In the latter case, the international community, in particular through the European Community and its member States, made it explicit that the proclamations of independence of Slovenia and Croatia were premature and that a solution to their grievances should be found within Yugoslavia. The appropriate method was negotiations, as is stipulated in the Brioni Accord. It will be noted that the two republics themselves were aware of the requirement of exhaustion of remedies as is clear from their declarations of independence which explicitly refer to it.228 It must thus be concluded that according to the law of self-determination, a minority-people is under an obligation to first seek a settlement for the conflict through peaceful means, before it can validly claim a right to secede. If this requirement is not met and secession is nonetheless pursued, the secession is an abuse of right and a violation of the law of selfdetermination.
225. See Section 4.4.1. of this Chapter, infra. 226. See, e.g., Article 39(7) of the 1994 Ethiopian Constitution. 227. See, e.g., Schachter, supra note 80, at p. 684; Doehring, supra note 59, at p. 66; Katanga case, supra note 73. 228. Republic of Slovenia Assembly Declaration of Independence, supra note 199, Section I; Constitutional Decision on the Sovereignty and Independence of the Republic of Croatia, supra note 147 , Preamble.
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§ 4.4.1.
The catalytic agent: widespread and serious violations of individual human rights
It has been argued above that in cases of widespread and serious violations of fundamental human rights, the requirement of violation of the right of internal self-determination is met. But it is also tenable that under these conditions the requirement of exhaustion of all effective and realistic peaceful remedies must be deemed to be fulfilled as well. For, the atrocities may have led to such hatred and mistrust that all realistic prospects for the exercise of the right of internal self-determination becomes imaginary. The State's behaviour may thus have caused such an unbridgeable gap for finding realistic and effective alternatives to secession that any further demand for negotiations is unreasonable and can no longer be required. In effect, in such a situation the only realistic option remaining for the protection of the freedom and the collective identity (and thus the existence) of the people concerned and the fundamental human rights of its members is secession. In other words, in such a situation the conclusion may be that the people in question can only survive as a group independently of the majority of the State in which it currently resides. The accuracy of this approach is confirmed in the cases of Bangladesh and Croatia, where the international community did not require the exhaustion of peaceful remedies after the widespread violations of fundamental human rights. In that sense, the existence of widespread and serious violations of fundamental human rights takes the character of a catalytic agent: it leads to both the fulfilment of the condition of the violation of the right of internal self-determination as well as that of the exhaustion of judicial remedies and political arrangements.
§5.
UNSUCCESSFUL UNILATERAL SECESSIONS: THE CASES OF THE CHECHEN REPUBLIC OF ICHKERIA, THE REPUBLIC OF ABKHAZIA AND THE REPUBLIC OF SERBIAN KRAJINA
In this Section three of the principal cases of attempts at unilateral secession will be examined. The first two cases concern the attempts at secession by Chechnya and Abkhazia, two of the many secession attempts in the context of the demise of the Soviet Union. The third case concerns the attempt at unilateral secession by the Republic of Serbian Krajina from Croatia. In all these cases no recognition of the claim to a right of secession has been forthcoming. The central question in the analysis of these cases will be to what extent the international community's position of rejection and non-recognition
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of the claims to secession can be explained on the basis of the doctrine of a qualified right to secession. § 5.1.
The Chechen Republic of Ichkeria
The Chechens are predominantly Sunni Muslim and have lived in the same area of the North Caucasus for at least a thousand years. According to the 1989 Soviet census, the population of the Chechen-Ingush Autonomous Republic numbered 1,270,000. The area now considered part of the Republic of Chechnya had a little more than one million inhabitants of which 72 per cent Chechens, 27 per cent Russians (including Cossacks) and 2,5 per cent Ingush. After the deportations of the Chechens and Ingush in 1944 by Stalin and subsequent rehabilitation by Khrushchev in 1957, until the 1990s there were no serious conflicts in Russian-Chechen relations. However, since 1990, there has been an active pro-independence movement within Chechnya, motivated partly by a desire to secure more control over Chechnya's rich oil industry, but also highly nationalist. The eventual secession by Chechnya from the Soviet Union in 1991 took place against the background of the latter's dissolution. The Chechen leadership took advantage of the chaos and power vacuum on the eve of the break-up of the Soviet Union to make a move toward sovereignty.229 Dzhokar Dudaev led a coup d'etat against the communist government in Grozny in August 1991. Presidential elections were held in October, which resulted in Dudaev being elected President of the republic. On 1 November 1991, Dudaev proclaimed the independence of the Republic of Chechnya. In response, the Russian government imposed economic sanctions while simultaneously making efforts to negotiate a settlement. However, any progress in the negotiations was obstructed by Dudaev who insisted on full independence. For instance, in March 1992, Chechnya refused to sign the Federation Treaty. The treaty was an attempt by the Russian government to forestall further separatism and to define the respective jurisdiction of central and regional government. Moreover, on 15 February 1994, the Russian Government and Tatarstan concluded an agreement which granted many of the Tatar demands for greater autonomy.230 In late June 1994, the Russian government called for normalization of relations with Russia on the basis of
229. See also J.I. Charney, Self-Determination: Chechnya, Kosovo, and East Timor, Vand. J. Transnat'l L., Vol. 34, 2001, p. 455, at p. 463. 230. Treaty Between the Russian Federation and the Republic of Tatarstan on Delimitation of Jurisdictional Subjects and Mutual Delegation of Authority Between the State Bodies of the Russian Federation and the State Bodies of the Republic of Tatarstan, 15 Feb. 1994. See http://www/kcn.ru/-tat_en/politics/dfa/inform/treaty.htm.
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a - Tatarstan-like - constitutional agreement, but the Chechen leadership rejected the offer and insisted on independence.231 Because of the uncooperative stance of the Chechen authorities and because Chechnya had turned to criminal sources of support with the result that the entity had become a center of criminal activities of extraordinary proportions,232 the Russian government became militarily involved in Chechnya more and more. This eventually led to the first Russian-Chechen war of 1994-1996. Although the Russian government anticipated a quick victory, a long series of military operations were needed, which led to many civilian casualties. As the war continued, the protests of the international community became stronger with respect to the disproportionate and indiscriminate use of force by the Russian Army.233 It was only when the Chechen fighters recaptured Grozny in early August 1996 that the war was brought to an end. On 28 August 1996, Alexander Lebed, Yeltsin's envoy to the region, and Asian Maskhadov, the Chechen military's chief of staff, concluded an agreement in the Dagestani town of Khasavyurt (the Khasavyurt Accord). The Accord effectively froze any demands for independence until 31 December 2001 during which period negotiations had to be conducted with respect to the future political status of Chechnya.234 In addition to the statement in the Preamble that both parties embarked upon "the universally recognized right of nations to self-determination", it was specifically provided that such status should be "decided in accordance with general accepted principles and norms of international law". 235 In addition, on 12 May 1997, a peace agreement was concluded between Russia and Chechnya (the Moscow Agreement), which left open the question of Chechnya's (future) status. The agreement confirms, however, that Russia will acknowledge the norms of international law and will not use force to settle disputes. It moreover cleared the way for social and economic cooperation.236 Although it has sometimes been suggested that these agreements implied Russian recognition of Chechen sovereignty, several
231. Foreign and Commonwealth Office, London, The Russian Federation: Independence Issues in Chechnya, Background Brief, March 1995, p. 4. 232. See, e.g., Charney, supra note 229, at p. 463; C. Gall and T. de Waal, CHECHNYA: A SMALL
VICTORIOUS WAR, 1997, pp. 124-136. 233. An estimated 20,000-30,000 civilians died in the conflict. See, e.g., Amnesty International, Brief Summary of Concerns About Human Rights Violations in the Chechen Republic, Country Report, 5 June 1996; 24,000 Chechen Civilian Toll Reported, IHT, 22 Feb. 1995. 234. See W.T. Atrokov, The Khasavyurt Accords: Maintaining the Rule of Law and Legitimacy of Democracy in the Russian Federation Amidst the Chechen Crisis, Cornell ILJ, Vol. 32, 1999, p. 367, at pp. 374-376; G. Starovoitova, SOVEREIGNTY AFTER EMPIRE, SELF-DETERMINATION
MOVEMENTS IN THE FORMER SOVIET UNION, 1997, p. 14. 235. Khasavyurt Accord, Art. 1. See http:/www.chechnya.org/current/truce.html. 236. See, e.g., Yeltsin Signs Peace Treaty With Chechens, NYT, 13 May 1997.
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statements and actions of the Russian government have made it clear that this was certainly not the case.237 Subsequent to the signing of the Khasavyurt and Moscow agreements, the Russian government made several proposals concerning substantial autonomy for Chechnya. However, as in the past, all these proposals were rejected by the Chechen government, which was now led by Maskhadov, who insisted on the recognition of Chechnya as an independent 238 i State. In the meantime, the situation within and around Chechnya deteriorated mainly as result of the inability of the Chechen government to control the territory. In the period 1996-1999, some 200,000 Russians were forced to flee the republic in order to protect themselves from all kinds of discrimination, degradation and physical assaults. It was therefore observed that "extremely serious violations of human rights and fundamental freedoms were committed" in Chechnya during this period "when the authorities proved unable to ensure respect for the rule of law".239 Furthermore, in August and September 1999, one of the Chechen field commanders, Shamil Basayev, launched military operations in neighbouring Dagestan with the intent of creating an independent Islamic State. In response to a Russian request, the Chechen government refused to send troops to assist in quelling the rebellion in Dagestan.240 In late August and early September 1999, terrorist attacks took place in Moscow which killed some hundred civilians. The Russian government accused the Chechen government of harbouring militants and terrorists. The absence of law and order in Chechnya and the terrorist activities carried out from Chechen territory were put forward by the Russian government as a justification for the second Russian-Chechen war which began in October 1999 and ended in early February 2000, when large parts of Chechnya including Grozny were conquered by the Russian army. Although the international community supported Russia's position that it had the right to defend its territorial integrity, to restore order in part of its territory and to combat terrorism, the disproportionate use of force by the Russian army was widely condemned.241 However, no State has recognized the legitimacy, of the Chechen claim of a right of unilateral secession. Instead, the international community has stressed the need for the preservation of the territorial integrity of Russia, and the latter's
237. Id. 238. Chechnya Will Not Sign Power-Sharing Treaty With Moscow, Itar-Tass, 14 Feb. 1997; Russia Offers Chechnya 'Special Status' Within Federation, Itar-Tass, 26 Sept. 1997; Chechnya Rejects 'Associated Status', Herald Tribune, 3 Feb. 1998. 239. Council of Europe, Parliamentary Assembly, The Conflict in Chechnya, Report by Lord Judd, Rapporteur, Doc. 8630, 25 Jan. 2000, para. 29. 240. Id., App. IV. 241. See, e.g., Commission on Human Rights, Resolution 2000/58, UN Doc. E/CN.4/Res/2000/58, 25 Apr. 2000; European Parliament of the EC, Resolution on the War in Chechnya, 7 Oct. 1999.
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right to protect its territorial integrity.242 Although there is little doubt that the Chechens 2 4 3 qualify as a people entitled to the right of (internal) self-determination,, .a number of legal arguments can be advanced which undermine the legitimacy of the Chechen claim to a right of unilateral secession. Firstly, the claim to a right of secession was not made under international law but under Soviet law. However, the latter did not in general support such a claim, and certainly not by autonomous republics.244 Secondly, the proclamation of independence had been issued by Dudaev who became President after elections widely believed, outside Chechnya, to have been rigged.245 Although it is apparent that the surge in anti-Russian sentiment following the Russian military intervention contributed dramatically to the rise of the popular support for Dudaev, it is hard to conclude that the positions of the regime represented the popular will of the Chechen people. In that respect, it is noteworthy that the support for the Dudaev regime as a result of the Russian intervention dissipated dramatically between 1992 and 1994.246 Therefore, and apart from the question whether a right of unilateral secession actually existed, there is thus considerable doubt as to whether the proclamation of independence and subsequent actions were made on behalf of the holder of the right of self-determination. In this respect, the Chechen case differs significantly from the cases of Bangladesh and Croatia in which it was clear that the proclamations of independence were supported widely by the Bengalis and the Croats, respectively. Thirdly, even if one would accept that the system of political representation
242. See, e.g., Council of the EC, Declaration on Chechnya, 11 Dec. 1999, Para. 2. 243. A fact which is recognized by the Russian government in the Khasavyurt Accord. See text accompanying note 235, supra. 244. The draft version of the Union Treaty which was developed in November 1990 by the leadership of the USSR and the Communist Party of the Soviet Union conferred rights upon "republics that are parts of other republics" (that is, republics that are part of Russia) to participate in the Union Treaty on an equal footing with respective Soviet Republics. These plans exacerbated the separatist tendencies in Russia's autonomous districts, including Chechnya. Under Article 72 of the 1977 Soviet Constitution, a right to secession was recognized for the Union Republics of the Soviet Union. In 1990, a law was passed which was meant to provide for an implementation procedure of the right to secede under Article 72. This law recognized in Article 3(1) a right for autonomous republics to secede from a Union Republic in case a Union Republic would secede from the Soviet Union and the autonomous republic wished to remain within the Soviet Union (see Cassese, supra note 24, at p. 138, n. 11). As has been stated above, by December 1991, the twelve former Soviet Republics had proclaimed their independence and at the meeting in Alma-Alta, the former Union Republics decided to dissolve the Soviet Union. There was thus no legal basis under Soviet legislation to justify the Chechen secession. Neither is such a basis to be found in Russian legislation. The 1993 Constitution of Russia, under which Chechnya has been 'upgraded' to a federal republic, does not contain a provision on secession. 245. Foreign and Commonwealth Office, supra note 231, at p. 2; Charney, supra note 229, at pp. 462463; Gall and De Waal, supra note 232, at pp. 98-99. 246. Charney, supra note 229, at p. 463, n. 31.
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in the Soviet Union could not be qualified as respecting the right of internal self-determination of the peoples residing in that State, the Dudaev regime never sought alternatives short of secession for the implementation of selfdetermination. This also applies with respect to the position of the Chechen regime after the collapse of the Soviet Union. Through the negotiations on agreements for more autonomy with, for instance, Tatarstan, the Russian government had showed that it was willing to meet legitimate claims for (more) internal self-determination of peoples within its jurisdiction. Because Chechnya's path to the declaration of independence was a unilateral process, devoid of any effort aimed at any negotiated settlement,247 and because all (realistic) alternatives for internal self-determination offered by the Russian government were repudiated by the Chechen authorities, it cannot but be concluded that the Chechen authorities did not exhaust all efforts at a peaceful settlement of the dispute prior to the proclamation of independence in 1991, nor subsequently when Russia became an independent State. In this respect, the difference between the Chechen case on the one hand, and the cases of Bangladesh and Croatia on the other, is apparent, because in the latter two cases the authorities did exhaust all possible and realistic options which could possibly have led to a peaceful settlement of the dispute. Fourthly, at the time of the proclamation of independence there were no reports on serious and widespread violations of human rights to justify the claim to secession. Thus, also in this respect, the situation is different from the cases of Bangladesh and Croatia. Accordingly, at least until December 1994 there was no entitlement to unilateral secession for the Chechen people. On the other hand, it may be argued that the Chechens were entitled to such a right as a result of serious and widespread violations of human rights and humanitarian law by the Russian army in the first Russian-Chechen war.248 True, the Chechen militia's were at least in part responsible for the Chechen civilian casualties as a result of deliberately taking position in civilian areas, but there is no doubt that the conduct of the Russian army included acts which could not have been provoked by the Chechen militia's, such as the disproportionate use of force. However, even if a right of unilateral secession became applicable under those circumstances, it should be recalled that any demand for secession was suspended for five years as a result of the Khasavyurt Accord. The Chechen entitlement to secession at a later date was subsequently weakened seriously as a result of the insistence of the Chechen authorities on 247. Id., at p. 462. 248. See, e.g., T.N. Tappe, Chechnya and the Slate of Self-Determination in a Breakaway Region of the Former Soviet Union: Evaluating the Legitimacy of Secessionist Claims, Colum. J. Transnat'l L., Vol. 34, 1995, p. 255; Lefeber and Raic, supra note 22.
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independence and, accordingly, the rejection of all Russian proposals for extensive autonomy of Chechnya within the framework of the Khasavyurt Accord. In this respect, the international community's position seems to be that the territorial integrity of Russia must be maintained, which - in combination with Russia's preparedness to grant Chechnya substantial autonomy - implies that under the current circumstances the future political status of Chechnya must be one within Russia. However, it cannot be denied that throughout the conflict, the international community's position was considerably politically motivated and almost entirely separated from legal considerations, except for its condemnation of the violations of human rights and humanitarian law. There is little doubt that even if the Chechen situation would have qualified evidently as one giving rise to a right of unilateral secession, an active policy of the international community going beyond the condemnations regarding the use of force by the Russian army (for instance, in the form of severe economic or diplomatic sanctions) and/or supporting the Chechen cause, would have destabilized the Yeltsin (and later Putin) regime and with that the fragile democratic process in Russia. It is clear that preventing the collapse of the Russian government and supporting democracy had priority over the fate of the Chechens.. 249 Moreover, if only in the light of the threat of nuclear proliferation, there is little doubt that the international community's stance was also influenced by the fear that a successful secession of Chechnya could form a precedent for more secessionist attempts in Russia, risking the latter's fragmentation.250 In sum, there is a considerable number of legal arguments, based on the doctrine of a qualified right of secession, which plead against an entitlement to a right of unilateral secession on the part of the Chechens and which may thus explain the international community's position. On the other hand, because the conflict was primarily regarded by the international community as an internal affair of Russia and because any reference to a right of selfdetermination for the Chechens was avoided, arguably for the (political) reasons set out above, one should beware of attaching too much weight to this case as a precedent in practice either in favour of the doctrine of a qualified right of secession or against it. 249. See, e.g., Speech by President Clinton at the Conference of the OCSE in Istanbul, NYT, 19 Nov. 1999: "about the situation in Chechnya [...] [w]e want to see Russia a stable, prosperous, strong democracy, with secure borders, strong defenses and a leading voice in world affairs". See also West Avoids Confrontation With Moscow, The Independent, 14 Dec. 1994. 250. See, e.g., W. Safire, Yeltsin Should Seek, Accommodation With Chechnya, IHT, 20 Dec. 1994; Europeans Press Harder for Mediation, IHT, 5 Jan. 1995; VS-Moralisme Negeert Ontsporing in Tsjetsjenië, NRC Handelsblad, 17 March 1995; Het Westen als Ruslands Gijzelaar, NRC Handelsblad, 16 Jan. 1995.
Secession § 5.2.
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The Republic of Abkhazia251
In the tenth century, the territory that is Abkhazia today, became part of the united feudal State of Georgia. Abkhazia broke away in the seventeenth century to become an independent principality. In 1864, Tsarist Russia crushed Northern Caucasian resistance and formally annexed Abkhazia. The majority of Moslem Abkhazians were deported by Russia to the Ottoman Empire as a punishment for their resistance to the Russian occupation of Abkhazia.252 On 4 March 1921, the Abkhazian Soviet Republic was formed which possessed full republican status in the Soviet Union. In December 1921, under pressure from the central government of the Soviet Union, a special 'contract of alliance' was signed between Abkhazia and Georgia, by which Abkhazia became part of the Georgian Soviet Socialist Republic while it retained its status as Union republic. On 1 April 1925, the Abkhazian Constitution was adopted which enshrined its republican status with treaty ties to Georgia. However, under Stalin the status of Abkhazia was reduced to an autonomous republic within Georgia. In the course of the 1930s, large numbers of Georgians were resettled in the region, which explains why the Abkhazians in Abkhazia prior to the hostilities in the 1990s were a numerical minority in their own homeland, comprising only 18 per cent of the area's population, while Georgians constituted the largest ethnic group (46 per cent) in addition to Russians (16 per cent), Armenians (15 per cent) and others (5 per cent). Under Stalin's rule, a period of 'Georgianization' took place in the late 1940s and early 1950s. The Abkhazian language was banned from administration and publication and the Abkhazian alphabet was changed to a Georgian base. It was not until 1953, following the death of Stalin, that this policy changed and the Abkhazians were rehabilitated and compensated with over-representation in local offices. In 1978, the Abkhaz launched a campaign to separate the Autonomous Republic of Abkhazia from the Georgian Soviet Socialist Republic and to incorporate it in the Russian Federative Socialist Republic. Although rejected by Russia, this
251. The analysis in this Section is largely is based on detailed studies on Abkhazia such as T. Potier,
CONFLICT IN NAGO RNO-KARABAKH, ABKHAZIA AND SOUTH OSSETIA, ALEGAL APPRAISAL, 2001;A. Khachikian, Multilateral Mediation in Intrastate Conflicts: Russia, the United Nations, and the War in Abkhazia, in: Greenberg et al. (Eds.), supra note 152, pp. 15-34; S.N. MacFarlane, Conflict Resolution in Georgia, in: H.G. Ehrhart and A. Schnabel (Eds.), THE SOUTHEAST
EUROPEAN CHALLENGE: ETHNIC CONFLICT AND THE INTERNATIONAL RESPONSE, 1999, p. 117; G. Nodia, The Conflict in Abkhazia: National Projects and Political Circumstances, in: B. Coppieters et al. (Eds.), GEORGIANS AND ABKHAZIANS, THE SEARCH FOR A PEACE SETTLEMENT, 1998, p. 14; V.A. Chirikba, The Georgian-Abkhazian Conflict: In Search for Ways Out, in: Coppieters et al. (Eds.), id., p.49. 252. This explains why the Abkhazians in modern Abkhazia are predominantly (Orthodox) Christians.
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resulted in significant concessions to the Abkhaz, including disproportionate representation in the Supreme Soviet of Abkhazia. Abkhazian fears of renewed Georgianization and the concomitant desire for secession were provoked by the rise of Georgian nationalism at the end of the 1980s. On 25 August 1990, the Abkhazian Supreme Soviet, in the absence of its Georgian deputies, voted in favour of independence and, like virtually all autonomous republics in the former Soviet Union, declared the state sovereignty of the Abkhazian SSR. At the same time, the Abkhazians declared their willingness to enter into negotiations with the Georgian government for the formation of a federal constitutional structure which would preserve Georgia's territorial integrity.253 The Abkhazian decision was declared invalid by Georgia the following day. The year 1991 saw the demise of the Soviet Union. The turmoil which accompanied the Soviet Union's collapse provided a breeding ground for increasing internal unrest in Georgia. Georgia was the only republic to boycott the all-Union referendum on the future of the USSR, but polling stations were opened in South Ossetia and Abkhazia. In December 1991, a new parliament was elected in Abkhazia, in which 28 of the 65 seats were allocated to Abkhazians, 26 to Georgians and 11 to other nationalities. Within months, the new parliament was paralyzed because decisions taken by a majority were repeatedly rejected by the Georgian deputies. This inevitably led to inter-ethnic tensions. In a referendum on 31 March 1991 on the question whether Georgian independence should be restored on the basis of the Act of Independence of 26 May 1918, an overwhelming majority of those who participated voted in favour of independence.254 Subsequently, on 9 April 1991, the Georgian Supreme Soviet approved a decree for the restoration of Georgia's independence on the basis of the 1918 Act, and on 26 May 1991 Gamsakhurdia was elected as executive President. The 255 period from April until December was characterized by firm opposition to Gamsakhurdia, which culminated in an armed conflict between the opposition and those who supported the President. Eventually Gamsakhurdia fled Georgia in January 1991, following a coup d'etat. The Georgian Military Council reinstated Georgia's 1921 constitution which did not recognize Abkhazia's status as a separate entity within Georgia. In March 1992, the former Minister of Foreign Affairs of the Soviet Union,
, t(
253. Potier, supra note 251, at p. 10. 254. Georgia, The European World Year Book, 1994, p. 1231. 255. The opposition was led by Tengiz Kitovani of the National Guard and Jaba loseliani, the leader of the paramilitary Mkhedrioni (Horsemen) group, who provided the main military forces. See id.
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Eduard Shevardnadze, returned to Georgia and the new regime declared all laws adopted during Soviet times to be null and void. At this time, the Chairman of the Abkhazian legislature, Ardzinba, proposed a draft treaty to the Georgian State Council which would have provided for federative relations between Georgia and Abkhazia. The proposal was ignored and in response, on 23 July 1992, the Abkhazian Supreme Soviet declared Abkhazia's sovereignty as the "Republic of Abkhazia", reinstating the Constitution of 1925. This step was not, however, intended as a proclamation of independence as the 1925 Constitution provided for a federative relationship between "two equal republics". The reinstatement of the 1925 constitution was intended as a temporary measure, filling a constitutional vacuum, to protect Abkhazia's hitherto autonomous political status.256 On 14 August 1992, the Georgian government dispatched units of the National Guard to Abkhazia, which prompted armed resistance by Abkhazian militia. Several reasons for the Georgian move were given, but eventually it became clear that the purpose was to suppress the growing Abkhazian secessionist movement. Georgian troops took control of the capital city of Sukhumi and the Russian President Yeltsin pledged support for Georgia's territorial integrity. In the period of January-June 1993, the hostilities intensified, and Georgia accused Russia of providing Abkhazia with military equipment.257 The Abkhazian forces succeeded in capturing Sukhumi in mid-September and at the end of that month, Georgian troops were expelled from the whole of Abkhazia.258 A cease-fire was reached on 1 December 1993, followed by Georgian proposals for extensive autonomy for Abkhazia. The' proposals were rejected
256. C. Dale, Turmoil in Abkhazia: Russian Responses, RFE/RL Research Report, Vol. 2, No. 34, 27 Aug. 1993, p. 49. Seealso Abchazië is WelSoeverein, MaarNiet Onafhankelijk, Algemeen Dagblad, 12 Oct. 1993, quoting Abkhazian Vice-President Jinjolia who compared the Abkhazian situation to the constitutional status of the Swiss cantons. 257. Dale, supra note 256, at p. 49. There is little doubt that Russian troops sold military equipment to the Abkhazian militia's. However, an UNPO human rights mission which visited Tbilisi at the end of 1993 could not obtain any reliable evidence from the Georgian side to support the Georgian accusation that the Russian government actively supported the Abkhazian side. Chirikba, supra note 251, at p. 53, citing P. Overeem, Report of a UNPO Coordinated Human Rights Mission to Abkhazia and Georgia, Central Asian Survey, Vol. 10, 1995, p. 138. The Russian bombardment by military planes of Georgian positions in early April 1993 was a response to repeated armed attacks by Georgian troops against a Russian military laboratory in Eshera (Georgia). The Russian government made no secret of this military operation. See Russia Admits Involvement in Georgian Conflict, Reuter, 3 April 1993. It must also be noted that Russia did actively support Georgian military forces through the delivery of heavy military equipment at least since October 1993. See Russian Aid Turns Tide in Georgia Conflict, The Times, 23 Oct. 1993. 258. The Abkhazian victory contrasted deeply with the fate of almost 300,000 refugees and internally displaced persons, the majority of which were ethnic Georgians. See UN Doc. S/Res/896, 31 Jan. 1994; MacFarlane, supra note 251, at p. 120.
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by the Abkhazian authorities, however.259 In February 1994, talks took place between the two sides under auspices of the United Nations (which had appointed a special envoy for the region in May 1993), with the Russian Federation playing the role of facilitator and the OSCE invited as a participant. During the talks, the two sides addressed the status of Abkhazia260 and the United Nations' special envoy presented them with a draft declaration which contained a provision recognizing the territorial integrity of Georgia. The declaration was immediately rejected by the Abkhazian side, which refused to sign any document which contained such a provision. Consequently, the negotiations failed.261 The same issue led to the failure of a new round of talks in New York in March 1994. In November 1994, in Geneva, another attempt was made to find a solution to the conflict. A draft proposal was ultimately rejected by the Georgian government because of the changed situation. For, in November 1994, the Abkhazian parliament had adopted a constitution which in Article 1 declared Abkhazia to be a "sovereign democratic state". At the same time the Abkhazian authorities issued a statement which called for the continuation of the talks with Georgia with the objective of creating "a unionstate of two equal subjects".262 Moreover, Ardzinba was inaugurated as President of the Republic of Abkhazia in December 1994. These steps were interpreted by Georgia as impairing the territorial integrity of Georgia and it protested vigorously to the Security Council of the United Nations. In February 1995, Russia prepared a draft which provided for a federative arrangement. This was accepted by the Georgian government in the end but rejected by Abkhazia which interpreted the draft as an offer of autonomy, and not equal membership in a union-state. This meant that the Abkhazian authorities had shifted their demand from territorial and political autonomy to a federal structure, and now to a confederal structure. These demands were rejected by Georgia which stated that a federation was as far as Georgia was prepared to go. No solution was found in the following year. Instead, the parliamentary elections which were held in Abkhazia at the end of 1996, without the 259. Georgians Propose Future for Abkhazia of Extensive Autonomy, SWB, 23 Dec. 1993, SU/1879, p. 4. At that time, the Georgian government still rejected the idea of federal links and was "prepared to consider only defining the legal status of the Abkhazian autonomous region". Y. Anchabadze, Georgia and Abkhazia: The Hard Road to Agreement, in: Coppieters et al. (Eds.), supra note 251, p. 80, at p. 87, quoting Shevardnadze. 260. Another important issue was the return of the refugees and displaced persons. This issue was linked with larger political issues. As Khachikian observes, the return of refugees was not just a humanitarian, but also a very important political problem, since the return of the almost 300,000, mainly Georgian, refugees would have tilted the demographic and, correspondingly, the political balance in the republic. The Abkhazian authorities therefore did little to solve this problem. Khachikian, supra note 251, at p. 20. 261. Id. 262. Id., at p. 21.
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participation of the refugees, seriously aggravated the situation and were condemned by the Security Council263 and the European Parliament as illegitimate. 264 In 1997, a large-scale spontaneous return of Georgian refugees and displaced persons destabilized the delicate politico-military balance in the area. The Abkhazians responded in the spring of 1998 with the forced expulsion of more than 30,000 returnees, which was condemned internationally as an act of (renewed) 'ethnic cleansing'.265 No progress was made in the subsequent period. The Abkhazians would not accept anything less than a confederal arrangement. On 3 October 1999, a referendum on independence was held in Abkhazia which was declared to be illegitimate both by the Georgian government and by the international community.266 On 12 October 1999, the Republic of Abkhazia issued the Act of State Independence of the Republic of Abkhazia, which, unlike previous declarations, was intended as a formal proclamation of independence of Abkhazia under international law. However, the republic has not been recognized by a single State. The international (in particular the United Nations) stance towards the conflict is characterized by (a) consistent support for the preservation of the territorial integrity of Georgia, and consequently (b) a rejection of the endeavours for, or eventual secession by Abkhazia, and (c) an insistence on the grant of extensive autonomy for the Abkhazians within the Republic of Georgia. For instance, in its Resolution 896 of 31 January 1994, the Security Council stressed that substantive progress must be made immediately on the political status of Abkhazia, respecting fully the sovereignty and territorial integrity of the Republic
263. See UN Doc. S/Res/1096, 30 Jan. 1997, Para. 3. 264. European Parliament, Resolution on the Situation in Abkhazia, 14 Nov. 1996, Preamble, Para. G and operative Paras. 3 and 4. 265. OSCE Istanbul Summit Declaration, OSCE Doc. SUM.Doc/2/99, 19 Nov. 1999, Para. 17. In 1996, the European Parliament labelled the treatment of the refugees and displaced persons as 'ethnic cleansing'. See Resolution on the Situation in Abkhazia, in: id., Preamble, Para. E. Although the Security Council did not use the term 'ethnic cleansing', it repeatedly condemned attempts to change the demographic composition of Abkhazia. See, e.g., UN Doc. S/Res/896, 31 Jan. 1994, Para. 12; UN Doc. S/Res/1036, 12 Jan. 1996, Para. 7 (condemning "the ethnic killings and continuing human rights violations committed in Abkhazia, Georgia" and calling upon "the Abkhaz side to ensure the safety of all persons in areas under its control"); UN Doc. S/Res/1065, 12 July 1996, Para. 8; UN Doc. S/Res/1187, 30 July 1998, Para. 4 (condemning "the deliberate destruction of houses by Abkhaz forces, with the apparent motive of expelling people from their home areas"). 266. See UN Doc. S/Res/1287, 31 Jan. 2000, para. 5. And see Statement of the Secretary General of the Council of Europe on Elections in Abkhazia, Georgia, 4 Oct. 1999, http://press.coe.int/cp/99/530a(99).htm.
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The Security Council left no room for any misunderstandings about its point of view with respect to a possible Abkhazian secession in Resolution 1065 of 12 July 1996 when it reaffirmed its commitment to the sovereignty and territorial integrity of Georgia, within its internationally recognized borders, and to the necessity of defining the status of Abkhazia in strict accordance with these principles, and underlines the unacceptability of any action by the Abkhaz leadership in contravention of these principles.268
This position has been endorsed by the European Union269 and the Council of Europe.270 The deadlock in the negotiations continues with Georgia willing to consider a federal relationship and Abkhazia, encouraged by its de facto independence, insisting on full independence.271 The Security Council, committed to the maintenance of the territorial integrity of Georgia, has condemned Abkhazia for its uncompromising stance.272 On 31 January 2000, the Council called for the two parties to come to an agreement "on the distribution of constitutional competences between Tbilisi and Sukhumi as part of a comprehensive settlement, with full respect for the sovereignty and territorial integrity of Georgia [...]" and condemned as "unacceptable and illegitimate the holding of [...] [the] referendum in Abkhazia, Georgia".273 The question that now arises, in the context of the qualified right of secession, is whether Abkhazia enjoys a right to unilateral secession and, if so, why it has not been recognized by the international community. There is no doubt that the Abkhazians possess a collective individuality and thus qualify as a (minority-) people for the purpose of the right of self-determination. This was acknowledged by the former Soviet Union when it conferred a special status on Abkhazia precisely because of the distinct identity of the Abkhazians. On the other hand, it may be argued that the Abkhazian people did not 267. UN Doc. S/Res/896, 31 Jan. 1994, Para. 5. This formulation by which the political status of Abkhazia is linked to the preservation of the territorial integrity of the Republic of Georgia, has been repeated in numerous other resolutions on the conflict. 268. UN Doc. S/Res/1065, 12 July 1996, Para. 3 (emphasis in original). 269. European Parliament, Resolution on the Situation in Abkhazia, supra note 264, Para. 2. 270. Council of Europe, Parliamentary Assembly, Resolution of 22 April 1997 (referring to the need for an "extensive autonomy status for Abkhazia"). 271. The inflexible Abkhazian stance has been qualified as the main reason for the deadlock in the negotiations. See, e.g., UN Doc. S/1995/342, 1 May 1995, paras. 4 and 5; UN Doc. S/2000/697, 17 July 2000, Para. 6. 272. See UN Docs. S/Res/1096, supra note 263, Preamble and S/Res/1339, 31 Jan. 2001, Para. 5. 273. UN Doc. S/Res/1287, 31 Jan. 2000, paras. 4 and 5.
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meet the requirements of the qualified right to secession because they did not, prior to the outbreak of hostilities, constitute a clear majority within Abkhazia itself. Yet the reasons for this situation are well-known, and the low number of Abkhazians did not prevent the Soviet and post-Soviet Georgian authorities from granting a special political status to Abkhazia and from providing for the possibility of over-representation of Abkhazians in local institutions. Therefore, the fact that the Abkhazian people constitute a numerical minority within Abkhazia does not seem to be the main obstacle in the way of recognition of Abkhazia's bid for independence. Instead, the answer is to be found in Abkhazia's intransigence at the negotiating table and the absence of serious violations of the human rights of the members of the Abkhazian people by Georgia. The Abkhazians have become more and more unwilling to enter into good faith negotiations on the future political status of Abkhazia within Georgia, whereas the Georgian government has been willing to grant a substantial amount of political autonomy (including a federal constitutional system) with special powers and rights for the Abkhazians since 1993.274 The consistent rejection by the Abkhazians of Georgia's proposals for political and territorial autonomy within a federal arrangement and of the appeals of the international community for such a settlement, suggests that the Abkhazians are not prepared to exhaust realistic political solutions for the settlement of the conflict. Moreover, there is no evidence of widespread and serious violations of fundamental rights of the Abkhazians by Georgia. On the contrary, the Abkhazians are themselves accused of violating the fundamental human rights of Georgians currently resident in, or previously resident in, Abkhazia.275 Therefore, the conclusion must be that the Abkhazians do not, under the prevailing circumstances, possess a right of unilateral secession and, consequently, that the proclamation of independence is in violation of the law of self-determination. This explains the position of the international community, which consistently confirmed the territorial integrity of the Republic of Georgia, insisted on the implementation of self-determination within Georgia and condemned
274. If, as is one of the requirements for a settlement, the Georgian refugees return to Abkhazia, they would constitute a majority there. Accordingly, classical democratic federalism would do little to address the concerns of the Abkhazians. This, as has been observed by MacFarlane, suggests that any federal solution would have to be asymmetrical, providing special constitutional and legal guarantees for the Abkhazians. This might involve a further devolution of powers from the regional (that is, Abkhazia as a whole) to the district levels, where in a number of instances the Abkhazians constitute a majority. Additionally, this might be complemented by the reservation of a number of seats in the legislature in combination with a measure of overrepresentation and qualified majority decision-making with respect to those matters which are of direct concern to the Abkhazians. MacFarlane, supra note 251, at pp. 127-128. 275. See note 265, supra.
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the holding of a referendum on independence. Indeed, this position cannot mean anything other than the rejection of the claim to a right of secession by the Abkhazians.276 In conclusion, the experience of Abkhazia therefore tends to confirm the proposition of the qualified secession doctrine that a right of unilateral secession only exists, and subsequently will only be recognized, if the cumulative criteria of the qualified right of secession have been met. § 5.3.
The Republic of Serbian Krajina
The independence of the Republic of Serbian Krajina was proclaimed by the Serbs in Croatia on 19 December 1991. However, the international community considered the area of the republic to be occupied territory and it was ultimately recaptured by the Croatian army in 1995. The territory of the Republic of Serbian Krajina roughly equalled the territory of the so-called Military Borderland (Vojna Krajina) which was a strip of land established for military defensive purposes by the Habsburg Empire in the sixteenth century along the Croatian border with the Ottoman Empire. The Turkish aggression resulted in a massive migration of Croats from the area. Their place was taken over by Serbs who fled the Ottoman Empire. On their arrival, the Habsburgers recruited them and they served under the rule of Vienna, being a defensive barrier to the Ottoman expansion. In return, they gained several privileges. When the Military Borderland was finally dissolved in 1881, the Serbian population stayed. On 6 June 1990, after the electoral victory by the HDZ in Croatia on 5 June, the city council of Knin proposed the creation of a union of municipalities in northern Dalmatia and Eastern Lika with a Serb majority. This was the first step towards the formation of an autonomous 'Kninska' Krajina. On 20 June, the decision was taken to actually create the union (consisting of the municipalities of Knin, Benkovac, Obravac, Cracac, Donji Lapac and Korenica).277 According to the Serb minority, these were necessary steps to guarantee the
276. In this respect, cf. Judges Wildhaber and Ryssdal who state that "when the international community in 1983 refused to recognise the 'TRNC' [Turkish Republic of Northern Cyprus] as a new state under international law it by the same token implicitly rejected the claim of the 'TRNC' to self-determination in the form of secession". Concurring Opinion of Judge Wildhaber Joined by Judge Ryssdal, supra note 60. And see, generally, K. Knop,The 'Righting' of Recognition: Recognition of States in Eastern Europe and the Soviet Union, in: Canadian Council on International Law, STATE SOVEREIGNTY: THE CHALLENGE OF A CHANGING WORLD, Proceedings of the 1992 Conference of the Canadian Council on International Law, 1992, p. 36, esp. at pp. 38-39. 277. Pogledi, Specijalno Izdanje 4, May 1992, p. 63.
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survival of the Serbs in Croatia278 in view of the nationalist rhetoric of the newly elected Croatian government.279A Serbian National Council and a Serbian Parliament of Krajina were established on 25 July 1990. On the same day a 'Declaration on the Sovereignty and Autonomy of the Serbian People in Croatia'280 was adopted and the decision was taken to hold a referendum on Serbian autonomy in Croatia on 19 August 1990. The Serbs subsequently blocked all access roads to their region on 17 August, without having seriously endeavoured to discuss their grievances with the Croatian government first. Although the Croatian government condemned the planned referendum as illegal, no action was taken to prevent it. On 1 October 1990, the Serbian National Council proclaimed the (cultural) autonomy of Krajina on the basis of the referendum which was held on 19 August. The Council explained the proclamation as follows: "[t[he Serbian people must use all means to resist the terror of the fascist Croatian government and to protect their human dignity and civil and national rights".281 The Croatian Constitution was adopted on 22 December 1990.282 In reaction to its reference to the Serbs in Croatia as a national minority (as opposed to a constituent people), the Serbs stressed that they would never make peace with that "degradation".284 Accordingly, on the same day the Serbian Autonomous Region (SAO) Krajina was established in Knin (consisting of Northern Dalmatia, Eastern Lika and the region Banija and Kordun),28 the Serbian flag was hoisted and the Serbian National Council declared that it was no longer subject to the authority of the Croatian Ministry of Internal Affairs. On 4 January 1991, the last Serbian representative in the Croatian parliament, Rajic, resigned from office.286 The other Serbian representatives had done the same in the previous months. The Serbian National Council declared on 14 278. The total number of Serbs in Croatia in 1991 was 577,000 (12.2 per cent of the total population of Croatia). Covic (Ed.), supra note 119, at p. 52. 279. Illustrovana Politika, 3 April 1990, p. 15,citing Jovan Opacic, one of the political leaders in Knin. See also M.A. Dakic, THE SERBIAN KRAYINA,, HISTORICAL HISTORICAL ROOTS AND ITS BIRTH, 1994, p. 48. 280. Reproduced in: Dakic, id., Part II, Enclosure No. 5. 281. Serbs in Croatia Declare Autonomy, IHT, 3 Oct. 1990. 282. See note 188, supra. 283. The Preamble states: "the republic of Croatia is hereby established as the national state of the Croatian nation and a state of members of other nations and minorities who are its citizens: Serbs, Moslems, Slovenes, Czechs, Slovaks, Italians, Hungarians, Jews and others, who are guaranteed equality with citizens of Croatian nationality and the realization of ethnic rights in accordance with the democratic norms of the United Nations Organization and the free world countries". 284. Silber and Little, supra note 280, at p. 87, quoting Raškovic, one of the Krajina Serb leaders. 285. Consisting of twelve municipalities with 158,000 inhabitants (1991), 69 per cent of whom were Serbs (accounting for 27.4 per cent of the total amount of Serbs in Croatia). Covic, supra note 119, at p. 56. 286. Vjesnik, 22 Dec. 1991, p. 13.
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January that Slavonia, West Srem and Baranja were original and historical parts of Serbian territory,287 and on 10 February, the Chairman of the Serbian National Council and later 'President' of SAO Krajina, Milan Babic, stated that he agreed with the view of Serbian President Milosevic that the Serbian people must not be divided over more than one State.288 The proclamation of autonomy of Krajina was followed in February by a proclamation of the "sovereign autonomy" of the Serbian people in Eastern Slavonia, West Srem and Baranja, which led to the establishment of the SAO Eastern Slavonia, West Srem and Baranja. 289 In the course of March 1991, armed clashes between Croatian police forces and Serb irregulars increased, which led to the deployment of JNA units between the conflicting parties. On 1 April 1991, the Serbian National Council of the SAO Krajina proclaimed its wish of joining the Republic of Serbia. It was moreover declared that within the SOA Krajina, the applicable law would be formed by the constitution of the SFRY and Serbian legislation.290 However, the parliament of the Republic of Serbia rejected the proclamation of unity and instead called for a peaceful solution to the conflict.291 Notwithstanding the Serbian parliament's call, the question of joining the Republic of Serbia was put to the vote in the SAO Krajina by means of a referendum on 12 May 1991, which led to an outcome in favour of such a step.292 On 29 May, the first government of the SAO Krajina, headed by Mr. Babic, was elected by the (selfproclaimed) Krajina parliament. Subsequently, the Serbian National Council of SAO Eastern Slavonia was transformed into a government and on 13 August the Autonomous (SAO) Region of Western Slavonia was established.293 Three weeks later, the peace conference on Yugoslavia was opened. Within the context of this conference Croatia accepted the Draft Convention or Carrington Convention which required Croatia to establish a special status (territorial autonomy) with regard to those areas in Croatia where the Serbs formed a
287. Id. 288. Id., at p. 14. 289. Consisting of four municipalities with a total of 400,000 inhabitants (1991), 22.6 per cent of whom were Serbs (accounting for 16 per cent of the total amount of Serbs in Croatia). Covic, supra note 119, at p. 56. 290. Pogledi, supra note 277, at p. 64. 291. Id. 292. Talk of War Grows After Rebel Serbs Vote to Quit Croatia, The Times, 13 May 1991. Although it would not have made any difference with regard to the outcome of the referendum, it should be noted that by that time, the majority of non-Serbian residents in the region had been forced to flee the area and consequently did not participate in the referendum. 293. Pogledi, supra note 277, at p. 64. The SAO Western Slavonia consisted of eight municipalities, with 250,000 inhabitants, 26.9 per cent of whom were Serbs (accounting for 12 per cent of the total amount of Serbs in Croatia). Covic, supra note 119, at p. 57.
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majority. 294 On 19 December 1991, the parliament of SAO Krajina proclaimed the independence of the Republic of Serbian Krajina. 295 This proclamation was immediately followed by similar proclamations by the SAO Eastern Slavonia and the SAO Western Slavonia. The two entities subsequently decided to join the Republic of Serbian Krajina. On 23 December a request for recognition was submitted to the Council of Ministers of the European Community and to each member State of the European Community as well as to all States members of the United Nations. However, the request was completely ignored by the European Community and the Arbitration Commission of the International Conference on Yugoslavia. In the following years, the entity was not recognized by a single State, not even by the FRY. In December 1991, the international community proposed the establishment of United Nations Protected Areas (UNPAs) in those parts of Croatia where the Serbs constituted a majority or substantial numerical minority. The plan is also known as the 'Vance-plan'.296 The areas would be of an interim nature until an overall settlement of the conflict would be achieved,297 and they would be protected by United Nations troops. Three UNPAs were to be created which consisted ofthe territories of Eastern Slavonia, Western Slavonia and Krajina, 298 and thus in effect concerned the territories which made up the Republic of Serbian Krajina. In addition to the protection of the inhabitants of the areas, the United Nations peacekeeping force had to facilitate the return of the 250,000 - mainly Croatian - refugees who had been 'cleansed' from the Serbcontrolled territories.299 The plan was accepted by Croatia and Serbia, but not by the Croatian Serbs. The reason was obvious: the plan referred to the UNPAs as "areas in Croatia".300 It thus denied the existence of the Republic of Serbian Krajina as a State under international law. Only after the exertion of extreme political pressure by the Belgrade authorities did the Croatian Serbs eventually
294. UN Doc. S/23169, 18 Oct. 1991, Ann. VI, supra note 171. 295. The proclamation states: "[w]e the people of the Serbian Autonomous Region of Krayina and the Serbian Region of Slavonia, Baranya and West Srem have decided freely and democratically to exercise our sovereign right of self-determination and on this holy day of Saint Nicolas hereby establish the Republic of Serbian Krayina. [...] [I]n accordance with the principles of international law as embraced by the Charter of the United Nations, we recognize the sovereign right of every nation, including the nation of Slovenes and the nation of Croats, to choose its own destiny and establish its own state. We Serbs, the people of Krayina, hereby retain the same rights for ourselves". Document on file with author. 296. The plan was named after the UN Secretary-General's personal representative Cyrus Vance. 297. UN Doc. S/23280, Annex III, 11 Dec. 1991, Para. 1. 298. Id., at Para. 9. 299. Id. As to practice of 'ethnic cleansing', see note 158, supra. 300. Id., at Para. 8 (emphasis added).
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accept the plan.301 In the following years, the Croatian government offered the Serb minority substantial political autonomy on several occasions, but these offers were rejected outright by the Serbs, because the proposals were based on the - for the Serbs unacceptable - point of view that the Republic of Krajina was part of Croatia.302 After several fruitless attempts by the international community to break the impasse, the Croatian government decided to recapture the territories by force. As a result of two major military operations, one in May 1995 which led to the retaking of Western Slavonia and one in August 1995 which lasted for four days and led to the retaking of the area of the SAO Krajina, the Croatian government succeeded in bringing most of the territories back under direct Croatian control.303 The question which must now be addressed, in the light of the doctrine of a qualified right of secession, is whether the Serbs in Croatia enjoyed a right of unilateral secession, and if so, why the international community refused to recognize it. The first criterion is that there should be a minority-people. On the basis of the analysis in Chapter 6,304 it must be concluded that the Serbs in Croatia constitute a national or ethnic minority and not a minority-people for the purpose of the right of (external) self-determination. This factor alone would thus exclude the Serbian community in Croatia from the applicability of a right to unilateral secession to them. However, even if it is assumed that the Serbs in Croatia would qualify as a 'people', there was, arguably, no situation which would have legitimized the proclamation of independence by the Republic of Serbian Krajina as an ultimum remedium to safeguard the identity of the group and the fundamental human rights of its members. In this respect, the first point which must be examined is whether or not there was a representative, non-discriminatory Croatian government at the time of the proclamation of independence. As a result of the democratic elections which had been held in April and May 1990, the Serbs occupied twenty-seven seats of the 349 seats in the Croatian parliament. The function of vice-President 301. Belgrad übt Druck auf Serben in der Krajina aus, Süddeutscher Zeitung, 24 Jan. 1992. 302. See, e.g, Secret Consultations Croatia in Norway, Reuter/AP, 3 Nov. 1993; UNPROFOR, Press Summary Belgrade, UNPROFOR Press Releases and Summaries, 1 April 1994, p. 13 (quoting Martic, President of the Republic of Krajina who observed after the signing of a cease-fire agreement with the Croatian government: "Krajina is accepted and recognized as a reality. [The Republic of Serbian Krajina] is regarded as an equal party which is in conflict with another State" (emphasis added)). 303. The area of Eastern Slavonia was ultimately peacefully reintegrated in Croatia in 1998, after the area had been placed under the transitional administration of the UN for two years. See UN Doc. S/1995/951, 12 Nov. 1995, Ann. In particular the offensive in August 1995, which was anticipated, however, by both the international community and the Croatian Serbs, led the Serbs to flee en masse to Serbian populated territories in Bosnia-Herzegovina and to Serbia. 304. See Chapter 6, Sections 3.2. and 3.3., supra.
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was fulfilled by Mr. Rajic, a Serb. All these representatives voluntarily resigned from office in the course of the last months of 1990. However, the right of participation of Serbs in the decision-making processes of the Croatian Republic has never been blocked by the Croatian government and was guaranteed by Article 6 (right to the formation of political parties) and Article 42 (right of peaceful assembly) of the 1990 Constitution of Croatia as well as by the 'Charter Concerning the Rights of Serbs and Other Nationalities in the Republic of Croatia' which was passed by the Croatian parliament on 6 June 1991.305 The latter Act guaranteed, amongst others, proportional representation of all national minorities in local self-government bodies, and their right to local self-government with the purpose of enabling the members of these groups to make their own decisions concerning the fulfilment of their rights. There is therefore little to suggest that the Croatian system of government was unrepresentative with respect to the Serbian minority. Moreover, it was already observed earlier that a collectivity cannot provide itself with a right to secession. That is to say, the voluntarily resignation of Serbian representatives in the Croatian parliament did not as such affect this parliament's representative character for the purpose of the right of self-determination. However, as stated above, it is not sufficient to possess a representative government in order to act in compliance with the right of internal selfdetermination. The government must also respect the prohibition of nondiscrimination. The Serbian community has repeatedly claimed that the Croatian government seriously and persistently violated this prohibition, and that this formed a legitimation for the proclamation of independence. Although there is no indication of formal discrimination of Serbs in Croatia,306 it must be examined whether there was a degree of discrimination of Serbs in practice which met the minimum standard of serious and persistent discrimination threatening the collective identity of the group. According to the Serbian community, evidence of discrimination was formed by the fact that, for instance, after the victory of the HDZ, many Serbs lost their positions or were unable to find another job. As a result, they would supposedly have become second class citizens in Croatia. The Croatian government denied the validity of these accusations, however.
305. Covic, supra note 119, at p. 76. 306. For instance, Article 14 of the Croatian Constitution guarantees the juridical equality of all citizens of the Republic of Croatia. Article 15 stipulates that "[m]embers of all nations and minorities shall have equal rights in the Republic of Croatia". And furthermore that "[m] embers of all nations and minorities shall be guaranteed freedom to express their nationality, freedom to use their language and script, and cultural autonomy". Article 44 states that "[e]very citizen of the Republic shall have the right, under equal conditions, to take part in the conduct of public affairs, and have access to public service".
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It was seen that statistical data gives evidence that in the SFRY the Serbs were disproportionately represented in the civil service, both at the federal and republican level, and in the army. 307 This can be explained on the basis of the fact that, contrary to many Croats, many Serbs were members of the League of Communists308 and for that particular reason were more 'qualified' for all kinds of (governmental) functions. For instance, in the case of Croatia (where, as was stated above, the Serbs formed some 12 per cent of the total population) on 30 May 1990 there were 16,054 persons employed in the Croatian police force, of which 8,130 Croats (50.5 per cent), 4,696 Serbs (29.2 per cent), 2,568 'Yugoslavs' (16 per cent) and 660 others (4.1 per cent).309 Another example is formed by, for instance, the municipality of Benkovac where, in 1991, 40.6 per cent of the total population were Croats, but they only accounted for 26 per cent of the work force in the municipal administration.310 After May 1990, these figures changed, both as a direct result of the end of communism in Croatia and as a result of creating a more even representation in the civil service in particular.311 However, there is no indication of a practice of serious, systematic and persistent discrimination of Serbs in Croatia which would justify the proclamation of independence of the Republic of Serbian Krajina. In this respect, it must also be taken into consideration, that the complaints of discrimination in 1990-1991 originated from those regions in Croatia where Serbs formed the majority of the population and where they exercised substantial control over the administration. In addition, if secession would have become a necessity because of serious and systematic discrimination of Serbs by the Tudjman regime, the striving for secession would necessarily have had to manifest itself after the (surprising) victory of the HDZ and the subsequent election of Tudjman as President in May 1990. Yet there is considerable evidence that Serbian separatism was not a direct reaction to the Tudjman regime, but rather was seen as an inevitable step if the constitutional structure between the Yugoslav republics would become more loose.312 On the other 307. 308. 309. 310. 311.
See, e.g., Burg, supra note 132, at p. 113. See G.C. McDonald, AREA HANDBOOK FOR YUGOSLAVIA, 1973, pp. 256-257. Vjesnik, 11 March 1991, p. 5. Covic, supra note 119, at pp. 65-66. For instance, on 16 January 1991, the ethnic distribution of persons employed in the Croatian police force was as follows: 22,602 employees of which 15,270 Croats (67.5 per cent), 4,312 Serbs (19 per cent), 2,374 'Yugoslavs' (10.5 per cent) and 646 others (3 per cent). See Vjesnik, supra note 309. 312. For instance, with regard to the future possibility of looser ties between the components of the Yugoslav federation the Serb Jovan Opacic, Chairman of the Serbian Democratic Party in Knin, stated on 26 March 1990 that in such a case the internal borders necessarily had to become a point of discussion since "any creation of separate States would lead to genocidal politics" ("svako stvaranje separatnih drzavica uzrokovalo pojavu genocidne politike"). Slobodna Dalmacija, 26 March 1990, quoted in: Illustrovana Politika, 3 Apr. 1990, p. 13.
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hand, it is clear that once in power, the Tudjman regime did little to reassure the Serbs in Krajina. However, even if it were assumed that the collective identity of the Serbs in Croatia was seriously threatened, the Serbs did not seek to find a solution for their problem short of secession and independence. In fact, after the adoption of the Croatian Constitution in December 1990, ties with Zagreb were broken off and a defacto independent Serbian entity was formed within Croatia. Subsequently no effort was undertaken to find a solution for the conflict by peaceful means, that is, through negotiations. Indeed, the use of force was not seen by the Serbian community as a measure of last resort, but as the only means of safeguarding their rights. There can therefore be no doubt that the failure to negotiate alternative solutions and the direct linkage of more Croatian autonomy as such with the need for secession, does not meet the requirement of the exhaustion of all effective and realistic as well as peaceful solutions. Moreover, this failure is not cured by the existence of serious and widespread violations of fundamental human rights of the members of the Serbian minority. Although it would be quite incorrect to state that the Croatian government at no time violated the human rights of the members of the Serbian minority prior to the proclamation of independence of the Republic of Serbian Krajina,313 there is no evidence of widespread violations of human rights, in particular the right to life, to justify the claim to secession.314 The above-mentioned points must lead to the inevitable conclusion that the Serbs in Croatia were not entitled to secede and thus to establish the Republic of Serbian Krajina. This may explain the position of the international community which was clearly against the secession of the Serbs. This was made explicit, for instance, in the Carrington or Draft Convention which was referred to above, and which provided that the Serbian minority was entitled to territorial autonomy only. It was also the underlying idea of the interim arrangement provided for in the 'Vance-plan'. Moreover, the applicability of a right to secede unilaterally has been denied on several occasions by the international community through its emphasis on the importance of "the [preservation of] the territorial integrity of the Republic of Croatia within the internationally recognized borders" as well as on the fact that the UNPAs or Serbian-controlled territories of Croatia were "integral parts of the territory of 313. See, e.g., the Report of the Human Rights Committee, UN Doc. CCPR/C/79/Add. 15, 28 Dec. 1992. 314. In this respect it must be noted that the international community accused the Serb minority in particular of forced expulsion of Croats and other non-Serbian communities from the Serbiancontrolled areas in Croatia since 1991. See, e.g., UN Doc. A/Res/49/43, 9 Dec. 1994, Para. 4. This is, however, without prejudice to serious crimes allegedly committed by Croatian troops during the liberation of the occupied areas in 1995.
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the Republic of Croatia"315 and that, accordingly, these "territories must be peacefully reintegrated into the rest of the country".316 In addition, the Arbitration Commission also denied the existence of a right of external selfdetermination for the Serbs in Croatia.317 In conclusion, as in the case of Abkhazia, the case of the Republic of Serbian Krajina also tends to confirm the qualified secession doctrine and the international law in relation to unilateral secession.
§ 6.
CONCLUSION: THE NORMS OF TERRITORIAL INTEGRITY AND SECESSION REVISITED
The analysis in the previous sections has shown that the majority opinion is in support of the existence of a qualified right of secession, a position which has not been contradicted by state practice. To the contrary. It has been shown that practice in the cases of Bangladesh, the Republic of Croatia, the Republic of Abkhazia and the Republic of Serbian Krajina confirms the validity of the qualified secession doctrine. It is thought that this is also borne out by other cases where the attempt of secession was condemned and/or the right of territorial integrity confirmed such as in the case of Katanga, Mayotte, the Turkish Republic of Northern Cyprus and the 'Republika Srpska'.318 Consequently, because the right of self-determination may, under certain circumstances, be exercised through unilateral secession, and because the right of territorial integrity of States includes the right of a State to preserve the territorial status quo, there seems to be at least potentially a field of tension between these two norms of international law. However, as was seen in the analysis above, neither right is absolute. The right of external self-determination, if exercised through unilateral secession, is limited by the right of 315. UN Doc. S/Res/815, 30 March 1993, Para. 5; UN Doc. S/Res/1023, 22 Nov. 1995, Preamble; UN Doc. A/Res49/43, 9 Dec. 1994, Preamble and Para. 4. See also Commission on Human Rights, Res. 1994/72, 9 March 1994, Para. 32. 316. A/Res/94/43, supra note 315, Preamble. 317. Opinion 2, supra note 180. 318. In addition to the fact that in these cases the cumulative criteria for a right of unilateral secession have not been met (in particular the requirement of a violation of internal self-determination), the attempts of secession were also externally sponsored. See also Klabbers and Lefeber, supra note 59, at p. 47. As to the secession attempt by Katanga, see note 86, supra, and the text accompanying note 73, supra. On the Turkish Republic of Northern Cyprus, see pp. 122-127, supra, and the Preamble of Security Council Resolution 1251 (UN Doc. S/Res/1251, 29 June 1999). For Mayotte, see, e.g., UN Doc. A/Res/49/151, 7 Feb. 1995, and see, generally, A. Oraison, Le Différend Franco-Comorien Sur l'Île de Mayotte: les Avatars de la Decolonisation Dans le Canal de Mozambique, RDISDP, Vol. 74, 1996, p. 199; G.J. Naldi, Separatism in the Comoros: Some Legal Aspects, LJIL, Vol. 11, 1998, p. 247. On the 'Republika Srpska's' attempt at secession from Bosnia-Herzegovina, see, e.g., UN Doc. S/Res/959, 19 Nov. 1994, and see pp. 81-82, supra.
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territorial integrity of States. This limitation constitutes an important basis for some of the requirements under which a right of unilateral secession may come into existence. On the other hand, the same analysis has also shown that, in accordance with the proposition which was made in Section 2, there is no such thing as an absolute right of territorial integrity, because this right is, in turn, limited by, amongst others, the right of self-determination.319 This limitation of the right of territorial integrity and the related qualified right of unilateral secession are based on the broader and widely accepted notion that the sovereignty of the State with respect to both its internal order and external relations is regulated and limited by international legal rules. The obligation to respect and promote the right of self-determination limits the discretion of States with regard to their internal and external actions and policies.320 In sum, there is thus only an apparent conflict or tension between the right of selfdetermination and the right of territorial integrity. The two norms are fully compatible if their content and scope are properly interpreted, that is, if the right of territorial integrity is used as a means of interpretation of the right of self-determination of peoples and vice versa. As has been discussed elsewhere in this study, the principal objective and function of the right of self-determination is to provide for a guarantee for the effective development and preservation of the collective identity of a people as well as for the enjoyment of the individual human rights of its members.321 It has also been posited that this guarantee logically implies the guarantee of a people's freedom and ultimately its (continued) existence. In the previous sections of this Chapter, it has been argued that if the collective identity, existence and/or freedom of a people becomes seriously threatened as a result of the actions or policies of the governmental authorities of the parent State, and if the people concerned has seriously but unfruitfully sought to find ways to implement its right of self-determination within that State effectively, that people is entitled, as an ultimum remedium, to implement its right of selfdetermination externally through secession. Evidently, in such a case there is no conflict between the right of territorial integrity and the right of selfdetermination unless one would argue that the aim of preserving the collective identity, existence and freedom of a people would in some way be in contradic319. See also, e.g, Umozurike, supra note 59, at p. 234; E. Suzuki, Self-Determination and World Public Order: Community Response to Territorial Separation, Va. JIL, Vol. 16, 1975-1976, p. 779, at p. 807, n. 123 ("[t]he territorial integrity of the State is not a goal to be pursued. It is merely one of the conditions under which the enjoyment of human rights can be secured. The goal is instead the protection and fulfilment of the fundamental basis for a dignified human existence" (emphasis in original)). See also C. Tomuschat, Self-Determination in a Post-Colonial World, in: Tomuschat (Ed.), supra note 21, p. 1, at pp. 8-9. 320. Murswiek, supra note 21, at p. 24. 321. See Chapter 5, Section 4, and Chapter 6, Section 2.2., supra.
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tion with (the raison d'être of) the right of territorial integrity.322 It cannot be denied that the existence of a right of secession outside the colonial context is not without danger. Putting into perspective and, under exceptional circumstances, changing the contemporary territorial arrangement of States does entail certain risks, but the same holds true for any rigid insistence on the preservation of historical structures which arouse deep-seated and fierce resistance. It is of great importance that in the more distant as well as the recent past, the international community has shown its preparedness to abandon the path of constrained conservatism and to call into question these historical structures on the basis of the right of self-determination of peoples. In general, a pursuit of independence is not halted by denying the existence of a right of secession.323 Instead, one may hope to stay the tide of such disintegrative processes by stating that the relevant situation does not (yet) justify the operation of the ultimum remedium.324 In Chapter 6 it was observed that, possibly, the rejection of the claims to secession and to statehood by several effective entities may be explained on the 322. See also Murswiek, supra note 21, at pp. 25-27. 323. As has been observed by Mullerson, "in some countries in issues of minorities a kind of vicious circle emerged. On the one hand, minorities which are oppressed, discriminated against or simply feel that their identity is threatened or at least cannot be fully developed because of the policy of the government, demand more autonomy or even complete independence. On the other hand, governments are denying minorities their minority rights or do not take into account their specific problems and interests because of the fear that simple recognition of existence of minorities, let alone protection of their rights and interests, may jeopardise the territorial integrity of the country. Actions and claims of minorities lead to the denial of their own existence, while repressions or different degrees of discrimination resulting from such a denial radicalise claims of minorities". Mullerson, supra note 65, at p. 577. 324. P.H. Kooijmans, Zelfbeschikkingsrecht - Naar een Nieuwe Interpretatie?, in: N. Sybesma-Knol and J. van Bellingen (Eds.), NAAR EEN NlEUWE INTERPRETATIE VAN HET RECHT OP ZELFBESCHIKKING, 1995, p. 157, at p. 167. It is true that abuse of the qualified right of secession may occur. Indeed, it has been argued in this study that this is exactly what featured in the cases of Chechnya and Abkhazia, and, if one would qualify the Serbs in Croatia as a minority-people, that case as well. However, the possibility of an abuse of the right is neither a strong argument against the right's validity nor against its continued existence. For, the qualified right of secession may be compared with the right of self-defence of States in the sense that both are conditional rights. These rights can only be claimed validly if certain conditions have been met. Also the right of self-defence has been abused in the past and, no doubt, will be abused in the future. However, this has not led any State to suggest that the right should be abolished or that it would have been better if it would not have been recognized at all. The fact that the applicability of a norm is embedded in a legal framework means that abuse can be determined, and that the conflict may be settled against a legal background. That is an important value of the legal regulation of human and social behaviour. Although such regulation is aimed at decreasing rather than increasing 'abusive' attempts of secession, it does not, of course, as such imply a guarantee against such future attempts. A qualified right of secession does mean that international community responses towards a claim of secession become more predictable and that, consequently, 'nothing ventured, nothing gained' attempts of secession (attractive in cases of no regulation) would immediately disqualify, and thus become less attractive. Therefore, it is submitted, a qualified right of secession potentially discourages rather than encourages secessionist attempts.
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basis of the law of self-determination. The question was raised whether that law contains any rules and principles regarding secession and, if so, whether these norms are relevant for questions of statehood under contemporary international law. Now that it has been seen that contemporary international law does recognize the existence of a qualified right of secession, it is possible to examine the second question. Hence, the next Chapter addresses the role of the law of self-determination, including the law concerning unilateral secession, in the process of the formation of States in international law.
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Part III Statehood & Self-Determination
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Chapter 8
The Formation of States and the Operation of the Law of Self-Determination
§ 1.
INTRODUCTION
In this Chapter, the distinct legal relationship between the law of self-determination and the law regarding the formation of States will be examined. Chapters 2 and 3 of this study were primarily concerned with the traditional law of statehood. In Chapter 4, it was demonstrated that the traditional approach no longer suffices in explaining several situations which involve, on the one hand, generally rejected claims to statehood of effective territorial entities, and, on the other, generally accepted claims to statehood of ineffective territorial entities. In some of the first situations, the position which is taken by the international community can be explained on the basis of the fact that the norm of the prohibition of aggression, Apartheid or racial discrimination has been violated in the process of the formation of the territorial entity. It was seen in Chapter 4 that the violation of either one of these norms bars the acquisition of statehood by the entity concerned. However, in other cases of effective entities, none of these norms has been violated and the claim to statehood is rejected nonetheless. In these cases, it may well be that the rules and principles relating to the right of self-determination have been violated in the process of the creation of the entity concerned, barring its acquisition of statehood and resulting in the international community's position of refusal of recognition. Accordingly, Section 2 of this Chapter examines the role of the right of selfdetermination with regard to the question of statehood of several entities which have recently been recognized as States despite the existence of ineffective governments. Section 3 discusses the question of whether, and if so, which aspects of the law of self-determination are to be regarded as separate and additional criteria for statehood. In Section 4, attention will be given to the link between the quality of being the holder of the right of external self-determination and the acquisition of statehood. Hereafter, the relationship between the
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right of external self-determination, statehood and recognition will be explored in Section 5. Finally, in Section 6, some conclusions will be drawn.
§ 2.
RECOGNITION OF STATEHOOD DESPITE THE EXISTENCE OF AN INEFFECTIVE GOVERNMENT: MODERN STATE PRACTICE AND THE ROLE OF THE RIGHT OF SELF-DETERMINATION
In Chapter 7 it was seen that, as far as the post-colonial context is concerned, both Bangladesh and Croatia were recognized as States despite the absence of an effective government, both at the time of their proclamation of independence, as well as at the time of the recognition of their statehood.1 In addition, whereas Bangladesh was an effective entity when it was finally admitted to the United Nations in 1974, Croatia was admitted to this organization when its government was still lacking effective control over a considerable part of the territory of the State. Until the end of March 1972, the presence of Indian troops in Bangladesh was required for the establishment and maintenance of public order and public security in the country, and in the case of Croatia the Croatian government did not exercise control over more than one-third of its territory until 1995. These two cases, however, are not the only post-colonial examples where the existence of an ineffective government apparently did not form an obstacle for the acquisition of statehood and the granting of recognition. At least two other examples may be mentioned, namely the recognition of the statehood of the former Soviet republics of Georgia and Moldova. Possibly, the recognition of Bosnia-Herzegovina may be mentioned as another example. But this case presents different problems and will therefore be examined separately in Section 2.2. Now, the cases of Georgia and Moldova should be discussed in more detail. § 2.1.
The cases of Georgia and Moldova
§ 2.1.1.
The Republic of Georgia
Georgia's claim to independence was essentially based on its allegedly illegal incorporation into the Soviet Union in 1921.2 But it was not until 1989, against 1. 2.
See Chapter 7, Section 3.3.3., supra. The substance of Georgia's claim was that the 1921-1922 Treaties which it had concluded to join the Soviet Union were procured by the illegal use of force by the Soviet Union and were therefore void. See C. Gray, Self-Determination and the Breakup of the Soviet Union, Yearbook
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the background of the disintegration of the Soviet Union, that steps were taken to achieve separation from the Soviet Union. In October 1990, parliamentary elections were held, bringing to power former dissident Zviad Gamsakhurdia and his secessionist Round Table/Free Georgia bloc.3 Subsequently, a referendum on Georgian independence was held on 31 March 1991 in which 90.5 per cent of Georgian registered voters voted, of whom 98.93 per cent voted to break away from the Soviet Union. 4 On 9 April, the Georgian Supreme Soviet voted unanimously to declare independence from the Soviet Union. One month later, Gamsakhurdia was elected president by popular vote. As has been described elsewhere in this study,5 the period following the proclamation of independence was characterized by anarchy and civil war. Gamsakhurdia's government was overthrown and the territorial unity of the country was seriously threatened by separatist movements in Abkhazia6 and South Ossetia.7 Until the overthrow of the Gamsakhurdia government in February-March 1992 and the formation of a new government under the leadership of Shevardnadze, the international community did not show any inclination to recognize Georgia's proclamation of independence. Initially, the absence of recognition was motivated by the fear of further disintegration of the Soviet Union. But even after the formal break-up of the Soviet Union in December 1991, the member States of the European Community hesitated. In addition to the continuing unstable situation in the country as a result of civil war and civil unrest, there was considerable doubt about president Gamsakhurdia's commitment to democracy. Consequently, when the member States of the European Community recognized eight of the former Soviet republics on 31 December 1991, they did not include Georgia. In line with this policy, the
3.
European Law, Vol. 12, 1992, p. 465, at p. 484. Thus, similar to the position taken by Baltic States, the proclamation of the independence of the Republic of Georgia had, according to Georgia, to be regarded as a restoration of its statehood rather than as the establishment of a new State. However, the incorporation of territory through the use of (armed) force was not illegal under the international law of the time. Therefore the validity of this claim cannot be maintained. Yet, because of the fact that at the Alma-Ata conference of 21 December 1991 eleven out of the fourteen former Soviet Union Republics (that is, all Republics minus the Baltic States and Georgia) took the decision to dissolve the Union, the legitimacy of Georgia's claim to unilateral secession lost its legal relevance. G. Starovoitova, SOVEREIGNTY AFTER EMPIRE, SELF-DETERMINATION MOVEMENTS IN THE
4.
FORMER SOVIET UNION, Peaceworks No. 19, 1997, p. 16. KEESING'S CONTEMPORARY ARCHIVES, RECORD OF WORLD EVENTS, 1991, p. 38078 (hereinafter 'KEESING'S).
5.
See Chapter 7, Section 5.2, at pp. 380-381, supra.
6.
Id.
7.
In a referendum of 19 January 1992, an overwhelming majority of South Ossetians voted for independence and integration into the Russian Federation. See R. Yakemtchouk, Les Conflicts de Territoire et de Frontière Dans les États de l'ex-URSS, AFDI, Vol. 39, 1993, p. 393, at pp. 422424.
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United States demanded that Georgia should improve its human rights record before it could expect international recognition.8 When the United States recognized Russia, the Ukraine, Armenia, Kazakhstan, Byelorussia and Kyrgyzstan on 26 December 1991, it stated that it did not deny the statehood of the remaining republics but that the establishment of diplomatic relations would be dependent upon the proper protection of human rights and the establishment of democracy. The Georgian government became more acceptable to the international community after Shevardnadze came to power in February-March 1992. However, in addition to the fact that the new government lacked democratic legitimacy until elections were held in October 1992, the internal situation was no more stable after Shevardnadze's accession to power.10 Although fighting intensified in early 1992 between the central government and the South Ossetian separatists, the situation improved to some extent due to a peace agreement signed between the parties in July 1992, which led to the deployment of a combined Russian-Georgian-Ossetian peacekeeping force. However, in the same period the conflict in Abkhazia escalated further and eventually led to the defeat of the Georgian army at the end of 1993." Despite the clear absence of an effective government, the European Community and its member States issued a statement on 23 March 1992 that they were ready to proceed with the recognition of the Republic of Georgia, because the latter had expressed its assured intentions to fulfil the requirements contained in the EC Guidelines on the Recognition of new States in Eastern Europe and the Soviet Union. Almost immediately, formal recognition was granted by both member States and non-member States of the European Community.13 The republic was admitted to United Nations' membership on 31 July 1992.14 This rather late admission was not due to any reservation on the side of the United Nations with regard to the amount of effective control exercised
8. Gray, supra note 2, at p. 486. 9. KEESING'S, supra note 4, pp. 38416, 38655; Gray, supra note 2, at p. 486. 10. See also Starovoitova, supra note 3; UN Ybk., Vol. 46, 1992, p. 391. And see Georgien versinkt immer tiefer im Chaos, Die Welt, 8 Sept. 1992; Fin. Times, 1 May 1992 (quoting Shevardnadze: "[i]f we withdraw [the Russian army from Georgia], our borders will be completely open. Georgia is not ready to defend its own frontiers"). 11. See also p. 381, supra. 12. Statement on the Recognition of the Republic of Georgia, 23 March 1992, quoted in: BYIL, Vol. 63, 1992, p. 640. 13. For instance, the British Government granted recognition on the same day and the United States recognized Georgia one day later. See BYIL, Vol. 63, 1992, p. 641. See also Gray, supra note 2, at p. 487, n. 129. 14. UN Doc. A/Res/46/241,31 July 1992 (sponsored by 76 member States and adopted without vote).
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by the Georgian government, but due to the internal situation which prevented the Georgian government from applying for admission until 6 May 1992.15 § 2.1.2.
The Republic of Moldova
Moldova declared its sovereignty on 23 June 1990, providing for the Moldovan constitution and laws to have primacy over those of the Soviet Union. This declaration is not to be regarded as a proclamation of independence, however, but rather as a step towards such a proclamation. The Moldovan Supreme Soviet determined that the Soviet annexation of Bessarabia had been an act of aggression and an illegal occupation. It rejected the terms of Soviet President Gorbachev's draftUnion Treaty, optinginstead for a confederation of sovereign States. Moldova's assertion of national identity and sovereignty acted as a catalyst to separatist and nationalist groups in the Gagauz region and on the left bank of the Dniestr river (Transdniestr). 16 On 19 August 1990, a 'Declaration on the Freedom and Independence of the Gagauz People from the Republic of Moldova' was adopted by Gagauz deputies 17 and on 2 September 1990 pro-Soviet (russophone) forces declared the creation of a Moldovan Dniestr Soviet Socialist Republic as a constituent part of the USSR. The relationship between the separatists and the central Moldovan government deteriorated and took a sharp turn for the worse at the end of 1991, in particular with respect to Transdniestr where a full-scale civil war developed between the central government and the separatists' militia, which were supported by the Russian 14th Army. Moreover, in the southern part of the country, armed militias had been formed in Gagauz populated areas which quickly took control of the region. Following the failed coup d'etat in the Soviet Union, Moldova declared its independence on 27 August 1991 which was swiftly recognized by Romania. 19 The Moldovan proclamation of independence 15. UN Doc. A/46/938-S/24116, 18 June 1992, Ann. I. 16. Foreign and Commonwealth Office, Moldova: The Search for Peace, Background Brief, April 1993, p. 3. 17. Id. See also, generally, J. Chinn and S.D. Roper, Territorial Autonomy in Gagauzia, Nationalities Papers, Vol. 26, 1998, p. 87. 18. See P. Kolst0 and A. Malgin, The Transnistrian Republic: A Case of Politicized Regionalism, Nationalities Papers, Vol. 26, 1998, p. 103. However, the Congress of People's Deputies maintained that this declaration was not to be regarded as a claim of full independence, but rather as a step towards secession. On the first anniversary of its declaration of independence, the Congress of People's Deputies of the Dniestr Soviet Republic adopted a constitution and formed its own armed forces. In a referendum on the question of independence on 1 December 1991, 78 per cent of the eligible voters in a population of 700,000 turned out to vote and of these, 98 per cent favoured the secessionist path. See KEESING'S, supra note 4, at p. 38657. After the demise of the USSR, the wish of Transdniestr to secede was aimed at integration in Russia. 19. KEESING'S, supra note 4, at p. 38368.
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emphasized the applicability of the "equal rights of peoples and their right of self-determination".20 Moldova participated in the Alma-Ata conference of 21 December which led to the formal dissolution of the Soviet Union and which reaffirmed the "inalienable right to self-determination" of the peoples of the participating States. Once the risk of precedent and intervention through recognition had disappeared, many States, including the member States of the European Community, proceeded with the recognition of Moldova at the end of December 1991 and the beginning of 1992. Moldova applied for membership in the United Nations on 17 January 1992,21 and was admitted on 2 March 1992.22 Recognition by individual States and admission to the United Nations took place despite the precarious situation in Moldova as the Moldovan central government was unable to assert its authority over large parts of its territory by early 1992 as a result of the endeavour for secession and the related use of armed force by the separatists in Gagauzia and Transdniestr. 23 § 2.2.
Observations
Under traditional international law, Bangladesh, Croatia, Georgia and Moldova would not have qualified as States either at the time of their proclamation of independence and/or at the time when they where recognized by the majority of States, because of the clear absence of effective government. How, then, should one explain the general acceptance of the statehood of these entities? From one point of view, it might be stated that these cases are mere exceptions to a general rule and, consequently, that they were decided on the basis of political considerations only. In other words, it could be suggested that international law did not play any significant role in the establishment of these entities as States. This view cannot, however, be maintained. Firstly, there are now too many cases for a simple 'exception-reasoning' to be convincing any longer. Secondly, the said cases share specific characteristics, in particular with respect to the applicability of a right of external self-determination, which has
20.
Preamble. The text of the proclamation is available at http://www.lcweb2.loc.gov/frd/cs/rnoldova/md_appnd.html. 21. UN Doc. A/46/852-S/23468, 23 Jan. 1992, Ann. 22. UN Doc. A/Res/46/223, 2 March 1992 (sponsored by 113 member States and adopted without vote). 23. For instance, the United Kingdom recognized Moldova on 31 December (see BYIL, Vol. 63, 1992, p. 642) as did the United States (see United States Library of Congress, Country Study Moldova, http://lcweb2 .loc.gov/frd/cs/mdtoc. html).
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been emphasized by both the parties involved and the international community. It is therefore submitted that the statehood of the relevant entities should be explained on the basis of legal considerations. In that respect, one such explanation might be that these entities did not constitute States at all and that their recognition was simply incorrect and without legal effect, but this does not seem to be a plausible position given the universal recognition of these entities as States. Another explanation might be that, in these cases at least, recognition has constituted the States in question. This view is also difficult to accept. As was seen in Chapter 2, international practice supports the declaratory theory of recognition. In addition, in the same Chapter it was pointed out that the constitutive school (like the declaratory school) requires the fulfilment of the traditional criteria for statehood before recognition is permitted. The most ardent supporters of the constitutive theory have never suggested that recognition creates the State as such. Instead, they have always maintained that recognition attributes international legal personality to the recognized State, or in other words, that recognition results in the fact that the already (physically) existing State becomes a State in international law.25 This view stems from the logical position that recognition of statehood necessarily requires the existence of the State prior to the act of recognition.26 The traditional declaratory theory of recognition, on the other hand, is unable to explain the acknowledgement of statehood in the above-mentioned cases either, because, at least in its traditional form, the theory is entirely based on the concept of effectiveness. Because traditional international law does not provide for an explanation of the universal acknowledgement of the statehood of the entities concerned, the reason must therefore be found in relatively modern developments in international law. In the next Section it will be shown that the universal acknowledgement of the statehood of Bangladesh, Croatia, Georgia and Moldova is based on the operation of the law of self-determination.
24. On the applicability of external self-determination in the cases of Bangladesh and Croatia, see Chapter 7, supra. It will be recalled that the importance of self-determination as the legal basis for the independence of, amongst others, Croatia, Georgia and Moldova is implicit in the first paragraph of the EC Guidelines on the Recognition of New States in Eastern Europe and the Soviet Union, which states that recognition is based on the EC's "attachment to the principles of the Helsinki Final Act and the Charter of Paris, in particular the principle of self-determination". 25. See p. 30, supra. 26. Id.
408 § 2.3.
Chapter 8 External self-determination and the statehood criterion of 'government': juridical and empirical statehood
It has been discussed in Chapter 4 that the recognition of the entitlement of colonial peoples to establish an independent State as a result of their right of external self-determination had considerable legal consequences for questions of statehood of the former colonial territories.27 These legal consequences were of particular importance for those cases in which the independence of a colonial territory was proclaimed by a government which was deemed to be representative of the inhabitants of the territory, but where, at the same time, effective control by the authorities of the entity over the territory in question was lacking or sometimes nearly absent as a result of the conduct of the colonial power which sought, through the use of armed force, to prevent the colonial territory from breaking away. For the present discussion, it is worthwhile to recall a number of considerations and conclusions which were made in that regard. To begin with, it was stated that with respect to the statehood criterion of 'government', a distinction must be made between (a) a right or title to exercise authority and (b) the actual or effective exercise of that authority. When one of these two elements is present the criterion of government is satisfied.28 This means that the exercise of full control over the territory and its inhabitants by the government of the entity concerned is not a conditio sine qua non for the creation of a State under international law in those cases where there is an exclusive right to exercise authority or jurisdiction with respect to the relevant territory and its inhabitants. The fact that in cases of decolonization the lack or sometimes even absence of effective government apparently did not in itself prevent the acquisition of statehood by the entity in question, thus led to the conclusion that the relevant post-colonial government of the territory must have possessed an exclusive right to exercise authority. Accordingly, it was argued that - because the right of external self-determination entitles colonial peoples to establish an independent State - in such cases the right of external self-determination, once exercised, led to the existence of a right to exercise authority which compensated for the lack of effective governmental control. This consequence of the exercise of an applicable right of external self-determination explained why the claims to statehood of several former colonial territories were accepted by the international community under circumstances which would certainly have disqualified these territorial units as States under the traditional law of statehood.
27. See Chapter 4, Section 2.3., supra. 28. See Chapter 3, Section 3.3., at pp. 65-66, supra.
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It was, therefore, concluded that in cases of decolonization, a presumption exists in favour of the existence of a legal rule holding that a right of external self-determination gives rise to an exclusive right to exercise authority over the territory concerned once the right of self-determination is exercised through a proclamation of independence issued by a government or authority deemed to be representative of the people concerned. This compensating effect of the right of external self-determination in situations of a lack of effective government was referred to as the 'compensatory force principle'. Because some States which were established as a result of decolonization were substantially lacking in effective government, it is, however, difficult to speak of statehood in an empirical sense in these cases. Rather, until the postcolonial governments in question were able to exercise a substantial amount of effective authority over the territory and its inhabitants, the statehood of the entities was essentially juridical in character.29 Thus it may be argued that the phenomenon of decolonization, and the underlying right of external selfdetermination of 'colonial peoples and territories', introduced the notion of 'juridical statehood'. The crucial difference between empirical statehood and juridical statehood is that the latter is characterized by a substantial lack of effective control by the legitimate government of the State concerned. However, both in the situation of empirical statehood and in the situation of juridical statehood, the relevant entities are States, that is, they are full international legal persons whose rights are guaranteed by international law. The fact that international law attributes a right to exercise authority over territory and related territorial rights to a collectivity inhabiting a certain coherent territory is, however, not an innovation in law. For instance, in the Western Sahara case, the International Court of Justice observed that as early as in the nineteenth century, third States could only acquire a title to territorial sovereignty regarding territories which were inhabited by tribes or peoples having a social and political organization through the conclusion of agreements with local rulers competent to represent the people in question. These agreements, the Court continued, had to be regarded as derivative roots of title.30 In other words, the right to exercise authority over the territory in question was, originally, vested in the people concerned, which resulted in the fact that the territory was not considered to be terra nullius. It is clear that the Court could not refer to the right of self-determination as a specific legal basis for the existence of this right or title on the part of the communities concerned, 29. See pp. 72 and 101-105, supra. Cf. also Crawford, CREATION OF STATES, p. 46, who refers to these situations as cases of 'premature independence'. 30. International Court of Justice, Western Sahara case, Advisory Opinion, ICJ Rep. 1975, p. 12, at p. 39, (para. 80).
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because the Court was dealing with a situation which involved the acquisition of a title to territory in the nineteenth century. At that time, a principle of selfdetermination did even exist as yet, let alone a right of self-determination. Therefore, the Court based its conclusions on "State practice of the relevant period".31 With the recognition of (external) self-determination as a positive right of peoples after the establishment of the United Nations, the link between the existence of that right and the existence of a right or title to exercise authority over the territory was recognized as well.32 This was primarily done through the practice of recognition of the statehood of former dependent or colonial territories despite the lack of an effective government. It was thereby acknowledged that the right to exercise authority arose once the right of external selfdetermination was exercised by a formal proclamation of independence.33 In most cases, the absence of a government exercising effective control was a result of illegal attempts by the colonial power to retain the colonial territory by force. Through the acknowledgment of the statehood of the former colonial territory, even before its recognition by the colonial power, the international community made it clear that the right of external self-determination of the relevant people took precedence over any persisting claims to sovereignty by the former colonial power. In effect, this meant two things. Firstly, a lack of effective government, in particular if it resulted from illegal conduct by a colonial power, did not, as such, form a bar to the acquisition of statehood by the former colonial territory,34 and secondly, once the people of the colonial territory or their
31.
Id.
32. It will be noted that the traditional rules which relate to the acquisition of title to territory (occupation, prescription, cession, accession and conquest) do not apply in cases of the formation of new States because these rules relate to the transfer of territory inter vivos, that is, from one existing State to another. See also R.Y. Jennings, THE ACQUISITION OF TERRITORY IN INTERNATIONAL LAW, 1963, pp. 7-8. 33. The special link between a right of external self-determination and territorial rights is also recognized in the Friendly Relations Declaration which states that "the territory of a colony or other Non-Self-Governing Territory has, under the United Nations Charter, a status separate and distinct from the territory of the State administering it". See UN Doc. A/Res/2625 (XXV), 24 Oct. 1970, Principle V, Para. 6. Furthermore, the legal consequences of an applicable right of external self-determination for rights and principles related to territory are spelled out in Resolution 1514 of 1960. While proclaiming the right of self-determination of colonial peoples and territories, the resolution affirms the existence of exclusive rights related to the national territory, which rights are vested in the inhabitants of colonial territories. In that respect, the resolution emphasizes that any State (including the colonial power) is under an obligation to respect "the integrity of their [that is, the colonial peoples'] territory". See UN Doc. A/Res/1514 (XV), 14 Dec. 1960, Para. 4. Moreover, the resolution emphasizes the illegality of "any attempt aimed at the partial or total disruption of the [...] territorial integrity of a country", that is a colonial territory. Id., at Para. 6. Cf. also M.N. Shaw, TITLE TO TERRITORY IN AFRICA, 1986, pp. 171-173. 34. See pp. 102-104 supra.
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representatives had exercised the right of external self-determination, the parent State was deemed to have lost its title with respect to the relevant territory. Moreover, when the new State was established (even in the form of juridical statehood), the integrity of its territory and related rights were guaranteed by the right to territorial sovereignty of the State in question. The above-mentioned rules and principles, including the compensatory force principle, were discussed against the background of decolonization. However, it is submitted that their scope of application is not limited to that context. The analysis of the cases of Bangladesh, Croatia, Georgia and Moldova cannot but lead to the conclusion that the compensatory force principle also applies beyond decolonization. In the aforementioned cases, the right of external self-determination was exercised either through the peaceful dissolution of the parent State (Georgia, Moldova) or through unilateral secession (Bangladesh, Croatia). Indeed, in all these cases the proclamations of independence were based on self-determination principles. At the same time, in none of the discussed cases there was an effective government. In some (Croatia, Georgia) there was even a substantial lack of effective control. However, despite this feature the international community did not question the statehood of any of the entities involved.This is true for the time when individual recognition was granted as well as (with the exception of Bangladesh) for the date on which the States were admitted to membership in the United Nations. Because of the widely acknowledged fundamental legal status of the right of self-determination and the declaratory character of recognition of statehood, the only logical and legally sound explanation for the position taken by the international community is that there is a strong presumption in favour of the premise that the compensatory force principle is also applicable in post-colonial cases of external self-determination.35 This means that if a minority-people36 possesses the right to establish an independent State on the basis of its right of (external) self-determination and if that people exercises that right but is subsequently frustrated in the effective enjoyment of the fruits of that exercise as a result of the unlawful conduct by another entity such as the parent-State, international law will not hold the
35. see also S.R.Chowdhury,THE GENESIS OF BANGLADESH,A STUDY IN INTERNATIONALLEGAL NORMS AND PERMISSIVE CONSCIENCE, 1972, pp. 291-292 (with respect to the statehood of Bangladesh); D. Murswiek, The Issue of a Right of Secession - Reconsidered, in: C. Tomuschat (Ed.), MODERN LAW OF SELF-DETERMINATION, 1993, pp. 21-39, at pp. 30-31 (with respect to Croatia's statehood). For a general analysis of the meaning and exercise of the right of external self-determination, see Chapter 6, Section 5, supra. For the conditions of a qualified right of secession, see Chapter 7, Section 4, supra. 36. See p. 269, supra.
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ineffective situation against the people in question. 37 That is to say, in such a case the existing ineffective situation will not in itself form a bar to the acquisition of statehood.38 Similar to cases of decolonization - and assuming that the other criteria for statehood are met - the established State is primarily juridical in character. Thus, under contemporary international law a State may come into being and be recognized when it does not possess all the empirical particularities of stable and existing States as yet. Although it is therefore perhaps not yet able to exercise all the rights of established States, it operates under functional rules that allow the process of empirical state formation to be completed as envisaged.39 Consequently, as well as sanctioning effective situations in principle, international law also allows for an ineffective situation which is based on the right of external self-determination to come into being. As was observed in Chapter 7, this also means that (similar to cases of 37. See also U.O. Umozurike, SELF-DETERMINATION IN INTERNATIONAL LAW, 1972, pp. 199-200. And see Brownlie, PRINCIPLES, p. 71. It must be assumed that the Minister of Foreign Affairs of the United Kingdom referred to this principle with respect to the situation in Croatia in 1992: "[t]he traditional criteria that we adopt for the recognition of states probably apply to Slovenia. They do not apply in the case of Croatia in the same way, but I accept [...] that one of the reasons why the criteria do not apply to Croatia is that Croatian territory has been invaded by the [Jugoslav National Army] and Serbian irregulars. Rather than argue whether the traditional criteria apply, I would like to take a slightly broader perspective on the issue". Quoted in: BYIL, Vol. 62, 1991, p. 558. Later the Minister added: "[t]he criteria are that a country should have a clearly defined territory with a population; a Government with a prospect of retaining control; and independence in its foreign relations. These criteria are always subject to interpretation in the light of circumstances on the ground". Quoted in: BYIL, Vol. 63, 1992, p. 639. It is also noteworthy that this idea or principle was explicitly forwarded in 1976 by the League of Arab States with respect to Palestine. In that year, Palestine became a full member of the League of Arab States necessitating the adoption of an Annex to the constitution of the organization which stipulated, inter alia, that the existence and independence of Palestine could not be questioned de jure, "even though the outward signs of this independence have remained veiled as a result of force majeure". Quoted in: H.G. Schermers and N.M. Blokker, INTERNATIONAL INSTITUTIONAL LAW, 1995, p. 51. However true this may be, Palestine did not qualify as a State because of (a) the absence of a formal proclamation of independence (i.e., a lack of formal independence) and (b) the absence of a government as such. 38. See also M. Weller, The International Response to the Dissolution of the Socialist Federal Republic of Yugoslavia, AJIL, Vol. 86, 1992, p. 569, at pp. 604, 607. It was certainly the French view that the most important principle to be observed in the recognition of the new States of the former Soviet Union and the former Yugoslavia was self-determination: "[n]ous respectons l'exercice par chaque peuple de son droit légitime a l'autodétermination [...]. Le Président de la République a été on ne peut pas plus clair sur ce sujet: 'L'autodétermination des républiques s'imposera". Statement of the French Ministry of Foreign Affairs, 28 Nov. 1991, AFDI, Vol. 38, 1992, p. 1144. 39. See also Shaw who states: "[j]ust as the general international law relating to territorial title permits the level of effectivity of control to vary according to geographical and other relevant factors, so practice demonstrates that an entity may become a state even where the government does not effectively control all of the territory comprised within the boundaries of that state". M.N. Shaw, Re: Order in Council P.C. 1996-1497 of 30 September 1996, Aug. 1997, Supplément au dossier, in: Rapports d'Experts de l' Amicus Curiae, para. 11. 40. An exception is formed by effective situations established in violation of fundamental norms of international law. See Chapter 4, supra.
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decolonization) if a minority-people in an existing State is entitled to the right of unilateral secession, the parent State loses its title to the relevant territory once the minority-people exercises that right through a proclamation of independence.41 Consequently, under contemporary international law, 'government' as a constitutive criterion for statehood, must be understood as an indication of some sort of coherent political structure based on a legitimate title to exercise authority over territory and people, and not necessarily as a criterion which necessitates the existence of a sophisticated administrative apparatus which exercises full control over the territory of the State and its inhabitants. This means that a certain degree of institutionalized political, administrative and executive organizational machinery which is entitled and capable of regulating the relations in the community and of having relations with other States must exist. This content of the criterion of 'government' is thus of particular importance for those cases or situations which do not correspond with the notion of empirical statehood. In other words, it is important for those special cases where statehood is claimed but where the government of the entity, although possessing an exclusive right to exercise authority, does not in fact control large parts of the relevant territory. The particular relevance of the criterion for these special cases is not extraordinary because, as has been observed by Crawford the legal criteria for statehood are of necessity nominal and exclusionary: that is to say, their concern is not with the central, clear cases but with the borderline ones.43
The legal effect of the right of external self-determination on questions of statehood involving the existence of an ineffective government is, however, but one aspect of the relationship between the right of self-determination and statehood. Arguably another aspect of that relationship is that certain rules and principles of the law of self-determination may be qualified as separate criteria for statehood. This will be examined in Section 3, below. It is first necessary, however, to discuss the case of Bosnia-Herzegovina. As will be seen, in that case the lack of effective government is but one of several issues relevant to the question of statehood of the republic. 41.
See Chapter 7, Section 3.3.3., at pp. 364-365, supra. To the same effect, see S. Oeter, Selbstbestimmungsrecht im Wandel: Überlegungen zur Debatte um Selbstbestimmung, Sezessionsrecht und 'vorzeitige' Anerkennung, ZaöRV, Vol. 52, 1992, p. 741, at p. 769; Weller, supra note 38, at p. 607. See also R. Emerson, The Logic of Secession, Yale LJ, Vol. 89, 1979-1980, p. 802, at pp. 808809. 42. Cf. also Shaw, INTERNATIONAL LAW, p. 141. 43. Crawford, CREATION OF STATES, p. 42.
414 § 2.4.
Chapter 8 The special case of the Republic of Bosnia-Herzegovina
The parliament of Bosnia-Herzegovina declared the republic's independence on 14 October 1991, but this was rejected by the Serb and Croat minorities whom, together with the Bosnian Muslims or Bosniaks, made up the population of the republic. The Bosnian Serbs expressed their desire to stay within the Yugoslav federation, and on 9 January 1992, the Assembly representing the Serbian population in Bosnia-Herzegovina announced the formation of an autonomous (but not yet independent) Republic of the Serbian People of Bosnia-Herzegovina. The Bosnian Croats sought to secede from the republic and to join Croatia but in the meantime they established the Republic of Herceg-Bosna on 3 July 1992. Alongside Croatia, Slovenia and Macedonia, Bosnia-Herzegovina requested recognition from the member States of the European Community on 24 December 1991. However, in its Opinion 4, the Arbitration Commission of the International Conference on Yugoslavia held that the absence of a referendum in Bosnia-Herzegovina meant that "the will of the peoples of Bosnia-Herzegovina to constitute [the republic] as a sovereign and independent State cannot be held to have been fully established",45 and that, consequently, recognition should not be granted. The Commission observed, however, that its assessment could be reviewed "if appropriate guarantees were provided by the Republic [...] possibly by means of a referendum of all the citizens of the SRBH without distinction, carried out under international supervision". ' On 29 February and 1 March 1992, a referendum was held but boycotted by the Serb minority. Out of a 63 per cent turnout, a reported 99.4 per cent voted for complete independence. 47 Fighting erupted almost immediately between Bosniaks and Bosnian-Serb irregulars and the JNA and Bosnian-Croat irregulars. Five days later, on 6 March 1992, the Republic of Bosnia-Herzegovina was declared an independent State. The member States of the European Community and the United States recognized BosniaHerzegovina on 7 April 1992, which led to an intensification of fighting between the different ethnic groups in the country. Prior to the EC/US recognition, Bosnia-Herzegovina had been recognized by Bulgaria and Turkey,
44. According to the 1991 census, the population of Bosnia-Herzegovina was 44 per cent Bosniak, 31 per cent Serb and 17 per cent Croat. 45. ILM, Vol. 31, pp. 1501-1503, at p. 1503. 46. Id. 47. KEESING'S, supra note 4, 1992, p. 38832. 48. International Court of Justice, General List No. 91, Application Instituting Proceedings filed in the Registry of the Court on 20 March 1993, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), Application of the Republic of Bosnia and Herzegovina, para. 14.
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but the EC/US lead was quickly followed by many other countries in the following few weeks.49 The Bosnian government applied for admission to the United Nations on 8 May.50 The country was admitted to membership on 22 May 1992.51 The establishment of Bosnia-Herzegovina as a State gives rise to different questions relating to the law of statehood and the law of self-determination. Although there was some effectiveness at the time of the proclamation of independence in March 1992, there is no doubt that when the statehood of Bosnia-Herzegovina was recognized by individual States and when it was admitted to United Nations membership, the central government was unable to assert its authority over vast parts of the country, and it was questionable whether it controlled its own military and security forces. Even so, the government of the United Kingdom stated that the recognition of Bosnia is [not] premature, [because] a referendum was held within Bosnia which was a sufficient basis for recognition, and Bosnia complied with all the requirements that were established by Mr Badinter and within the EC.52
It is quite clear, however, that an effective government was seriously lacking and that, consequently, Bosnia-Herzegovina could hardly have been considered to be a State according to traditional international law. However, if the establishment of Bosnia-Herzegovina is seen either as a result of a lawful secession due to an applicable right of unilateral secession on the part of the Bosniaks, or as a residue of the forceful dissolution of the SFRY,53 recognition would not have violated the principle of non-intervention. For, in the former case, the right of self-determination would arguably compensate for the lack of effective control, while in the latter case the republic had logically ceased to be part of the SFRY. Even if it would be accepted that Bosnia-Herzegovina seceded from the SFRY unilaterally, and assuming for the moment that the Bosniaks formed a 'people' in an ethnic sense and thus a collectivity potentially entitled to a right 49. Within the period of April-May, recognition was granted by, for instance, Croatia, Canada, New Zealand, Czechoslovakia, Hungary, Poland, Egypt, Saudi Arabia and Australia. See R. Rich, Recognition of States: The Collapse of Yugoslavia and the Soviet Union, EJIL, Vol. 4, 1993, p. 36, at pp. 50-51. 50. UN Doc. A/46/921-S23971, 8 May 1992. 51. UN Doc. A/Res 46/237, 22 May 1992. 52. Quoted in: BYIL, Vol, 63, 1992, p. 645. 53. For the position that it is tenable that the creation of Bosnia-Herzegovina was a result of the dissolution of the SFRY, see, e.g., T.D. Grant, Territorial Status, Recognition, and Statehood: Some Aspects of the Genocide Case (Bosnia Herzegovina v. Yugoslavia), Stanford JIL, Vol. 33, 1997, p. 305, at p. 329, n. 130.
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of secession, the question must be addressed whether the Bosniaks were in practice exposed to such harm (in the form of, for instance, a serious violation of their right of internal self-determination and/or serious and widespread violations of their individual human rights) prior to the proclamation of independence in March 1992, that the relevant secession has to be considered the ultimum remedium for safeguarding their identity, freedom and human rights. On the basis of the facts of the relevant period, the answer can only be in the negative. For the Bosniaks were exposed to serious and widespread violations of their human rights only after the proclamation of independence. This would mean that at least one crucial condition for the existence of a right of unilateral secession was not met and thus that there was no entitlement to proclaim an independent State. On the other hand, and apart from the events which took place after the proclamation of independence, it must be acknowledged that the international community sought to prevent the occurrence of a Croatia-like scenario with respect to the Bosniaks. The international community's preparedness to recognize Bosnia-Herzegovina as an independent State reveals that it was apparently thought that a Croatia-like scenario of massacres could be prevented through the separation of Bosnia-Herzegovina from Yugoslavia and through its subsequent admission to the collective security system of the United Nations. This position thus assumes the existence of a serious threat to the continued existence of the Bosniaks (either through their physical extermination or through measures which would make it impossible to retain their distinct identity) if they would be required to remain in a rumpYugoslavia. The assumption of the existence of such a threat is not far-fetched when one recalls the Serbian policy in particular with respect to the Muslim population of Kosovo since at least the late 1980s.55 However, even if one accepts the existence of a serious threat to the continued existence of the Bosniaks around the relevant time, and even if one would accept that such a situation would have legitimized the establishment of an independent State of the Bosniaks (and thus that the fulfilment of the conditions for the existence of the right of unilateral secession was anticipated at the time of the proclamation of independence), the next problem which must be addressed is the question of the holder of the right of unilateral secession. That is to say, whether the first condition of the qualified right of secession (a people forming a majority within a more or less defined territory) was
54.
For a discussion of the conditions for a right of unilateral secession, see Chapter 7, Section 4, supra. 55. See also D. Kofman, Self-Determination in a Multiethnic State: Bosnians, Bosniaks, Croats and Serbs, in: D. Solkolovic and F. Bieber (Eds.), RECONSTRUCTING MULTIETHNIC SOCIETIES: THE CASE
OF BOSNIA-HERZEGOVINA, 2001, p. 31, at pp. 45-51.
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satisfied. For, even if the Bosniaks can be qualified as a people in an ethnic sense, they formed a relative majority only within the boundaries of BosniaHerzegovina. In this respect it might be argued that (a) either the first condition of the qualified right of secession requires a people to constitute a relative majority only within a the territory of the prospective State, or (b) that the wish for independence of a people forming a relative majority only requires the support of one or more segments of the population of the intended State (that is, in this case of either the Croatian or the Serbian national minority). In such a case the wish for independence is supported by an absolute majority of the population of the territorial unit. The third possibility is that (c) the recognition of the republic's statehood by the international community was not a declaratory statement regarding statehood, but in fact helped the Bosniaks to establish and secure their State. The first position cannot be upheld because it is not supported by prior or subsequent state practice. The second position is influenced by the particular ethnic composition of Bosnia-Herzegovina and the need for protection of the Bosniaks. However, it would provide in a possible explanation for the statehood of Bosnia-Herzegovina on the basis of the compensatory force principle (if one assumes that the physical existence of the Bosniaks was seriously threatened at the time of the proclamation of independence). It seems that the latter position was adopted by the Arbitration Commission of the International Conference on Yugoslavia. The Commission required a mere majority decision with respect to the establishment of an independent State of Bosnia-Herzegovina. Also, this seems to be supported by several member States of the European Community. For, after the holding of the referendum it was stated that all conditions for recognition were met.56 If, however, position (c) would have to be accepted - a position which has indeed been suggested in doctrine57 - then the act of recognition in this specific case had a creative force which goes well beyond the attribution of international legal personality to an already factually existing State. In this case, it would have to lead to the legally uncomprehensible conclusion that the international community recognized the statehood of a non-existent State. If position (c) should nevertheless be followed, this would necessarily mean that a territorial entity was actively created on the territory of the former Yugoslavia. This, the supporters of this view may argue, was in accordance with the political agenda of the international community, which at the time had accepted the position that there was no other alternative to the
56. See, e.g., the statement by the government of the United Kingdom, supra note 52. 57. See, e.g., Rich, supra note 49, at p. 56.
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political reorganization of Yugoslavia along the lines of the former federal republics and which did not want to reward Serbia by allowing it to annex (parts of) the territory of the republic of Bosnia-Herzegovina. However, even if position (c) would reflect a correct interpretation of the facts, the aforementioned creative effect of recognition with regard to statehood must be seen as an exception to a general rule, given the otherwise consistent state practice which favours the declaratory character of recognition. In conclusion, in explaining the statehood and recognition of BosniaHerzegovina in 1992, one may accept a rather stretched and adapted application of the qualified secession doctrine and the related compensatory force principle. However, it cannot be denied that the need for 'stretching' emphasizes the questionable validity of the secession and its recognition. A similar form of 'stretching' (in particular with respect to the holder of the right of a qualified right of secession) would be required if one would argue that BosniaHerzegovina was a residue of the forceful dissolution of the former Yugoslavia. For also in that case, there would have been a substantial lack of effective government. On the other hand, however, one may accept the position that both the physical existence of the State of Bosnia-Herzegovina and its international personality were constituted through recognition. But, as was stated above, this seems to be a legally illogical and untenable position. Therefore, even if the position on the applicability of a right of external self-determination and the compensatory force principle must - if only theoretically- be preferred over the position on 'creative' recognition, it seems clear that regardless of whether one subscribes to the former or the latter position, the establishment of the State of Bosnia-Herzegovina is a sui generis situation.
§3.
THE LAW OF SELF-DETERMINATION AND THE CRITERIA FOR STATEHOOD: THE UNLAWFUL PROCLAMATION OF INDEPENDENCE
In Chapter 3, it was seen that international law contains a number of legal criteria for statehood which are based on the principle of effectiveness. They were referred to as the traditional criteria for statehood. The suggestion that the violation of certain rules and/or principles relating to the right of selfdetermination forms a bar to the acquisition of statehood if such a violation takes place in the process of the establishment of the prospective State is not based on effectiveness, however, but on the principle of legality. A proclamation of independence may, arguably, be unlawful if it is issued while (a) the conditions for a right of unilateral secession are not (yet) satisfied, or (b) when the proclamation is in violation of the internal dimension of the right of self-
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determination. The question whether these two possible grounds for an unlawful proclamation of independence may be regarded as additional criteria for statehood under contemporary international law must now be examined. § 3.1.
The prohibition of abuse of the right of self-determination: the requirement of the fulfilment of the conditions of a qualified right of secession
In Chapter 7, it was demonstrated that according to the law of self-determination, a unilateral right of secession exists if certain conditions have been met. In addition, it was observed that if those conditions are not satisfied, unilateral secession is prohibited. If under such circumstances unilateral secession is nonetheless pursued, this constitutes a violation of the law of selfdetermination. 58 It is submitted that such a violation - that is, an unlawful proclamation of independence - bars the acquisition of statehood by an otherwise effective territorial entity. In effect, this means that the requirement of the fulfilment of the conditions of a qualified right of secession is considered as an additional criterion for statehood. This conclusion is supported by the practice of the international community with respect to the Republic of Abkhazia, which was discussed elsewhere.59 For the present discussion, it is relevant that the Republic of Abkhazia was not recognized by a single State after its proclamation of independence on 12 October 1999, despite the fulfilment of all the traditional criteria for statehood. Indeed, the Abkhazian government exercises complete and exclusive control over the relevant territory since September 1993, when all Georgian forces were expelled from Abkhazian territory. There is thus no doubt that Abkhazia would have qualified as a State under traditional international law. This is, however, clearly not the present position of the international community. From the moment the Security Council became involved in the conflict between Georgia and Abkhazia, the Council endorsed the maintenance of the territorial integrity of the Republic of Georgia. In particular, the Council called upon the parties to achieve a comprehensive political settlement which would include a solution for the political status of Abkhazia within the State of Georgia.60 It is important to note that the Council did not change its position after the proclamation of independence of Abkhazia. The Council simply denied that the Abkhazian proclamation of independence had, or could, 58. See pp. 323-324, 326 and 371, supra. 59. Id., Chapter 7, Section 5.2., supra. 60. See, e.g., UN Doc. S/Res/1255, 30 July 1999, Para. 5.
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produce the intended legal effect, that is, the creation of a State. Accordingly, in Resolution 1287, the Council reiterated its call for the parties to the conflict to [...] display without delay the necessary will to achieve substantial results on the key issues of the negotiations, in particular on the distribution of constitutional competences between Tbilisi and Sukhumi as part of a comprehensive settlement, with full respect for the sovereignty and territorial integrity of Georgia within its internationally recognized borders.61
The Council continued by declaring that it considered unacceptable and illegitimate the holding of self-styled elections and referendum in Abkhazia, Georgia.62
This position was endorsed by the participating States of the OSCE: [r]eaffirming our strong support for the sovereignty and territorial integrity of Georgia, we stress the need for solving the conflict with regard to [...] Abkhazia, Georgia, particularly by defining the political status of [this region] within Georgia.63
These statements leave no doubt that, according to the international community, the right of self-determination of the Abkhaz people must be implemented within the boundaries of the Republic of Georgia. This necessarily implies a rejection of the applicability of the right of external self-determination under the prevailing circumstances. Indeed, as was discussed in Chapter 7, the Abkhazian case is one of several examples confirming the position of the qualified secession doctrine, that under contemporary international law, a minority-people is entitled to unilateral secession only if this is the ultimum remedium for safeguarding that people's identity and (thus) its continued existence.64 The inapplicability of the right of unilateral secession and, consequently, the international community's explicit insistence on the maintenance of the Georgian territorial status quo, must be taken into account when one addresses the question of Abkhazian statehood. For, serious attention is called for when States withhold recognition of situations or acts where one would normally expect their recognition, as in the case of Abkhazia's claim to statehood. Because the Republic of Abkhazia is a fully effective territorial entity, it is 61. 62. 63. 64.
UN Doc. S/Res/1287, 31 Jan. 2000, Para. 4. Id., at Para. 5. OSCE Istanbul Summit Declaration, SUM.Doc.2/99, 19 Nov. 1999, Para. 15. See Chapter 7, Sections 4.4. and 6, supra.
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impossible to explain the position of the international community on the basis of the traditional criteria for statehood, which were discussed in Chapter 3. Moreover, Abkhazia was not created as a result of illegal outside intervention, 65 nor was its establishment accompanied by the violation of the prohibition of racial discrimination or the prohibition of Apartheid. Accordingly, it does not seem possible either, to explain the refusal to recognize the claim to statehood on the basis of a violation of these particular norms in the context of the doctrine of non-recognition, as discussed in Chapter 4. However, if it is taken into consideration that (a) the right of external self-determination, if applicable, entitles a minority-people to establish a State, (b) that unilateral secession is a means of exercising the right of external self-determination by a minoritypeople, (c) that the Abkhazians fail to satisfy the criteria of the qualified right of secession,66 (d) that, consequently, the international community insists that the Abkhazians implement the right of self-determination within the Republic of Georgia, and (e) that the Abkhazians have nonetheless seceded unilaterally - it seems unavoidable to conclude that the Republic of Abkhazia is not a State under international law, and therefore not recognized, because the law of selfdetermination has been violated in the process of the entity's creation. In other words, secession in the absence of the fulfilment of the conditions for the existence of a right of unilateral secession constitutes an abuse of right and a violation of the law of self-determination. This, in turn, bars the acquisition of statehood by the entity established as a result of the secession. It is thought that these considerations are borne out by established practice. Thus the factors forming a bar to the acquisition of statehood by Abkhazia also apply to the cases of, for instance, South Ossetia,67 the Serb Republic of Bosnia-
65. As has been observed elsewhere, there is no convincing evidence that the Republic of Abkhazia was created as a result of Russian military intervention. See p. 381, note 257, supra. Moreover, it may be questioned whether such an intervention affects the statehood of Abkhazia if the creation of Abkhazia was the result of the exercise of an applicable right of external selfdetermination. For even if one would accept the position that the Indian intervention in Pakistan in 1971 was unlawful, it apparently did not affect the validity of the legitimate claim to external self-determination by the people of Bangladesh nor the result of the exercise of that right, as is shown by the universal recognition of Bangladesh. 66. See pp. 384-386, supra. 67. South Ossetia proclaimed independence in November 1991 in response to the fact that in December 1990, President Gamsakhurdia of Georgia rescinded the autonomy of the South Ossetian region. Although this was a violation of the right of (internal) self-determination of the Ossetian people, prior to the proclamation of independence no serious efforts were undertaken to find a solution to the problem within the boundaries of Georgia. See, generally, J. Ormrod, The North Caucasus: Fragmentation or Federation?, in: I. Bremmer and R. Taras
(Eds.), NATIONS AND POLITICS IN THE SOVIET SUCCESSOR STATES, 1993, p. 103. There is a realistic prospect for a solution to be found in the foreseeable future regarding the status of South Ossetia within Georgia. See, e.g., South Ossetia Interested in Georgian Leaders 'Asymmetrical Federation' Proposal, IHT, 31 Oct. 2001.
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Herzegovina ,68 the Republic of Anjouan, 69 and the Republic of Bougainville.70
68. Also called the Republika Srpska. The Serb Republic was proclaimed on 7 April 1992 under the leadership of Radovan Karadzic. The republic consisted of several territories within BosniaHerzegovina. Apart from the fact that the Serb Republic was not an independent entity and that it could be argued that it was created on Bosnian territory which was occupied by the JNA (see also Chapter 3, Section 3.5.2., at pp. 81-82, supra), in addition, the entity's statehood was proclaimed by the Bosnian Serbs whilst no serious effort had been undertaken to find a solution for their problems within Bosnia-Herzegovina. Indeed, as in the case of Croatia, secession was seen as an automatic consequence if Bosnia-Herzegovina would not stay within the Yugoslav federation. There is considerable evidence that the preparations for secession had been made by the Serbs long before the government of Bosnia-Herzegovina had decided to seek independence (see, e.g., Kofman, supra note 55, at pp. 47-51). Moreover, there is little evidence that their right of internal self-determination, if at all applicable in this case, was seriously violated or that there were serious and widespread violations of fundamental human rights prior to the proclamation of independence. Rather, in response to majority decisions by the Bosnian Assembly, the Serbs voluntarily withdrew their representatives from this and other (federal) state organs, and refused to take part in a referendum on the future political status of BosniaHerzegovina. Although the Serb Republic functioned as an independent republic during the war in Bosnia-Herzegovina, it was not recognized by any State. The Dayton Accord of December 1995 required the Serb Republic to acknowledge its subordination to the central government in Sarajevo. As to the implicit rejection of the Serbian claim to statehood, see UN Doc. S/Res/959of 19 Nov. 1994, Preamble ("condemning the decision by the Bosnian Serb party to refuse to accept the proposed territorial settlement" and "[r]eaffirming also the independence, sovereignty and territorial integrity of the Republic of Bosnia and Herzegovina"). But see US Court of Appeals, 2nd Cir., Kadic v. Karadzic, 18 June 1996, F.3d, Vol. 70, p. 232, at p. 245. Similar considerations apply with respect to the so-called Republic of Herceg-Bosna which was proclaimed by the Bosnian Croats in the course of 1993. The entity remained unrecognized and supposed to have been dissolved on 8 August 1996 and absorbed into the Muslim-Croat Federation. See Republik Herceg-Bosna verschwindet, Berliner Zeitung, 2 Aug. 1996. The Federation is one of the two constituent parts of the Bosnian State which emerged out of the Dayton Peace Accord of November 1995; the other part is formed by the Republika Srpska. 69. The Comoros consists of four main islands, Grand Comore, Anjouan, Moheli and Mayotte. The Comoros became independent from France on 6 July 1975. The latter, however, determined to maintain a presence in the region by declaring the island of Mayotte to be a French Overseas Territory. This decision was rejected by the General Assembly of the UN (see, e.g., UN Doc. A/Res/49/18, 28 Nov. 1994). The islands of Anjouan and Moheli demanded the return to French rule and the granting of a status similar to that of Mayotte, but both the central government as well as the French government rejected these requests. On 3 August 1997, the island of Anjouan seceded from the Comoros unilaterally and declared its independence (an act which was followed by a similar proclamation by the island of Moheli on 11 August). Resort to force by the government of the Comoros in an attempt to quell the secessionist strife failed. In September 1997, a seaborne invasion of Anjouan was beaten back. The proclamation of independence was affirmed in a referendum which was held in Anjouan on 26 October 1997. However, despite the effectiveness of Anjouan, its claim to statehood has not been recognized by any State. This can be explained by the fact that the secession is not based on any frustration of political participation or on human rights violations. Rather, it appears that the secession was prompted by economic decline, and in particular by long-standing grievances over the distribution of the annual French aid budget which the secessionists complain is concentrated on Grand Comore. In addition, Anjouan refuses to sign an OAU-mediated accord of April 1999 (the Antananarivo Accord) which guarantees substantial autonomy for the island. The availability of realistic alternatives to secession and the persistent refusal of Anjouan to accept any of these solution, forms another explanatory ground for the non-recognition of the claim to statehood. See, generally, G.J. Naldi, Separatism in the Comoros: Some Legal Aspects, LJIL, Vol. 11, 1998, p. 247.
The Formation of States and the Law of Self-Determination § 3.2.
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Respect for the right of internal self-determination of peoples
As was seen in Chapter 6, the obligation of respect for the internal dimension of the right of self-determination (that is, the right of participation) is a conditio sine qua non for a lawful exercise of external self-determination.71 This obligation is strongly related to the principle of 'free choice', which was discussed in Chapter 5.72 According to this principle, the result of the exercise of external self-determination (that is, the creation of an independent State, association with or integration in an independent State), must be based on the freely expressed wishes of the people concerned. This means that a claim of external self-determination which is not supported by the will of the people(s) concerned, constitutes a serious violation of the obligation to respect the internal dimension of self-determination. This obligation is of direct relevance for the law of statehood. For practice suggests that to become a State in international law, an entity must, in addition to the traditional criteria, meet the requirement that it has been created in accordance with this obligation.73 A clear example of a case in which this criterion was not satisfied is the
70. Papua New Guinea, including the island of Bougainville, gained independence from Australia in 1975, despite repeated calls of Bougainville for the holding of a referendum on secession. One year later, negotiations with the Papua New Guinea government resulted in an agreement on limited autonomy for Bougainville, as a province of Papua New Guinea. By 1988, tensions escalated into violence as it became clear that mining projects on the island were not benefiting the people of Bougainville as well as that the mining activity was seriously damaging the island's environment. In response, the Bougainville Revolutionary Army was established, which forcibly closed the mine. The central government of Papua New Guinea reacted by sending in the police and later the army. The central government's forces were defeated, however. Whilst the central government imposed a blockade on the island, the army left Bougainville in April 1990. On 17 May 1990, Bougainville declared its independence, which remained unrecognized, despite the fact that the Bougainville government exercised considerable control over the island at least until February 1993. At that time, the army of Papua New Guinea re-gained control over the capital of Bougainville. However, as fighting continued in the following years it became clear that the army of Papua New Guinea was unable to win the war. Violence came to an end only with the signing of a peace agreement between Papua New Guinea and Bougainville on 26 January 2001. The agreement provides for the holding of a referendum on independence which should be held between 10 and 15 years from the election of the first autonomous government of Bougainville. The autonomous government must be elected within 12 months of the signing of the agreement. Thus, this agreement recognizes both the right of internal and external selfdetermination of the people of Bougainville, but excludes, for a period of 10 years, the exercise of external self-determination through unilateral secession. See, generally, Parliament of Australia, Report of the Joint Standing Committee on Foreign Affairs, Defence, and Trade, Bougainville: The Peace Process and Beyond, 1999; M. Rafiqul Islam, Secession Crisis in Papua New Guinea: The Proclaimed Republic of Bougainville in International Law, UHLR, Vol. 13, 1991, p. 453. 71. See pp. 291-292, supra. 72. Chapter 5, Section 3.4.3., supra. 73. See also Shaw, INTERNATIONAL LAW, p. 146; J. Dugard, Secession: Is the Case of Yugoslavia a Precedent for Africa?, African JICL, Vol. 5, 1992, p. 163, at p. 168; N. Wallace-Bruce, CLAIMS
TO STATEHOOD IN INTERNATIONAL LAW, 1994, p. 69.
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case of Southern Rhodesia which was discussed in Chapter 4.74 At this point it may suffice to recall that a white minority regime under the leadership of Ian Smith proclaimed the independence of Southern Rhodesia, in 1965, an act which was condemned by the Security Council as constituting a violation of the right of self-determination of the black majority of Southern Rhodesia. It was seen that all States considered themselves under an obligation not to recognize the claim to statehood and that this position implied the acknowledgement of the existence of the aforementioned criterion for statehood. Put differently, the collective non-recognition reflected the complete denial of Southern Rhodesia's statehood because of the violation of the internal dimension of the right of self-determination. It must be admitted that the case of Southern Rhodesia concerns a colonial situation. Subsequent state practice in the post-colonial context demonstrates, however, that the same criterion equally applies to post-colonial cases of claims to statehood. This is clear from the practice in the context of, for instance, the break-up of the former Soviet Union and the former Yugoslavia. In nearly all cases, the entities requesting recognition deemed it necessary to legitimize their claim to statehood by referring to the fact that the proclamation of independence was supported by the will of the majority of the people residing in the territory of the intended State. In most cases, this will was ascertained through the holding of a referendum. 75 The acknowledgment of the validity of this modern criterion for statehood is not limited, however, to the cases of the former Soviet Union and the former Yugoslavia. In other post-colonial cases as well, such as the case of Anjouan 76 and Somaliland, 77 the administration of these entities deemed it necessary to hold referenda for obtaining recognition of their claim to statehood (failing to do so in both cases, however ). In
74. 75. 76. 77.
See Chapter 4, Section 5.2.2.(a), supra. See pp. 291-292, supra. A referendum on independence was held on 26 October 1997. See note 69, supra. The government of Somaliland hoped that international recognition of Somaliland would eventually be forthcoming once it would be clear that the proclamation of independence of 1991 was supported by the majority of the people of Somaliland. Therefore, a referendum on independence was held on 31 May 2001. The results of the referendum indicated an overwhelming support for independence. See Provisional Results of Referendum on Constitution of the Republic of Somaliland Held on 31 May 2001 by Region, http://www.somalilandgov.com/news.htm. For a more detailed discussion of the Somaliland case, see P. Hoyle, Somaliland: Passing the Statehood Test?, Boundary and Security Bulletin, Vol. 8, 2000, p. 80. 78. Despite the referendum in Somaliland no recognition by the international community has been forthcoming. The explanation for this stance must be found in the presumption of the continuity of the statehood of Somalia (see pp. 70-71, supra) and the absence of a situation which would justify unilateral secession as an ultimum remedium. As to Anjouan, see note 69, supra.
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addition, the EC Guidelines on Recognition, the view of the Arbitration Commission of the International Conference on Yugoslavia,80 and statements of States not members of the European Community81 confirm that if a postcolonial entity claims to be a State and wishes to be accepted as such by the international community, it is necessary to show that the internal dimension of the right of self-determination has been respected. This does not mean, however, that the result of the exercise of external selfdetermination must be based on the procedure of a referendum per se.82 It simply means that a proclamation of independence must be based on a procedure or technique which can be held to be effective in ascertaining the freely expressed wishes of the people concerned. This requirement would normally be fulfilled if the proclamation of independence (or the wish for integration or association) is issued by a representative and non-discriminatory government. However, as the Arbitration Commission of the International Conference on Yugoslavia indicated, if, on the basis of the factual circumstances of the case, serious doubts exist as to the genuine expression of the wishes of the population of a territorial entity (as in the case of BosniaHerzegovina), additional measures, such as the holding of a referendum under international supervision, may be required.
§ 4.
THE PROPER SUBJECT OF THE RIGHT OF UNILATERAL SECESSION AS A CRITERION FOR STATEHOOD
In Chapter 7, it was seen that the holder of the right of unilateral secession in the post-colonial era is a 'people' in an ethnic sense, that is, a 'minority-people'. Ethnic groups forming a numerical minority within a State but not constituting a minority-people (that is, not possessing a collective individuality) are not entitled to the right of unilateral secession under contemporary international law. If such a group seeks to establish a State on the basis of a right which it does not possess, this must logically mean that any proclamation of indepen79. Supra note 24, at p. 4 (after having confirmed their attachment "in particular [to] the principle of self-determination", the EC member States expressed their readiness to recognize "those new States which [...] have constituted themselves on a democratic basis". They continued by stating that recognition of these States would require these new States to have "respect for the rule of law, democracy and human rights [...]"). See also R. Bieber, European Community Recognition of Eastern European States: A New Perspective for International Law?, PASIL, 1992, p. 374, at p. 377. See also Shaw, INTERNATIONAL LAW, p. 146. 80. Opinion 4, 11 Jan. 1992, ILM, Vol. 31, pp. 1501-1503, at p. 1503. 81. Such as, for instance, the United States. See note 100, infra. 82. But see Dugard, supra note 73, at pp. 168. 83. Opinion 4, supra note 81.
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dence cannot produce the intended legal effect. This is so without regard to the effective existence of the relevant territorial entity. In international law, such a proclamation of independence is a legal nullity insofar as the intended legal effect is concerned (that is, the establishment of an independent State). During decolonization, the validity of peoplehood as a criterion for statehood was acknowledged in the case of the proclamation of independence of Southern Rhodesia by the white minority regime.84 However, the validity of this criterion is also supported by post-colonial practice, such as the universal refusal to recognize the proclamation of independence of the Republic of Serbian Krajina by the Serb minority in Croatia and the refusal of recognition of the Moldovan Dniestr Soviet Socialist Republic by the Russian minority in Moldova. Because in modern international law, the right of external self-determination constitutes the legal basis for the creation of a State under international law, and because a group or collectivity must qualify as a minority-people to be entitled to the exercise of the right of external self-determination through the right of secession, ' the quality of being a 'minority-people' is to be regarded as an additional criterion for statehood.
§ 5.
THE FORMATION OF STATES, SELF-DETERMINATION AND RECOGNITION
The process of the formation of States, the principle of self-determination and the recognition of statehood are matters which are connected in different ways. In the first place, combining the law of self-determination and recognition practice in the field of unilateral secession leads to the conclusion that if an entity is recognized as a State, while it has been established as a result of unilateral secession, and its creation is sought to be justified on the basis of the right of external self-determination, the recognition of statehood implies the recognition of the applicability of a right of unilateral secession of the people
84. UN Doc. S/Res/445, 8 March 1979, para. 6. See also UN Doc. S/Res/448, 30 Apr. 1979. 85. It will be noted that the fact that the Serbs in Croatia form a national or ethnic minority is but one factor barring the acquisition of statehood and preventing recognition of the entity concerned. Other factors are a lack of independence (see pp. 79-80, supra), and - if one assumes that the Croatian Serbs are nonetheless entitled to a right of (external) self-determination - the non-fulfilment of the conditions for the existence of a right of unilateral secession (see pp. 390394, supra). 86. Apart from such special situations in which the government of a State ex ante approves the separation of a part of the State which is inhabited by a group which does not constitute a people in an ethnic sense.
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in question.87 Recognition has thus assumed a dual role: it is not only the State which is recognized, but also the right of external self-determination of the people concerned.8788 The previous point is intimately related to another one. Because the right of self-determination encompasses the right of a people to establish a State (with the agreement of the central government or, under certain circumstances, unilaterally) recognition must have a declaratory character. For, if recognition would be constitutive and thus a conditio sine qua non for the acquisition of international legal personality, little if anything would remain of the external aspect of the right of self-determination and thus of the principle of selfdetermination as such. State practice in the field of recognition, in particular with respect to the former Yugoslavia, the former Soviet Union, the former Czechoslovakia, and Eritrea, supports this position. In all these cases, recognition was regarded as an acknowledgment of the (sometimes only juridical) existence of the States concerned. This leads to the next point, namely the role of recognition in the light of the right of (external) self-determination. Although state practice supports the conclusion that recognition is not required for the acquisition of statehood,90 in several cases recognition does consolidate statehood. This is particularly true in cases of juridical statehood. Because in such a case the process towards empirical statehood is not yet completed, the statehood of the entity is secured through recognition to an important degree . For recognition opens the door for bilateral cooperation as well as membership in, for instance, international financial, economic and trade organizations, and (military) security arrangements.91 The reverse is equally true: although non-recognition is not 'de-constitutive', the refusal or postponement of recognition may eventually lead to a State's collapse, something which could have happened to the former Yugoslav Republic of Macedonia. Although 87. To the same effect, see K. Knop, The 'Righting' of Recognition: Recognition of States in Eastern Europe and the Soviet Union, in: Canadian Council on International Law, STATE SOVEREIGNTY: THE CHALLENGE OF A CHANGING WORLD, Proceedings of the 1992 Conference of the Canadian Council on International Law, 1992, p. 36, at p. 38; Murswiek, supra note 35, at p. 30. See also Concurring Opinion of Judge Wildhaber Joined by Judge Ryssdal, European Court of Human Rights, Loizidou v. Turkey (Merits), Judgment, 18 Dec. 1996, Reports of Judgments and Decisions of the European Court of Human Rights, 1996 VI, p. 2216, at p. 2241. And see, e.g., the decision of the German government to recognize Slovenia and Croatia: "[m]it diesen Beschlüssen wird dem Umstand Rechnung getragen, daß eine Reihe jugoslawischer Republiken sich in freier Selbstbestimmung auf demokratischer und rechtstaatlicher Grundlage fur die Unabhängigkeit ausgesprochen haben". Bulletin des Presse- und Informationsamtes der Bundesregierung, No. 145, 21 Dec. 1991, p. 1183. 88. Knop, supra note 87, at p. 38. 89. See also K. Doehring, Self-Determination, in: B. Simma (Ed.), THE CHARTER OF THE UNITED
NATIONS, A COMMENTARY, 1994, p. 56, at pp. 67-68. 90. See Chapter 2, Section 4.1., at p. 36, supra. 91. To the same effect, see Oeter, supra note 41, at pp. 768-769.
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the statehood of the republic was never a point of dispute, Greek opposition with regard to its name led to the fact that the republic remained unrecognized for almost two years.92 If the withholding of recognition (as well as the Greek economic sanctions) were to have lasted for an even longer period, there is a considerable chance that the State would have collapsed because of its precarious political and economic situation. Although States are permitted to recognize an entity which qualifies as a State (either in a juridical or empirical sense), the former point raises the question whether or not contemporary international law obliges States to recognize an entity which satisfies all the criteria for statehood. It was seen in Chapter 2 that, at the time of its formulation, Lauterpacht's doctrine of the obligation of recognition was heavily disputed for not being in conformity with state practice. However, recently it has been argued that an obligation to recognize new States deserves a new lease on life as a result of the development of the law of self-determination.93 In this respect, it is true that individual States are under an obligation to respect the right of self-determination, of peoples both within and outside their jurisdiction. Accordingly, States are under an obligation to withhold recognition of an entity which has been created in violation of the right of self-determination.95 Thus, the obligation to respect the right of self-determination refers to a duty of a State to refrain from any action which may violate the right of self-determination of a people regardless of whether that people resides within the borders of that State or not.96 Whereas the aforementioned position seems to be generally accepted, there is no, or at least insufficient, state practice to support the position that States are under an obligation to actively promote the realization of the right of selfdetermination of peoples living outside their borders. Acts which may be
92. See pp. 105-106, supra. 93. See J. Klabbers and R. Lefeber, Africa: Last Between Self-Determination and Uti Possidetis, in: C. Brölmann et al. (Eds.), PEOPLES AND MINORITIES IN INTERNATIONAL LAW, 1993, p. 37, at p. 52, n. 56. See also Chapter 2, Section 5, supra. 94. It will be recalled that the International Court of Justice observed in the East Timor case that the entitlement of peoples to respect of their right to self-determination is a right erga omnes. See East Timor case, ICJ Rep. 1995, p. 92, at p. 102. See also Human Rights Committee, General Comment 12, Article 1 (Twenty-first session, 1984), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI\GEN\1\Rev.l, 1994, p. 12. 95. See Chapter 4, Sections 5.2.2., supra. And see Chapter 4, Section 6 , supra, where it was argued that States are under an obligation not to recognize an entity which has been created in violation of a norm of jus cogens or in violation of at any rate, a substantive rule of international law which must be respected erga omnes. In that respect, see in particular pp. 145-147, supra. 96. Another example which may be mentioned in this context is the obligation not to conclude a treaty with a third State if one or more provisions contained in that treaty are in violation of the right of self-determination of a people residing within the borders of that third State. See also Dissenting Opinion Judge Weeramantry, East Timor case, supra note 94, at pp. 197, 202.
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regarded as promoting the realization of (external) self-determination include the admission of the purported State to international organizations, military intervention in support of the right of self-determination or recognition of the State in question. Consequently, despite the validity of the right of selfdetermination, under contemporary positive international law there is no obligation to recognize an entity which meets all (that is, both the traditional and modern) criteria for statehood.97 The refusal to recognize the former Yugoslav Republic of Macedonia is a case in point. While the applicability of the right of external self-determination and the existence of the State was not disputed, no State held that recognition was therefore obligatory. Although the position taken by the international community in this case was highly reprehensible from a moral point of view, it was legally correct. Another point concerns the question of non-recognition in the light of the relationship between statehood and self-determination. Because the requirement of the fulfilment of the conditions for the existence of a unilateral right of secession (and thus the obligation to respect the law of self-determination) is a criterion for statehood, third States are under an obligation not to recognize an entity which does not meet this criterion. If recognition is granted in spite of this, this would violate the prohibition on premature recognition and the principle of non-intervention vis-a-vis the parent State. But recognition may also specifically violate the right of self-determination as such, namely when recognition is granted while the proclamation of independence of the entity is in violation of the internal dimension of the right of self-determination (as in the case of Southern Rhodesia). In such a case, recognition is without object 98 and in violation of jus cogens, and thus without legal effect. Finally, the relationship between recognition and the obligation to respect human rights, including minority rights, must be addressed against the background of the right of external self-determination. The obligation to respect the rights of ethnic, religious and linguistic minorities was presented by the European Community and its member States in the EC Guidelines on Recognition as a conditio sine qua non for the recognition of the republics of the former Yugoslavia and the former Soviet Union. This was, however, not a specifically Western European view, because the Guidelines were subscribed
97. This is, however, apart from the fact that a people which has legitimately established a State on the basis of its right of self-determination may have a legitimate expectation that the entity's statehood will be recognized. But that is completely different from saying that such a people is entitled to the recognition of the State which it has established. 98. See Chapter 4, supra. 99. It is stated that recognition would require that the new State "guarantees the rights of the ethnic and national groups and minorities in accordance with the commitments subscribed to in the framework of the CSCE".
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to by other, non Western European States.100 Thus, without questioning the validity and applicability of the right of external self-determination with respect to the dissolution of the former Soviet Union and the break-up of the former Yugoslavia, the recognition of statehood (and thus the result of the exercise of the right of external self-determination) was explicitly linked to the obligation to ensure respect for minority rights. Accordingly, the Council of the European Community declared that [t]he right to self-determination of all the peoples of Yugoslavia cannot be exercised in isolation from the interests and rights of ethnic minorities within the individual republics.101
The position of France was entirely consistent with the EC's approach: [n]ous respectons l'exercice par chaque peuple de son droit légitime a l'autodétermination [...]. Le Président de la République a été on ne peut pas plus clair sur ce sujet: 'L'autodétermination des républiques s'imposera. Mais [...] la sauvegarde des minorités [...] relévent d'une autorité internationale'. 102
The fundamental character of the obligation to respect minority rights was also underscored by the Arbitration Commission of the International Conference on Yugoslavia when it addressed the question of recognition of States. The Commission held: while recognition is not a prerequisite for the foundation of a state and is purely declaratory in its impact, it is nonetheless a discretionary act that other states may perform when they choose and in a manner of their own choosing, subject only to compliance with the imperatives of general international law, and particularly those [...] guaranteeing the rights of ethnic, religious or linguistic minorities.
In its Opinion of 11 January 1992, the Commission even went so far as to declare that the obligation to ensure respect for the rights of minorities is a 100. Such as the United States (see US Dept. of State, Dispatch, Vol. 13, No. 3, 13 Apr. 1992, p. 287) and Bulgaria (see Decision of the Government of the Republic of Bulgaria, UN Doc. S/23462, Ann. I, 15 Jan. 1992). As early as October 1991, the United States announced that a number of principles would govern American recognition of the Soviet and Yugoslav republics. They included "determining the future of the country [...] democratically; safeguarding of human rights, based on full respect for the individual and including equal treatment of minorities; and respect for international law and obligations, especially adherence to the Helsinki Final Act and the Charter of Paris". Testimony by R. Johnson, Deputy Assistant Secretary of State for European and Canadian Affairs, 17 Oct. 1991, quoted in: Knop, supra note 87, at p, 49. 101. EC Declaration on Yugoslavia, Informal Meeting of Ministers of Foreign Affairs, Haarzuilens, 6 Oct. 1991. 102. Statement of the French Ministry of Foreign Affairs, supra note 38. 103. Opinion 10, ILM, Vol. 31, 1992, pp. 1525-1526, at p. 1526.
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norm of jus cogens. This determination by the Commission has been rightfully criticized by a number of commentators. Cassese, for instance, has observed that the description is "too sweeping".104 At any rate, such a fundamental and important conclusion would have required further elaboration and argumentation. On the other hand, although the Commission arguably erred in considering the obligation to ensure respect for the rights of minorities jus cogens,105 this should not diminish the importance of the remark. In interpreting the Commission's finding it must be taken into account that the Commission mainly confined its task to rendering advisory opinions which would enhance rather than undermine the peaceful settlement of the Yugoslav conflict. Therefore, once it was clear that negotiations within Yugoslavia had failed and that five new States would be established which the European Community and its member States were in principle willing to recognize, the Commission endeavoured to find a legal framework which would, firstly, legitimize the creation of those five new States, secondly, protect the territorial integrity of those new States, and thirdly, prevent further escalation of the conflict by emphasizing guarantees for national minorities residing within these States.106 Thus, although the Commission's statement that the obligation to respect minority rights is jus cogens does not seem to be supported by international law, the point the Commission wants to make is clear: the obligation to respect minority rights is essential for the maintenance of international peace and security. But to what extent was the threat of non-recognition in case of the violation of minority rights or insufficient guarantees for minorities upheld by the international community? This question is linked directly to another one, namely whether the obligation to ensure respect for minority rights must now be regarded as a condition for lawful recognition and/or for statehood. Some commentators have suggested that the juridical assessment of the fulfilment of the requirement of the obligation to respect minority rights was undermined by political considerations within the European Community, in particular with respect to the recognition of Croatia. The case of Croatia was 104. See, e.g., Cassese, SELF-DETERMINATION, p. 133. See also M.C.R. Craven, The European Community Arbitration Commission on Yugoslavia, BYIL, 1996, p. 333, at pp. 391-392. 105. It is important to note that the Human Rights Committee, which does recognize the jus cogens character of some of the norms contained in the ICCPR (like the prohibition of arbitrary deprivation of life), did not qualify the obligation to respect the rights of minorities mentioned in Article 27 as jus cogens. See General Comment 23, Article 27 (Fiftieth session, 1994), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI\GEN\Rev.l. 106. See also S. Terrett, THE DISSOLUTION OF YUGOSLAVIA AND THE BADINTER COMMISSION, 2000, pp. 149-157. 107. See, e.g., E. Deamer, The Recognition of Aspirant Statehood in the New Europe: The European Community's Recognition of Croatia, 1990-1992, in: T.D. Sfikas and C. Williams (Eds.),
ETHNICITY AND NATIONALISM IN EAST CENTRAL EUROPE AND THE BALKANS, 1999, p. 341,
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discussed in depth in Chapter 7.108 Here, it is relevant only to recall that the Arbitration Commission of the International Conference on Yugoslavia observed in Opinion 5 that Croatia did not satisfy the requirements mentioned in the EC Guidelines on Recognition: the Constitutional Act of 4 December 1991 does not fully incorporate all the provisions of the draft Convention of 4 November 1991, notably those contained in Chapter II Article 2(c), under the heading 'Special status'. 109
The Draft or Carrington Convention110 was prepared in 1991 in the context of the peace conference on Yugoslavia. It contained provisions regarding, amongst others, human rights and the rights of national or ethnic groups, including arrangements for political autonomy. The latter issue was dealt with in Chapter II, Article 2(c) of the draft, to which the Commission refers in the above-quoted part of the opinion. 111 It will be recalled that the EC Guidelines on Recognition were supplemented by a Declaration on Yugoslavia which required the prospective States to accept the provisions laid down in the draft Convention - especially those in Chapter II on human rights and rights of national or ethnic groups.
For this reason, the Commission observed that Croatia had failed to provide for constitutional guarantees for the Serb minority in Croatia in the form of territorial autonomy. However, as a result of a formal written statement by Croatia's President Tudjman, addressed to the President of the Arbitration Commission, in which it was stated that this shortcoming would be resolved, recognition by the member States of the European Community as well as by other States was eventually secured. As was stated above, the fact that the member States of the European
108. 109. 110. 111.
112.
at pp. 358-359; P. Radan, Secessionist Self-Determination: The Cases of Slovenia and Croatia, in: R. Petkovic et al., INTERNATIONAL LAW AND THE CHANGED YUGOSLAVIA, 1995, p. 69, at pp. 82-84. Chapter 7, Section 3.3.2., supra. Opinion 5, ILM, Vol. 31, 1992, pp. 1503-1505. UN Doc. S/23169, Ann. VII, 25 Oct. 1991. Article 2(c) provides that "areas in which persons belonging to a national or ethnic group form a majority, shall enjoy a special status of autonomy. Such status will provide for (a) the right to have and show national emblems of that area; (b) the right to a second nationality for members of that group in addition to the nationality of the republic; (c) an educational system which respects the value and needs of that group; (d)(i) a legislative body, (ii) an administrative structure, including a regional police force, (iii) a judiciary, responsible for matters concerning the area, which reflects the composition of the population of the area; and (e) provisions for appropriate international monitoring". See ILM, Vol. 31, 1992, pp. 1485-1487.
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Community felt that 'Tudjman's pledge' was sufficient for the recognition of the statehood of Croatia has been vehemently criticized in the sense that in doing so the European Community and its member States had set aside their own conditions for recognition, particularly the requirement of minority rights protection. In other words, it is suggested that Croatia was recognized despite the fact that the country did not satisfy the condition to ensure respect for minority rights. On closer analysis this conclusion is too absolute, however, at least insofar as the recognition of Croatia is concerned. In this respect it should be noted that the Commission did not state in Opinion 5 that Croatia's legislation failed to meet the accepted standards of minority protection under general international law, but rather that the relevant legislation was not (yet) in conformity with the requirements set down by the European Community and its member States and with the legal obligations to which Croatia had itself subscribed in the context of the Peace Conference on Yugoslavia. The Commission felt obliged to clarify this point in a Comment of 4 July 1992, which it rendered upon the request of the Chairman of the peace conference on Yugoslavia, Lord Carrington. The latter had requested the Commission to examine the compatibility of Croatia's amended Constitutional Law in the light of human rights and the rights of national and ethnic groups. The Commission found that even if the Constitutional Law in question does sometimes fall short of the obligations assumed by Croatia when it accepted the draft Convention of 4 November 1991, it nonetheless satisfies the requirements of general international law regarding the protection of minorities. 11.1
Thus, as far as minority protection is concerned, the member States of the European Community required the prospective States to satisfy two conditions before recognition would be granted: firstly, there should be no doubt that their legislation "guarantees the rights of the ethnic and national groups and minorities in accordance with the commitments subscribed to in the framework of the CSCE", and secondly, they had to "accept the provisions laid down in the draft Convention - especially those in Chapter II on human rights and rights of national or ethnic groups". The first condition refers to general international law, the second to a specific treaty instrument which was, moreover, applicable to the Yugoslav republics only. According to the Commission, the first condition was satisfied, but not, however, the second condition. The fact that the latter condition was included in the European
113. Comment on the Republic of Croatia's Constitutional Law of 4 December 1991, as last amended on 8 May 1992, reprinted in: ILM, Vol. 31, 1992, pp. 1505-1507.
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Community's list of requirements for recognition can best be explained in political terms, because the obligation to provide for constitutional guarantees for specific national or ethnic minorities in the form of political autonomy is, as Weller observes "fairly striking, as it appears to exceed the standard adopted among some EC member States".114 Indeed, a right of national or ethnic minorities to political autonomy does not exist in general international law. Thus, it is true that insofar as the European Community and its member States, as well as other States subscribing to the EC Guidelines on Recognition, proceeded with the recognition of Croatia despite the shortcomings of Croatia's constitutional law, this was contrary to the second condition referred to above but in conformity with the first condition relating to the standards of minority protection under general international law. The point of criticism that the member States of the European Community set aside their own condition regarding minority rights protection is thus valid only with respect to a very specific and context-related aspect of minority guarantees, which Croatia itself had subscribed to during the peace conference. Moreover, the guarantee in question is not a reflection of a standard of minority rights protection under general international law. Therefore, it cannot be maintained that the recognition of Croatia in any way undermined or set aside the condition holding that an entity claiming statehood and wishing to be accepted as such must show that its national legislation as well as its conduct meets the obligation of minority rights protection recognized under general international law. The next question is whether or not the member States of the European Community considered themselves to be under a legal obligation to withhold recognition of an entity claiming statehood if the said condition was not (entirely) satisfied? Put differently, was the condition regarding the obligation to ensure respect for the generally accepted minority rights intended as a condition for lawful recognition? On the basis of the universal recognition of the Federal Republic of Yugoslavia (FRY) in 1996, this question can only be answered in the negative. In this respect it is important to note that the Arbitration Commission of the International Conference on Yugoslavia held in its Opinion 10 that the FRY had to be considered a new State rather than the sole successor to the SFRY. Accordingly, the Commission emphasized that the eventual recognition of the FRY by the member States of the European Community would be subject to the EC Guidelines on Recognition.115 114. Weller, supra note 38, at p. 593. 115. Opinion 10, 4 July 1992, ILM, Vol. 31, 1992, pp. 1525-1526, at p. 1526. See also Opinion 8, in: id., at pp. 1521-1523. And see Council of the European Union, Former Yugoslavia Council Conclusions, 4 Dec. 1995, para. 6, cited in: M. Skrk, Recognition of States and Its (Non-
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The aspect of relevance here is the treatment of the Kosovo Albanians by the Serbian government since 1989. The case of Kosovo has already been discussed elsewhere.116 At this point, it is noteworthy that the international community was well acquainted with the widespread and serious violations of minority rights of the Albanian minority by Serbia, at least from the beginning of the 1990s. 117This did not, however, prevent the member States of the European Community and other States from recognizing the statehood of the FRY in the course of 1996, after the green light for recognition was given by the Presidency of the European Union.118 In addition to the approval of recognition, the Presidency stated that it would welcome further steps by the Federal Republic of Yugoslavia leading the country to the full normalization of its relations with the international community [...]. [H]ereafter the development of good relations with the Federal Republic of Yugoslavia and of its position within the international community will depend on a constructive approach by the FRY to [...] the full respect for [...] minority rights [...].119
It must therefore be concluded that the obligation to ensure respect for minority rights was not regarded as a criterion for lawful recognition (let alone as a criterion for statehood). It was merely considered as a political lever, that is, as a condition for the normalization of relations, including the establishment of diplomatic relations. 120
116. 117.
118.
119. 120.
)Implication on State Succession: the Case of Successor States to the Former Yugoslavia, in: N. Mrak (Ed.), SUCCESSION OF STATES, 1999, p. I, at p. 17, n. 72. See pp. 270-272 and pp. 344-347, supra. See, e.g., Concluding Observations of the Human Rights Committee: Yugoslavia, UN Doc. CCPR/C/79/Add.l6, 28 Dec. 1992, para. 8; Concluding Observations of the Committee on the Elimination of Racial Discrimination: Yugoslavia, UN Doc. A/48/18, 15 Sept. 1993, paras. 517519, 538-539; UN Doc. A/Res/49/204,13 March 1995 ("Situation of Human Rights in Kosovo"); Report of the Special Rapporteur of the Commission on Human Rights on the Situation of Human Rights in the Territory of the Former Yugoslavia, UN Doc. A/49/641-S/1994/1252, Ann.; Economic and Social Council, Sub-Commission on Prevention of Discrimination and Protection of Minorities, Resolution on the Situation of Human Rights in Kosovo, UN Doc. E/CN.4/Sub.2/Res/1995/10, 23 Oct. 1995; Economic and Social Council, Commission on Human Rights, Resolution 1994/72, The Situation of Human Rights in the Territory of the Former Yugoslavia: Violations of Human Rights in Bosnia-Herzegovina, Croatia and the Federal Republic of Yugoslavia (Serbia and Montenegro), UN Doc. E/CN.4/Res/l994/72,9 March 1994, paras. 25-27; UN Doc. A/Res/50/190, 6 March 1996 ("Situation of Human Rights in Kosovo"), in particular its Preamble and Paras. 1-3. The Presidency of the EU issued a statement on 9 April 1996 which welcomed the signing of an agreement between the FRY and the former Yugoslav Republic of Macedonia (FYROM) concerning the settling of their bilateral relations. Consequently, it was stated that this development "opens the way to recognition by the Member States [...] of the Federal Republic of Yugoslavia". See Bulletin EU, No. 4, 1996, s. 1.4.7. Id. See also J. Dugard, INTERNATIONAL LAW: A SOUTH AFRICAN PERSPECTIVE, 2000, p. 79. But see Shaw, INTERNATIONAL LAW, p. 146.
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In sum, under contemporary international law the violation of the obligation to respect minority rights does not prohibit recognition of statehood nor does it bar the acquisition of statehood itself. The threat of withholding recognition from the former Yugoslav and Soviet republics in case of violations of minority rights was a lever to force the new States to respect these rights and thus to prevent further and future ethnic conflicts. In that sense, the obligation to respect minority rights as mentioned in the EC Guidelines on Recognition has no higher legal status than, for instance, the requirement of "acceptance of all relevant commitments with regard to disarmament and nuclear nonproliferation as well as to security and regional stability", which, according to the Guidelines, is another condition that had to be satisfied before recognition would be granted. The same conclusion, with some important qualifications, can be drawn with respect to the obligation to respect human rights. This obligation was also presented in the EC Guidelines on Recognition as a conditio sine qua non for the recognition of the republics of the former Yugoslavia and the former Soviet Union. 121 As in the case of minority rights protection, the prospect of postponement or withholding of recognition in case of violations of human rights was essentially used as a lever to force the newly formed States to meet Western European standards of human rights protection. The recognition of the Republic of Georgia is a case in point. Although the statehood of the republic was not questioned, its recognition was postponed until Shevardnadze came to power. It was apparently believed that his leadership guaranteed a (more) democratic Georgian State, and that serious attention would be given to human rights protection. Thus, and despite the fact that the human rights situation in Georgia did not improve dramatically shortly after Shevardnadze's accession to power, recognition of statehood was granted almost instantly. It follows that the postponement of recognition was used merely as a political tool. The existing States did not consider themselves to be under a legal obligation to withhold recognition of statehood because of the violations of human rights. It must therefore be concluded that the obligation to respect human rights is not regarded as a criterion for statehood or recognition. It must be noted, however, that this conclusion does not apply to the prohibition of the arbitrary deprivation of life. As was discussed in Chapter 4, if a fundamental rule of international law is violated in the process of the creation of a State, third States are under an obligation to withhold
121. EC Guidelines on Recognition, supra note 24, at p. 3. The prospective States need to show "respect for the rule of law, democracy and human rights [...]". 122. See Section 2.1.1. of this Chapter, supra.
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recognition. In addition, in the same Chapter it was seen that the violation of such a rule obviates statehood.124 The prohibition of arbitrary deprivation of life is generally accepted as being jus cogens.125 As a result, no statehood is acquired by, and no recognition shall be granted to, an entity the creation of which has been accompanied by serious and widespread violations of this prohibition. The latter additional requirements ('serious' and 'widespread') do not seem to be unreasonable. Indeed, these legal consequences of the breach of international law in the form of an obligation of non-recognition and a bar to the acquisition of statehood, require that there is a measure of proportionality between the breach and these legal consequences.
§ 6.
CONCLUSIONS
It must be concluded that the right of self-determination is inextricably bound up with the formation of States under contemporary international law. The relationship between the two concepts consists of several dimensions. The right of self-determination compensates for a lack of effective government and as such it has a direct impact on questions of statehood in international law. In addition, the right of self-determination is not only the principal legitimation of statehood and the creation of States, it has entered the law of statehood in the sense that the obligation to respect the right of internal self-determination must be considered as a modern criterion for statehood. The same holds true for the requirement of the fulfilment of the criteria of a qualified right of right of secession. If a minority-people is not entitled to a right of unilateral secession, but secession is nonetheless pursued, the secession constitutes an abuse of right and as such a violation of the law of self-determination. Also in such a case, the violation bars the acquisition of statehood. It was seen that recognition is significant with respect to questions of statehood and external self-determination. In contemporary international law, recognition has assumed a dual role. It is not only the existence of the State which is acknowledged through recognition, but also the applicability of a right of external self-determination. Moreover, whereas recognition has a declaratory character, it also has a functional role. Especially in cases of juridical statehood, recognition consolidates statehood and thus ensures that the process of 123. See Chapter 4, Section 6, at p. 149, supra. 124. See Chapter 4, Section 8, supra. 125. See, e.g., Human Rights Committee, General Comment 24 (52), UN Doc. CCPR/C/2I/Rev.l/Add.6, 1994, para. 10. It will be noted that without a doubt, the prohibition of genocide tails under the broader heading of the prohibition of arbitrary deprivation of life. The former prohibition is also generally accepted as jus cogens.
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empirical state formation can be completed as envisaged. Finally, at present there is no legal obligation for States to recognize an entity which satisfies the criteria for statehood. Although States are under an obligation to respect and promote the right of Self-Determination with respect to peoples within their borders, there is no obligation to promote - through, for instance, the recognition of statehood - the right ofSelf-Determinationof peoples living outside a State's boundaries.
Precis
§ 1.
THE FORMATION OF STATES, TRADITIONAL CRITERIA FOR STATEHOOD AND RECOGNITION
The main purpose of this study was to identify the international legal rules regulating the formation of States in international law. In that respect, particular attention was given to the role of Self-Determination in the process of the establishment of States. Under traditional international law, the creation of a State was seen as a 'matter of fact'.1 Once an entity had effectively established itself, that is, once an entity satisfied the traditional criteria for statehood, the entity was considered to be a State. Whether the effective situation was created in conformity with international law used to be of no relevance. Effectiveness ruled questions regarding the acquisition of statehood. This first of all raised the question of the legal character of the traditional criteria for statehood. It was seen in Chapter 3 that these criteria are not vague criteria open to numerous interpretations, but that they constitute objective, legal rules.2 Accordingly, it was concluded that any dispute regarding the question whether or not a certain set of facts meets these criteria is, in principle, suitable for judicial determination by any body in possession of those facts. There is little disagreement in this respect between the two major theories on recognition, the constitutive and the declaratory theory. The major difference between these two theories is not when an entity becomes a State, but how this State acquires international legal personality. Practice as well as doctrine indicates strong support for the validity of the declaratory theory, that is, that the acquisition of international personality by a State is not dependent upon the recognition by third States, but is attributed by the international legal system.3 This does not mean, however, that recognition is irrelevant to statehood. It is clear that a State which is not recognized by the international community will experience many difficulties concerning its continued existence. But that mainly concerns the political and practical rather than the juridical 1. 2. 3.
See Chapter 2, Sections 3.1. and 3.2. See Chapter 3, Section 3. See Chapter 2, Section 4.
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effects of recognition. It was suggested in doctrine that recognition is now collectivized through admission in the United Nations. However, the accuracy of this position must be questioned. In that respect, a number of observations were made in light of an analysis of state and United Nations practice: firstly, a vote in favour of admission of an entity to United Nations membership is in principle tantamount to recognition, but only if the State voting in favour has not recognized the new member prior to its admission to the United Nations. Secondly, if a vote in favour of admission must be interpreted as the recognition of the entity as a State, such recognition is declaratory in character. Thirdly, member States voting against admission of the new member or withholding their vote, are not obliged to recognize the new member as a State under general international law as a result of it being admitted to United Nations membership. However, these States are, of course, under an obligation to respect the rules and principles in the Charter of the United Nations with respect to the new member. Fourthly, because the latter States are not obliged to recognize the new member's statehood under general international law, there is still no such thing as 'collective recognition'. Recognition of an entity as a State before the criteria for statehood have been satisfied amounts to a violation of the prohibition of premature recognition. In addition, if the said recognized entity has been established as a result of secession from the parent State, recognition is a violation of the principle of non-intervention as well. If only for these reasons it is questionable, to say the least, to state that the formation of a State is 'a matter of fact and not of law'. The formation of a State is not merely the establishment of some facts the verification of which is outside the realm of international law. The creation of States requires the fulfilment of certain legal rules, which at minimum include the traditional criteria for statehood. Whether or not these rules or criteria have been satisfied is regulated by international law and as such 'a matter of law'. However true this may be, the statement that the formation of States is merely 'a matter of fact' remained relevant because it raised two fundamental questions: (a) does international law require under all circumstances that to become a State an entity must be fully effective, and (b) does any entity which satisfies the traditional criteria for statehood qualify as a State in international law? Ultimately, these two points raise the question of the role of legality and principles other than effectiveness in the process of the formation of States. As was stated above, under the traditional law of statehood, there was no role for any other principle or notion than effectiveness. On the basis of this position, however, it appeared to be difficult, if not impossible, to explain 4.
See Chapter 2, Section 5.
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both the general acceptance of claims to statehood of territorial entities lacking effectiveness and the general rejection of claims to statehood of territorial entities which are fully effective. The first question became relevant in relation to the universal recognition of the Congo as a State in 1960, despite the lack of effective government. In that respect, it was concluded that regarding the criterion of 'government', a distinction must be made between the right or title to exercise authority and the actual exercise of that authority. If the right or title to exercise authority is present as a result of, for instance, a grant of sovereignty by the former sovereign, or when such a right or title is inherent in another right, power of competence, the criterion of government is satisfied.6 Accordingly, it was possible to explain the position of the international community with respect to the former Belgian colony of the Congo, because in that case, there was both a grant of sovereignty by the former sovereign and, since the Congo qualified as a 'colonial territory', an applicable right of external self-determination according to which the population of the Congo was entitled to establish an independent State. In the case of the Congo, the right of external self-determination was relevant to the existence of a right or title to exercise authority in addition to the grant of sovereignty by Belgium. However, in the context of such cases as Algeria, Guinea Bissau and Angola, which were all considered colonial territories entitled to external self-determination, it became clear that it was the right of external self-determination as such which .compensated for the lack of effective government (which was called the 'compensatory force principle'). 7 Because of the lack of effective government, it is difficult to speak of these entities as States in an empirical sense. Therefore, the phenomenon of the existence of these entities as States in international law, despite an ineffective government, was referred to as 'juridical statehood'.8 The second question was addressed against the background of the doctrine of the obligation of non-recognition. § 2.
THE OBLIGATION OF NON-RECOGNITION OF STATEHOOD: THE INTRODUCTION OF THE NOTION OF LEGALITY IN THE LAW OF STATEHOOD AND ADDITIONAL CRITERIA FOR STATEHOOD
The discussion of the doctrine of the obligation of non-recognition in Chapter 4 has shown that the international law of statehood has changed considerably 5. 6. 7. 8.
See Chapter 3, Section 3.3. Id. See Chapter 4, Sections 2.2.1. and 2.3. See Chapter 4, Section 2.3.
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since the establishment of the United Nations. Modern developments in international law, such as the acceptance of the prohibition of aggression and other fundamental norms, have affected the rules and principles relating to the formation of States. If the position that 'the formation of States is a matter of fact and not of law' was ever correct, it certainly cannot be maintained under contemporary international law. States are under an obligation not to recognize, through individual or collective acts, the purported statehood of an effective territorial entity created in violation of one or more fundamental norms of international law. This obligation derives either from a binding resolution of the Security Council (as in the case of Southern Rhodesia) or from an established rule of international customary law, the latter of which is firmly rooted in the maxim ex injuriajus non oritur (as in the cases of the Turkish Republic of Northern Cyprus and the South African Homeland territories).9 The determination that in the process of an entity's formation, a violation of international law has been committed, is declaratory in character. This means that the entity does not fail to be a State because it is not recognized as such, but that it fails to become a State under international law because of the violation of a fundamental rule of international law and, therefore, shall not be recognized. Consequently, on the basis of the analysis of state practice in the field of non-recognition, it was possible to identify an number of rules the violation of which forms a bar to the acquisition of statehood. In other words, it was possible to formulate a number of modern and additional criteria for statehood:10 (a) the prohibition of aggression, (b) the prohibition of the violation of the right of Self-Determination of peoples (at least in the colonial context and in 'colonial type' situations), and (c) the prohibition of systematic racial discrimination, including the prohibition of Apartheid. The fundamental character of these rules of international law is in particular reflected in the fact that they are generally accepted as norms of jus cogens, or at any rate as substantive rules of international law which must be respected erga omnes.11 In both cases, the illegality is one which involves the international community as a whole. This also explains the position of the United Nations with respect to the cases which were analysed in Chapter 4. For, the fact that the United Nations was of the opinion that the violations of these norms were of such gravity that even effective territorial situations should be regarded as "invalid", "without legal effect", "illegal" or "null and void", must be rooted in a belief that these illegal acts and their consequences did not only affect the 9. 10. 11. 12.
See See See See
Chapter Chapter Chapter Chapter
4, 4, 4, 4,
Section 7. Section 8. Section 6. Sections 5.2.1.-5.2.3.
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rights and interests of the holder of the right which was violated, but indeed affected the rights and interests of the international community as a whole. Otherwise it is difficult to explain why the United Nations called upon all States to refuse to accept the claims to statehood by the relevant territorial entities under international law, which legal status they would have acquired under traditional international law as a result of their effective existence. In other words, the modern law of statehood is no longer based solely on effectiveness. It is acknowledged that to become a State an entity must, in addition to the traditional criteria, also satisfy the modern criteria for statehood which are based on 'legality'. However, on the basis of the rules identified thus far, it was still not possible to give a sound legal explanation for the general rejection or ignoring of claims to statehood by effective territorial entities such as, for instance, the Republic of Abkhazia and the Republic of Anjouan, which were not established in violation of either one of the fundamental norms mentioned above. For that reason it was examined whether the explanation for the international community's position in such cases can be found in the modern law of self-determination.
§ 3.
THE LAW OF SELF-DETERMINATION
In order to be able to answer this question as well as the more general question regarding the role of the law of Self-Determination in the formation of States in modern international law, it was necessary to identify the meaning, raison d'être and main objective of the legal concept of self-determination. In Chapter 5, it was seen that the principle had its roots in the ideas underlying the American and French Revolutions as well as in the theory of nationalism. Selfdetermination entered the international scene in the aftermath of World War I when it was propagated by both Vladimir Ilyich Lenin and Woodrow Wilson. However, according to Lenin, Self-Determination of nations only had an external dimension: it encompassed exclusively the right of oppressed nations to political separation, that is secession. Wilson, on the other hand, emphasized an internal dimension of the concept. To him, the concept was tantamount to democracy. Faced, however, with the necessity of redrawing the map of post-war Europe and legitimizing the creation of new States, Wilson recognized an external dimension of Self-Determination as well. Indeed, in practice the principle was primarily applied in its external dimension. Yet only communities which had been loyal to the Allied Powers were permitted to establish their own State. The claims of many other communities were ignored. The internal dimension
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of the principle could only be identified in some cases of territorial readjustments accompanied by referenda or plebiscites. Consequently, self-determination did not become a right under international customary law, rather it was a gift and at best a political principle. In this period, the suitable 'subject' of self-determination was ethnically defined: self-determination was generally applied to politically conscious groups who were generally referred to as 'nationalities' and whose common identity was put primarily in terms of their l3 language or culture..13 After World War II, the principle of self-determination was included in the United Nations Charter, and consequently the principle acquired a legal status. Self-determination was recognized as positive right against the background of decolonization. There is general support for the position that the prohibition of the denial of the right of self-determination in the context of decolonization acquired the status of jus cogens. The famous Resolution 1514, the Declaration on the Granting of Independence to Colonial Countries and Peoples, and the related Resolution 1541, which were both adopted by the General Assembly in 1960, proclaimed that all colonial peoples had a right to establish an independent State, or to associate with or integrate in another State. Clearly, decolonization centred around the implementation of selfdetermination 'externally', that is, it was concerned with the determination of the political status of a people in relation to other subjects of international law. The aim of those States which contributed to the establishment of selfdetermination as a positive rule of international law was to end the dominance of one group by another in order to protect the former's identity or 'selfness'. Such a situation is, of course, not confined to the colonial context, but decolonization was clearly an ideal candidate for inclusion within the new principle of self-determination which, after all, had to have some content. The choice between independence, association or integration had to be made on the basis of what was called the 'free choice principle', that is to say, the application of the right to self-determination required a free and genuine expression of the will of the people concerned. However, this did not mean that external self-determination always had to be exercised through the holding of referenda or plebiscites. If the government was deemed to be representative of the peoples concerned, the choice of independence was considered to have been made on behalf of that people. In this period of history, external self-determination was to be exercised by the inhabitants of colonial territories, which thus reflects a territorial rather than an ethnic definition of the holder of the right.14
13. See Chapter 5, Section 3.3.1. 14. See Chapter 5, Section 3.4.2.
Précis
445
The reason for this strict definition is clear: given the complex ethnic structures and the arbitrary nature of the borders of the African colonies in particular, a definition based on ethnic considerations only would most probably have led to the fragmentation of the African continent. In light of the preservation of the territorial integrity of the colonial territories, the holder of the 'right to decolonization' was therefore defined in a strict legal sense. On the basis of the analysis of the development of the concept of selfdetermination until the end of the process of decolonization, the core meaning of the right of political self-determination was defined as the right of peoples to decide their political destiny, that is, the right of peoples to govern themselves. Moreover, it was observed that the raisên d'etre and main objective or purpose of the concept of self-determination is the protection, preservation, strengthening and development of the cultural, ethnic, and/or historical identity or individuality (the 'self') of a collectivity, that is, of a 'people', and thus guaranteeing a people's freedom and existence. Now that the roots of the principle were traced, as well as its basic meaning and objective defined, it became necessary to examine whether the right of selfdetermination extends beyond decolonization and, if so, in what form or aspect. In other words, the question was whether or not the right of self-determination has a continuing or ongoing character. This was answered in the affirmative in Chapter 6. Indeed, the fact that in practice, the right of self-determination was linked to Non-Self-Governing and Trust Territories did not imply a limitation of the scope of the right to self-determination rationae personae, but an application of universal law ad casum. However, the analysis showed that the ongoing character primarily concerns a positive right of internal selfdetermination. Internal self-determination was described as a method of implementation of political self-determination within the boundaries of a State and as implying a 'right of participation' of a people in the decision-making processes of that State. Because of the raison d'être and main objective of the right of self-determination, the right of participation necessarily extends to those matters which directly or indirectly may affect the distinct character of the people concerned. Several options of exercising self-determination within a State were envisaged, ranging from direct participation in the central decisionmaking processes of the State, to federalism and other forms of political autonomy. In this respect, it was observed that the realization of the right of self-determination within the State is not only fundamental for the preservation and development of the collective identity of a people, but is also a conditio sine qua non for the effective guarantee and observance of the individual human 15. See Chapter 5, Section 4.
446
Precis
rights of the members of a people. Accordingly, the right of self-determination has a dual, but interrelated, objective or function. 16 On the basis of the analysis of several legal instruments, state practice as well as the practice of international organizations, judicial decisions and doctrine, two different holders of the right of internal self-determination were identified: (a) nations in the sense of the entire population of an existing State (reflecting a territorial definition) and (b) peoples as subgroups or segments of the nation, that is, 'minority-peoples'. The latter refers to the notion of a people in a social and cultural or anthropological sense and thus concerns an ethnic definition of 'peoplehood'. Indeed, also from a theoretical point of view, the applicability of self-determination to minority-peoples, that is, in addition to nations, appears to be a logical and necessary consequence of the raison d'être and objective of self-determination. These groups are numerically inferior to the rest of the population of the State and thus normally in a non-dominant position. Therefore, the need for protection of the collective identity of minority-peoples is more substantial than with respect to the nation, because the threat to the collective identity of the former is, potentially at least, greater. The exclusion of these subgroups from the concept of self-determination would thus be difficult to reconcile with this concept's raison d'être and objective. A number of objective and subjective criteria for a minority-people exist, which, in their mutual relationship, provide for a framework for the determination of the existence of what was called a 'collective individuality'. This collective individuality qualifies a group as a people for the purpose of internal self-determination. It was moreover noted that state practice indicates that under contemporary international law, national or ethnic minorities as such are not considered as holders of the right of (internal and external) selfdetermination. Also, in Chapter 6, it was seen that the right of self-determination extends beyond the colonial context in its external dimension. This certainly applies to the nation, which is always entitled to dissolve the State and divide its territory for the purpose of creating two or more States (as in the case of the dissolution of Czechoslovakia and the Soviet Union). Another, more difficult point was whether the right of self-determination extends beyond decolonization in the form of a right of unilateral secession for minority-peoples within existing States. This point was crucial, because it might, at least potentially, be of relevance to the question of the role of the right of self-determination in the process of post-colonial state formation. For, if unilateral secession would be
16. See Chapter 6, Section 2.2. 17. See Chapter 6, Section 3.
Precis
447
regulated by international law, these rules would not only be relevant for the determination of the lawfulness of a particular (attempt at) secession, but could also be of importance for the question of statehood of the entity created as a result of the secession. In Chapter 7, it was argued that the existence of an absolute right of unilateral secession, as defended by a handful political philosophers, cannot be presumed to exist in the light of the fundamental right of territorial integrity of States. It is clear that there is a field of tension between, on the one hand, a right of external self-determination which would encompass a right of unilateral secession and, on the other, the right of territorial integrity: the right of unilateral secession is aimed at territorial change whereas the right of territorial integrity is aimed at the preservation of the territorial status quo. Consequently, if both norms were to be interpreted in absolute terms, there would be no possibility of their existing simultaneously under international law. Any right of unilateral secession must therefore be a conditional or qualified right only. In the same Chapter it was seen that the existence of a qualified right of unilateral secession is indeed supported in doctrine and judicial decisions, and is moreover implicitly endorsed in Paragraph 7 of Principle V of the Friendly Relations Declaration and in the similar provision in the 1993 Vienna Declaration and Programme of Action. On the basis of these sources, it was concluded that, at least theoretically, a right of unilateral secession does not exist except in cases where, firstly, a minority-people is exposed to serious harm, either through the serious violation or denial of its right of internal selfdetermination or through the serious and widespread violation of the human rights of the members of the minority-people, and, secondly, when all effective options which may lead to the implementation of the right of self-determination within the boundaries of the State have been exhausted by the people concerned and/or repudiated by the government of the parent State. The view asserting that a right of unilateral secession exists in international law if the aforementioned conditions have been met, was referred to as the 'qualified secession doctrine'.19 The analysis of recent state practice revealed that the existence of such a qualified right of secession is indeed recognized. In that respect, two cases of successful secessions (Bangladesh and Croatia) and three cases of unsuccessful secessions (Chechnya, Abkhazia and the Republic of Serbian Krajina) were analysed. The circumstances featuring in the cases of Bangladesh and Croatia left no doubt that the requirements of a qualified right of secession (suggested
18. See Chapter 7, Section 3.2. 19. See Chapter 7, Sections 3.2.1.-3.2.4.
448
Precis
by the qualified secession doctrine) were satisfied, and that thus the peoples concerned were entitled to secede unilaterally from the respective parent States. This conclusion was reinforced by the fact that both in the case of Bangladesh and in the case of Croatia, no effective government existed either at the date of the proclamation of independence or at the date when the majority of the international community granted recognition. In other words, recognition was accorded despite the fact that both entities did not qualify as States under traditional international law. It was argued therefore that the only plausible juridical explanation for the international community's position had to be that both the government of Bangladesh and the government of Croatia possessed a right or title to exercise authority over the territory of the prospective States and their inhabitants. Because in both cases sovereignty was not acquired as a result of a grant by a previous sovereign, this led to the conclusion that the international community must have acknowledged the existence of a right of external self-determination, which the Bengalis and the Croats were entitled to exercise through unilateral secession.20 The analysis of both the qualified secession doctrine and the cases of Bangladesh and Croatia led to the formulation of the following cumulative criteria for the existence of a unilateral right of secession in international law. Such a right requires: (a) the existence of a minority-people; (b) a territorial bond; (c) a direct or indirect violation of the right of internal self-determination (which includes serious and widespread violations of human rights, in particular the right to life)); and (d) the exhaustion of all effective judicial remedies and realistic political arrangements for the purpose of realizing the right of internal self-determination.21 Accordingly, unilateral secession is regarded as an ultimum remedium for safeguarding the collective identity of the group as well as the human rights of its members. Moreover, on the basis of the practice of the international community in the cases of Bangladesh and Croatia, it was also argued that in the case of a serious and widespread violation of the individual human rights, and in particular of the right to life, of the members of a minority-people by the government of the parent State, requirement (d) must be deemed to be satisfied. On the basis of the aforementioned points it is clear that there is only an apparent conflict or tension between the right of selfdetermination and the right of territorial integrity. The two norms are fully compatible if their content and scope are properly interpreted, that is, if the right of territorial integrity is used as a means of interpretation of the right of self-determination of peoples and vice versa.
20. See Chapter 7, Section 3.3.3. 21. See Chapter 7, Section 4.
Precis
449
The cases of Abkhazia and the Republic of Serbian Krajina support the existence of a qualified right of secession in international law. It was shown that in both cases, the criteria of a qualified right of secession were not satisfied, which amounts to an abuse of right and a violation of the law of self-determination, and thus explains the general rejection by the international community of the claims to secession and the insistence on the implementation of the right of Self-determination within the borders of the parent State. With respect to the case of Chechnya, it was observed that although it is beyond doubt that the Chechens qualify as a minority-people, a considerable number of legal arguments, based on the doctrine of a qualified right of secession, seriously undermine the validity of the Chechen claim to a right of unilateral secession. This may thus explain the international community's support for the preservation of the territorial integrity of Russia. However, it was also noted that, because the conflict is primarily regarded by the international community as an internal affair of Russia, and because any, even an implicit, reference to the right of (internal) Self-determination of the Chechens is avoided by the international community, the case does not serve as a good example, either in favour of the doctrine of a qualified right of secession, or against it. On the basis of the analysis of the meaning, scope and status of the right of self-determination, it thus became possible to address the role of the law of Self-determination in the process of the formation of States.
§ 4.
STATEHOOD AND SELF-DETERMINATION
In Chapter 7, it was shown that the right of external Self-determination applied in the cases of Bangladesh and Croatia. In those cases, the right was exercised through unilateral secession. In Chapter 8, two additional cases which involved an applicable right of external Self-determination were analysed: the Republic of Georgia and the Republic of Moldova. It is generally agreed that the creation of these States is not a result of unilateral secession, but a consequence of the decision of the constituent members of the Soviet Union to dissolve that State in conformity with the right of external self-determination. However, despite this difference, it was clear that all four cases had an important common feature: none of the four entities possessed an effective government at the date of the proclamation of independence or at the time when they were recognized by the majority of the international community. Because of the general acceptance of the applicability of the right of external Self-determination in these cases and because of the declaratory character of recognition, it was argued that the only logical and legally sound explanation for the position taken
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Precis
by the international community is that the validity of the compensatory force principle extends beyond decolonization and applies equally to post-colonial cases of external Self-determination involving the establishment of an independent State.22 The same holds true for the (related) notion of juridical statehood. It was concluded, therefore, that under contemporary international law, a State may come into being and be recognized when it does not yet possess all the empirical particularities of stable and existing States. Although it is thus perhaps not yet able to exercise all the rights of established States, it operates under functional rules that allow the process of empirical state formation to be completed as envisaged. A number of aspects of the law of Self-determination were identified as additional criteria for statehood under the general heading of an 'unlawful proclamation of independence'.23 In that respect, it was concluded that an attempt at unilateral secession by a minority-people within an existing State while the criteria of the qualified right of secession are not satisfied, constitutes an abuse of right and a violation of the law of self-determination, resulting in a bar to the acquisition of statehood by the entity concerned. This explains the general rejection of the claim to secession and statehood by such effective entities as the Republic of Abkhazia, the Republic of South Ossetia and the Republic of Anjouan. Furthermore, a violation of the internal dimension of the right of Self-determination also bars the acquisition of statehood under international law. That is to say, the obligation of respect for the right of internal Self-determination is a conditio sine qua non for a lawful exercise of external Self-determination and the subsequent establishment of a State. It was seen that this conclusion is reinforced by the case of Southern Rhodesia and subsequent state practice. In addition, another question which is determinative for the acquisition of statehood is whether or not the community claiming a right of external Self-determination is also the holder of that right. This criterion would clarify the rejection of the claims to statehood by national or ethnic minorities such as the Serb minority in Croatia and the Russian minority in Moldova. 24 Finally, it was observed that although recognition does not confer international legal personality on the recognized entity, and is thus not determinative for the acquisition of statehood, in several cases recognition may consolidate or secure statehood. This is particularly true for cases of juridical statehood. 25 22. 23. 24. 25.
See Chapter See Chapter See Chapter See Chapter
8, 8, 8, 8,
Sections 2.2. and 2.3. Section 3. Section 4. Section 5.
Précis
451
In sum, the law of self-determination and statehood are inextricably bound up with each other in a number of ways: -
-
-
the right of external self-determination has become the principal legitimation of statehood and the creation of States under contemporary international law; the right of internal self-determination obliges States to have a representative and non-discriminatory government and thus affects the internal political structure of States; if a State does not comply with the obligation to respect and promote the right of internal self-determination of a people, the latter is entitled, as an ultimum remedium, to a right of external self-determination which may be exercised through unilateral secession. In such a case a people is thus entitled to the creation of its own State; the right of external self-determination compensates for a lack of effective government in the light of the acquisition of statehood; and, finally, several aspects of the law of self-determination must be considered as modern and additional criteria for statehood.
Accordingly, any view which does not pay due regard to the role of the law of self-determination in the process of the formation of States, cannot be held to be a proper reflection of the modern law of statehood.
§ 5.
THE MODERN LAW OF STATEHOOD
Under the contemporary law of statehood, the formation of a State is a matter of fact and of law. The principle of legality and the law of self-determination have entered the law of statehood and this has resulted in a more relative role for the principle of effectiveness which historically dictated the formation of States under international law. Thus, under modern international law, not every effective entity which satisfies the factual or traditional criteria for statehood qualifies as a State. Moreover, some ineffective entities may acquire statehood, although in those situations, the State exists in a more juridical sense. In that respect, the rules regarding the formation or creation of States have come closer to the rules which regulate a State's continued existence. Yet, the formation and existence of States is, of course, not ruled by the principle of legality and the law of self-determination alone. It is clear that the principle of legality and the law of self-determination have become relevant for the modern law of statehood in addition to the principle of effectiveness. To become a State, an
452
Precis
entity must satisfy the traditional criteria and the modern criteria for statehood. Moreover, it was shown that as far as the acquisition of statehood is concerned, the right of external Self-determination may compensate for a lack of effectiveness in relation to the criterion of 'government only. In other words, the relative character of the principle of effectiveness in the context of the criterion of 'government' is without prejudice to (a) the validity and strict application of the principle with respect to the fulfilment of the remaining traditional criteria for statehood, and (b) the fact that a persistent lack or absence of effective government will eventually lead to the extinction of the State as an international person. In conclusion, on the basis of the analysis in this study, the position which was suggested in the Introduction cannot be maintained, namely that international law has little if any relevance to the ethnic conflicts which have erupted in many States in recent years (or which have existed for a longer period), and which in most circumstances concern attempts at unilateral secession and claims to statehood by minority groups residing in those States. This is not to say that international law provides for explanations and answers with respect to all current or future situations involving ethnic conflict and/or claims to statehood. International law is but one discipline which may be used for this purpose. Yet, as this study has shown, it is a discipline which is relatively well equipped to do so.
Bibliography
Abi-Saab, G.M., De la Sanction en Droit International: Essai de Clarification, in: J. Makarczyk (Ed.), THEORY OF INTERNATIONAL LAW AT THE THRESHOLD OF THE 21ST CENTURY, The Hague, Kluwer Law International, 1996, pp. 61-77 , Introduction, in: Conference on International Law, Lagonissi (Greece), 3-8 Apr. 1966, Papers and Proceedings, Vol. II, THE CONCEPT OF JUS COGENS IN INTERNATIONAL LAW, Geneva, Carnegie Endowment for International Peace, 1967, pp. 7-16 Abdulah, F., The Right to Decolonization, in: M. Bedjaoui (Ed.), INTERNATIONAL LAW: ACHIEVEMENTSAND PROSPECTS, Dordrecht, Martinus Nijhoff Publishers, 1991, pp. 1205-1218 Addo, M.K., Political Self-determination Within the Context of the African Charter on Human and Peoples' Rights, Journal of African Law,.1988, Vol. 32, pp. 182-193 Ajomo, MA., International Law, the United Nations, and Decolonization, in: ESSAYS IN
HONOUR OF JUDGE TASLIM OLAWALE ELIAS, Vol. 1, Dordrecht, Nijhoff, 1992, pp. 77-92 Ali Khan, L., THE EXTINCTION OF NATION-STATES: A WORLD WITHOUT BORDERS, The Hague, Kluwer Law International, 1996 Akehurst, M., A MODERN INTRODUCTION TO INTERNATIONAL LAW, London, Routledge, 1987 Akhavan, P., Lessons From Iraqi Kurdistan: Self-determination and Humanitarian Intervention Against Genocide, NQHR, Vol. 11, 1993, pp. 41-62 Alfredsson, G., The Right of Self-determination and Indigenous Peoples, in: C. Tomuschat (Ed.), MODERN LAW OF SELF-DETERMINATION, Dordrecht, Martinus Nijhoff Publishers, 1993, pp. 41-54 Anchabadze, Y., Georgia and Abkhazia: The Hard Road to Agreement, in: B. Coppieters, G. Nodia & Y. Anchabadze (Eds.), GEORGIANS AND ABKHAZIANS, THE SEARCH
FOR A PEACE SETTLEMENT, Köln, Sonderveröff, 1998, pp. 80-89 Ansprenger, F., THE DISSOLUTION OF THE COLONIAL EMPIRES, London, Routledge, 1989 Anzilotti, D., COURS DE DROIT INTERNATIONAL, (G. Gidel, Trans.), Paris, Recueil Sirey, 1929 Arangio-Ruiz, G., Human Rights and Non-Intervention in the Helsinki Final Act, HR, Vol. 157, 1977, pp. 195-331 Atrokov, W.T., The Khasavyurt Accords: Maintaining the Rule of Law and Legitimacy of Democracy in the Russian Federation Amidst the Chechen Crisis, Cornell ILJ ,
454
Bibliography
Vol. 32, 1999, pp. 367-392 Aufricht, H., Principles and Practices of Recognition by International Organizations, AJIL, Vol. 43, 1949, pp. 679-704 Australia Parliament, Joint Standing Committee on Foreign Affairs, Defence, and Trade, BOUGAINVILLE: THE PEACE PROCESS AND BEYOND, Canberra, Commonwealth of Australia, 1999 Axt, H., Mazedonien: ein Streit um Namen oder ein Konflikt vor dem Ausbruch?, Europa Archiv, Vol. 48, No. 3, 10 Feb. 1993, pp. 65-75 Bagwell, B., Yugoslavian Constitutional Questions: Self-Determination and Secession of Member Republics, Ga. J. Int'l & Comp. L., Vol. 21, 1991, pp. 489-523 Bailey, T.A., WOODROW WILSON AND THE LOST PEACE, New York, The MacMillan Company, 1944 Baker, R.S., WOODROW WILSON AND WORLD SETTLEMENT: WRITTEN FROM HIS
UNPUBLISHED AND PERSONAL MATERIAL, Vol. I, New York, Doubleday, Page & Company, 1922 Balekjian, W.H., DIE EFFEKTIVITÄT UND DIE STELLUNG NlCHTANERKANNTER STAATEN IM VÖLKERRECHT, The Hague, Martinus Nijhoff, 1970 Banac, I.,THE NATIONAL QUESTION IN YUGOSLAVIA: ORIGINS, HISTORY, POLITICS, Ithaca/London, Cornell University Press, 1984
BANGLA DESH DOCUMENTS, Madras, B.N.K. Press, 1972 Barros, J., THE ALAND ISLANDS QUESTION: ITS SETTLEMENT BY THE LEAGUE OF NATIONS, New Haven, Yale University Press, 1968 Bartkus,V.O., THE DYNAMIC OF SECESSION, Cambridge, Cambridge University Press, 1999 Bartoš, T., Uti Possidetis. Quo Vadis?, Aust. YIL, Vol. 18, 1997, pp. 37-96 Bedjaoui, M. (Ed.), INTERNATIONAL LAW: ACHIEVEMENTS AND PROSPECTS, Dordrecht, Martinus Nijhoff Publishers, 1991 , Article 74, in: J.-P. Cot and A. Pellet (Eds.), LA CHARTE DES NATIONS UNIES, 2nd ed., Economica, Paris 1991, pp. 1077-10.92 , LAW AND THE ALGERIAN REVOLUTION, Bruxelles, Association Internationale des Juristes Démocrates, 1961 Belgian Government Information Service, THE SACRED MISSION OF CIVILISATION:
THE BELGIAN THESIS, New York, 1953 Beran, H., THE CONSENT THEORY OF POLITICAL OBLIGATION, London, Croom Helm, 1987 ,A Philosophical Perspective, in: W.J.A. Macartney (Ed.), SELF-DETERMINATION IN THE COMMONWEALTH, Aberdeen University Press, 1988, pp. 23-35 Berg-Schlosser, D. and Siegler, R., POLITICAL STABILITY AND DEVELOPMENT: A COMPARATIVE ANALYSIS OF KENYA, TANZANIA, AND UGANDA, Boulder, Lynne Rienner Publishers, Inc., 1990 Berman, N., Sovereignty in Abeyance: Self-Determination and International Law, Wis. ILJ , Vol. 7, 1988, pp. 51-105
Bibliography
455
Bieber, R., European Community Recognition of Eastern European States: A New Perspective for International Law?, PASIL, 1992, pp. 374-378 Bilder, R.B., Perspectives on Sovereignty in the Current Context: An American Viewpoint, Canada-United States Law Journal, Vol. 20, 1994, pp. 9-17 Binder, G., The Case for Self-Determination, Stanford JIL, Vol. 29, 1993, pp. 223-270 Blackmann, A., Decolonization, EPIL, Vol. 10, 1987, pp. 75-78 Blay, K.N., Self-determination Versus Territorial Integrity in Decolonization Revisited, Indian JIL, Vol. 25, 1985, pp. 386-410 Blix, H.M., Contemporary Aspects of Recognition, HR, Vol. 130, 1970, II, pp. 393-703 Blum, Y.Z., Russia Takes Over the Soviet Union's Seat at the United Nations, EJIL, Vol. 3, 1992, pp. 354-361 Blumenwitz, D. and Gornig, G. (Eds.), MlNDERHEITEN- UND VOLKSGRUPPENRECHTE IN THEORIE UND PRAXIS, Staats- und Völkerrechtliche Abhandlung der Studiegruppe für Politik und Völkerrecht, Band 12, Köln, Verlag Wissenschaft und Politik, 1993 Bodin, J., LES SIX LlVRES DE LA RÉPUBLIQUE, 1583, Paris, Chez Jaques du Puys, 1583 Bojicic, V., The Disintegration of Yugoslavia, Causes and Consequences of Dynamic Inefficiency in Semi-command Economies, in: D.A. Dyker and I. Vejvoda (Eds.),
YUGOSLAVIA AND AFTER: A STUDY IN FRAGMENTATION, DESPAIR AND REBIRTH, London/New York, Longman, 1996, pp. 28-47 Bokor-Szegö, H., NEW STATES AND INTERNATIONAL LAW, Budapest, Akadémiai Kiadó, 1970 , Naissance et Disparation des Etats Dans le Droit International Contemporain, Acta Juridica Academiae Scientiarum Hungaricae, Vol. 25, 1983, pp. 351-369 Bos, M., Self-determination by the Grace of History, NILR, Vol. XV, 1968, pp. 362-373 Bossuyt, M.J., GUIDETOTHE 'TRAVEAUXPRÉPARATOIRES' OF THE INTERNATIONAL
COVENANT ON CIVIL AND POLITICAL RIGHTS, Dordrecht, Martinus Nijhoff Publishers, 1987 Bothe, M., Völkerrechtliche Aspekte des Angola-Konflikts, ZaöRV, Vol. 37, 1977, pp. 572603 Boyd, J.P. (Ed.), THE PAPERS OF THOMAS JEFFERSON, Princeton, Princeton University Press, 1950 Brierly, J.L., THE LAW OF NATIONS: AN INTRODUCTION TO THE INTERNATIONAL LAW OF PEACE, (H. Waldock, Ed.), 6th ed., Oxford, Clarendon Press, 1963 Briggs, H.W., Community Interests in the Emergence of New States: the Problem of Recognition, PASIL, 1950, pp. 169-181 Brölmann, C., Zieck, M. & Lefeber, R. (Eds.), PEOPLES AND MINORITIES IN INTERNATIONAL LAW, Dordrecht, Martinus Nijhoff Publishers, 1993 , and Zieck, M.Y.A., Some Remarks on the Draft Declaration on the Rights of Indigenous Peoples, LJIL, Vol. 8, 1995, pp. 103-113 Broms, B., Subjects: Entitlement in the International Legal System, in: R.St.J. Macdonald and D.M. Johnston (Eds.), THE STRUCTURE AND PROCESS OF INTERNATIONAL
LAW: ESSAYS IN LEGAL PHILOSOPHY, DOCTRINE AND THEORY, The Hague,
456
Bibliography
Martinus Nijhoff, 1983, pp. 383-423 , States, in: M. Bedjaoui (Ed.), INTERNATIONAL LAW: ACHIEVEMENTS AND PROSPECTS, Dordrecht, Martinus Nijhoff Publishers, 1991, pp. 41-66 Brown, P.M., The Lausanne Treaty, AJIL, Vol. 21, 1927, pp. 503-505 Brownlie, I., PRINCIPLES OF PUBLIC INTERNATIONAL LAW, Oxford, Clarendon Press, 1998 , International Law at the Fiftieth Anniversary of the United Nations, HR, Vol. 255, 1995, pp. 9-227 , An Essay in the History of the Principle of Self-Determination, Grotius Society Papers, 1968, pp. 90-99 , The Rights of Peoples in Modern International Law, in: J. Crawford (Ed.), THE RIGHTS OF PEOPLES, Oxford, Clarendon Press, 1988, pp. 159-175 , Recognition in Theory and Practice, in: R.St.J. Macdonald and D.M.Johnston
(Eds.), THE STRUCTURE AND PROCESS OF INTERNATIONAL LAW: ESSAYS IN LEGAL PHILOSOPHY, DOCTRINE AND THEORY, The Hague, Martinus Nijhoff, 1983, PP. 627-641 , INTERNATIONAL LAW AND THE USE OF FORCE BY STATES, Oxford, Clarendon Press, 1963 Brown Scott, J., The Treaty Between Colombia and the United States, AJIL, Vol. 15, 1921, pp. 430-439 Buchanan, A., SECESSION: THE MORALITY OF POLITICAL DIVORCE FROM FORT SUMTER TO LITHUANIA AND QUEBEC, Boulder, Westview, 1991 , Theories of Secession, Philosophy and Public Affairs, Vol. 26, No. 1, 1997, pp. 30-61 , Democracy and Secession, in: M. Moore (Ed.), NATIONAL SELF-DETERMINATION AND SECESSION, Oxford University Press, 1998, pp. 14-33 Buchheit, C., SECESSION: THE LEGITIMACY OF SELF-DETERMINATION, New Haven, Yale University Press, 1978
Bull, H., THE ANARCHICAL SOCIETY: A STUDY OF ORDER IN WORLD POLITICS, London, Macmillan, 1977
Burg, S.L., CONFLICT AND COHESION IN SOCIALIST YUGOSLAVIA, POLITICAL DECISION MAKING SINCE 1966, Princeton, New Jersey, Princeton University Press, 1983 Butler, L.J., Britain, the United States and the Demise of the Central African Federation, 1959-63, in: K. Fedorowich, and M. Thomas (Eds.), INTERNATIONAL DIPLOMACY AND COLONIAL RETREAT, London, Cass, 2001, pp. 131-151 Cahier, P., Les Caractéristiques de la Nullité en Droit International et Tout Particuliérement Dans la Convention de Vienne de 1969 sur le Droit des Traités, RGDIP, Vol. 76, 1972, pp. 645-691 Capotorti, F., Cours General de Droit International Public, HR, 1994 TV, pp. 13-343 Cashmore, E., DICTIONARY OF RACE AND ETHNIC RELATIONS, London, Routledge, 1998
Bibliography
457
Cass, D. Z., Re-Thinking Self-Determination: A Critical Analysis of Current International Law Theories, Syr. JIL & Com., Vol. 18, 1992, pp. 21-40 Cassese, A., SELF-DETERMINATION OF PEOPLES, A LEGAL REAPPRAISAL, Cambridge, Cambridge University Press, 1995 , The International Court of Justice and the Rights of Peoples to Self-Determination, in: V. Lowe and M. Fitzmaurice (Eds.), FIFTY YEARS OF THE INTERNATIONAL COURT OF JUSTICE, ESSAYS IN HONOUR OF SIR ROBERT JENNINGS, Cambridge, Cambridge University Press, 1996, pp. 351-363 , Self-Determination of Peoples and the Recent Break-Up of USSR and Yugoslavia, in: R.St.J. Macdonald (Ed.), ESSAYS IN HONOUR OF WANG TlEYA, Martinus Nijhoff Publishers, 1994, pp. 131-144 , The Self-Determination of Peoples, in: L. Henkin (Ed.), THE INTERNATIONAL BILL OF RIGHTS: THE COVENANT ON ClVIL AND POLITICAL RIGHTS, New York, Colombia University Press, 1981, pp. 92-117 , Political Self-Determination - Old Concepts and New Developments, in: A. Cassese (Ed.), UN LAW/FUNDAMENTAL RIGHTS, TWO TOPICS IN INTERNATIONAL LAW, Sijthoff & Noordhoff, 1979, pp. 137-165 Castelle, J.M. and Jauregui, G., Political Autonomy and Conflict Resolution: the Basque Case, in: K. Rupesinghe and V.A. Tishkov (Ed.), ETHNICITY AND POWER IN THE CONTEMPORARY WORLD, Tokyo, United Nations University Press, 1996, pp. 210-235 Castellino, J., INTERNATIONAL LAW AND SELF-DETERMINATION, THE INTERPLAY OF THE POLITICS OF TERRITORIAL POSSESSION WITH FORMULATIONS OF POSTCOLONIAL 'NATIONAL' IDENTITY, The Hague, Martinus Nijhoff Publishers, 2000. Charney, J.I., Self-Determination: Chechnya, Kosovo, and East Timor, V and. J. Transnat'l L., Vol. 34, 2001, pp. 455-467 Chen, L., Taiwan's Current International Legal Status, New Engl. L. Rev., Vol. 32, 19971998, pp. 675-683 Chen, T.C., THE INTERNATIONAL LAW OF RECOGNITION, WITH SPECIAL REFERENCE TO PRACTICE IN GREAT BRITAIN AND THE UNITED STATES, (L.C. Green, Ed.), London, Stevens & Sons Ltd., 1951 Cheng, B., Introduction to Subjects of International Law, in: M. Bedjaoui (Ed.), INTERNATIONAL LAW: ACHIEVEMENTS AND PROSPECTS, Dordrecht, Martinus Nijhoff Publishers, 1991, pp. 23-40 , United Nations Resolutions on Outer Space: 'Instant' International Customary Law, Indian JIL, Vol. 5, 1965, pp. 23-48 Chinn, J. and Roper, S.D., Territorial Autonomy in Gagauzia, Nationality Papers, Vol. 26, No. 1, 1998, pp. 87-102 Chirikba, V.A., The Georgian-Abkhazian Conflict: In Search for Ways Out, in: B. Coppieters, G. Nodia & Y. Anchabadze (Eds.), GEORGIANS AND ABKHAZIANS, THE SEARCH FOR A PEACE SETTLEMENT, Köln, Sonderveröff, 1998, pp. 49-61 Chowdhurry, S.R., THE GENESIS OF BANGLADESH, A STUDY IN INTERNATIONAL
458
Bibliography LEGAL NORMS AND PERMISSIVE CONSCIENCE, London, Asia Publishing House,
1972 , The Status and Norms of Self-Determination in Contemporary International Law, in: H. Meijers and E.W. Vierdag (Eds.), ESSAYS ON INTERNATIONAL LAW AND RELATIONS IN HONOUR OF A.J.P. TAMMES, Vol. XXIV, Special Issue 1/2, Leiden, Sijthoff, 1977, pp. 72-84 Clark, R.S., Self-Determination and Free Association; Should the United Nations Terminate the Pacific Islands Trust?, Harv. ILJ, Vol. 21, 1980, pp. 1-86 Claude, I.L., SWORDS INTO PLOWSHARES: THE PROBLEMS AND PROGRESS OF INTERNATIONAL ORGANIZATION, New York, Random House, 1964 Cobban, A., THE NATION STATE AND NATIONAL SELF-DETERMINATION, London, Collins, 1969 Combacau, J., Sanctions, EPIL, Vol. 9, pp. 337-341 Copper, J.F., TAIWAN: NATION-STATE OR PROVINCE?, Boulder, Westview, 1996 Covic, B. (Ed.), CROATIA BETWEEN WAR AND INDEPENDENCE, Zagreb, University of Zagreb, 1991 Craven, M., What's in a Name? The Former Yugoslav Republic of Macedonia and Issues of Statehood, Aust. YIL, Vol. 16, 1995, pp. 199-239 , The European Community Arbitration Commission on Yugoslavia, BYIL, 1996, pp. 333-413 Crawford, B., Explaining Defection from International Cooperation. Germany's Unilateral Recognition of Croatia, World Politics, Vol. 48, Oct. 1995-July 1996, pp. 482-521 Crawford, J., State Practice and International Law in Relation to Secession, BYIL, Vol. 69, 1998, pp. 87-117 , Response to Expert Reports of the Amicus Curiae, 8 Jan. 1998, http://canada.justice.gc.ca/en/ps/const/crarpt.doc , (Ed.), The General Assembly, the International Court and Self-Determination, in: V. Lowe and M. Fitzmaurice (Eds.), FIFTY YEARS OF THE INTERNATIONAL COURT OF JUSTICE, ESSAYS IN HONOUR OF SIR ROBERT JENNINGS, Cambridge University Press, 1996, pp. 585-605 , Book Review, AJIL, Vol. 90, 1996, pp. 331-333 (reviewing A. Cassese, SELFDETERMINATION OF PEOPLES: A LEGAL REAPPRAISAL, 1995) , Democracy and International Law, BYIL, Vol. 64, 1993, pp. 113-133 , The General Assembly, the International Court and Self-Determination, in: V. Lowe and M. Fitzmaurice (Eds.), FIFTY YEARS OF THE INTERNATIONAL COURT OF JUSTICE, ESSAYS IN HONOUR OF SIR ROBERT JENNINGS, Cambridge, Cambridge University Press, 1996, pp. 585-605 , Outside the Colonial Context, in: W.J.A. Macartney (Ed.), SELF-DETERMINATION IN THE COMMONWEALTH, Aberdeen University Press, 1988, pp. 1-22 , THE RIGHTS OF PEOPLES, Oxford, Clarendon Press, 1988 , The Rights of Peoples: Some Conclusions, in: J. Crawford (Ed.), THE RIGHTS OF PEOPLES, Oxford, Clarendon Press, 1988, pp. 159-175
Bibliography
459
, THE CREATION OF STATES IN INTERNATIONAL LAW, Oxford, Clarendon Press, 1979 , The International Legal Status of the Valleys of Andorra, RDISDP, Vol. 55, 1977, pp. 258-272 Dahm, G., VOLKERRECHT, Vol. I and Vol. III, W. Kohlhammer Verlag, 1958 and 1961 resp. Dahl, R.A., DEMOCRACY AND ITS CRITICS, New Haven, Yale University Press, 1989 Dakic, M.A., THE SERBIAN KRAYINA, HISTORICAL ROOTS AND ITS BIRTH, Knin, 1994 Dale, C., Turmoil in Abkhazia: Russian Responses, RFE/RL Research Report, Vol. 2, No. 34, 27 Aug. 1993 Danilenko, G.M. and.Burnham, W., LAW AND LEGAL SYSTEM OF THE RUSSIAN FEDERATION, Juris Publishing, Inc., 1999 Deamer, E., The Recognition of Aspirant Statehood in the New Europe: The European Community's Recognition of Croatia, 1990-1992, in: T.D. Sfikas and C.Williams (Eds.), ETHNICITY AND NATIONALISM IN EAST CENTRAL EUROPE AND THE BALKANS, Ashgate, 1999, pp. 341-365 Debbas, V. COLLECTIVE RESPONSES TO ILLEGAL ACTS IN INTERNATIONAL LAW. UNITED NATIONS ACTIONS IN THE QUESTION OF SOUTHERN RHODESIA, Dordrecht, Martinus Nijhoff Publishers, 1990 Demissie, D., Self-Determination Including Secession vs. the Territorial Integrity of Nation-States: A Prima Facie Case For Secession, STL Rev., Vol. 20, 1996, pp. 166192 Denquin, J., REFERENDUMET PLÉBISCITE: ESSAI DE THÉORIE GÉNÉRALE, Paris, Librairie Générale de Droit et de Jurisprudence, 1976 De Pinho Campinos, J., L'Actualité de I'Uti Possidetis, in: Société Françhise pour le Droit International, LA FRONTIÉRE, Colloque de Poitiers, Paris, Editions A. Pedone, 1980, pp. 95-111 De Quadros, F., Decolonization: Portuguese Territories, EPIL, Vol. 10, 1987, pp. 93-96 Devine, D.J., The Requirements of Statehood Re-Examined, Mod. L. Rev., Vol. 34, 1971, pp. 410-417, pp. 412-413 , The Status of Rhodesia in International Law, Acta Juridica, Vol. 1, 1973, pp. 39-171 De Visscher, C., LES EFFECTiVITÉS DU DROIT INTERNATIONAL PUBLIC, Paris, Editions A. Pedone, 1967 De Zayas, A, Peace of Westphalia, EPIL, Vol. 7, 1984, pp. 536-539 Dinstein, Y., WAR, AGGRESSION AND SELF-DEFENCE, Cambridge, Cambridge University Press, 1994 , and Tabory, M. (Eds.), THE PROTECTION OF MINORITIES AND HUMAN RIGHTS, Dordrecht, Nijhoff, 1992 (Ed.), MODELS OF AUTONOMY, New Brunswick, Transaction Books, 1981 , Collective Human Rights of Peoples and Minorities, ICLQ, Vol. 25, 1976, pp. 102-120
460
Bibliography , International Criminal Law, IYHR, Vol. 5, 1975, pp. 55-87
Djilas, M., THE UNPERFECT SOCIETY: BEYOND THE NEW CLASS, (trans., D. Cooke), London, Methuen & Co., 1969 Doehring, K., Self-Determination, in: B. Simma (Ed.), THE CHARTER OF THE UNITED NATIONS, A COMMENTARY, Oxford University Press, 1994, pp. 56-72 , State, EPIL, Vol. 10, 1987, pp. 423-428 , Effectiveness, EPIL, Vol. 7, 1984, pp. 70-74 Donnely, ]., Human Rights, Individual Rights and Collective Rights, in: J. Berting et al.
(Eds.), HUMAN RIGHTS IN A PLURALIST WORLD, INDIVIDUALS AND COLLECTIVITIES, Westport, Meckler, 1990, pp. 39-62 , UNIVERSAL HUMAN RIGHTS IN THEORY AND PRACTICE, Ithaca (NY), Cornell University Press, 1989 Dore, I.I., Recognition of Rhodesia and Traditional International Law: Some Conceptual Problems, Vand. J. Transnat'l L., 1972, pp. 25-47 Driessen, B., A CONCEPT OF NATION IN INTERNATIONAL LAW, T.M.C. Asser Instituut, 1992 Dugard, J., INTERNATIONAL LAW: A SOUTH AFRICAN PERSPECTIVE, Kenwyn, Juta, 2000 , Secession: Is the Case of Yugoslavia a Precedent for Africa?, African JICL, Vol. 5, 1992, pp. 163-175 , Collective Non-Recognition: the Failure of South Africa's Bantustan States, in: BOUTROS BOUTROS GHALI AMERICORUM DlSCIPULORUMQUE Bruxelles, Bruylant, 1998, pp. 383-403
LlBER, Vol. 1,
, RECOGNITION AND THE UNITED NATIONS, Cambridge, Grotius Publications Ltd., 1987 Dunk, F.G., von der, and Kooijmans, P.H., The Unification of Germany and International Law, Mich. JIL, Vol. 12, 1991, pp. 510-557 Dunn, F.S., The International Rights of Individuals, PASIL, 1941, pp. 14-22
Duursma, J.C., SELF-DETERMINATION AND INTERNATIONAL RELATIONS OF MICROSTATES, THE CASES OF LIECHTENSTEIN, SAN MARINO, MONACO, ANDORRA AND THE VATICAN CITY, Thesis, Leiden, 1994 Dyke, V., van, Collective Entities and Moral Rights: Problems of Liberal-Democratic Thought, The Journal of Politics, Vol. 44, 1982, pp. 21-40 Dyker and I. Vejvoda (Eds.), YUGOSLAVIAAND AFTER: A STUDY IN FRAGMENTATION, DESPAIR AND REBIRTH, London/New York, Longman, 1996 Eagleton, C., InternationalOrganisation and the Law of Responsibility, HR, Vol. 76, 1950 I, pp. 319-425 Eastwood, Jr., L.S., Secession: State Practice and International Law After the Dissolution of the Soviet Union and Yugoslavia, Duke JCIL, Vol. 3, 1993, pp. 299-349 Eide, A., The National Society, Peoples and Ethno-Nations: Semantic Confusions and Legal Consequences, Nord. J. Int'L L., pp. 353-367 , Territorial Integrity of States, Minority Protection, and Guaranteesfor Autonomy Arrangements: Approaches and Roles of the United Nations, in: European Commis-
Bibliography
461
sion for Democracy Through Law of the Council of Europe (Venice Commission), LOCAL SELF-GOVERNMENT, TERRITORIAL INTEGRITY AND PROTECTION OF MINORITIES, International Colloquium, Lausanne, 25-27 Apr. 1996, 1996, pp. 75-103 Emerson, R., The Logic of Secession, Yale LJ, Vol. 89, 1979-1980, pp. 802-824 , Self-Determination, AJIL, Vol. 65, 1971, pp. 459-475 , Self-Determination, PASIL, Vol. 60, 1966, pp. 135-141]
, FROM EMPIRE TO NATION: THE RISE TO SELF-ASSERTION OF ASIAN AND AFRICAN PEOPLES, Boston, Beacon Press, 1960 Ermacora, F., The Protection of Minorities Before the United Nations, HR, 1983 (IV), pp. 247-370 Falk, R., Problems and Prospects for the Kurdish Struggle, Mich. JIL, Vol. 15, 1993-1994, pp. 591-603 Falkowski, J.E., Secessionary Self-Determination: A Jeffersonian Perspective, B.U. Int'l L.J., Vol. 9, 1991, pp. 209-242 Fastenrath, U., States: Extinction, EPIL, Vol. 10, 1987, pp. 465-467 Fawcett, J.E.S., Security Council Resolutions on Rhodesia, BYIL, Vol. 41, 1965-1966, pp. 103-121 , Note in Reply to Devine, Mod. L. Rev., Vol. 34, 1971, p. 417 Femberg, N., THE ARAB-ISRAELI CONFLICT IN INTERNATIONAL LAW, Jerusalem, Magness Press, 1970 Filos, A., Die Entwicklung der Zypern-Frage unter besonderer Beriicksichtigung der geplanten EU-Mitliedschaft der Republik Zypern, ZaöRV, Vol. 59, 1999, pp. 185212 Finger, S.M. and Singh, G., Self-Determination: A United Nations Perspective, in: Alexander and Friedlander (Eds.), SELF-DETERMINATION: NATIONAL, REGIONAL, AND GLOBAL DIMENSIONS, Boulder, Westview Press, 1980, pp. 333-346 Fletcher, N.M., THE SEPARATION OF SINGAPORE FROM MALAYSIA, Ithaca, N.Y., Cornell University, 1969 Florisky, M.T., THE SAAR STRUGGLE, New York, Macmillian, 1934 Fowler, M.R. and Bunck, J.M., LAW, POWER AND THE SOVEREIGN STATE: THE
EVOLUTION AND APPLICATION OF THE CONCEPT OF SOVEREIGNTY, University Park, PA, Pennsylvania State University Press, 1995 Franck, T.M., The Emerging Right to Democratic Governance, AJIL, Vol. 86, 1992, pp. 46-91 , Opinion Directed at Response of Professor Crawford and Wildhaber, Supplement à la Duplique, Rapports Additionnels des Experts de 1'Amicus Curiae, 22 Jan. 1998 , Opinion Directed at Question 2 of the Reference re Secession of Quebec in Amicus curiae, 1997, in: Supplément au Dossier, Rapports d'Experts de l'Amicus Curiae
, FAIRNESS IN INTERNATIONAL LAW AND INSTITUTIONS, Oxford, Clarendon
462
Bibliography Press, 1995 , Democracy as a Human Right, in: L. Henkin and J. Hargrove (Eds.), HUMAN
RIGHTS: AN AGENDA FOR THE NEXT CENTURY, ASIL, 1994, pp. 73-101 , The Democratic Entitlement, University of Richmond Law Review, Vol. 29, 1994, pp. 1-39 , Postmodern Tribalism and the Right to Secession, in: C. Brölmann, M. Zieck, & R. Lefeber, R. (Eds.), PEOPLES AND MINORITIES IN INTERNATIONAL LAW, Dordrecht, Martinus Nijhoff Publishers, 1993, pp. 3-27 , Higgins, R., Pellet, A., Shaw, M.N., & Tomuschat, C., The Territorial Integrity of Quebec in the Event of the Attainment of Sovereignty, Opinion submitted to the Committee to examine matters relating to the accession of Quebec to sovereignty of the National Assembly of Quebec, Apr. 1992 François, J.P.A., GRONDLIJNEN VAN HET VOLKENRECHT, Zwolle, Tjeenk Willink, 1967 Fraser, T.G., PARTITION IN IRELAND, INDIA AND PALESTINE, London, Macmillan, 1984 Friedlander, R.A., Proposed Criteria for Testing the Validity of Self-Determination as it Applies to Disaffected Minorities, Chitty's Law Journal, Vol. 25, 1977, pp. 335-341 Friedmann, W., LEGAL THEORY, 5th ed., London, Stevens & Sons, 1967 Frowein, J.A., Recognition, EPIL, Vol. 10, 1987, pp. 340-348 , Non-Recognition, EPIL, Vol. 3, 1997, pp. 627-629 , Nullity in International Law, EPIL, Vol. 7, 1984, pp. 361-364 , Self-Determination as a Limit to Obligations Under International Law, in: C. Tomuschat (Ed.), MODERN LAW OF SELF-DETERMINATION, Dordrecht, Martinus Nijhoff Publishers, 1993, pp. 211-223 Galenkamp,M., INDIVIDUALISM VERSUS COLLECTIVISM, THE CONCEPT OF COLLECTIVE RIGHTS, Thesis, Erasmus University of Rotterdam, 1993 Gall, C. and Waal, T., de, CHECHNYA: A SMALL VICTORIOUS WAR, London, Pann Books, 1997
Gallois, J.P., LE RÉGIME INTERNATIONAL DE LA PRINCIPAUTÉ DE MONACO, Paris, Pedone, 1964 Gasking, D., Clusters, Australian Journal of Philosophy, Vol. 38, 1960, pp. 1-36 Gazi, S., A HISTORY OF CROATIA, New York, Philosophical Library, Inc., 1973 Ginsburgs, G., Wars of National Liberation' and the Modern Law of Nations - The Soviet Thesis, Law & Contemp. Probs., Vol. 29, 1964, pp. 910-942 Gomez Robledo, A., Le Jus Cogens International; Sa Nature, Ses Fonctions, HR, 1981 III, pp. 17-217 Goodrich, L.M. and Hambro, E., CHARTER OF THE UNITED NATIONS, COMMENTARY AND DOCUMENTS, Boston, World Peace Foundation, 1946 Gordon, E., Resolution of the Bahrain Dispute, AJIL, Vol. 65, 1971, pp. 560-568 Gowlland-Debbas, V., Judicial Insights Into Fundamental Values and Interests of the International Community, in: A.S Muller, D. Raic & J.M. Thuránszky (Eds.), THE
Bibliography
463
INTERNATIONAL COURT OF JUSTICE. ITS FUTURE ROLE AFTER FIFTY YEARS, The Hague, Martinus Nijhoff Publishers, 1997, pp. 327-366 , Collective Responses to the Unilateral Declarations of Independence of Southern Rhodesia and Palestine, An Application of the Legitimizing Function of The United Nations, BYIL, Vol. 61, 1991, pp. 135-153 , COLLECTIVE RESPONSES TO ILLEGAL ACTS IN INTERNATIONAL LAW: UNITED NATIONS ACTION IN THE QUESTION OF SOUTHERN RHODESIA, Dordrecht, Martinus Nijhoff Publishers, 1990 Grant, T.D., THE RECOGNITION OF STATES, Westport, Preager Publishers, 1999 , Defining Statehood: The Montevideo Convention and its Discontents, Colum. J. Transnat'l L, Vol. 37, 1999, pp. 403-457 , Territorial Status, Recognition, and Statehood: Some Aspects of the Genocide Case (Bosnia Herzegovina v. Yugoslavia), Stanford JIL, Vol. 33, 1997, pp. 305-341 Gray, C., Self-Determination and the Breakup of the Soviet Union, Yearbook of European Law, Vol. 12, 1992, pp. 465-503 Gros, G., Towards a Taxonomy of Failed States in the New World Order: Decaying Somalia, Liberia, Rwanda and Haiti, Third World Quarterly, Vol. 17, 1996, pp. 455-471 Gross, L., The Peace of Westphalia (1948-1948), in: L. Gross (Ed.), INTERNATIONAL LAW IN THE TWENTIETH CENTURY, 1969, Oxford, pp. 25-46 Grote, R., Regionalautonomie fur Scotland und Wales - das Vereinigte Konigreich auf dem Weg zu einem fodralen Staat?, ZaoRV, Vol. 58, 1998, pp. 109-144 Gros Espiell, H., Self-Determination and Jus Cogens, in: A. Cassese (Ed.), UN LAW/FUNDAMENTAL RIGHTS, Two TOPICS IN INTERNATIONAL LAW, 1979, pp. 167-175 Grotius, H., DE lURE BELLI AC PACIS LlBRI TRES, 1646, (F.W. Kelsey, Trans.), Oxford, Classic of International Law Series, 1925 Guibernau, M., Spain: Catalonia and the Basque Country, Parliamentary Affairs, Vol. 53, 2000, pp. 55-68 Guillaume, H., LE RUANDA-URUNDI, Bruxelles, 1959 Guinier, L., THE TYRANNY OF THE MAJORITY: FUNDAMENTAL FAIRNESS AND REPRESENTATIVE DEMOCRACY, New York, Maxwell Macmillan International, 1994 Haile, M., Legality of Secessions: the Case of Eritrea, Emory Int'l L. Rev., Vol. 8, 1994, pp. 479-537 Hannikainen, L., PEREMPTORY NORMS (JUS COGENS) IN INTERNATIONAL LAW, 1988 Hannum, H., AUTONOMY, SOVEREIGNTY, AND SELF-DETERMINATION, THE ACCOMMODATION OF CONFLICTING RIGHTS, Philadelphia, University of Pennsylvania Press, 1996 , (Ed.), DOCUMENTS ON AUTONOMY AND MINORITY RIGHTS, Dordrecht, Martinus Nijhoff Publishers, 1993 , Rethinking Self-Determination, Va. JIL, Vol. 34, 1993, pp. 1-69,
464
Bibliography
, and Lillich, R.B., The Concept of Autonomy in International Law, AJIL, Vol. 74, 1980, pp. 858-889 Hanson, A., Croatian Independence from Yugoslavia, 1991-1992, in: M. Greenberg et al (Eds.), WORDS OVER WAR, MEDIATION AND ARBITRATION TO PREVENT DEADLY CONFLICT, Lanham, MD, Rowman and Littlefield Publishers, Inc., 2000, pp. 76-108 Harbi, M., LES ARCHIVES DE LA REVOLUTION ALGÉRIENNE, Paris, Editions Jeune Afrique, 1981 Harris, D.J., CASES AND MATERIALS ON INTERNATIONAL LAW, London, Sweet and Maxwell, 1991 Hargreaves, J.D., DECOLONIZATION IN AFRICA, London, Longman, 1988 Haverland, C., Secession, EPIL, Vol. 10, pp. 384-389 Heater, D., NATIONAL SELF-DETERMINATION, WOODROW WILSON AND HlS LEGACY, New York, St. Martin's Press, 1994 Hegel, G.W.F., ENZYKLOPÄDIE DER PHILOSOHISCHEN WISSENSCHAFTEN IM GRUNDRISSE: ZUM GEBRAUCH SEINER VORLESUNGEN, (K. Rosenkranz, Ed.), Berlin, Heimann, 1870 Henderson, W., WEST NEW GUINEA, THE DISPUTE AND ITS SETTLEMENT, Seton Hall University Press, 1973 Henkin, L., International Law: Politics, Values and Functions, HR, 1989 IV, pp. 9-416 , That 'S' Word: Sovereignty, and Globalization, and Human Rights et cetera, Fordham L. Rev., Vol. 68, 1999, pp. 1-14 , The Mythology of Sovereignty, in: R.St.J. Macdonald (Ed.), ESSAYS IN HONOUR OF WANG TlEYA, Martinus Nijhoff Publishers, 1994, pp. 351-358 , L., Pugh, R.C., Schachter, O. & Smit, H. (Eds.), INTERNATIONAL LAW, CASES AND MATERIALS, St. Paul, West Publishing Co., 1993 , International Law: Politics, Values and Functions, HR, 1989 IV, pp. 19-416 Heraclides, A., Secession, Self-Determination and Nonintervention: in Quest of a Normative Symbiosis, JIA, Vol. 45, 192, pp. 399-420 Herman, J., DE VOLKENBOND EN HET TOEZICHT OP DE VOLKENRECHTELIJKE BESCHERMING VAN NATIONALE MINDERHEDEN IN OOST-EUROPA, Thesis, Leiden, 1994 Hervey, T.K., Which Rights, Whose Rights? Identification and Protection of Minorities in British Law, in: Packer and Myntii (Eds.), THE PROTECTION OF ETHNIC AND LINGUISTIC MINORITIES IN EUROPE, Åbo/Turku, Åbo Akademi University Institute for Human Rights, 1993, pp. 123-144 Heydt, D.A., Nonrecognition of the Independence of Transkei, Case W. Res. J. Int'l L., Vol. 10, 1978, pp. 167-196 Heydte, F.A., von der, VÖLKERRECHT, 2nd ed., Köln, 1958 Higgins, R., PROBLEMS AND PROCESS, INTERNATIONAL LAW AND HOW WE USE IT, Oxford, Clarendon Press, 1994 , Postmodern Tribalism and the Right to Secession, Comments, in: C. Brölmann et al., PEOPLES AND MINORITIES IN INTERNATIONAL LAW, Dordrecht, Martinus
Bibliography
465
Nijhoff Publishers, 1993, pp. 29-35 , International Law and the Avoidance, Containment and Resolution of Disputes,
HR, 1991 V, pp. 9-341 , Conceptual Thinking About the Individual in International Law, in: R. Falk, F. Kratochwil & S.H. Mendlovitz (Eds.), INTERNATIONAL LAW, A CONTEMPORARY PERSPECTIVE, Boulder, Westview Press, 1985, pp. 476-494
, THE DEVELOPMENT OF INTERNATIONAL LAW THROUGH THE POLITICAL ORGANS OF THE UNITED NATIONS, London, Oxford University Press, 1963 Hillgruber, C., DIE AUFNAHME NEUER STAATEN IN DIE VOLKERRECHTSGENEINSCHAFT, Frankfurt am Main, Peter Lang, 1998 Hilpold, P., Die Anerkennung der Neustaaten auf dem Balkan, Archiv des Völkerrechts, Vol. 31, 1993, pp. 387-408 Hinsley, F.H., SOVEREIGNTY, London, Watts & Co., 1966
Hobbes, T., LEVIATHAN, OR THE MATTER, FORME AND POWER OF A COMMONWEALTH ECCLESIASTICALL AND ClVILL , London, Andrew Crooke, 1651 Hobson, J.A., TOWARDS INTERNATIONAL GOVERNMENT, London, 1915 Holland, R.F., EUROPEAN DECOLONIZATION 1918-1981, AN INTRODUCTORY SURVEY, MacMillan, 1985 Hoogh, A., de, OBLIGATIONS ERGA OMNES AND INTERNATIONAL CRIMES, A
THEORETICAL INQUIRY INTO THE IMPLEMENTATION AND ENFORCEMENT OF THE INTERNATIONAL RESPONSIBILITY OF STATES, The Hague, Kluwer Law International, 1996 Home, A., A SAVAGE WAR OF PEACE, ALGERIA 1954-1962, Harmondsworth, Penguin Books Ltd., 1979 Hoskyns, C., THE CONGO: A CHRONOLOGY OF EVENTS, JANUARY 1960-DECEMBER 1961, Royal Institute of International Affairs, 1962 , THE CONGO SINCE INDEPENDENCE, London, Oxford University Press, 1965 Hovannisian, R.G.,ARMENIA ON THE ROAD TO INDEPENDENCE, 1918, Berkeley, Univ. of California Press, 1967 Hoyle, P., Somaliland: Passing the Statehood Test?, Boundary and Security Bulletin,
Vol. 8, 2000, pp. 80-91 Hudson, M.O., THE VERDICT OF THE LEAGUE: CHINA AND JAPAN IN MANCHURIA: THE OFFICAL DOCUMENTS, Boston, World Peace Foundation, 1933 Humphrey, J.P., The International Law of Human Rights in the Middle Twentieth Century, in: M. Bos (Ed.), THE PRESENT STATE OF INTERNATIONAL LAW AND OTHER ESSAYS, Deventer, Kluwer, 1973, pp. 75-105 , The Status of the Republic of Indonesia in International Law, Colum. L. Rev., Vol. 49, 1949, pp. 955-966 Hyde, C.C., INTERNATIONAL LAW, CHIEFLY AS INTERPRETED BY THE UNITED STATES, Vol. I, Boston, Little Brown, 1947 Ijalaye, DA., Was Biafra at Any Time a State in International Law?, AJIL, Vol. 65, 1971, pp. 551-559
466
Bibliography
Independent International Commission on Kosovo, THE KOSOVO REPORT: CONFLICT,
INTERNATIONAL RESPONSE, LESSONS LEARNED, Oxford, Oxford University Press, 2000 Information Department of the Indonesia Office, THE REPUBLIC OF INDONESIA: A
REVIEW, 1949 International Commission of Jurists, East Pakistan Staff Study, International Commission of Jurists Review, Vol. 8, 1972, pp. 23-62 lyob, R., THE ERTTREAN STRUGGLE FOR INDEPENDENCE: DOMINATION, RESISTANCE, NATIONALISM, 1941-1993, Cambridge, Cambridge University Press, 1995 Jackson, R.H.,QUASI-STATES:SOVEREIGNTY,lNTERNATIONALRELATIONS, AND THE THIRD WORLD, Cambridge University Press, 1990 James, A., SOVEREIGN STATEHOOD: THE BASIS OF INTERNATIONAL SOCIETY, London, Allen & Unwin, 1986 Jellinek, G., DIE LEHRE VON DEN STAATENVERBINDUNGEN, Wien, A. Hölder, 1882
, ALGEMEINE STAATSLEHRE, 2nd ed., Wien, 1905 Jennings, R.Y. and Watts, A. (Eds.), OPPENHEIM'S INTERNATIONAL LAW, Vol. I, Peace, London, Longman, 9th ed., 1992 , Nullity and Effectiveness in International Law, in: CAMBRIDGE ESSAYS IN
INTERNATIONAL LAW, ESSAYS IN HONOUR OF LORD MCNAIR, London, Stevens & Sons, 1965, pp. 64-87 , THE ACQUISITION OF TERRITORY IN INTERNATIONAL LAW, Manchester, Manchester University Press, 1963 Johnson, H.S., Self-Determination: Western European Perspectives, in: Y. Alexander and R.A. Friedlander (Eds.), SELF-DETERMINATION: NATIONAL, REGIONAL, AND
GLOBAL DIMENSIONS, 1980, pp. 81-96 Jones, P., Human Rights, Group Rights, and Peoples' Rights, HRQ , Vol. 21, pp. 80-107 Joseph, J., CYPRUS: ETHNIC CONFLICT AND INTERNATIONAL POLITICS, London, Routledge, 1997 Kadelbach, S., ZWINGENDES VÖLKERRECHT, Berlin, Duncker & Humblot, 1992 Kamanu, O., Secession and the Right to Self-Determination, An OAU Dilemma, Journal of Modern African Studies, Vol. 12, 1974, pp. 355-376 Kay, D.A., The Politics of Decolonization, The New Nations and the United Nations Political Process, International Organization, Vol. 21, 1967, pp. 786-811 Kelsen, H., PRINCIPLES OF INTERNATIONAL LAW, (R.W. Tucker, Rev. and Ed.), 2nd ed., New York, Holt, Rinehart and Winston, Inc., 1966 , GENERAL THEORY OF LAW AND STATE, (A. Wedberg, Trans.), Cambridge, Harvard University Press, 1945 , Recognition in International Law, Theoretical Observations, AJIL, Vol. 35, 1941, pp. 605-617 Khachikian, A., Multilateral Mediation in Intrastate Conflicts: Russia, the United Nations, and the War in Abkhazia, in: M.C. Greenberg, J.H. Barton & M.E. McGuinness
Bibliography
467
(Eds.), WORDS OVER WAR, MEDIATION AND ARBITRATION TO PREVENT DEADLY CONFLICT, Boston, Rowman & Littlefield Publishers, Inc., 2000, pp. 15-34 Kimmenich, O., A Federal Right of Self-Determination?', in: C. Tomuschat (Ed.), MODERN LAW OF SELF-DETERMINATION, Dordrecht, Martinus Nijhoff Publishers, 1993, pp. 83-100 Kingsbury, B., Claims by Non-State Groups in International Law, Cornell ILJ, Vol. 25, 1992, pp. 481-513 Kiwanuka, R.N., The Meaning of 'People' in the African Charter on Human and Peoples' Rights, AJIL, Vol. 82, 1988, pp. 80-101 Kirgis, Jr., F.L., The Degrees of Self-Determination in the United Nations Era, AJIL, Vol. 88, 1994, pp. 304-310 Klabbers J. and Lefeber, R., Africa: Lost Between Uti Possidetis and Self-Determination, in: C. Brölmann, M. Zieck, & R. Lefeber, R. (Eds.), PEOPLES AND MINORITIES IN INTERNATIONAL LAW, Dordrecht, Martinus Nijhoff Publishers, 1993, pp. 3776
Knock, T.J., TO END ALL WARS, WOODROW WILSON AND THE QUEST FOR A NEW WORLD ORDER, New York, Oxford University Press, 1992 Knop, K., The 'Righting' of Recognition: Recognition of States in Eastern Europe and the Soviet Union, in: Canadian Council on International Law, STATE SOVEREIGNTY: THE CHALLENGE OF A CHANGING WORLD, Proceedings ofthe 1992 Conference of the Canadian Council on International Law, 1992, pp. 36-58 Knubben, R., DIE SUBJEKTE DES VÖLKERRECHTS, Stuttgart, Kohlhammer, 1928 Kofman, D., Self-Determination in a Multiethnic State: Bosnians, Bosniaks, Croats and Serbs, in: D. Solkolovic AND F. BlEBER (EDS.), RECONSTRUCTING MULTIETHNIC SOCIETIES: THE CASE OF BOSNIA-HERZEGOVINA, Aldershot, Ashgate, 2001, pp. 31-61 Kolstø, P. and Malgin, A., The Transnistrian Republic: A Case of Politicized Regionalism, Nationalities Papers, Vol. 26, 1998, pp. 103-128 Kooijmans, P.H., INTERNATIONAAL PUBLIEKRECHT IN VOGELVLUCHT, Deventer, Kluwer, 2000 , International Law: Placebo or Medication?, in: W.J.M. van Genugten et al. (Eds.), REALISM AND MORALISM IN INTERNATIONAL RELATIONS, The Hague, Kluwer, 1999, pp. 87-92 , Provisional Measures of the UN Security Council, in: E. Denters and N. Schrijver (Eds.), REFLECTIONS ON INTERNATIONAL LAW FROM THE LOW COUNTRIES, Kluwer Law International, 1998, pp. 289-300 , The Security Council and Non-State Entities as Parties to Conflicts, in: K. Wellens (Ed.), INTERNATIONAL LAW: THEORY AND PRACTICE, pp. 333-346 , Zelfbeschikkingsrecht - Naar een Nieuwe Interpretatie?, in: N. Sybesma-Knol and J. van Bellingen (Eds.), NAAR EEN NlEUWE INTERPRETATIE VAN HET RECHT OP ZELFBESCHIKKING, VUB Press, 1995, pp. 157-168 , Tolerance, Sovereignty and Self-Determination, NILR, 1996, pp. 211-217 , Is There a Common Ground for a Human Rights Theory and a Human Rights
468
Bibliography
Policy, Wiener Blatter zur Friedensforschung, No. 62/1, 1990, pp. 8-17 , THE DOCTRINE OF THE LEGAL EQUALITY OF STATES: AN INQUIRY INTO THE FOUNDATIONS OF INTERNATIONAL LAW, Leiden, Sijthoff, 1964 Kunz, J.L., Critical Remarks on Lauterpacht's Recognition in International Law, AJIL, Vol. 44, 1950, pp. 713-719 , Revolutionary Creation of Norms in International Law, AJIL, Vol. 41, 1947, pp. 119-126 , Sanctions in International Law, AJIL, Vol. 54, 1960, pp. 324-347 , Chapter XI of the United Nations Charter in Action, AJIL, Vol. 48, 1954, pp. 103-110 , Identity of States Under International Law, AJIL, Vol. 49, 1955, pp. 68-76 Kuyper, P.J., and Kapteyn, P.J.G., A Colonial Power as Champion of Self-Determination: Netherlands State Practice in the Period 1945-1975, in: H.F. van Panhuys et al. (Eds.), INTERNATIONAL LAW IN THE NETHERLANDS, Sijth off, Alphen aan den Rijn, Vol. 3, 1980, pp. 149-218 Lachs, M., The Development and General Trends of International Law in Our Times, HR, 1980 IV, pp. 9-377 Lampe, J.R., YUGOSLAVIA AS HISTORY, TWICE THERE WAS A COUNTRY, Cambridge, Cambridge University Press, 1996 Langer, R., THE SEIZURE OF TERRITORY: THE STIMSON DOCTRINE AND RELATED
PRACTICES IN LEGAL THEORY AND DIPLOMATIC PRACTICE, Princeton, Princeton University Press, 1947 Lapidoth, R., AUTONOMY, FLEXIBLE SOLUTIONS TO ETHIC CONFLICTS, Washington, United States Institute of Peace Press, 1996 Lauterpacht, E., Sovereignty - Myth or Reality?, Int. Aff., Vol. 73, 1997, pp. 137 - 150 , (Ed.), INTERNATIONAL LAW, BEING THE COLLECTED PAPERS OF HERSCH LAUTERPACHT, Vol. I, Cambridge, 1970 Lauterpacht, H., RECOGNITION IN INTERNATIONAL LAW, Cambridge, University Press, 1947 , The Subjects of the Law of Nations, LQR, 1947, pp. 438-460 , The Principle of Non-Recognition in International Law, in: Q. Wright (Ed.),
LEGAL PROBLEMS IN THE FAR EASTERN CONFLICT, Institute of Pacific Relations, 1941, pp. 129-156 Lawson, R.A., HET EVRM EN DE EUROPESE GEMEENSCHAPPEN, BOUWSTENEN VOOR EEN AANSPRAKELIJKHEIDSREGIME VOOR HET OPTREDEN VAN INTERNATIONALE ORGANISATIES, Deventer, Kluwer, 1999 Leang-Li, T. (Ed.), THE PUPPET STATE OF MANCHUKUO, Shanghai, China United Press, 1935 Lederer, I.J., YUGOSLAVIA AT THE PARIS PEACE CONFERENCE: A STUDY IN FRONTIER-MAKING, New Haven/London, Yale University Press, 1963 Lefeber, R. and Raic, D., Frontiers of International Law, Part One: The Chechen People, LJIL, Vol. 9, 1996, pp. 1-6
Bibliography
469
Lefebvre,G., THE COMING OF THE FRENCH REVOLUTION: 1789, Princeton, Princeton Univ. Press, 1947 Lenin, V.I., The Right of Nations to Self-Determination, in: V.I. LENIN, COLLECTED WORKS, 4th English ed., Progress Publishers, Moscow, Vol. 20, 1964 , The Socialist Revolution and the Right of Nations to Self-Determination (Theses), in: V.I. LENIN, COLLECTED WORKS, 4th English ed., Moscow, Progress Publishers, Vol. 22, 1964, pp. 143-156 , The Discussion of Self-Determination Summed Up, in: V.I. LENIN, COLLECTED WORKS, 4th English ed., Moscow, Progress Publishers, Vol. 22, 1964, pp. 320-38 , MARX, ENGELS, MARXISM, Moscow, Foreign Languages Publishing House, 1934 Lerner, N., Minorities vs. the Tyranny of the Majority, IYHR, Vol. 26, 1996, pp. 75-85
, GROUP RIGHTS AND DISCRIMINATION IN INTERNATIONAL LAW, Dordrecht, Martinus Nijhoff Publishers, 1991
,THE U.N. CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION, Alphen aan den Rijn, Sijthoff & Noordhoff, 1980 Link, A.S., et al. (Eds.), THE PAPERS OF WOODROW WILSON, Vol. 45, 1917-1918, Princeton NJ, Princeton University Press, 1984 Liszt, F., von, DAS VÖLKERRECHT, (M. Fleischmann Ed.), 12th ed., Berlin, Springer, 1925 Lloyd Brown-John, C., MULTILATERAL SANCTIONS IN INTERNATIONAL LAW, A COMPARATIVE ANALYSIS, Praeger Publishers, New York, 1975 Locke, J., TWO TREATISES OF GOVERNMENT, 6th ed. 1764, Cambridge University Press, 1963 Louter, J., de, HET STELLIG VOLKENRECHT, 's-Gravenhage, Martmus Nijhoff, 1910 Lowe, A.V. and Warbrick, C., Recognition of States Part 2, ICLQ, Vol. 42, 1993, pp. 433-442 Lydall, H., YUGOSLAVIA IN CRISIS, Oxford, Clarendon Press, 1989 Macdonald, R.St.J. and Johnston, D.M. (Eds.), THE STRUCTURE AND PROCESS OF
INTERNATIONAL LAW: ESSAYS IN LEGAL PHILOSOPHY, DOCTRINE AND THEORY, The Hague, Martinus Nijhoff, 1983 MacFarlane, S.N., Conflict Resolution in Georgia, in: H.G. Ehrhart and A. Schnabel
(Eds.), THE SOUTHEAST EUROPEAN CHALLENGE: ETHNIC CONFLICT AND THE INTERNATIONAL RESPONSE, Baden-Baden, Nomaos Verlagsgesellschaft, 1999, pp. 117-130 Magas, B., THE DESTRUCTION OF YUGOSLAVIA, TRACKING THE BREAK-UP 1980-1992, London, Verso, 1993 Mahmoudi, S., Recognition of States: The Case of Former Yugoslav Republics, in: O. Bring (Ed.), CURRENT INTERNATIONAL LAW ISSUES. NORDIC PERSPECTIVES:
ESSAYS IN HONOUR OF JERZY SZTUCKI, Dordrecht, 1994, pp. 135-159 Malanczuk, P., AKEHURST'S MODERN INTRODUCTION TO INTERNATIONAL LAW, London, Routledge, 1997
470
Bibliography
Malcolm, N., KOSOVO: A SHORT HISTORY, New York, New York University Press, 1998 Malenovsky, J., Problèmes Juridiques Liés à la Partition de la Tchécoslovaquie, y Compris Tracé de la Frontiére, AFDI, Vol. 39, 1993, pp. 305-336 Mani, V.S., BASIC PRINCIPLES OF MODERN INTERNATIONAL LAW, New Delhi, Lancers Books, 1993 Mann, B., THE PRINCIPLES OF REPRESENTATIVE GOVERNMENT, Cambridge, Cambridge University Press, 1997 Marauhn, T., Anspruch auf Sezession?, in: H.J. Heintze (Ed.), SELBSTBESTIMMUNG SRECHT DER VÖLKER - HERAUSFORDERUNG DER STAATENWELT,
Bonn, Verlag J.H.W. Dietz Nachfölger, 1997, pp. 105-121 Marek, K., Contribution à I'Étude du Jus Cogens en Droit International, in: RECEUIL D'ETUDES DE DROIT INTERNATIONAL EN HOMMAGE Á PAUL GUGGENHEIM, Genève, Institut Universitaire de Hautes Études Internationales, 1968, pp. 426-
459 , IDENTITY AND CONTINUITY OF STATES IN PUBLIC INTERNATIONAL LAW, Geneva, 1954 Margalit, A. and Raz, J., National Self-Determination, The Journal of Philosophy, Vol. 87, 1990, pp. 439-461 Marks, S., The End of History? Reflections on Some International Legal Theses, EJIL, Vol. 3, 1997, pp. 449-477 Massa, S., Secession by Mutual Assent: a Comparative Analysis of the Dissolution of Czechoslovakia and the Separatist Movement in Canada, Wis. ILJ, Vol. 14, 1995, pp. 183-222 Mayer, A.J., POLITICAL ORIGINS OF THE NEW DIPLOMACY 1917-1918, New York, Random House, 1970 McCorquodale, R., Self-Determination: a Human Rights Approach, ICLQ, Vol. 43, pp. 857-885 , Negotiating Sovereignty: The Practice of the United Kingdom in Regard to the Right of Self-Determination, BYIL, Vol. 66, 1995, pp. 283-331 McDonald, G.C., AREA HANDBOOK FOR YUGOSLAVIA, Foreign Area Studies, Washington, D.C., 1973 McDonald, R., THE PROBLEM OF CYPRUS, Oxford, Brassey's Defence Publishers for the International Institute for Strategic Studies, 1989
McDowall, D., A MODERN HISTORY OF THE KURDS, London, Touris, 1996 , The Kurds, London, Minority Rights Group Report No. 23, 1985 McEwen, A.C., INTERNATIONAL BOUNDARIES OF EAST AFRICA, Oxford, Clarendon Press, 1971 McGoldrick, D., THE HUMAN RIGHTS COMMITTEE, ITS ROLE IN THE DEVELOPMENT
OF THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS, Oxford, Clarendon Press, 1991 McKibben, L.A., The Political Relationship Between the United States and Pacific Islands Entities: The Path to Self-Government in the Northern Mariana Islands, Palau, and
Bibliography
471
Guam, Harv. ILJ, Vol. 31, 1990, pp. 257-293 McNair, A.D., LAW OF TREATIES, Oxford, The Clarendon Press, 1961 , The Stimson Doctrine of Non-Recognition: A Note on its Legal Aspects, BYIL, 1933, pp. 65-74 Meijknecht, A., TOWARDS INTERNATIONAL PERSONALITY: THE POSITION OF
MINORITIES AND INDIGENOUS PEOPLES IN INTERNATIONAL LAW, Antwerpen, Intersentia, 2001 Meissner, B., The Soviet Concept of a Nation and the Right of National Self-Determination, International Journal, Vol. XXXII, 1976-1977, pp. 56-81 Menon, P.K., The Subjects of Modern International Law, Hague Y.B. Int'l L., Vol. 3, 1990, pp. 30-86 , Some Aspects of the Law of Recognition, Pan I: Theories of Recognition,
RDISDP, 1989, No. 1, pp. 161-182 , Some Aspects of the Law of Recognition. Part VII: the Doctrine of NonRecogmtion, RDISDP, 1991, No. 4, pp. 227-258
, Some Aspects of the Law of Recognition. Pan V: Modes of Recognition, RDISDP, 1991, No. 1, pp. 19-49 Mill, J.S., CONSIDERATIONS ON REPRESENTATIVE GOVERNMENT, London, Parker, Son, and Bourn, West Strand, 1861 Miller, D.H., THE DRAFTING OF THE COVENANT, New York, Putnam's, Vol. 2, 1928 Ministry of Culture of Singapore, SEPARATION: SINGAPORE'S SEPARATION FROM THE
FEDERATION OF MALAYSIA 9TH AUGUST, 1965, A Ministry of Culture Publication, 1965 Mong, G.,LAPOSITIONJURIDIQUEDUJAPON EN MANDCHOURIE, Paris, Pedone, 1933 Moore, J.B., MEMORANDUM ON UTIPOSSIDETIS: Costa Rica - Panama Arbitration 1911, Rosslyn, 1913 Moore, M. (Ed.), NATIONAL SELF-DETERMINATION .AND SECESSION, Oxford University Press, 1998 Morgenthau, H., THE TRAGEDY OF ARMENIA, London, 1918 Mosler, H., The International Society as a Legal Community, HR, Vol. 140, 1974, pp. 3-320 Mullerson, R., INTERNATIONAL LAW, RIGHTS AND POLITICS: DEVELOPMENTS IN
EASTERN EUROPE AND THE CIS, London, Routledge, 1994 , Self-Determination of Peoples and the Dissolution of the USSR, in: R.St.J. Macdonald (Ed.), ESSAYS IN HONOUR OF WANG TlEYA, Martinus Nijhoff Publishers,1994, pp. 567-584 , The Continuity and Succession of States by Reference to the Former USSR and
Yugoslavia, ICLQ, Vol. 42, 1993, pp. 473-493 Murphy, }.E., Self-Determination: United States Perspectives, in: Y. Alexander and R.A. Friedlander (Eds.), SELF-DETERMINATION: NATIONAL, REGIONAL, AND GLOBAL DIMENSIONS, Boulder, Colorado, Westview Press, 1980, pp. 49-94 Murray, R., THE AFRICAN COMMISSION ON HUMAN AND PEOPLES' RIGHTS AND
INTERNATIONAL LAW, Oxford, Hart Publishing, 2000
472
Bibliography
Murswiek, D., The Issue of a Right of Secession - Reconsidered, in: C. Tomuschat (Ed.),
MODERN LAW OF SELF-DETERMINATION, Martmus Nijhoff Publishers, 1993, pp. 21-39 Musgrave, T.D., SELF-DETERMINATION AND NATIONAL MINORITIES, Oxford, Clarendon Press, 1997 Musil, J. (Ed.), THE END OF CZECHOSLOVAKIA, Budapest, Central European University Press, 1995
Naldi, G.J., The Statehood of the Saharan Arab Democratic Republic, Indian JIL, Vol. 25, 1985, pp. 448-481 , Separatism in the Comoros: Some Legal Aspects, LJIL, Vol. 11, 1998, pp. 247256 Nanda, V.P., Self-Determination Outside the Colonial Context: The Birth of Bangladesh in Retrospect, in: Y. Alexander and R.A. Friedlander (Eds.), SELF-DETERMINATION: NATIONAL, REGIONAL, AND GLOBAL DIMENSIONS, Boulder, Colorado, Westview Press, 1980, pp. 193-220 Necatigil, Z.M., THE CYPRUS QUESTION AND THE TURKISH POSITION IN INTERNATIONAL LAW, Oxford, 1989 Newnham, R.E., Embassies for Sale: the Purchase of Diplomatic Recognition by West Germany, Taiwan and South Korea, International Politics, Vol. 37, 2000, pp. 259284
Nikic, G. (Ed.), CROATIA BETWEEN AGGRESSION AND PEACE, Zagreb, AGM, 1994 Nkala, }., THE UNITED NATIONS, INTERNATIONAL LAW, AND THE RHODESIAN INDEPENDENCE CRISIS, Oxford, Clarendon Press, 1985 Nodia, G., The Conflict in Abkhazia: National Projects and Political Circumstances, in: B. Coppieters, G. Nodia and Y. Anchabadze (Eds.), GEORGIANS AND ABKHAZIANS, THE SEARCH FOR A PEACE SETTLEMENT, Koln, Sonderveroff, 1998 pp. 14-48 Nordquist, K., Autonomy as a Conflict-Solving Mechanism -An Overview, in: M. Suksi (Ed.), AUTONOMY: APPLICATIONS AND IMPLICATIONS, The Hague, Kluwer Law International, 1998, pp. 59-77 Norman, W., The Ethics of Secession as the Regulation of Secessionist Politics, in: M. Moore (Ed.), NATIONAL SELF-DETERMINATION AND SECESSION, Oxford, Oxford University Press, 1998, pp. 34-61 Notter, H., THE ORIGINS OF THE FOREIGN POLICY OF WOODROW WILSON, Baltimore, The Johns Hopkins Press, 1937 Nowak, M., UNO-PAKT UBER BURGERLICHE UND POLITISCHE RECHTE UNO
FAKULTATIVPROTOKOLL, CCPR-KOMMENTAR, N.P. Engel Verlag, 1989 O'Connell, D.P., INTERNATIONAL LAW, Vol. 1, London, Stevens and Sons, 1970 Oeter, S., Selbstbestimmungsrecht im Wandel. Uberlegungen ztir Debatte um Selbstbestimmung, Sezessionsrecht ttnd 'vorzeitige' Anerkennung, ZaoRV, Vol. 52, 1992, pp. 741-78
Bibliography
473
Ofuatey-Kodjoe, W., Self-Determination, in: O. Schachter and C.C. Joyner (Eds.), UNITED NATIONS LEGAL ORDER, Vol. 1, ASIL, Cambridge University Press, 1995, pp. 349-389 Okeke, C.N., CONTROVERSIAL SUBIECTSOF CONTEMPORARY INTERNATIONAL LAW, Rotterdam University Press, 1974 Oppenheim, L.F.L., INTERNATIONAL LAW: A TREATISE, Vol. I, Peace, London, Longmans, Green, and Co., 1st ed., 1905; 2nd ed., 1912; 3rt) ed. (R.F. Roxburgh, Ed.), 1920; 7th ed. 1948; 8Ih ed, (H. Lauterpacht, Ed.), 1955 Oraison, A., Le Differend Franco-Comorien sur file de Mayotte: les Avatars de la Decolonisation Dans le Canal de Mozambique, RDISDP,Vol. 74,1996, pp. 199-214 Ormrod, J., THE NORTH CAUCASUS: FRAGMENTATION OR FEDERATION?, in: I. Bremmer and R. Taras (Eds.), NATIONS AND POLITICS IN THE SOVIET SUCCESSOR STATES, New York, Cambridge University Press, 1993, pp. 103-147 Packer, J. and Myntti, K. (Eds.), THE PROTECTION OF ETHNIC AND LINGUISTIC MINORITIES IN EUROPE, Abo Akademi University Institute for Human Rights, 1993 , On the Definition of Minorities, in: Packer and Myntti (Eds.), THE PROTECTION OF ETHNIC AND LINGUISTIC MINORITIES IN EUROPE, Abo Akademi University Institute for Human Rights, 1993, pp. 23-65 Palmer, S., The Turkish Republic of Northern Cyprus: Should the United States Recognize it as an Independent State?, B.U. Int'l L.J., Vol. 4, 1986, pp. 423-450 Paust, }., Self-Determination: A Definitional Focus, in: Y. Alexander and A. Friedlander (Eds.), SELF-DETERMINATION: NATIONAL, REGIONAL, AND GLOBAL DIMENSIONS, Boulder, Westview, 1980, pp. 3-18 Pellet, A., Avis Juridique sur Certaines Questions de Droit International Soulevees par le Renvoi, in: Supplement au Dossier, Rapports d'Experts de I'Amicus Curiae Peterson, M.J., RECOGNITION OF GOVERNMENTS: LEGAL DOCTRINE AND STATE PRACTICE, 1815-1995, Basingstoke, Macmillan, 1997 Petrovic, D., Ethnic Cleansing - An Attempt at Methodology, EJIL, Vol. 5, 1994, pp. 342-359 Philpott, D., Self-Determination in Practice, M. Moore (Ed.), NATIONAL SELFDETERMINATION AND SECESSION, Oxford, Oxford University Press, 1998, pp. 79-102 Pircher, E.H., DER VERTRAGLICHE SCHUTZ ETHNISCHER SPRACHLICHER UNO RELIGIOSER MlNDERHEITEN IM V6LKERRECHT, Bern, Stampfli, 1979 Pipes, R.E., THEFORMATION OFTHE SOVIET UNION, Cambridge, Harvard University Press, 1954 Pomerance, M., SELF-DETERMINATION IN LAW AND PRACTICE, THE NEW DOCTRINE IN THE UNITED NATIONS, The Hague, Martinus Nijhoff Publishers, 1982 , The United States and Self-Determination: Perspectives on the Wilsonian Conception, AJIL, Vol. 70, 1976, pp. 1-27 Potier, T., CONFLICT IN NAGORNO-KARABAKH, ABKHAZIA AND SOUTH OSSETIA, A
474
Bibliography
LEGAL APPRAISAL, The Hague, Kluwer Law International, 2001 Pullat, R., The Restoration of the Independence of Estonia 1991, Finnish YIL, Vol. II, 1991, pp. 512-532 Pye., L.W. and Pye, M.W., ASIAN POWER AND POLITICS, THE CULTURAL DIMENSIONS OF AUTHORITY, Cambridge, Harvard University Press, 1985 Quane, H., A Right to Self-Determination for the Kosovo Albanians?, LJIL, Vol. 13, 2000, pp. 219-227 Radan, P., Secessionist Self-Determination: The Cases of Slovenia and Croatia, in: R. Petkovic et al., INTERNATIONAL LAW AND THE CHANGED YUGOSLAVIA,
Belgrade, Institute of International Politics and Economics, 1995, pp. 69-89 Rafiqul Islam, M., Use of Force in Self-Determination Claims, Indian JIL, Vol. 25, 1985, pp. 424-447 , Secession Crisis in Papua New Guinea: The Proclaimed Republic of Bougainville in International Law, UHLR, Vol. 13, 1991, pp. 453-475 Ragazzi, M., THE CONCEPT OF INTERNATIONAL OBLIGATIONSERGAOMNES, Oxford, Clarendon Press, 1997 Raic, D., The Code, Humanitarian Law, and Human Rights, in: G. de Nooy (Ed.),
COOPERATIVE SECURITY, THE OSCE, AND ITS CODE OF CONDUCT, The Hague, Kluwer Law International, pp. 41-55 Rama-Montaldo, M., International Legal Personality and Implied Powers of International Organizations, BYIL, 1970, pp. 111-155 Ranjeva, R., Peoples and National Liberation Movements, in: M. Bedjaoui (Ed.),
INTERNATIONAL LAW: ACHIEVEMENTS AND PROSPECTS, Dordrecht, Martinus Nijhoff Publishers, 1991, pp. 101-112 Ratner, S.R., Drawing a Better Line: Uti Possidetis and the Borders of New States, AJIL, Vol. 90, 1996, pp. 590-624 Reisman, W.M., Sovereignty and Human Rights in Contemporary International Law, AJIL, Vol. 84, 1990, pp. 866-876 Republic of Cyprus, EUROPEAN STAND ON THE CYPRUS PROBLEM, Nicosia, Cyprus, 1998 Rich, R., Recognition of States: the Collapse of Yugoslavia and the Soviet Union, EJIL, Vol. 4, 1993, pp. 36-65 Richardson III, H.J., Self-Determination, International Law and the South African Bantustan Policy, Colum. J. Transnat'l L., Vol. 17, 1978, pp. 185-219 Rigo Sureda, A., THE EVOLUTION OF THE RIGHT OF SELF-DETERMINATION, A
STUDY OF UNITED NATIONS PRACTICE, Leiden, A.W. Sijthoff, 1973 Roelofsen, C.G., THE RIGHT TO NATIONAL SELF-DETERMINATION IN THE 18th AND 19™ CENTURY, in: N. Sybesma-Knol and J. van Bellingen (Eds.), NAAR EEN NlEUWE INTERPRETATIE VAN HET RECHT OP ZELFBESCHIKKING, Brussels, VUB Press, 1995, pp. 109-123 Ronen, D., THE QUEST FOR SELF-DETERMINATION, New Haven and London, Yale
Bibliography
475
University Press, 1979 Rosas, A., Internal Self-Determination, in: C. Tomuschat (Ed.), MODERN LAW OF SELFDETERMINATION, Dordrecht, Martinus Nijhoff Publishers, 1993, pp. 225-252 Rosenne, S., Automatic Treaty Succession, in: J. Klabbers and R. Lefeber (Eds.), ESSAYS ON THE LAW OF TREATIES, 1998, Dordrecht, Martinus Nijhoff Publishers, pp. 97-106 , Recognition of States by The United Nations, BYIL, 1949, pp. 437-447 Rosenstock, R., The Declaration of Principles of International Law Concerning Friendly Relations: A Survey, AJIL, Vol. 65, 1971, pp. 713-735 Roth, B., GOVERNMENTAL ILLEGITIMACY IN INTERNATIONAL LAW, Oxford, Clarendon Press, 1999 Rousseau, C., Gumée-Bissau, Chronique des Faits, RGDIP, Vol. 78, 1974, pp. 1166-1171 Rousseau, J.J., Du CONTRAT SOCIAL, 1762, Paris, Gamier, 1962 Rozakis, C.L., Territorial Integrity and Political Independence, EPIL, Vol. 10, 1987, pp. 481-487 Ruda, J.M., Recognition of States and Governments, in: M. Bedjaoui (Ed), INTERNATIONAL LAW: ACHIEVEMENTS AND PROSPECTS, Dordrecht, Martinus Nijhoff Publishers, 1991, pp. 449-465 Russel, R.B., A HISTORY OF THE UNITED NATIONS CHARTER: THE ROLE OF THE UNITED STATES 1940-1945, Washington, The Brookings Institution, 1958 Salmon, J.J.A., Naissance et Reconnaissance du Bangla-Desh, in: MULTITUDO LEGUM, IUS UNUM. MELANGES EN HONNEUR DE WILHELM WENGLER, Berlin, Inter Recht, 1973, pp. 467-490 , Internal Aspects of the Right to Self-Determination, in: C. Tomuschat (Ed.), MODERN LAW OF SELF-DETERMINATION, Dordrecht, Martinus Nijhoff Publishers, 1993, pp. 253-282 Sanders, D., Self-Determination and Indigenous Peoples, in: C. Tomuschat (Ed.), MODERN LAW OF SELF-DETERMINATION, Dordrecht, Martinus Nijhoff Publishers, 1993, pp. 55-81 Sastroamidjojo, A., The Status of the Republic of Indonesia in International Law, Columbia L. Rev., Vol. 49, 1949, pp. 344-361 Sauveplanne, J.G., Recognition and Acts of State in the Conflict of Laws, NILR, Vol. 7, 1960, pp. 17-58 Schachter, O., Sovereignty - Then and Now, in: R.St.J. Macdonald (Ed.), ESSAYS IN HONOUR OF WANG TlEYA, Martinus Nijhoff Publishers, 1994, pp. 671-688 , The United Nations and Internal Conflict, in: K.V. Raman (Ed.), DISPUTE SETTLEMENT THROUGH THE UNITED NATIONS, Dobbs Ferry, NY, Oceana Publications, 1977, pp. 301-364 Schermers, H.G. and Blokker, N.M., INTERNATIONAL INSTITUTIONAL LAW: UNITY WITHIN DIVERSITY, The Hague, Nijhoff, 1995 Schindler, D., Andorra, EPIL, Vol. 1, 1992, pp. 164-165 Schoenberg, H.O., WE'RE NOT BANANAS!: THE CONCEPT OF 'PEOPLE' IN THE
476
Bibliography
PRINCIPLE OF SELF-DETERMINATION AND ITS IMPLICATIONS FOR THE UNITED NATIONS, Washington, The Center for UN Reform Education, 1993 Schrijver, N., The Use of Economic Sanctions by the UN Security Council: An International Perspective, in: H. Post (Ed.), INTERNATIONAL ECONOMIC LAW AND ARMED CONFLICT, Dordrecht, Martinus Nijhoff Publishers, 1994, pp. 123-161 Schwabe, K., WOODROW WILSON, REVOLUTIONARY GERMANY, AND PEACEMAKING, Chapel Hill, NC, University of North Carolina Press, 1985 Schwartzenberger, G. and Brown, E.D., A MANUAL OF INTERNATIONAL LAW, Milton, Professional Books Ltd., 1976 , International Jus Cogens?, in: Conference on International Law, Lagonissi (Greece), 3-8 Apr. 1966, Papers and Proceedings, Vol. II, THE CONCEPT OFJUS COGENS IN INTERNATIONAL LAW, Geneva, Carnegie Endowment for International Peace, 1967, pp. 117-140
Scott, J.B. (Ed.), PRESIDENT WILSON'S FOREIGN POLICY: MESSAGES, ADDRESSES, PAPERS, New York, Oxford University Press, 1918 Seidl-Hohenveldern, I. and Loibl, G., DASRECHT DERINTERNATIONALEN ORGANISATIONENElNSCHIESSLICHDERSUPRANATIONALENGEMEINSCHAFTEN,K6ln, Heymanns, 1992 Sereni, A.P., The Status of Croatia Under International Law, Am. Polit. Sci. Rev., 1940, pp. 1144-1151 Shaheen, S., THE COMMUNIST (BOLSHEVIK) THEORY OF NATIONAL SELF-DETERMINATION, The Hague, N.V. Uitgeverij W. van Hoeve, 1956 Sharp, A., THE VERSAILLES SETTLEMENT, Basingstoke, MacMillan, 1991 Sharp, R.H., NONRECOGNITION AS A LEGAL OBLIGATION: 1775-1934, Liege, 1934 Shaw, M.N., INTERNATIONAL LAW, Cambridge, Cambridge University Press, 1997 , Peoples, Territorialism and Boundaries, EJIL, Vol. 8, 1997, pp. 478-507 , Re: Order in Council P.C. 1996-1497 of 30 September 1996, Aug. 1997, in: Supplemént au Dossier, Rapports d'Experts de l'Amicus Curiae , The Heritage of States : the Principle of Uti Possidetis Juris Today, BYIL, Vol.
67, 1996, PP. 75-154 , The Definition of Minorities in International Law, IYHR, Vol. 20, 1990, pp. 13-43 , TITLE TO TERRITORY IN AFRICA, Oxford, Oxford University Press, 1986 , Territory in International Law, NYIL, Vol. 13, 1982, pp. 61-91 Shaw, A. (Ed.), THE MESSAGES AND PAPERS OF WOODROW WILSON, New York, Review of Reviews Corp., (2 Vols.), Vol. 1, 1924
Shea, J., MACEDONIA AND GREECE: THE STRUGGLE TO DEFINE A NEW BALKAN NATION, Jefferson, N.C. etc., McFarland, 1997 Shearer, I.A., STARKE'S INTERNATIONAL LAW, London, Butterworth, 11th ed., 1994 Shen, J., Sovereignty, Statehood, Self-Determination, and the Issue of Taiwan, Am. U.
Int'l L. Rev., Vol. 15, 2000, pp. 1101-1161 Silber, L. and Little, A., THE DEATH OF YUGOSLAVIA, Penguin, 1995 Simma, B., From Bilateralism to Community Interest in International Law, HR, 1994
Bibliography
477
VI, pp. 229-377 , Does the UN Charter Provide an Adequate Legal Basis for Individual or Collective Responses to Violations of Obligations Erga Omnes?, in: }. Delbrück
(Ed.), THE FUTURE OF INTERNATIONAL LAW ENFORCEMENT : NEW SCENARIOS - NEW LAW?, Berlin, Duncker & Humblot, 1993, pp. 125-146 Sinclair, I., THE VIENNA CONVENTION ON THE LAW OF TREATIES, Manchester, Manchester University Press, 1984 Sinha, S.P., Is Self-Determination Passe?, Colum. J. Transnat'l L., Vol. 12, 1973, pp. 260-271 Sisson, R. and Rose, L.E., WAR AND SECESSION, PAKISTAN, INDIA AND THE CREATION OF BANGLADESH, Berkely, University of California Press, 1990 Slonim, S., SOUTH WEST AFRICA AND THE UNITED NATIONS: AN INTERNATIONAL MANDATE IN DISPUTE, Baltimore & London, The John Hopkins Univ. Press, 1973 Skrk, M., Recognition of States and its (Non-) Implication on State Succession: the Case of Successor States to the Former Yugoslavia, in: N. Mrak (Ed.), SUCCESSION OF STATES, The Hague, Martinus Nijhoff Publishers, 1999, pp. 1-31 Sloan, B., General Assembly Resolution Revisited (Forty Years Later), BYIL, Vol. 58, 1987, pp. 39-150 Smith, T.E., THE BACKGROUND TO MALAYSIA, Oxford, Oxford University Press, 1963 Sohn, L.B., The Concept of Autonomy in International Law and Practice of the United Nations, Israel L. Rev., Vol. 15, 1980, pp. 58-68 Sornarajah, M., Internal Colonialism and Humanitarian Intervention, Ga. J. Int'l & Comp. L., Vol. 11, 1981, pp. 45-77 Spiropolous, J., L'lNDWTDU EN DROIT INTERNATIONAL, Paris, Librairie Générale de Droit & de Jurisprudence, 1928
Stalin, J., MARXISM AND THE NATIONAL QUESTION, Moscow, Foreign Languages Publishing House, 1950
Starovoitova, G., SOVEREIGNTY AFTER EMPIRE, SELF-DETERMINATION MOVEMENTS IN THE FORMER SOVIET UNION, Peaceworks No. 19, United States Institute for Peace, 1997 Steiner, H.J. and Alston, P., INTERNATIONAL HUMAN RIGHTS IN CONTEXT, Oxford, Clarendon Press, 1996 Stengers, J., CONGO, MYTHES ET RÉALITÉS: 100 ANS D'HlSTOIRE, Paris, Duculot, 1989 Stone, J., OF LAW AND NATIONS, Buffalo, Hein, 1974 Strauss, E.W., HOW TO START YOUR OWN COUNTRY, Port Townsend, Breakout Productions, Inc., 1999 Suy, E., The Concept of Jus Cogens in International Law, in: Conference on International Law, Lagonissi (Greece), 3-8 Apr. 1966, Papers and Proceedings, Vol. II,
THE CONCEPT OF Jus COGENS IN INTERNATIONAL LAW, Geneva, Carnegie Endowment for International Peace, 1967, pp. 17-77 Suzuki, E., Self-Determination and World Public Order. Community Response to
478
Bibliography
Territorial Separation, Va. JIL, Vol. 16, 1975-1976, pp. 779-862 Sztucki, J., JUS COGENS AND THE VIENNA CONVENTION ON THE LAW OF TREATIES,
A CRITICAL APPRAISAL, Wien, 1974 Tappe, T.N., Chechnya and the State of Self-Determination in a Breakaway Region of the Former Soviet Union: Evaluating the Legitimacy of Secessionist Claims, Colum. J. Transnat'l L., Vol. 34, 1995, pp. 255-295 Taylor, M., INDONESIAN INDEPENDENCE AND THE UNITED NATIONS, London, Stevens & Sons, 1960 Teokarevic, J., Neither War Nor Peace: Serbia and Montenegro in the First Half of the 1990's, in: D.A. Dyker and I. Vejvoda (Eds.), YUGOSLAVIA AND AFTER: A STUDY
IN FRAGMENTATION, DESPAIR AND REBIRTH, London, Longman, 1996, pp. 179247 Teric, E.L., The Legality of Croatia's Right to Self-Determination, Temple ICLJ, Vol. 6, 1992, pp. 403-427 Terrett, S., THE DISSOLUTION OF YUGOSLAVIA AND THE BADINTER COMMISSION, Ashgate Publishing Company, 2000 Tesfagiorgis, G.H., Self-Determination: Its Evolution and Practice by the United Nations and its Application to the Case of Eritrea, Wis. ILJ, Vol. 6, 1987, pp. 75-125 Tesón, F.R., Two Mistakes About Democracy, PASIL, Apr. 1-4, 1998, pp. 126-131 Teuscher, H., DIE VORZEITIGE ANERKENNUNG IM VÖLKERRECHT, Frankfurt-amMain and Berlin, Alfred Metzner Verlag, 1959 Thomas, R.G.C.,Self-Determination and International Recognition Policy: An Alternative Interpretation of Why Yugoslavia Disintegrated, World Affairs, Vol. 160, 1997, pp. 17-33 Thompson, L., THE POLITICAL MYTHOLOGY OF APARTHEID, New Haven, Yale University, 1985 Thornberry, P., The Democratic or Internal Aspect of Self-Determination With Some Remarkson Federalism, in: Tomuschat (Ed.), MODERN LAW OF SELF-DETERMINATION, Dordrecht, Martinus Nijhoff Publishers, 1993, pp. 101-138
, INTERNATIONAL LAW AND THE RIGHTS OF MINORITIES, Oxford, Clarendon Press, 1991 , Self-Determination, Minorities, Human Rights: A Review of International Instruments, ICLQ, Vol. 38, 1989, pp. 867-889 Thürer, D., Herdegen, M. & Hohloch, G., DER WEGFALL EFFECTIVER STAATSGEWALT: 'THE FAILED STATE', Heidelberg, C.F. Müller Verlag, 1995 , Self-Determination, EPIL, Vol. 10, 1987, pp. 470-476 Tomuschat, C., Yugoslavia's Damaged Sovereignty over the Province of Kosovo, in: G.P.H. Kreijen et al. (Eds.), STATE, SOVEREIGNTY AND INTERNATIONAL GOVERNANCE, Oxford, Oxford University Press, 2002 (forthcoming) (Ed.), MODERN LAW OF SELF-DETERMINATION, Dordrecht, Martinus Nijhoff Publishers, 1993 , Self-Determination in a Post-Colonial World, in: C. Tomuschat (Ed.),
Bibliography
479
MODERN LAW OF SELF-DETERMINATION, 1993, pp. 1-20 , Democratic Pluralism: The Right to Political Opposition, in: A. Rosas and J. Helgesen (Eds.), THE STRENGTH OF DIVERSITY: HUMAN RIGHTS AND
PLURALIST DEMOCRACY, Dordrecht, Nijhoff, 1992, pp. 27-47 Trifunovska S. (Ed.), YUGOSLAVIA THROUGH DOCUMENTS FROM ITS CREATION TO ITS DISSOLUTION, Dordrecht, Martinus Nijhoff Publishers, 1994 Tulle, A.R., LA MANDCHOURIE ET LE CONFLIT SINO-JAPONAIS DEVANT LA SOCIÉTÉ DES NATIONS, Paris, Recueil Sirey, 1935 Turlington, E., The Settlement of Lausanne, AJIL, Supp., Vol. 18, 1924, pp. 696-706 Umozurike, U., SELF-DETERMINATION IN INTERNATIONAL LAW, Hamden, Archon Books, 1972 Usuki, E., The 1930s Jurists' Views on the Doctrine of Non-Recognition: the Lauterpacht Doctrine of Non-Recognition', Daito Bunka University Bulletin, No. 31, 1993, pp. 73-96 Vattel, E. de, THE LAW OF NATIONS OR PRINCIPLES OF THE LAW OF NATURE
APPLIED TO THE CONDUCT AND AFFAIRS OR NATIONS AND SOVEREIGNS, (C. Fenwick, Trans.), Washington, Carnegie Institute of Washington, 1916 Veiter, T., Commentary on the Concept of 'National Minorities', HRJ, Vol. VII, 1974, pp. 273-290 Verdross, A., VÖLKERRECHT, Wien, Springer, 1964 Verhoeven, J., LA RECONNAISSANCE INTERNATIONALE DANS LA PRATIQUE CONTEMPORAINE: LES RELATIONS PUBLIQUES INTERNATIONALES, Paris, Pedone, 1975 Vermeer, W., Joegoslavië en de Serven 1918-1991: van Mozaïef( tot Burgeroorlog, Internationale Spectator, 1992, No. 2, pp. 63-70 Verzijl, J.H.W., INTERNATIONAL LAW IN HISTORICAL PERSPECTIVE, Vol. 1, Leyden, Sijthoff, 1968 Vickers, M., BETWEEN SERB AND ALBANIAN: A HISTORY OF KOSOVO, London, Hurst & Company, 1998 Vitas, R.A., THE UNITED STATES AND LITHUANIA, THE STIMSON DOCTRINE OF NON-RECOGNITION, New York, Praeger, 1990 Vukas, B., States, Peoples and Minorities, HR, 1991 VI, pp. 267-524 Vyver, J.D., van der, Statehood in International Law, Emory Int'l L. Rev., Vol. 5, 1991, pp. 9-102 Waldock, C.H.M., General Course on International Law, HR, 1962, II, pp. 5-250 Wallace-Bruce, N., Of Collapsed, Dysfunctional and Disoriented States: Challenges to International Law, NILR, Vol. 47, 2000, pp. 53-73 , CLAIMS TO STATEHOOD IN INTERNATIONAL LAW, New York, Carlton Press,
Inc., 1994 Walworth, A., WILSON AND HIS PEACEMAKERS, New York, Harper & Row, 1986 Wallace, R.M.M., INTERNATIONAL LAW, London, Sweet & Maxwell, 3rd ed., 1997
480
Bibliography
Wambaugh, S., PLEBISCITES SINCE THE WORLD WAR, Washington, Carnegie Endowment for International Peace, 1933 Warbrick, C., Unrecognized States and Liability for Income Tax, ICLQ, Vol. 45, 1996, pp. 954-960 Weinacht, P.L., STAAT, STUDIEN ZURBEDEUTUNGSGESCHICHTE DES WORTES VON DEN ANFÄNGEN BIS INS 19. JAHRHUNDERT, Berlin, Duncker & Humblot, 1968 Weller, M., The International Response to the Dissolution of the Socialist Federal Republic of Yugoslavia, AJIL, Vol. 86, 1992, pp. 569-607 Whelan, A., Wilsonian Self-Determination and the Versailles Settlement, ICLQ, Vol. 43, 1994, pp. 99-115 White, D.S., BLACK AFRICA AND DE GAULLE, FROM THE FRENCH EMPIRE TO INDEPENDENCE, London, Pennsylvania State University Press, 1979 White, R.C.A., Self-Determination: Time for a Re-Assessment?, NILR, Vol. XXVIII, 1981, pp. 147-170 Whiteman, M.M., DIGEST OF INTERNATIONAL LAW, Vol. 5, Washington, Department of State Publications, 1965 Wildeman, }., The Philosophical Background of Effectiveness, NILR, 1977, Vol. XXIV, Spec. Issue 1/2, pp. 335-351 Wildhaber, L., Response to Expert Reports of the Amicus Curiae in Reference re Secession Quebec, 1998, http://canada.justice.gc.ca-/en/ps/const/wilrpt.html , Sovereignty and International Law, in: R.St.J. Macdonald and D.M. Johnston (Eds.), THE STRUCTURE AND PROCESS OF INTERNATIONAL LAW: ESSAYS IN LEGAL PHILOSOPHY, DOCTRINE AND THEORY, The Hague, Martinus Nijhoff Publishers, 1983, pp. 425-452 Wilson, ]., Ethnic Groups and the Right to Self-Determination, Connecticut JIL, Vol. 11, 1996, pp. 433-485 Wippman, D., International Law and Ethnic Conflict on Cyprus, Texas ILJ, Vol. 31, 1996, pp. 142-180 Witkin, M.F., Transkei: An Analysis of the Practice of Recognition - Political or Legal?,
Harv. ILJ, Vol. 18, 1977, pp. 605-627 Wright, J.B., ZAIRE SINCE INDEPENDENCE, London, Institute for the Study of Conflict, 1988 Wright, Q., Some Thoughts About Recognition, AJIL, Vol. 44, 1950, pp. 548-559 , MANDATES UNDER THE LEAGUE OF NATIONS, Chicago, University of Chicago Press, 1930 Yakemtchouk, R., Les Conflicts de Territoire et de Frontièrs Dans les États de I'ex-URSS, AFDI , Vol. 39, 1993, pp. 393-434 Zartman, I. (Ed.), COLLAPSED STATES: THE DISINTEGRATION AND RESTORATION OF LEGITIMATE AUTHORITY, Boulder, Lynne Rienner, 1995
Table and Index of Cases
1.
PERMANENT COURT OF INTERNATIONAL JUSTICE
Customs Regime Between Germany and Austria, 26 Greco-Bulgarian Communities case, 263, 265 Rights of Minorities in Upper Silesia (Minority Schools), 265, 267, 270 S.S. Wimbledon case, 76
2.
INTERNATIONAL COURT OF JUSTICE
Barcelona Traction case, 133, 144, 145, 146, 147, 219, 289 Case concerning the Continental Shelf, 297 Case concerning the Territorial Dispute, 299, 303 Conditions of Admission case, 39, 47 Corfu Channel case, 25 Customs Regime Between Germany and Austria, 74 Genocide case (Preliminary Objections), 37, 145, 157, 201, 255, 230 East Timor case, 13, 145, 157, 219, 289, Frontier Dispute case, 264, 293, 298, 300, 303, 367 Land, Island and Maritime Frontier Dispute, 298, 305 Namibia case, 131, 141, 146, 160-164, 196, 206, 211, 218 Nicaragua case (Merits), 144, 235 Nottebohm case, 51 North Sea Continental Shelf cases, 61 Reparations for Injuries Suffered in the Service of the United Nations, 12, 16, 23 South West Africa cases (Judgment, 1966), 133, 147, 232, 288 Temple of Preah Vihear, 297, 301 Western Sahara case, 103, 107, 110, 131, 133, 211, 218, 221, 222, 277, 409 WHO Regional Office case, 13
482
Table and Index of Cases
3.
INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA
Tadic case, Judgment of 15 July 1999, 37, 81 Tadic case, Appeals Chamber, Decision of 2 Oct. 1995, 68 4.
EUROPEAN COURT OF HUMAN RIGHTS
Loizidou v. Turkey (Merits), 124, 163, 169, 325, 427 5.
EUROPEAN COMMISSION ON HUMAN RIGHTS
Cyprus v. Turkey, 37, 125 6.
EUROPEAN COURT OF JUSTICE
Case 22/70 Commission v. Council (ERTA case) (1971), 12 The Queen v. Minister of Agriculture, Fisheries and Food ex parte S.P. Anastasiou (Pissouri) Ltd. and Others, 163 7.
HUMAN RIGHTS COMMITTEE
A.D. v. Canada, 259 Andre Alphonse Mpaka-Nsusu v. Zaire, 274 Ominayak and the Lubicon Lake Band v. Canada (1990), 14, 241, 259, 261 8.
AFRICAN COMMISSION ON HUMAN AND PEOPLES' RIGHTS
Katanga case, 249, 255, 330 9.
OTHER COURTS, TRIBUNALS AND QUASI-JUDICIAL INSTITUTIONS
Affaire de la Delimitation de la Frontière Maritime Entre la Guinée-Bissau et le Sénegal, 301 Arbitration Commission of the International Conference on Yugoslavia: Opinion 1:37 ,359, 360 Opinion 3: 302 Opinion 2: 240, 241, 267, 268, 269, 271, 356 Opinion 4: 292 Opinion 5: 356 Opinion 6: 61, 106 Opinion 8: 360, 434
Table and Index of Cases Opinion 10: 37, 46, 149, 434 Beagle Channel Arbitration, 297, 309 Case Concerning the Arbitral Award of 31 July 1989, 218 Cuculla Arbitration, 30 Deutsche Continental Gas-Gesellschaft v. Polish State, 61 Grisbadarna case, 52 Island of Palmas case, 25, 51, 59 Socony case, 344 Tinoco Concessions Arbitration, 37
10.
NATIONAL COURTS
10. 1. Australia Commonwealth of Australia and Another v. State of Tasmania and Others, 252 10.2. Canada Reference re Secession of Quebec, 11, 13, 37, 90, 107, 233, 235, 245, 249, 256, 319, 322, 323, 327, 331, 365 10.3. France Courtiol v. Chappard, 45 Massip v. Cruzel, 45 Re Boedecker and Ronski, 45 10.4. Germany Somali Diplomat Case, 71 10.5. Great Britain Boguslawski v. Gdynia American Line, 84 Calgar and others v. Billingham (Inspector of Taxes), 73 Carl Zeiss Stiftung v. Rayner and Keeler Ltd. (No. 2), 163 Haile Selassie v. Cable and Wireless Ltd. (No. 2), 120, 169 Hesperides Hotels v. Aegean Holidays Ltd., 163 Luther v. Sagor, 84 Republic of Somalia v. Westhouse Drake and Carry (Suisse) SA and Others, 71
483
484
Table and Index of Cases
10.5. Netherlands De Democratische Republiek Cost-Timor/'Fretilin' e.a. v. de Staat der Nederlanden, 37 NV Koninklijke Paketvaart Mij. v. de Repoeblik Maloekoe Selatan, 37 Republic of the South Moluccas v. Netherlands New Guinea, 37 10.6. Russian Federation Chechnya case, 257, 296 Tatarstan case, 256 10.7. South Africa S v. Banda, 73, 161 10.8. Switzerland Affaire des Frontières, 298 10.9. United States Adams v. Adams, 163 Kadic v. Karadzic, 82, 422, 425 Murarka et al. v. Bachrack, 94 Oetjen v. Central Leather Company, 84 Texas v. White, 24
Index
Aaland Islands, 198-199, 223 Abkhazia, 288, 379-385 Legitimacy of secession from Georgia, 383-385 statehood of, 419-421 Additional criteria for statehood: see Criteria for statehood (modern) Aceh, 286 African Charter on Human and Peoples' Rights: and continuing character of selfdetermination, 232 African Commission on Human and Peoples' Rights: and ethnic subgroups, 255-256 and internal self-determination, 247, 256 and unilateral secession, 330 Aggression: see Jus cogens; Non-recognition; Criteria for statehood Agency of States, 73, 76 Albania, 68-70 Algeria, 93, 96-98 Alsace-Lorraine, 190 Anarchy: continuity of statehood and, 68, 69 Andorra, 44 and membership of UN, 46 Angola, 47, 99-100 Anjouan, 422, 424 Arbitration Commission of the International Conference on Yugoslavia: and Bosnia-Herzegovina, 417 and Croatia, 432-434 and dissolution of SFRY, 359-361 and declaratory character of recognition, 37 and recognition of Federal Republic of Yugoslavia, 432-435 and lack of obligation to recognize, 46
and rights of minorities, 430-431 and uti possidetis, 302 Armenia, 197, 367 Austria, 68 Autonomy, 281-284 means of exercising internal selfdetermination, 283 right to, 283 Badinter Commission: see Arbitration Commission of the International Conference on Yugoslavia Bahrain, 60, 214 Baltic States: question of continuity of legal personality, 68 Bangladesh: and intervention by India, 339-340 and right of unilateral secession, 340-141 history, 335-338 recognition of, 93, 339 secession from Pakistan, 338 statehood of, and ineffective government, 363-365, 411 Bantustans: see South African Homeland territories Bashkortostan, 286 Basques, 285 Belgian Congo: see Congo (Kinshasa) 'Belgian thesis', 206 Biafra, 334-335 Bophuthatswana: see South African Homeland territories Bosnia-Herzegovina, 414-418 and qualified right of secession, 415-417 peoplehood and, 416-417 recognition of, 83, 414-418 statehood and ineffective government, 415
486
Index
See also Arbitration Commission of the International Conference on Yugoslavia; Serb Republic of Bosnia-Herzegovina; Yugoslavia Bougainville, Republic of, 422 Boundaries: continuity of, 296-297 See also Uti possidetis, principle of British Cameroons, 209 Burma, 313 Byelorussia, SSR: and international legal personality, 28 and membership of UN, 43 Chechen Republic of Ichkeria, 373-379 legitimacy of secession from Soviet Union/Russia, 375-378 Ciskei: see South African Homeland territories Collective individuality: see Peoples (ethnic definition) Collective non-recognition: see Nonrecognition Collective recognition: see Recognition Colonial peoples: right of self-determination of, 204-205 jus cogens prohibiting denial of selfdetermination to, 218-219 options for realizing external selfdetermination, 205,211 See also Decolonization; Non-SelfGoverning Territories; Peoples Colonies, 202-203 and principle of territorial integrity, 206210 partition of, 209-210 Commencement of States, 85-86 Comoro Republic, 422 See also Anjouan; Mayotte Compensatory force principle: see External self-determination; Secession (unilateral) Congo (Kinshasa), 47, 64-65, 100 and ineffective government, 64-65 and right of self-determination, 66 statehood of, 65-66 See also Katanga
Constitutive theory: see Recognition Corsica, 176, 286 Costa Rica, 76 Criteria for statehood: and principle of effectiveness, 57-58, 451 and principle of legality, 89-92, 151-158, 418-425 ' and the unlawful proclamation of independence, 418-425 capacity to enter into relations with other States, 73-74 decolonization and: see Government; Statehood defined territory, 59-62 government, 62-73, 95-105 independence, 74-82 jus cogens, 156-158 legal nature of traditional, 86 minorities, obligation to ensure respect for the rights of, and, 431-436 modern, 151-158, 418-426 modern, and principle of legality, 153-
157, 418 ff. Montevideo Convention and, 24, 49 peoplehood and, 425-426 permanent population, 58-59 prohibition of aggression, 156 prohibition of Apartheid, 156 prohibition of systematic racial discrimination, 156 prohibition on the arbitrary deprivation of life, 436-437 prohibition of the violation of the right of self-determination of colonial peoples, 156 recognition and, 82-83 self-determination, law of, and, 101-105 self-determination, obligation to respect the right of internal, 423-425 traditional, 49, 58-82 Croatia: and admission to UN, 43, 47 and minority guarantees, 431-434 and puppet State, 81 Brioni Accord, 351, 361 history, 342-356 independence, proclamation of, 350, 354
Index qualified right of secession and, 361-162 recognition of, 43, 94, 354-356 statehood of, and ineffective government, 363-365, 411 See also Arbitration Commission of the International Conference on Yugoslavia, Yugoslavia,Socialist Federal Republic of; Krajina, Republic of Serbian Czechoslovakia: constitutional right of secession, 313 dissolution of, 28, 290 See also Uti possidetis, principle of Declaration on Friendly Relations (UN Doc. A/Res/2625), Principle V: and internal self-determination, 230-231, 235, 253, 273 and non-discrimination, 239, 251, 253, 255 and representative government, 250-251, 255, 273, 276
secession, unilateral right of, and, 317-321 traveaux préparatoires, 253-255, 319-320 Declaration on the Granting of Independence to Colonial Countries and Peoples (UN Doc. A/Res/1514), 204, 215-217 See also Colonial peoples; Colonies; Decolonization; Self-determination Declaratory theory: see Recognition Decolonization: and 'consent of the governed', 215 and juridical statehood, 104, 219-220 and principle of free choice: see Free choice principle and 'salt water barrier', 206-207 customary law status of right to selfdetermination in context of, 215-218 See also Colonial peoples; Colonies; External self-determination; NonSelf-Governing Territories; Selfdetermination Democracy, 274-275 and internal self-determination, 273-280 and representative government, 274 and 'tyranny of the majority', 280
487
right to, 275, 278 Discrimination, prohibition of: and self-determination, 239, 368 racial: see Racial discrimination Dissolution of States, 358-359 See also Extinction of States; Czechoslovakia; Soviet Union, Yugoslavia, Socialist Federal Republic of Duty of non-recognition: see Nonrecognition East Pakistan: see Bangladesh Effective government: see Government; Criteria for statehood lack of: see Government (ineffective) Effectiveness, principle of, 38, 50-58 and legal order, 52 and legal security, 53 and normativen Kraft des Faktischen, 55 and right of external self-determination, 103, 411-413 legal effects of, 53-57 meaning of, 57-58 pre-condition for the attribution of legal status, 51, 55, 56 raison d'être and function, 50-53, 55 See also Criteria for statehood Effectivity of law, 57 Egypt, 290 Ellice Islands, 209, 213 See also Tuvalu Empirical statehood: see Statehood Eritrea: secession from Ethiopia, 314-315 Estonia, 43, 68 Ethiopia, 68, 286 and constitutional provisions on secession 314 See also Eritrea Ethnic groups: peoples defined as: see Peoples minorities: see Minorities European Community: Guidelines on Recognition, 40, 165-167, 429-437 Ex factis jus oritur, 122
488
Index
Ex injuria jus non oritur: see Nonrecognition External self-determination: and decolonization, 205, 211 and obligation to respect internal selfdetermination, 291-292, 366 and right to exercise authority, 102-104, 408-413 compensatory force of, and ineffective government, 67, 101-105, 220, 363-365, 408-414, 441, 450 juridical statehood and, 102, 408-413 legal status, 289 meaning of, 289 mode of implementation of the right of self-determination, 205, 277, 289 recognition of statehood and, 427 subject of the right to, 289 territorial integrity and, 296, 394-395, 448 See also Secession Extinction of States, 67, 73, 105 and anarchy, 68 and annexation, 67 and belligerent occupation, 67 and secession, 358-361 Failed State, 70 Federation of Rhodesia and Nyasaland (Central African Federation), 209 Finland, 63, 66, 100 Fiume, 190-191 Free choice principle: and decolonization, 211-214 and 'one man one vote', 213-214, 275 post-colonial era, in, 275, 277, 292, 423 Fundamental norms: see Erga omnes obligations; Erga omnes rights; Jus cogens Gagauzia, 286, 314, 405 Georgia, Republic of, 47, 402-405 and Abkhazia: see Abkhazia and ineffective government, 404, 411 compensatory force principle and, 411 recognition of, 404, 436 Germany, reunification of, 290 Gibraltar, 213 Gilbert and Ellice Islands, 209
Government: and actual exercise of authority, 65, 102, 408 and right to exercise authority, 65, 86, 102, 408 effective, 62, 72, 99 ineffective, 66, 67, 72, 95-105 ineffective, and juridical statehood, 72, 104, 219-220, 412 meaning of, 413 statehood criterion of effective, and decolonization, 95-101, 219-220 See also Criteria for statehood; External self-determination representative: see Declaration on Friendly Relations; Democracy; Internal self-determination Greenland, 285 Guinea-Bissau, 47, 98-99 recognition of, 94, 98 Helsinki Final Act: and internal self-determination, 231 Homeland States: see South African Homeland territories Hong Kong, 107 Human rights: and self-determination, 239-242 Human Rights Committee: General Comment Art. 1 ICCPR, 230, 234, 241 General Comment Art. 25 ICCPR, 274 General Comment Art. 27 ICCPR, 265 Implementation of self-determination: modes of: see External self-determination; Internal self-determination; Selfdetermination Independence: as a criterion for statehood, 74-82 actual, 78-82 formal, 76-77 functional, 78 sovereignty, used as synonym for, 75 India: and Bangladesh: see Bangladesh and membership of UN, 44, 46
Index and Nagaland: see Nagaland Indigenous peoples, 258 See also Peoples; Selfdetermination Indonesia: de facto recognition of government of, 94 de jure recognition of government of, 94, 96 See also Aceh; East Timor Internal self-determination: and principle of non-discrimination, 239, 368 autonomy and: see Autonomy democracy and: see Democracy erga omnes obligation to respect the right of, 288-289 erga omnes right to, 288-289 ethnic subgroups as subject of the right to, 247-265 external self-determination, relationship with, 321-322, 368 human rights, individual, and, 239-242, 280, 368-369 indigenous peoples and, 258 internal dimension of self-determination, existence of an, 234-237 jus cogens, 147, 289 legal status, 272-289 meaning of, 237-238 mode of implementation of the right of self-determination, 205, 227 nation as subject of the right to, 244-247 participation, right of, 237-239, 272, 445 racial subgroups and, 250-255 representative government and, 273-280, 369 surplus value of, 239-242 International Covenant on Civil and Political Rights: and continuing character of selfdetermination, 228-230 and internal self-determination, 245, 246, 274, 275 International Law Commission: and obligation of non-recognition, 149 and self-determination, 145, 219 and jus cogens, 143, 145, 147, 219
489
International personality, 10-17 capacity to make an international claim and, 12, 13 distinguished from 'subject of international law', 13-15 under international law, meaning of, 13 See also Natural person International legal personality: acquisition of, 28-47, 51 and recognition of statehood, 30, 32 continuity of, 68, 72 full, 23, 25, 27, 38, 39 limited, 23 'realness' of, 22-23 Iraq, 56 Irredentism, 269 Israel, 36, 45, 46, 60 Italy: proposal to Special Committee on Friendly Relations, 250 Juridical statehood: see Decolonization; External self-determination; Government; International legal personality; Statehood Jus cogens: and basic rules of humanitarian law, 296 and erga omnes obligations, 144 and prohibition of aggression, 144 and prohibition of arbitrary deprivation of life, 280 and prohibition of Apartheid, 147-148 and prohibition of denial of the right of self-determination to colonial peoples, 145-147, 218-219 and prohibition of denial of the right of internal self-determination, 289 and prohibition of racial discrimination, 147 generally, 142-143 See also Non-recognition Katanga, 64-65, 330, 333-334 Kin State: see Minorities Kiribati, 60 Kosovo, 270-272, 345, 347, 435 Krajina, Republic of Serbian, 386-394
490
Index
legitimacy of secession from Croatia, 390394 traditional criteria for statehood and, 62, 79-80 Kurdistan, 197 Kurds, 268 Kuwait, 56, 60 Latvia, 68 League of Nations: and self-determination, 193-196 protection of minorities, 270 Lebanon, 44 Legality of the creation of a State: and principle of effectiveness, 157 as criterion for the acquisition of statehood: see Criteria for statehood See also Non-recognition Lenin, Vladimir, Ilyich: and external dimension of selfdetermination, 187 and raison d'etre of self-determination, 186, 188 and secession, 185-187 and self-determination, 184-188 Liechtenstein, 73 Lithuania, 68 Macedonia, former Yugoslav Republic of Macedonia (FYROM): issues of recognition, 36, 43, 61, 105-106 statehood of, 61, 106 Malaysia, 214, 315 Manchukuo, 81, 116-120, 158-159 non-recognition of, 116-119 non-independence, 78-79, 119 recognition of, 120 statehood of, 79, 119 Manchuria: see Manchukuo Mandate system: and self-determination, 194-196 Marshall Islands, 210 Mauritania, 60 Mayotte, 394 Micronesia, 210 Micro-States, 44 Mindanao, 287
Minerva Republic of, 59 Minorities: and self-determination, 265-272 distinguished from peoples, 265-267, 269 kin State and, 192, 268, 269 national or ethnic, definition, 267-272 rights of, individualistic character of, 270 See also League of Nations Minority treaties, 192 Minority-people: definition, 269 See also peoples, ethnic definition Modern criteria for statehood: see Criteria for statehood, modern Moldova: and Gagauzia: see Gagauzia and right of secession under national law, 314 statehood of, and ineffective government, 405, 411 Monaco, 44, 76-77 Montenegro, 316 Montevideo Convention: see Criteria for statehood Nagaland, 286 Nagorno-Karabakh, 367 Namibia: and 'bantustans', 208 admission to UN, 44 Nations, 193, 244-245 Nation-State, 176 National self-determination, 177, 193, 196 Nationalism, 176-177 Nationalities, 176, 193 object of principle of self-determination, 204 Natural person, 10, 17 Nauru, 60 Non-existent acts, legally, 151 and concept of nullity, 152 and formation of States, 153 Non-recognition, obligation of: and legal basis, 150-151 and legal status, 121 and minority rights, 429-436 and modern criteria for statehood, 151-
Index 158
and prohibition of aggression, 121-127 and prohibition of Apartheid, 136, 140141 and prohibition of racial discrimination, 140-141 and prohibition on the arbitrary deprivation of life, 436-437 and prohibition on the denial of the right of self-determination, 128-140, 429 and statehood, 116, 118, 121 as an erga omnes obligation, 108, 111, 149 as a sanction, 111 collective, 108 declaratory character of, 105, 148-149 ex injuria jus non oritur, 109, 150 fundamental norms, violation of, and, 107, 141-142, 149 governments, of, 113-116 jus cogens and, 111, 142-144, 149 League of Nations and, 116-122 limits to, 158-165 meaning of, 107-108 object and purpose of, 110, 111 United Nations and, 122-150, 158-165 See also United Nations Non-Self-Governing Territories, 202-210 and self-determination, 205-206 and territorial integrity, 206-210 as colonial territories, 202 criteria for, 206 See also Free choice principle Northern Ireland, 287 Nyasaland (Malawi): see Federation of Rhodesia and Nyasaland Pacific Island, Trust Territory of, 210 Palau, 210 Pakistan: see Bangladesh Palestine: juridical statehood of, 412 partition of, 210 Papua New Guinea, 76 Participation, right of: see Internal self-determination Peaceful change, principle of, 54 Peoplehood: see Peoples
491
Peoples: and concept of 'group', 259-260 and 'self': see 'Self' ethnic definition of, 247-265, 446 and criteria, 261-264 and collective individuality, 262-263 and minority-people: see Minoritypeople territorial definition of, 209, 244-247 Peremptory norms: see Jus cogens Philippines, 44 and membership of UN, 46 Plebiscite: see Referendum Premature recognition: see Recognition of statehood Puppet State, 81 Quebec, 316, 331 Racial discrimination, 128, 135 See also Criteria for statehood; Nonrecognition, obligation of Recognition of statehood: admission to UN as constitutive, 46-47 admission to UN as implied, 39, 41, 42, 45 and ineffective government, 402-408 and legal regulation, 83 and recognition of a right to external self-determination, 426-427 collective, 39-47, 440 conditions for, 165-166 consolidating effect of, 39, 48, 427 'constitutive-cum-collective theory', 40 constitutive theory, 29-31, 40 constitutive .theory, evaluation of, 33-37 criteria for statehood, traditional, and, 82-83, 95 declaratory nature of, 48 declaratory theory, 32-33 declaratory theory, evaluation of, 38-39 EC Guidelines on Recognition: see European Community legal effect of, 29-30, 32 nature of, and the right of selfdetermination, 29, 427 obligation to recognize, 31, 45-46, 428-
492
Index
429 premature, 29-30, 82-83, 92-93, 105, 440 retroactivity of, 32, 83-85 Referendum: means of exercising internal selfdetermination, 273 Republika Srpska: see Serb Republic of Bosnia-Herzegovina Representative government: see Declaration on Friendly Relations; Democracy; Internal self-determination Rhodesia, Southern, 128-134 and genuine exercise of selfdetermination, 214-215 and statehood, 130 and holder of the right of selfdetermination, 133-134 and violation of right to selfdetermination, 130-134 non-recognition of claim to statehood, 129-130 statehood of, 155 Ruanda-Urundi, 96, 209 Saint Christopher and Nevis: constitutional right of secession, 314 Sami, 286 Scotland, 287 Sealand, Principality of, 59 Secession: definition of, 308 Secession, unilateral: 'abuse of right', 317 and statehood, 363-365 as an ulumum remedium, 326, 448 compensatory force principle and, 363365 conditions for, 366-372 conditions for, suggested by qualified secession doctrine, 332 decolonization and, 208 definition of, 308 human rights, violation of, and, 372 internal colonialism approach to, 326-328 internal self-determination, violation of, and, 321, 330-332, 367-370 prohibition of, 326
qualified right of, 320-321, 323-326, 328, 332, 365, 447 qualified secession doctrine, 324, 326, 328, 332 'remedial' right of, 325 subject of right to, 366-367 territorial integrity and, 311-312, 322-323, 330, 394-395, 447 theoretical approaches to, 309-313 uti possidetis and, 367 'Self: importance of group distinctness, 261264, 266 Self-Determination: American Revolution and, 173-175 and 'abuse of right', 324, 371, 419-421 and criteria for statehood: see Criteria for statehood and declaratory nature of recognition of States, 48 and decolonization: see Colonial peoples; Decolonization as a 'gift', 197 collective identity of peoples and, 240, 248, 264, 266 collective right, 259 See also Group, concept of 'consent of the governed' and, 175, 178 See also Wilson, Woodrow constitutive theory on recognition and, 36 continuing character, 228-237 criteria for 'peoples': see Peoples democracy and: see Democracy, Internal self-determination; Wilson erga omnes right to, 14, 145 external, right of: see External selfdetermination French Revolution and, 173-175 fundamental norm, 145 human rights, individual, and, 239-242 inalienable right, 232 ineffective government and compensatory force of: see External selfdetermination internal, right of: see Internal selfdetermination Jus cogens: see Jus cogens
Index League of Nations and, 193-196 Lenin and: see Lenin, Vladimir, Ilyich meaning of, core, 222 minorities and: see Minorities modes of implementation: see External self-determination; Internal selfdetermination national: see National self-determination nationalism and, 176-177 raison d'etre of, 242, 445 statehood and: see Statehood subject of right to, 14, 193, 206-210, 233234, 242-272, 366 See also Colonial peoples; External selfdetermination; Internal selfdetermination; Minorities; Nations; Nationalities; Peoples; Secession, unilateral uti possidetis and: see External selfdetermination; Uti possidetis territorial integrity and: see External selfdetermination; Secession (unilateral); Territorial integrity Versailles Peace Conference and, 188-193 Wilson and: see Wilson, Woodrow Separatism: see Secession Serbs: in Croatia and right to selfdetermination, 271 See also Republic of Serbian Krajina in Bosnia-Herzegovina and right to selfdetermination, 271 See also Serb Republic of BosniaHerzegovina Serb Republic of Bosnia-Herzegovina, 421422 and puppet State, 81-82 Singapore: secession from Malaysia, 314 Slovenia: secession from Yugoslavia, 315 Somalia, 70-71 Somaliland, 424 South Africa: and Homeland territories: see South African Homeland territories recognition of internal self-deter-
493
mination, 287 South African Homeland territories, 134140 and non-recognition of purported statehood, 135-137 and violation of prohibition of Apartheid, 135, 140-141 and violation of prohibition of racial discrimination, 140-141 and violation of right of selfdetermination, 135, 139, 263 applicability of the right to selfdetermination, 138-139 statehood of, 140, 155 Southern Rhodesia: see Rhodesia, Southern South West Africa: see Namibia Sovereignty, 25-28 criterion of independence and, 27 meaning of, in international law, 26 Soviet Union: constitutional right of secession, 313 dissolution of, 290-291 See also Chechnya State: as an international (legal) person, 12, 15, 21-23 attributes, 24 criteria: see Criteria for statehood existing in international law, 34 existing outside international law, 30, 34, 154 formation of, is matter of fact, not law, 38, 86, 439 formation of, is matter of fact and law, 31, 33, 451 legal concept, 21-25 legality of creation, 154 irrelevant, 31, 33 recognition presupposes existence of, 30, 407 territorial integrity of: see Territorial integrity See also Criteria for statehood; Legality of creation of; Non-recognition Statehood: and abuse of the right of selfdetermination, 423-425
494
Index
and ineffective government, 95-101, 402408, and international legal personality, 27 and jus cagens, 154, 157 and recognition, 29-47 and sovereignty, 27 and the law of self-determination, 101105 continuity of, 67-68, 71 criteria for: see Criteria for statehood empirical, 72, 86, 220, 409 juridical, 104, 220, 408-413 obligation of non-recognition of: see Nonrecognition, obligation of Stimson, and declaration on nonrecognition, 116 'Subject of international law': and peoples, 14, 207, 233-234 as distinguished from international personality, 13-15 rejection of thesis that only States are, 15, 17 under international law, meaning of, 1017 Sudan, 287 and secession of South Sudan, 316 Sudetenland, 190-191 Syria, 44, 290 Taiwan (Formosa), 76 Tatarstan, 256, 257, 286, 373 Territory, defined: see Criteria for statehood Territorial integrity: and colonial territories, 207-210 and qualified right of secession, 321-323 distinguished from uti possidetis, 303 meaning of, 293-295 Tonga, 59 Transdniestr Republic, 405, 426 Transkei: see South African Homeland territories Trusteeship system, 202, 206 Turkey: invasion of Cyprus, 123 recognition of Turkish Republic of Northern Cyprus, 124 Turkish Republic of Northern Cyprus,
38, 73, 122-127 and peoplehood, 127 legitimacy of secession from Cyprus, 127 non-recognition of, 37, 124-125, 163 statehood of, 155-156 Tuvalu, 60, 209 Ukraine, SSR: and international legal personality, 28 and membership of UN, 43 United Arab Republic, 290 United Kingdom: proposal to Special Committee on Friendly Relations, 250 See also Northern Ireland; Rhodesia, Southern; Scotland; Wales United Nations: admission to membership and implied recognition, and decolonization, 199-219 non-recognition of South African Homeland territories, 135-137 non-recognition of Southern Rhodesia, 129-130 non-recognition of Turkish Republic of Northern Cyprus, 124 United States: proposal to Special Committee on Friendly Relations, 250 recognition of States, 46 See also Wilson, Woodrow Uti possidetis, principle of: and decolonization of Africa, 299-300 and decolonization of Latin America, 298 Czechoslovakia, dissolution of, and, 302 uti possidetis de facto, 298 distinguished from territorial integrity, 303 uti possidetis juris, 298 meaning of, 296, 300 modality of the exercise of external selfdetermination, 304 origin of, 297-298 self-determination, conflict with, 303-304 Soviet Union, dissolution of, and, 302 geographical scope of self-determination limited by, 303-304
Index validity in post-colonial era, 301-303 Yugoslavia, dissolution of, and, 301-302 See also External self-determination; Territorial integrity Venda: see South African Homeland territories Vojvodina, 347 Volenti non fit injuria, 77, 107 Wales, 287 West Irian (West New Guinea), 213 Western Sahara, 59 Wilson, Woodrow: and 'consent of the governed', 175, 178179, 181, 183 and democracy, 177 and external dimension of selfdetermination, 183,197 and internal dimension of selfdetermination, 183, 197 and nationalism, 181 and non-recognition, 115 and self-determination, 189-193 Yugoslavia, Federal Republic of: and continuity of international personality of SFRY, 68 and Kosovo: see Kosovo recognition of, 36 See also Montenegro; Serbia Yugoslavia, Socialist Federal Republic of: applicability of right of self-determination to crisis in, 356-358 and question of continuity of international personality, 68 and uti possidetis: see Uti possidetis, principle of constitutional right of secession, 313 dissolution of, as result of secession, 358361 See also Arbitration Commission of the International Conference on Yugoslavia Zambia, 209
495
