API tools faq
paste
Advertisement
jonstond2

Secession (International Law)

jonstond2
Feb 25th, 2017
492
0
Never
Add comment
Not a member of Pastebin yet? Sign Up, it unlocks many cool features!
text 98.86 KB | None | 0 0
raw download clone embed print report
  1. Introduction
  2.  
  3. The term secession designates the unilateral withdrawal from a state of part of its territory and population with the will to create a new state. It is commonly admitted today that, outside the context of decolonization and situations of military occupation, there is no “right” to create an independent state. “External self-determination” was granted to colonized peoples only on the basis of the “salt-water” test. But this does not mean that secession is prohibited. The real criterion for the emergence of a new state, outside the colonial context, is the principle of effectiveness: if a secessionist entity succeeds in fulfilling the conditions of statehood, a new state is born. This traditional view, according to which “secession is not a question of law, but a question of fact,” leads to an impression of perfect “legal neutrality” on the matter of secession. This could be misleading for the following reasons. First, in case of violation of peremptory norms (e.g., external aggression), international law denies the quality of “state” to a secessionist entity, notwithstanding its “effectiveness.” The maxim ex iniuria ius nor oritur defines the external limits of acceptance of the principle of effectiveness. Second, even though secession is not “prohibited,” international law disfavors it and creates a presumption against its effectiveness and in favor of the territorial integrity of the parent state. Indeed, the final consent or, at least, the “resignation” of the parent state and the abandonment of its efforts to reassert its authority seem crucial in permitting the secessionist entity to “normalize” its situation by demonstrating the “ultimate success” of the secession. The traditional reluctance (with the exception of Kosovo) of third states to recognize such entities as states pending a strong opposition of the old sovereign authority, leads to the existence of many “de facto” unrecognized entities, which is problematic for international law. Third, it has often been suggested that, even though there is no “general” right to secession outside the colonial context, there is nonetheless a “qualified” right to “remedial secession” in case of gross violations of human rights of individuals belonging to a specific group. Both legal scholars and national states remain strongly opposed concerning the existence of such a right. Finally, the principle of uti possidetis juris also interacts strongly with the principle of effectiveness. Its applicability outside the colonial context has also created considerable debate in international legal scholarship.
  4.  
  5. General Overviews
  6.  
  7. A researcher wishing to study the question of state secession could feel quite helpless in front of the enormous amount of literature dedicated to this subject, especially given the fact that this topic is treated not only by international lawyers, but also by international relations specialists, sociologists, philosophers, anthropologists, ethnologists, and historians. Even if one focuses on international law sources, the task is not easy. An additional methodological problem is that some of the books and articles published on secession and self-determination, instead of suggesting new approaches or delving into underresearched topics (such as the problem of Premature Recognition), often follow similar paths. The eight books recommended here constitute a very good point of departure for a general and pluralistic overview of the different aspects of the topic. Crawford 2006 is an essential text concerning the creation of states both within and outside the colonial context. Cassese 1995 demonstrates how closely interwoven the law and politics of self-determination are when it comes to secession. Scrutinizing international legal instruments and state practice, Christakis 1999 and Tancredi 2001 propose two positivistic approaches to the rules governing secession. Both authors seem to agree that international law governs and regulates the phenomenon of secession (certain aspects at least), but they differ on the consequences in case of violation of these rules. Contrary to both these authors, Raič 2002 suggests that “the law of self-determination” is valuable in order to understand secession outside the colonial context. Kohen 2006 and also Dahlitz 2003 offer valuable insights on many different aspects of the topic. The conflicting views of many of the contributors to these two volumes (on subjects such as the parameters of the principle of effectiveness, the applicability of the principle of territorial integrity, the role of recognition or remedial secession) constitute one of the best reflections of the division of international legal scholarship and illustrate the complexity of the topic. This is also evident in the contradictory legal opinions submitted to the Supreme Court of Canada by experts during the proceedings concerning the legality of secessionist attempts by Quebec (1996–1998) and published in English in Bayefski 2000.
  8.  
  9. Bayefski, Anne, ed. Self-Determination in International Law: Quebec and Lessons Learned. The Hague: Kluwer Law International, 2000.
  10. Save Citation »Export Citation »E-mail Citation »
  11. Publishes the expert opinions associated with the Supreme Court of Canada’s decision on the Quebec Secession Reference. Includes opinions by James Crawford, Luzius Wildhaber, George Abi Saab, Thomas Franck, R. Higgins, Alain Pellet, Malcolm Shaw, Christian Tomuschat, and Christine Chinkin.
  12. Find this resource:
  13. Cassese, Antonio. Self-Determination of Peoples: A Legal Reappraisal. Cambridge, UK: Cambridge University Press, 1995.
  14. Save Citation »Export Citation »E-mail Citation »
  15. Traces how the political ideal of self-determination became an international legal standard and tries to identify the “lacunae, ambiguities and loopholes” of the present law.
  16. Find this resource:
  17. Christakis, Theodore. Le droit à l’autodétermination en dehors des situations de décolonisation. Paris: La Documentation Française, 1999.
  18. Save Citation »Export Citation »E-mail Citation »
  19. A very “positivist” approach to the problem of secession with a focus on the “principle of effectiveness” and the exact interactions between the law and the facts in the process of creation of states. Detailed analysis of international legal instruments and state practice.
  20. Find this resource:
  21. Crawford, James. The Creation of States in International Law 2d rev. ed. Oxford: Clarendon, 2006.
  22. Save Citation »Export Citation »E-mail Citation »
  23. A real “classic” in this field. Although the scope of the book is much broader than secession, this study serves as a point of reference for the concept of statehood in international law, the principle of effectiveness, the condition of legality, and recognition. Originally published in 1979.
  24. Find this resource:
  25. Dahlitz, Julie. Secession and International Law: Conflict Avoidance—Regional Appraisals. The Hague: Asser, 2003.
  26. Save Citation »Export Citation »E-mail Citation »
  27. Another collection of essays by well-known contributors. Focuses on relevant principles and rules and on the issues of the legality of secession. Enquires if some criteria could allow for uniform judgment of similar cases while authorizing variations in treatment due to factual differences in order to dispel resentment.
  28. Find this resource:
  29. Kohen, Marcelo G., ed. Secession: International Law Perspectives. Cambridge, UK: Cambridge University Press, 2006.
  30. DOI: 10.1017/CBO9780511494215Save Citation »Export Citation »E-mail Citation »
  31. One of the best collections of legal studies on secession. Discusses in detail almost all applicable rules of international law (self-determination, external intervention, recognition, effectiveness, state succession, the problem of gaps) and includes a scrutiny of practices throughout the world.
  32. Find this resource:
  33. Raič, David. Statehood and the Law of Self-Determination Leiden, The Netherlands: Martinus Nijhoff, 2002.
  34. Save Citation »Export Citation »E-mail Citation »
  35. Argues that the law of self-determination is particularly relevant for explaining the international community’s position regarding the general recognition, or the general denial, of statehood of different territorial entities under contemporary international law.
  36. Find this resource:
  37. Tancredi, Antonello. La secessione nel diritto internazionale Padua, Italy: CEDAM, 2001.
  38. Save Citation »Export Citation »E-mail Citation »
  39. An overview of the topic, with a very interesting analysis, using several case studies, of the debate between the theory of “legal neutrality” and the theory according to which international law regulates secession.
  40. Find this resource:
  41. Case Studies
  42.  
  43. Researchers often need to proceed to case studies of secession in order either to try to identify existing or emerging customary rules in this field (through an examination of practice and opinion juris) or to “test” existing rules by applying them to concrete situations. A vast majority of books and articles presented in this bibliography, including in the General Overviews, thus include such case studies. Nonetheless, it is useful to present some case studies concerning two successful cases of secession (Bangladesh and Eritrea), one successful case of dissolution (Former Yugoslavia), and the current, major question of Kosovo.
  44.  
  45. Bangladesh and Eritrea
  46.  
  47. The accession of Bangladesh (former East Pakistan) to independence in 1971 has been presented as the first historical case of successful secession outside the colonial context. Salmon 1973 offers a very good overview of the conflict and the legal problems involved. Rashid 1990 emphasizes that the case of Bangladesh was really unique and that what explains the admissibility of secession was not only the complete geographical separation from West Pakistan, but also, and most important, the fact that the Bengalis constituted the majority of the population of the parent State but were heavily underrepresented at all levels. Nanda 1972 and Castellino 2000, on the other hand, consider that Bangladesh marked the first application of the theory of “remedial secession” in arguing that the Bengalis were victims of mass violations of human rights and probably genocide. The accession of Eritrea to independence from Ethiopia also raised questions concerning its acceptance in practice and the emergence of an eventual right to secession outside the colonial context. Nonetheless, this does not seem to be accepted in legal scholarship. Both Gayim 1993 and Goy 1993 analyze in detail the historical, legal, and policy issues concerning the old conflict between Eritrea and Ethiopia and the circumstances involving secession of the former from the latter. The authors examine the argument that Eritrea should have been considered as a non-self-governing territory (having a right to external self-determination), and they conclude that, in any case, the process proved consensual at the final stage as the new government of Ethiopia was not opposed to secession. And although Haile 1994 completely rejects these arguments, The United Nations and the Independence of Eritrea (United Nations 1996) includes some statements of the UN Secretary General that appear to espouse them in order to ease the concerns over secession in Africa.
  48.  
  49. Castellino, Joshua. “The Secession of Bangladesh in International law: Setting New Standards?” Asian Year Book of International Law 7 (2000): 83–104.
  50. Save Citation »Export Citation »E-mail Citation »
  51. Using Bangladesh as a case study that constitutes “a watershed in International Law,” the author defends the idea that secession can in some cases be considered a legitimate option within international law—particularly in the case of alleged genocide.
  52. Find this resource:
  53. Gayim, Eyassu. The Eritrean Question: The Conflict between the Right of Self-Determination and the Interests of States. Uppsala: Swedish Institute of International Law, 1993.
  54. Save Citation »Export Citation »E-mail Citation »
  55. Examines in detail the historical, legal, and policy issues affecting Eritrea and analyzes the thirty-year conflict that finally led to independence.
  56. Find this resource:
  57. Goy, Raymond. “L’indépendance de l’Erythrée.” Annuaire Français de Droit International 39 (1993): 337–356.
  58. Save Citation »Export Citation »E-mail Citation »
  59. Analysis of the final stage of the conflict and the way to independence. Explains under which circumstances the new government of Ethiopia gave its consent to independence.
  60. Find this resource:
  61. Haile, Minasee. “Legality of Secessions: The Case of Eritrea.” Emory International Law Review 8 (1994): 479–537.
  62. Save Citation »Export Citation »E-mail Citation »
  63. A “contrarian” approach. Concludes that “all legal arguments advanced in support of the secession of Eritrea from Ethiopia are faulty.” Both the challenge to the political association of Eritrea with Ethiopia in the post–World War II era and the theory of “final consent” by the people of Ethiopia are not valid.
  64. Find this resource:
  65. Nanda, Ved P. “Self-Determination in International Law: The Tragic Tale of Two Cities—Islamabad (West Pakistan) and Dacca (East Pakistan).” American Journal of International Law 66 (1972): 321–336.
  66. DOI: 10.2307/2199032Save Citation »Export Citation »E-mail Citation »
  67. Details the historical context of the Bangladesh crisis and narrates the achievement of Bangladesh’s statehood. Defends the theory of “remedial secession” in considering that Bangladesh was its first application.
  68. Find this resource:
  69. Rashid, H. O. “Bangladesh: The First Successful Secessionist Movement in the Third World.” In Secessionist Movements in Comparative Perspective. Edited by Ralph Premdas, S. W. R. de A. Samarasinghe, and Alan B. Anderson, 83–94. London: Pinter Publishers, 1990.
  70. Save Citation »Export Citation »E-mail Citation »
  71. Insists on the fact that Bangladesh was a unique case because the majority population of the parent state (the Bengalis) fought a war of liberation against the minority (West Pakistanis).
  72. Find this resource:
  73. Salmon, J. “Naissance et reconnaissance du Bangladesh.” In Multitudo legum, ius unum: Mélanges en honneur de Wilhelm Wengler Vol. 1. Edited by Josef Tittel, 467–490. Berlin: Interrecht, 1973.
  74. Save Citation »Export Citation »E-mail Citation »
  75. A very good and impartial analysis of the events and legal issues. Salmon explains that, by its violent conduct, the Pakistani army had disqualified itself and the state from any further role in East Bengal.
  76. Find this resource:
  77. United Nations. The United Nations and the Independence of Eritrea. UN Blue Books Series 12. New York: UN Department of Public Information, 1996.
  78. Save Citation »Export Citation »E-mail Citation »
  79. All relevant documents published here. The UN Secretary General explains that the way in which Eritrean independence was achieved—with the involvement of the UN, the OAU, and the new government of Ethiopia—eased concerns over the revision of the continent’s colonial boundaries.
  80. Find this resource:
  81. Dissolution of the Former Yugoslavia
  82.  
  83. An analysis of the breakup of the former Yugoslavia requires, first of all, a study of all pertinent documents, which are found collected in Trifunovska 1994. They include, most essentially, the opinions of the Badinter Commission (see Conference on Yugoslavia Arbitration Commission 1992 cited under Regional Organs), which are particularly important as the international community followed the conclusion of this commission, namely, that Yugoslavia was in a process of dissolution. This theory of “dissolution” is rejected in Bojanic 2000, which considers, instead, that what happened in 1991–1992 in the former Yugoslavia constituted a series of successive secessions. The opinions of the Badinter Commission are also heavily criticized both in Radan 2002, which provides a critical analysis from an international law perspective of the breakup of Yugoslavia in insisting on the problem of uti possidetis, and in Hannum 1993. On the contrary, other authors have defended the opinions of the Badinter Commission, most prominently Alain Pellet (Pellet 1992), who considers that the commission offered “a second breath for the self-determination of peoples.” This division in international scholarship is also evident when it comes to evaluating, in a more general way, the European and international response to the crisis in Yugoslavia. While, for example, Delcourt 2003 is highly critical of that response, Caplan 2005 considers not only that European Community (EC) policy cannot be held responsible for “aggravating and extending” the violent conflict in the former Yugoslavia, but also that conditional recognition and other methods used could play a role in support of conflict mitigation.
  84.  
  85. Bojanic, Marc. “Les sécessions sur le territoire de l’ex-Yougoslavie à la lumière du droit international.” PhD diss., Université de Paris I-Panthéon Sorbonne, 2000.
  86. Save Citation »Export Citation »E-mail Citation »
  87. Critical approach to the international response to the ethnic conflicts in former Yugoslavia. Denies the theory of “dissolution,” emphasizing the unilateral (and chronically different) character of the territorial separations. Recognition was “used as an instrument to bolster the creation of non-fully-constituted or sometimes almost non-existent States.”
  88. Find this resource:
  89. Caplan, Richard. Europe and the Recognition of New States in Yugoslavia Cambridge, UK: Cambridge University Press, 2005.
  90. DOI: 10.1017/CBO9780511492105Save Citation »Export Citation »E-mail Citation »
  91. The quest for statehood constituted a reaction to Belgrade’s effort to recentralize Yugoslavia. The wars in Croatia and in Bosnia operated largely independent of the policy of the European Community. In fact, recognition created opportunities for more effective international action and conflict prevention. The EC’s innovations are likely to have far-reaching implications for the development of issues of human rights, self-determination, secession, and statehood.
  92. Find this resource:
  93. Delcourt, Barbara. Droit et souverainetés: Analyse critique du discours européen sur la Yougoslavie. Brussels: PIE-Peter Lang, 2003.
  94. Save Citation »Export Citation »E-mail Citation »
  95. Scrutinizes the international and European reaction to the dismemberment of the former Yugoslavia. A critical analysis of the positions taken by the European Union (EU) and its member States in relation to subjects such as self-determination, territorial integrity, rights of minorities, and recognition.
  96. Find this resource:
  97. Hannum, Hurst. “Self-Determination, Yugoslavia, and Europe: Old Wine in New Bottles.” Transnational Law & Contemporary Problems 3.1 (1993): 57–70.
  98. Save Citation »Export Citation »E-mail Citation »
  99. The fundamental problem with the international approach to the Yugoslav conflicts is that it adopted a one-time only approach to secessionist demands based on no discernible criteria. The suggestion by the Badinter Commission that the internationally recognized statehood of a federal state is somehow less solid than that of a unitary state is ill-founded and dangerous.
  100. Find this resource:
  101. Pellet, Alain. “The Opinions of the Badinter Arbitration Committee: A Second Breath for the Self-Determination of Peoples.” European Journal of International Law 3.1 (1992): 178–185.
  102. Save Citation »Export Citation »E-mail Citation »
  103. Considers that through its “balanced and impartial decisions,” the Arbitration Committee of the Peace Conference on Yugoslavia has furnished proof that such an organ can provide a great service. This example must be recognized and used as a building block in the search for mechanisms to resolve ethno-territorial conflicts.
  104. Find this resource:
  105. Radan, Peter. The Break-up of Yugoslavia and International Law. London: Routledge, 2002.
  106. Save Citation »Export Citation »E-mail Citation »
  107. Although international recognition was granted to the former Yugoslav republics, the claims of secessionist movements that sought a revision of existing internal federal borders were rejected. The book criticizes the “novel applications” of international law principles of self-determination of peoples and uti possidetis by the international community in the case of Yugoslavia.
  108. Find this resource:
  109. Trifunovska, Snežana, ed. Yugoslavia through Documents: From Its Creation to Its Dissolution. Leiden, The Netherlands: Martinus Nijhoff, 1994.
  110. Save Citation »Export Citation »E-mail Citation »
  111. This book contains more than 360 documents relevant to the international legal position of the Yugoslav territories in the 19th century, the creation of Yugoslavia in 1918, its constitutional development, and the process of dissolution of Yugoslavia.
  112. Find this resource:
  113. Kosovo
  114.  
  115. The case of Kosovo is, of course, another major case study. The unilateral declaration of independence by Kosovo issued on 17 February 2008 created an enormous legal debate and also led to an advisory opinion of the International Court of Justice (ICJ) in July 2010. Researchers need to study this opinion and its commentaries (see The ICJ Advisory Opinion on Kosovo), but they also need to read the diversified, and often opposing, positions of states presented in the Proceedings of the ICJ in the Kosovo Advisory Opinion 2010. But given the narrow approach of the Court, it is also necessary to consult at least several recent case studies scrutinizing the legal questions created by the conflict in Kosovo, in general, and the unilateral declaration of independence, in particular. Some scholars consider the declaration of independence of Kosovo to be contrary to international law, as, for example, Jovanović 2008 (essentially on the basis of an analysis of lex specialis) and Orakhelashvili 2008 (which also discusses the argument that the existence of Kosovo is now actual fact). Others, such as Corten 2008, focus on the question of recognition. Vidmar 2009 analyzes the legal positions regarding Kosovo’s declaration of independence and examines the significance of international involvement in the process of state creation, also considering that Kosovo has some deficiencies in meeting the statehood criteria. Milano 2010 analyzes the different forms of international intervention that occurred in the four phases of the Kosovo controversy (from the 1998–1999 crisis to the current situation post declaration of independence, passing through the UN administration of the territory and the negotiations on future status), the extent to which international law played a role in dictating outcomes and results, and the ways in which the notion of territorial sovereignty was reinterpreted by the UN Security Council. Mullerson 2009 considers the “uniqueness” of the case of Kosovo and the argument used by some states that this case is so sui generis that it cannot serve as a legal precedent.
  116.  
  117. Corten, Olivier. “Déclarations unilatérales d’indépendance et reconnaissances prématurées: Du Kosovo, à l’Ossétie du sud et à l’Abkhazie.” Revue Générale de Droit International Public 112 (2008): 721–759.
  118. Save Citation »Export Citation »E-mail Citation »
  119. The 2008 unilateral declaration of independence by Kosovo was not supported by general international law and was contrary to Security Council Resolution 1244 (1999). The recognitions given to Kosovo immediately after the unilateral declaration of independence were problematic and premature because there was no effectiveness.
  120. Find this resource:
  121. Jovanović, Miloš. “Recognition of Kosovo Independence as a Violation of International Law.” Annals of the Faculty of Law in Belgrade – Belgrade Law Review (2008): 108–140.
  122. Save Citation »Export Citation »E-mail Citation »
  123. Argues that an act of recognition of a state by another state can be considered in legal terms and possibly declared unlawful. This seems true in the case of the independence of Kosovo since UN Security Council Resolution 1244 protects the sovereignty and territorial integrity of Serbia.
  124. Find this resource:
  125. Milano, Enrico. “The Security Council and Territorial Sovereignty: The Case of Kosovo.” International Community Law Review 12.2 (2010): 171–189.
  126. DOI: 10.1163/187197310X498589Save Citation »Export Citation »E-mail Citation »
  127. Examines the nature and scope of the Security Council’s action (and inaction) with regard to the political crisis and ensuing conflict in Kosovo starting from the late 1990s and how that practice has shaped notions of territorial sovereignty.
  128. Find this resource:
  129. Mullerson, Rein. “Precedents in the Mountains: On the Parallels and Uniqueness of the Cases of Kosovo, South Ossetia and Abkhazia.” Chinese Journal of International Law 8.1 (2009): 2–25.
  130. DOI: 10.1093/chinesejil/jmn040Save Citation »Export Citation »E-mail Citation »
  131. If states do not want their behavior to become established law, they claim that certain acts are so unique that they must not be considered as contributing to a change in the law. The current trend, which supports some secessions in considering them to be unique cases that do not serve as precedents, is a dangerous tendency. Available online by subscription.
  132. Find this resource:
  133. Orakhelashvili, Alexander. “Statehood, Recognition and the United Nations System: A Unilateral Declaration of Independence in Kosovo.” Max Planck Yearbook of United Nations Law (2008): 1–44.
  134. Save Citation »Export Citation »E-mail Citation »
  135. The unilateral declaration of independence by Kosovo contravenes international law. Those who use the reality argument today in citing the example of Kosovo should be prepared to hear the same argument in the context of other secessionist entities whose independence they oppose.
  136. Find this resource:
  137. Proceedings of the ICJ in the Kosovo Advisory Opinion 2010: Written and Oral Statements.
  138. Save Citation »Export Citation »E-mail Citation »
  139. The impressive number of states participating in the proceedings highlights the interest taken in the case. In total, forty states plus Kosovo participated in the written and/or oral proceedings. The opinions expressed concern both about the legality of the declaration of independence and many other issues, and they include greatly contrasting viewpoints.
  140. Find this resource:
  141. Vidmar, Jure. “International Legal Responses to Kosovo’s Declaration of Independence.” Vanderbilt Journal of Transnational Law 42.3 (2009): 779–851.
  142. Save Citation »Export Citation »E-mail Citation »
  143. A review of the attitude of states in relation to the declaration of independence of Kosovo in 2008 with a focus on the legal issues related to the unilateral declaration of independence and the legal significance of international involvement. Considers that Kosovo has significant deficiencies in meeting the traditional criteria for statehood.
  144. Find this resource:
  145. Judicial and Quasi-Judicial Decisions
  146.  
  147. During the period of the Cold War it was extremely difficult to find international jurisprudence concerning the problem of secession outside the colonial context. Case law in this field was limited to some very rare domestic decisions, which acquired, faute de mieux, an emblematic status in academic works. But since the 1990s and the breakup of the Soviet Union and the former Yugoslavia, more and more cases have occupied various international bodies of differing legal nature. On 22 July 2010, for the first time in history, the International Court of Justice, the principal judicial organ of the United Nations, handed down an advisory opinion on the legality of a unilateral declaration of independence (Kosovo) outside the context of decolonization. This article will discuss decisions by Domestic Jurisdictions, Regional Organs, and The ICJ Advisory Opinion on Kosovo.
  148.  
  149. Domestic Jurisdictions
  150.  
  151. Decisions of national courts on issues of secession concern essentially two distinct questions. The first is the question of legality of secession. Usually, and logically, domestic tribunals examine this question under internal constitutional law, concluding very often, such as in the famous Texas v. White in 1868 that secession is not authorized because of the indivisible or indissoluble unity of the state. However, sometimes domestic courts also make reference to international law, such as the Russian Constitutional Court in the Tatarstan case and the Chechnya case. The second question concerns the problem of effectiveness. The US Supreme Court elaborated, in Williams v. Bruffy in 1877 the theory of “ultimate success,” which influenced other domestic tribunals, such as in the Madzimbamuto v. Lardner-Burke 1968 case (UK Privy Council). For international law, the most interesting domestic decision to date has been that of the Supreme Court of Canada, which, in Reference by the Governor-General concerning Certain Questions Relating to the Secession of Quebec from Canada, held that international law does not authorize secession. In addition, the Supreme Court made statements of interest concerning the principle of effectiveness.
  152.  
  153. Canadian Supreme Court. Reference by the Governor-General concerning Certain Questions Relating to the Secession of Quebec from Canada 2 SCR 217 (1998).
  154. Save Citation »Export Citation »E-mail Citation »
  155. All people have a right to internal self-determination but only colonial peoples and peoples subject to alien subjugation have a right to create a state. It remains unclear whether the assertion by some commentators that there is also a right to remedial secession reflects an established international law standard.
  156. Find this resource:
  157. Russian Constitutional Court. Tatarstan case. 1992.
  158. Save Citation »Export Citation »E-mail Citation »
  159. International documents emphasize the impermissibility of making reference to the principle of self-determination in order to jeopardize state and national unity. Without negating the right of a people to self-determination exercised by means of the lawful expression of will, international law restricts it by the observance of the requirements of the principle of territorial integrity.
  160. Find this resource:
  161. Russian Constitutional Court. Chechnya case. 1995.
  162. Save Citation »Export Citation »E-mail Citation »
  163. As with the Tatarstan case, the Russian Constitutional Court referred to international law, and para. 7 of the Friendly Relations Declaration, to conclude that article 66 of the Russian Constitution, which did not recognize a right to secession and provided that a subject of the Russian Federation could change its status only by mutual agreement, was in accordance with generally accepted international norms on the right to self-determination.
  164. Find this resource:
  165. UK Privy Council. Madzimbamuto v. Lardner-Burke. App. Cas. 3 WLR 1229 (1968).
  166. Save Citation »Export Citation »E-mail Citation »
  167. The UK Privy Council refused to grant validity to the legislative acts of the regime of Ian Smith in Southern Rhodesia. The ultimate success of the secession was not established because “the British Government acting for the lawful Sovereign is taking steps to regain control and it is impossible to predict with certainty whether or not it will succeed.”
  168. Find this resource:
  169. US Supreme Court. Texas v. White. 74 U.S. 700, 732 (1868).
  170. Save Citation »Export Citation »E-mail Citation »
  171. The US Constitution, in all its provisions, looks to an indestructible union composed of indestructible states. When Texas became a state within the United States, it entered into an indissoluble relationship. The act that consummated the admission of Texas into the Union was final. There was no place for reconsideration, or revocation, except through revolution or by the consent of the states.
  172. Find this resource:
  173. US Supreme Court. Williams v. Bruffy. 6 Otto 176, 96 U.S. (1877).
  174. Save Citation »Export Citation »E-mail Citation »
  175. The validity of acts of a separatist state depends entirely upon its ultimate success. If the state fails to establish itself permanently, all such acts perish with it. If the state succeeds, and it is recognized, its acts from the commencement of its existence are upheld as those of an independent nation.
  176. Find this resource:
  177. Regional Organs
  178.  
  179. Since the 1990s, several regional organs, either of jurisdictional nature (European Court of Human Rights) or not (all the others listed here), have issued important decisions, opinions, or reports concerning various matters related to secession. Established to provide the EC Conference on Yugoslavia with legal advice, and presided over by Robert Badinter, the European Community Arbitration Commission on Yugoslavia issued Opinions No. 1–10 concerning questions such as the dissolution of the Socialist Federal Republic of Yugoslavia, self-determination, secession, effectiveness, and uti possidetis. Researchers should read these opinions and the numerous comments written about them (see Uti Possidetis Outside the Colonial Context and Dissolution of the Former Yugoslavia). The European Court of Human Rights has also dealt with interesting aspects of secession. In its landmark judgment in Loizidou v. Turkey (1996), concerning the first of many cases of Greeks who had been forced out of their properties during Turkey’s invasion of Cyprus in 1974, the Court considered whether a de facto separatist entity, the “Turkish Republic of Northern Cyprus” (“TRNC”)—the establishment of which was condemned by several resolutions of international organizations—could be considered a “state.” In this case, as also in the case Cyprus v. Turkey (2001), the European Court of Human Rights made important pronouncements concerning the legal validity of acts and institutions of the “TRNC,” while emphasizing that it did not “consider it desirable, let alone necessary, to elaborate a general theory concerning the lawfulness of legislative and administrative acts of the ‘TRNC.’” The African Commission on Human and People’s Rights was also active in the field of secession. In Katangese Peoples’ Congress v. Zaire (1995) and in Kevin Ngwane Ngumne and Co. v. the State of Cameroon (2009) the commission interpreted self-determination under the African Charter on Human and Peoples’ Rights. It dismissed the secessionist claims of the petitioners considering that there was no right to external self-determination in the absence of massive violations of human rights and of systematic denial of internal self-determination. This is sometimes interpreted a contrario as a position in favor of Remedial Secession. Nonetheless, in its Advisory Opinion on the UN Declaration on the Rights of Indigenous Peoples (African Commission on Human and Peoples’ Rights 2007), the commission seems to consider that only those means of internal self-determination that are entirely compatible with the unity and territorial integrity of state parties are available for indigenous communities. Finally, Independent International Fact-Finding Mission on the Conflict in Georgia 2009 discusses many important issues, including effectiveness, self-determination, secession, “passportization,” and use of force. The authors take a very strong position against the existence of a right to secession outside situations of colonization or military occupation.
  180.  
  181. African Commission on Human and Peoples’ Rights. Katangese Peoples’ Congress v. Zaire. Case 75/92, 31st Session (1995).
  182. Save Citation »Export Citation »E-mail Citation »
  183. In the absence of concrete evidence of violations of human rights and of evidence that the people of Katanga are denied the right to participate in government, Katanga is obliged to exercise a variant of self-determination that is compatible with the sovereignty and territorial integrity of Zaire.
  184. Find this resource:
  185. African Commission on Human and People’s Rights. Advisory Opinion on the UN Declaration on the Rights of Indigenous Peoples, adopted at its 41st Ordinary Session held in May 2007 in Accra, Ghana (2007).
  186. Save Citation »Export Citation »E-mail Citation »
  187. The right to self-determination of indigenous populations should be understood as encompassing a series of rights relative to the full participation in national affairs, the right to local self-government, the right to be consulted in the drafting of laws and programs concerning them, and other variations in the exercise of the right to self-determination that are entirely compatible with the unity and territorial integrity of state parties.
  188. Find this resource:
  189. African Commission on Human and People’s Rights. Kevin Ngwane Ngumne and Co. v. the State of Cameroon. Case No. 266/2003, 45th Ordinary Session, EX.CL/529(XV), Annex 4 (2009).
  190. Save Citation »Export Citation »E-mail Citation »
  191. There is no right to secession for the people of Southern Cameroon in the absence of proof of massive violations of human rights under the African Charter on Human and Peoples’ Rights. Federalism, local government, unitarism, confederacy, and self-government can be exercised subject only to conformity with state sovereignty and the territorial integrity of a state party. Such forms of governance cannot be imposed on a state party by the African Commission.
  192. Find this resource:
  193. Conference on Yugoslavia Arbitration Commission. “Opinions Arising from the Dissolution of Yugoslavia.” International Legal Materials 31.6 (1992): 1488–1526.
  194. Save Citation »Export Citation »E-mail Citation »
  195. The Badinter Commission made pronouncements on some very important issues. It stated, inter alia: Yugoslavia was in the process of dissolution; the existence of the State is a question of fact; the effects of recognition by other states are purely declaratory; peremptory norms of International Law require States to ensure respect for the rig Concerning Opinions 1–3, consult Alain Pellet, “The Opinions of the Badinter Arbitration Committee: A Second Breath for the Self-Determination of Peoples.” European Journal of International Law 3.1 (1992): 178–185. Concerning Opinions 4–10, consult “Annex 3: Opinions No. 4–10 of the Arbitration Commission of the International Conference on Yugoslavia.” European Journal of International Law 4.1 (1993): 74–91.
  196. Find this resource:
  197. European Court of Human Rights. Loizidou v. Turkey. Merits, Judgment of 18 December 1996. ECHR Reports, 1996-VI.
  198. Save Citation »Export Citation »E-mail Citation »
  199. It is evident from international practice and the various, strongly worded resolutions of international organizations that the international community does not regard the “Turkish Republic of Northern Cyprus” as a state under international law. Thus, the Court cannot attribute legal validity to such provisions as Article 159 of the fundamental law of the “TRNC.”
  200. Find this resource:
  201. European Court of Human Rights. Cyprus v. Turkey. Judgment of 10 May 2001. ECHR Reports, 2001-IV.
  202. Save Citation »Export Citation »E-mail Citation »
  203. Recalls the position of the ICJ in the Namibia case that international law recognizes, in the interest of the populations concerned, the legitimacy of certain legal arrangements of regimes such as the “TRNC.” This applies to the “TRNC” and its courts not directly as a de facto regime, but as a subordinate administration under Turkish occupation.
  204. Find this resource:
  205. Independent International Fact-Finding Mission on the Conflict in Georgia. Report of the Independent International Fact-Finding Mission on the Conflict in Georgia, Vol. 2. 30 September 2009.
  206. Save Citation »Export Citation »E-mail Citation »
  207. Abkhazia was not allowed to secede from Georgia under international law because the right to self-determination does not entail a right to secession. South Ossetia did not reach the threshold of effectiveness. Abkhazia did, but the process of state-building was illegitimate as Abkhazia never had a right to secession.
  208. Find this resource:
  209. The ICJ Advisory Opinion on Kosovo
  210.  
  211. On 22 July 2010, for the first time in history, the principal judicial organ of the United Nations handed down an advisory opinion on the legality of a unilateral declaration of independence outside the context of colonization. International Court of Justice 2010, and the declarations and opinions of the judges annexed to the opinion, constitute a “must read” for researchers working in this field. The Court adopted a very narrow interpretation of the question submitted by the UN General Assembly. The Court was thus able to avoid dealing with many important problems and, from this point of view, the advisory opinion is rather elliptic and cryptic: To understand the position of the Court in this field and the extent of its influence in future cases dealing with self-determination and secession, researchers have to understand not only what the Court has said, but also what the Court has not said or has not wanted to say. The three symposia published immediately after the advisory opinion (Christakis and Corten 2011, Symposium 2010, and Agora 2011), offer different viewpoints on the opinion and are complementary. It is, indeed, interesting to realize that despite the narrow approach of the Court, which has been recognized by all contributors, many important issues are raised in these commentaries on the opinion–issues that concern not only Kosovo, but also deal with fundamental questions of international law, such as the creation of states, external self-determination and secession, the protection of minorities, the use of force, the “Lotus freedom principle” and the theory of the “completeness” of the international legal order, the interpretation of unilateral acts of international organizations, the rights and obligations of nonstate actors and the problem of attribution, and international responsibility.
  212.  
  213. “Agora: The ICJ’s Kosovo Advisory Opinion.” American Journal of International Law 105.1 (2011): 50–89.
  214. DOI: 10.5305/amerjintelaw.105.1.0050Save Citation »Export Citation »E-mail Citation »
  215. In comparison with the two other journal volumes cited here, a rather brief presentation, including articles by Richard Falk (Conflict Resolution and Precedent), Dinah Shelton (Self-Determination in Regional Human Rights Law) and Marko Divac Oberg (The Legal Effects of United Nations Resolutions). Available online by subscription.
  216. Find this resource:
  217. Christakis, Theodore, and Olivier Corten, eds. “Symposium: The ICJ Advisory Opinion on the Unilateral Declaration of Independence of Kosovo.” Leiden Journal of International Law 24.1 (2011): 71–161.
  218. DOI: 10.1017/S0922156510000592Save Citation »Export Citation »E-mail Citation »
  219. Three articles (Christakis, Corten, Peters) examine how the Court has dealt with existing general international law governing secession. Two articles (Kohen and Del Mar, Weller) offer a diametrically opposite approach on lex specialis. The final articles (Wilde and Hannum) discuss the direction that should be taken to follow on from the Court’s opinion. Available online by subscription.
  220. Find this resource:
  221. International Court of Justice. Accordance with International Law of the Unilateral Declaration of Independence by the Provisional Institutions of Self Government of Kosovo. ICJ Advisory Opinion, 22 July 2010.
  222. Save Citation »Export Citation »E-mail Citation »
  223. Found that the unilateral declaration of independence by Kosovo did not violate general international law or the lex specialis created by S/RES 1244(1999). Made no statements concerning Kosovo’s statehood and recognition by third states, did not examine whether Kosovo had a “right” to secession and did not mention effectiveness.
  224. Find this resource:
  225. “Symposium: Kosovo in the ICJ.” German Law Journal 11.8 (2010): 837–928.
  226. Save Citation »Export Citation »E-mail Citation »
  227. Includes eight articles (by M. Bothe, R. Howse and R. Teitel, R. Muharremi, T. Burri, J. Moliterno, E. Cirkovic, H. Jamar, M. K. Vigness) discussing various aspects of the advisory opinion and its effects. Available online by subscription.
  228. Find this resource:
  229. External Self-Determination and Secession
  230.  
  231. Scholars overwhelmingly agree that no “general right to secession” exists outside the colonial context. The principle of external self-determination gives a right to create an independent state only to people under colonial domination or military occupation. One of the major questions that arises is, of course, the meaning of the word colonial. It is on the basis of Resolution 1541 of 15 December 1960 (UN General Assembly 1960) that the UN applied what was called somewhat ironically “the salt water test,” namely, the principle of external self-determination applied in the case of rule of an alien people who inhabited territory separated from the metropolitan country by the sea or the ocean but it did not apply in the case of rule of an alien people who inhabited a territory separated from the mother country by land, lakes, rivers, or mountains. Neuberger 1986 explains how convenient this salt water test was for the Third World, limiting as it did external self-determination to the historical phenomenon of overseas colonization by Western states. Of course, several authors suggested that this “different treatment” was not justified. They called for the recognition of a general right to secede open to all peoples on the basis of either unrestricted liberal theories (McGee 1992), moral considerations (Buchanan 1991), or even a “historic right to territory” (Brilmayer 1991). Weller 2008 also criticizes strongly “the attempt by governments to keep in place the highly restricted doctrine of self-determination that has only been made available in the colonial context” (p. 9). But all these authors seem to agree that their suggestions for a broader recognition of a right to “external self-determination” are formulated de lege ferenda and that there is some danger in recognizing such an unqualified right to secession for the approximately 6,000 groups around the world who describe themselves in ethnic or national terms. The authors of the majority of books presented in General Overviews affirm, as does the detailed analysis in Hannum 1993, that, so far, the right to external self-determination outside the colonial context has not been extended. This fact was recognized even in Frank, et al. 1992.
  232.  
  233. Brilmayer, Lea. “Secession and Self-Determination: A Territorial Interpretation.” Yale Journal of International Law 16 (1991): 177–202.
  234. Save Citation »Export Citation »E-mail Citation »
  235. Argues that the normative force behind secessionist arguments derives essentially from the “right to territory” that many ethnic groups claim to possess. Secession represents a remedy for past injustices and permits consideration of historical claims to territory.
  236. Find this resource:
  237. Buchanan, Allen E. Secession: The Morality of Political Divorce from Fort Sumter to Lithuania and Quebec. Boulder, CO: Westview, 1991.
  238. Save Citation »Export Citation »E-mail Citation »
  239. Considers that secession is “morally justifiable” in some cases and especially if a group is a victim of discriminatory redistribution (if the state’s economic policies or taxation schemes systematically work to the disadvantage of that group) or if it is necessary for the preservation of the distinctive culture or form of communal life of the group.
  240. Find this resource:
  241. Frank, Thomas, Rosalyn Higgins, Alain Pellet, Malcolm Shaw, and Christian Tomuschat. The Territorial Integrity of Québec in the Event of the Attainment of Sovereignty. Experts Report prepared for Québec’s Ministère des Relations Internationales, 1992.
  242. Save Citation »Export Citation »E-mail Citation »
  243. This study had been commissioned by the government of Quebec and a finding that there is a right to external self-determination outside the colonial context could have been welcomed by the separatist movement there. Nonetheless, the study concludes that Quebec cannot invoke external self-determination.
  244. Find this resource:
  245. Hannum, Hurst. “Rethinking Self-Determination.” Virginia Journal of International Law 34.1 (1993): 1–69.
  246. Save Citation »Export Citation »E-mail Citation »
  247. Recounts the international norm of self-determination from Wilsonian formulations to the present. In the postcolonial era international law guarantees to individuals and noncolonial peoples a much broader range of human rights, including meaningful self-determination but generally excluding a right to independent statehood.
  248. Find this resource:
  249. McGee, Robert. “A Third Liberal Theory of Secession.” Liverpool Law Review 14 (1992): 45–66.
  250. Save Citation »Export Citation »E-mail Citation »
  251. Argues that the only true basis for legitimate state authority is the free consent of the people. Dissatisfied groups or individuals can either choose to accept their situation, move to a jurisdiction more to their liking, or join other people in seceding from the state.
  252. Find this resource:
  253. Neuberger, Ralph B. National Self-Determination in Postcolonial Africa. Boulder, CO: Lynne Rienner, 1986.
  254. Save Citation »Export Citation »E-mail Citation »
  255. One of the first books discussing the question “what is colonial?” and the “salt water theory of colonialism.” Explains why this theory was widely accepted in Africa and why it was espoused by the Third World: it permitted “much of the world’s establishment” to uphold the principle that national self-determination should be supported only with regard to overseas colonies of Western, largely European, nations.
  256. Find this resource:
  257. UN General Assembly. Resolution 1541 of 15 December 1960.
  258. Save Citation »Export Citation »E-mail Citation »
  259. This resolution sets forth dual requirements of ethnic and geographic distinctiveness from the administrating country in order for a territory to qualify prima facie as a non-self-governing territory. The requirement of “geographical separation” led to the “salt water” theory of colonialism in UN practice.
  260. Find this resource:
  261. Weller, Marc. Escaping the Self-Determination Trap. Leiden, The Netherlands: Martinus Nijhoff, 2008.
  262. Save Citation »Export Citation »E-mail Citation »
  263. Argues that the contextual restriction of external self-determination and the sharp division between external and internal self-determination appear to be dissolving, however gradually and hesitantly. Several innovative settlements provide for the opportunity for secession, expressly invoking self-determination outside the colonial context.
  264. Find this resource:
  265. Effectiveness
  266.  
  267. If there is no “right to secession” outside the colonial context, then secession is also not prohibited by international law. It is commonly admitted that the principle of respect of the territorial integrity of states cannot be interpreted as a “prohibition” of secession by intrastate groups. As explained in the report prepared for Québec’s Ministère des Relations Internationales (Frank, et al. 1992), such a solution would be quite disconnected from reality and hardly in keeping with the cold realism of law. This situation has led some authors (starting with Frank 2000) to affirm that the absence of a prohibition should be interpreted as an implicit authorization, which means that there is a kind of “Lotus freedom principle” for intrastate groups. Peters 2011 expresses some doubts in this respect, while Christakis 2011 strongly opposes this idea. Other authors, such as Abi-Saab 2000, promote the theory of a perfect “legal neutrality,” presenting the state as a “primary fact.” This view is challenged in Crawford 2006 and Kohen 2002, which demonstrate that the international community remains hostile to secession. Christakis 2006 argues that the “test of effectiveness” has no “automatic” effects leading to the immediate transformation to a new state of an entity that succeeds in fulfilling the criteria of statehood and that, to the contrary, the path to independence can be long and complicated.
  268.  
  269. Abi-Saab, George. “The Effectivity Required of an Entity That Declares Its Independence in Order for It to Be Considered a State in International Law.” In Self-Determination in International Law: Quebec and Lessons Learned: Legal Opinions. Edited by Anne Bayefski, 69–75. The Hague: Kluwer Law International, 2000.
  270. Save Citation »Export Citation »E-mail Citation »
  271. Draws a parallel between the birth of humans and the birth of states: the state is “a primary fact” that precedes the law, and which the law acknowledges only once it has materialized. But the law can neither “create” nor destroy this primary fact. Originally published in Expert Opinions accompanying the Amicus Curiae’s Factum, Supreme Court of Canada: Reference Re Secession of Quebec, 1997.
  272. Find this resource:
  273. Christakis, Theodore. “The State as a ‘Primary Fact’: Some Thoughts on the Principle of Effectiveness.” In Secession: International Law Perspectives. Edited by Marcelo G. Kohen, 138–170. Cambridge, UK: Cambridge University Press, 2006.
  274. DOI: 10.1017/CBO9780511494215Save Citation »Export Citation »E-mail Citation »
  275. The “test” of effectiveness is important but no real “automatism” exists in this field. In many cases, the effectiveness of secession did not permit the creation of a new state. In other cases, a state has been created without fulfilling the conditions for statehood.
  276. Find this resource:
  277. Christakis, Theodore. “The ICJ Advisory Opinion on Kosovo: Has International Law Something to Say about Secession?” Leiden Journal of International Law 24.1 (2011): 73–86.
  278. DOI: 10.1017/S0922156510000609Save Citation »Export Citation »E-mail Citation »
  279. Disagrees with the position of Judge Bruno Simma in the ICJ advisory opinion on Kosovo that the Court “in a formalistic fashion, equates the absence of a prohibition with the existence of a permissive rule,” and explains why the absence of a prohibition to attempt secession cannot be assimilated to the existence of a right to do so. Denies also the “legal neutrality” theory because international law erects many barriers against secession. Available online by subscription.
  280. Find this resource:
  281. Crawford, James. The Creation of States in International Law 2d ed. Oxford: Clarendon, 2006.
  282. Save Citation »Export Citation »E-mail Citation »
  283. One of the more detailed presentations of the criteria for statehood in theory and practice. Highlights the extreme reluctance of states to recognize or accept unilateral secession outside the colonial context.
  284. Find this resource:
  285. Frank, Thomas. “Opinion Directed at Question 2 of the Reference.” In Self-Determination in International Law: Quebec and Lessons Learned: Legal Opinions. Edited by Anne Bayefski, 75–84. The Hague: Kluwer Law International, 2000.
  286. Save Citation »Export Citation »E-mail Citation »
  287. Defends the idea that the absence of a prohibition of secession should be equated with the existence of a permissive rule. There is accordingly a “privilege of secession” recognized in international law. Originally published in Expert Opinions accompanying the Amicus Curiae’s Factum, Supreme Court of Canada: Reference Re Secession of Quebec, 1997.
  288. Find this resource:
  289. Frank, Thomas, Rosalyn Higgins, Alain Pellet, Malcolm Shaw, and Christian Tomuschat. The Territorial Integrity of Québec in the Event of the Attainment of Sovereignty. Experts Report prepared for Québec’s Ministère des Relations Internationales, 1992.
  290. Save Citation »Export Citation »E-mail Citation »
  291. The community of states has serious reservations when it comes to secessionist attempts. However, there is no legal rule precluding secession; the principle of territorial integrity appears to be strictly an interstate rule whose effect is partially confused with the principle of nonintervention.
  292. Find this resource:
  293. Kohen, Marcelo G. “La création d’états en droit international contemporain.” Cursos Euromediterraneos Bancaja de Derecho Internacional 6 (2002): 545–636.
  294. Save Citation »Export Citation »E-mail Citation »
  295. Examines the interaction between the facts and the law in the process of creation of states. While there is no “prohibition” of secession (unless in case of violation of jus cogens), international organizations defend the principle of the territorial integrity of states.
  296. Find this resource:
  297. Peters, Anne. “Does Kosovo Lie in the Lotus-Land of Freedom?” Leiden Journal of International Law 24.1 (2011): 95–108
  298. DOI: 10.1017/S0922156510000622Save Citation »Export Citation »E-mail Citation »
  299. Departing from the position of Judge Bruno Simma in the ICJ advisory opinion on Kosovo that the Court “in a formalistic fashion, equates the absence of a prohibition with the existence of a permissive rule,” Peters inquires about the applicability of the Lotus principle. Available online by subscription.
  300. Find this resource:
  301. Violation of Peremptory Norms and Consequences
  302.  
  303. The position that secession is not generally prohibited outside the colonial context (see Effectiveness) does not exclude the possibility to prohibit secession when it results from a violation of peremptory norms of international law. This possibility is not accepted by the traditional and “realistic” approach, expressed in Charpentier 1956 and summarized in Verhoeven 1993, according to which the creation of a new state is based only on effectiveness and not on law. Nonetheless, more and more authors agree that international law plays an important role in the process of creation of new states. Crawford 2006 defends the idea that “there is nothing incoherent about the legal regulation of statehood on a basis other than that of effectiveness.” Dugard 1987 demonstrates that the international community never treated as “states” some entities created after a violation of peremptory norms of international law. Christakis 1999 insists on the principle ex iniuria ius non oritur, considering that when peremptory norms are violated in the process of state creation, then an entity otherwise effective is prevented from being regarded as a state. Tancredi 2006 rejects this conclusion in affirming that the law cannot cancel the very existence of a state in case of a breach of jus cogens. At best, it might influence the legal consequences arising from that event, condemning the entity to a “condition of non-sociability,” but it cannot do away with fact. Without discussing the consequences of such violation of peremptory norms (see also Obligation Not to Recognize), Nolte 2006 insists that the principles of nonuse of force and nonintervention must prevent intervention by a third state in secessionist conflicts. This is important because, as Heraclides 1991 shows, external involvement and intervention are very common in separatist conflicts.
  304.  
  305. Charpentier, Jean. La reconnaissance internationale et l’évolution du droit des gens. Paris: Pedone, 1956.
  306. Save Citation »Export Citation »E-mail Citation »
  307. The effectiveness of the creation of a state always prevails over any legal consideration. International law risks being ineffective if it challenges the validity of effective situations by creating a fatal conflict between law and fact, which can be resolved only with the triumph of the “fait accompli”.
  308. Find this resource:
  309. Christakis, Theodore. Le droit à l’autodétermination en dehors des situations de décolonisation. Paris: La Documentation Française, 1999.
  310. Save Citation »Export Citation »E-mail Citation »
  311. Discusses extensively the conflict between effectiveness and illegality. Concludes that secession is not just a question of “fact” but also a question of “law” and that the traditional factual criteria for statehood need to be complemented by some legal ones.
  312. Find this resource:
  313. Crawford, James. The Creation of States in International Law 2d ed. Oxford: Clarendon, 2006.
  314. Save Citation »Export Citation »E-mail Citation »
  315. Discussing whether “International Law conditions for the creation of States” exist, Crawford highlights the importance of accepting the notion of peremptory norms of international law (jus cogens) and concludes that the proposition that statehood must necessarily be equated with effectiveness is not supported by practice.
  316. Find this resource:
  317. Dugard, John. Recognition and the United Nations. Cambridge, UK: Grotius, 1987.
  318. Save Citation »Export Citation »E-mail Citation »
  319. Demonstrates that the UN and its member states not only refused to recognize, but also never treated as “States” entities such as the Bantustans or South Rhodesia, which, nonetheless, satisfied the traditional requirements for statehood. This refusal stemmed from their creation as the result of a violation of peremptory norms of international law.
  320. Find this resource:
  321. Heraclides, Alexis. The Self-Determination of Minorities in International Politics. London: Frank Cass, 1991.
  322. Save Citation »Export Citation »E-mail Citation »
  323. Although this is not an international law book, it is very useful as it offers an in-depth analysis of the problem of external involvement in separatist conflicts using seven case studies (Katanga, Biafra, Southern Sudan, Iraqi Kurdistan, Bangladesh, Moro Region, and Eritrea).
  324. Find this resource:
  325. Nolte, Georg. “Secession and External Intervention.” In Secession: International Law Perspectives. Edited by Marcelo G. Kohen, 65–93. Cambridge, UK: Cambridge University Press, 2006.
  326. DOI: 10.1017/CBO9780511494215Save Citation »Export Citation »E-mail Citation »
  327. Concludes that third states are bound by the principles of nonuse of force, nonintervention, and self-determination when they contemplate intervening by force in a secession conflict.
  328. Find this resource:
  329. Tancredi, Antonello. “A Normative ‘Due Process’ in the Creation of States through Secession.” In Secession: International Law Perspectives. Edited by Marcelo G. Kohen, 171–207. Cambridge, UK: Cambridge University Press, 2006.
  330. DOI: 10.1017/CBO9780511494215Save Citation »Export Citation »E-mail Citation »
  331. While acknowledging that the international community requires respect for some norms during the process of state creation, Tancredi adheres to the “realist” approach that a state is a real, not a legal person. The violation of jus cogens does not automatically transform the “illegitimately born” entity into a legally nonexistent nonstate but creates a “situation of social isolation,” which gives rise to a factual limitation of its legal sphere.
  332. Find this resource:
  333. Verhoeven, Joe. “La reconnaissance internationale: Déclin ou renouveau?’’ Annuaire Français de Droit International 39 (1993): 7–40.
  334. DOI: 10.3406/afdi.1993.3118Save Citation »Export Citation »E-mail Citation »
  335. Revisiting the ideas presented in his 1975 book, Verhoeven denies the existence of legal conditions for achieving statehood. The creation of states is based merely on effectiveness, whatever the circumstances of law or fact that permitted the conditions for statehood to be met.
  336. Find this resource:
  337. Recognition
  338.  
  339. The exact interaction between recognition and effectiveness is a major question examined by legal scholarship. The question can be broken down into three more particular problems in relation to recognition as a state of a separatist entity created after a unilateral secession opposed by the parent state: (1) the problem of the old doctrinal debate between the constitutive and the declaratory theories; (2) the problem of premature recognition; and (3) the problem of the obligation not to recognize an entity created after a violation of peremptory norms.
  340.  
  341. Declaratory and Constitutive Theories
  342.  
  343. It is impossible to summarize here all the important legal literature concerning the debate between the constitutive and the declaratory schools of recognition. The constitutive theory argues that recognition is status-creating because a state can become a state only by virtue of recognition. Lauterpacht 1947 goes so far as to suggest that, instead of using recognition as a matter of arbitrary policy, states should have a duty to recognize an effective entity. The declaratory theory considers, to the contrary, that recognition is merely status-confirming because a state exists automatically when it meets effectively the criteria for statehood (Chen 1951). Many authors, such as Grant 1999, have argued that the debate is now “passé,” suggesting new ways to approach the question. Others, such as Fabry 2010, find unavoidable the link between recognition and effectiveness, thus confirming the declaratory approach, which is broadly accepted today by legal scholars. This widespread acceptance is compatible with the idea that recognition, while not “constitutive,” has, nonetheless, very important legal and political effects. Salmon 1971 demonstrates how devastating the absence of recognition has been for some separatist entities. Dugard 1987 focuses on the phenomenon of the “multilateralization” of the process of recognition or non-recognition using the institutional framework of the UN. Dugard and Raič 2006, while espousing the “declaratory” theory, insists on recognizing the major role recognition has played in the validation of claims to statehood for more than 200 years.
  344.  
  345. Chen, Ti-chiang. The International Law of Recognition. London: Stevens & Sons, 1951.
  346. Save Citation »Export Citation »E-mail Citation »
  347. A classic book adopting the declaratory point of view. Chen focuses on the criteria of statehood as the only condition for the emergence of a new state. Recognition is just a political act acknowledging the existence of the new state.
  348. Find this resource:
  349. Dugard, John. Recognition and the United Nations. Cambridge, UK: Grotius, 1987.
  350. Save Citation »Export Citation »E-mail Citation »
  351. The book emphasizes the importance of collective recognition (or non-recognition) and reviews in detail the practice of collective decision making within the United Nations, by way of admission of members or resolutions calling for non-recognition.
  352. Find this resource:
  353. Dugard, John, and David Raič. “The Role of Recognition in the Law and Practice of Secession.” In Secession: International Law Perspectives. Edited by Marcelo G. Kohen, 94–137. New York: Cambridge University Press, 2006.
  354. DOI: 10.1017/CBO9780511494215Save Citation »Export Citation »E-mail Citation »
  355. An overview of various questions concerning secession, recognition, and non-recognition with an examination of some case studies from the post-1960 period.
  356. Find this resource:
  357. Fabry, Mikulas. Recognizing States: International Society and the Establishment of New States since 1776. New York: Oxford University Press, 2010.
  358. Save Citation »Export Citation »E-mail Citation »
  359. After a comprehensive historical account of state recognition, Fabry examines the interplay between recognition and self-determination. He concludes in expressing doubt that contemporary international society can find a sustainable basis for recognizing new states other than the original standard of de facto statehood.
  360. Find this resource:
  361. Grant, Thomas D. The Recognition of States: Law and Practice in Debate and Evolution. Westport, CT: Praeger, 1999.
  362. Save Citation »Export Citation »E-mail Citation »
  363. Considers that the “old doctrinal debate” over recognition has faded. The judicial sources often cited to support the declaratory view do not on scrutiny do so as decisively as commonly assumed. He argues that process is the chief issue concerning recognition today.
  364. Find this resource:
  365. Lauterpacht, Hersch. Recognition in International Law. Cambridge, UK: Cambridge University Press, 1947.
  366. Save Citation »Export Citation »E-mail Citation »
  367. The idea that there should be a “duty” to grant recognition if a secessionist entity fulfills the criteria of statehood has never seduced the academic community. But the book is a classic concerning all matters of recognition.
  368. Find this resource:
  369. Salmon, Jean. La reconnaissance d’état: Quatre cas—Mandchoukouo, Katanga, Biafra, Rhodesie du Sud. Paris: A. Colin, 1971.
  370. Save Citation »Export Citation »E-mail Citation »
  371. Offers a general overview of all the problems concerning the recognition of secessionist entities and discusses in detail the case studies of Manchukuo, Katanga, Biafra, and Southern Rhodesia.
  372. Find this resource:
  373. Premature Recognition
  374.  
  375. Kelsen 1941 is probably among the first to introduce the idea that “premature recognition”—the grant of recognition to an entity that does not fulfill the criteria for statehood—is a violation of international law. In other works by well-known scholars (Lauterpacht 1947, Chen 1951) this view is defended in considering that premature recognition must be assimilated to illegal interference in the internal affairs of the parent sovereign state. Nonetheless, not every commentator accepts this position. Daillier, et al. 2009 rejects the idea of “illegality” of premature recognition. Shaw 2000 not only denies the illegal character of premature recognition, but goes so far as to consider that such recognition could “heal” the lack of effectiveness. On the contrary, Corten 2008 confirms the prohibition of premature recognition in positive international law and applies this theory in three recent case studies.
  376.  
  377. Chen Ti-chiang. The International Law of Recognition. London: Stevens & Sons, 1951.
  378. Save Citation »Export Citation »E-mail Citation »
  379. Defends the position that recognition cannot be divorced from fact. Recognition must not be granted where the material conditions of statehood are absent. Premature recognition is void and constitutes an act of intervention and international delinquency. This view is common to both the constitutive and the declaratory schools.
  380. Find this resource:
  381. Corten, Olivier. “Déclarations unilatérales d’indépendance et reconnaissances prématurées: Du Kosovo, à l’Ossétie du sud et à l’Abkhazie.”Revue Générale de Droit International Public 112 (2008): 721–759.
  382. Save Citation »Export Citation »E-mail Citation »
  383. One of the few recent studies focusing directly on the problem of premature recognition. Corten considers that recognition granted without effectiveness is an illegal interference in the domestic affairs of the parent state. He concludes that the recognitions of Kosovo by several states in 2008 and of South Ossetia and Abkhazia by Russia were premature.
  384. Find this resource:
  385. Daillier, Patrick, Mathias Forteau, Alain Pellet, and Nguyên Quôc Dinh. Droit international public. 8th ed. Paris: Librairie Générale de Droit et de Jurisprudence, 2009.
  386. Save Citation »Export Citation »E-mail Citation »
  387. According to these authors, if premature recognition might be “regrettable,” it is, nonetheless, perfectly legal and creates legal consequences.
  388. Find this resource:
  389. Kelsen, Hans. “Recognition in International Law: Theoretical Observations.” American Journal of International Law 35 (1941): 605–617.
  390. DOI: 10.2307/2192561Save Citation »Export Citation »E-mail Citation »
  391. The legal act of recognition is the establishment of the fact that a given community has satisfied the conditions of statehood; it is not the expression of a will. It is cognition rather than re-cognition. Recognition of a community as a state, even though it does not fulfill the conditions laid down by international law, is a violation thereof.
  392. Find this resource:
  393. Lauterpacht, Hersch. Recognition in International Law. Cambridge, UK: Cambridge University Press, 1947.
  394. Save Citation »Export Citation »E-mail Citation »
  395. Premature recognition is more than an unfriendly act; it is an act of intervention and an international delinquency. The parent state must, in fact, have ceased to make efforts, promising success, to reassert its authority. Recognition is unlawful if granted durante bello, when the outcome of the struggle is altogether uncertain. Such recognition constitutes a denial of the sovereignty of the parent state.
  396. Find this resource:
  397. Shaw, Malcolm. “Expert Opinions accompanying the Amicus Curiae’s Factum, Supreme Court of Canada: Reference Re Secession of Quebec, 1997, reproduced.” In Self-Determination in International Law: Quebec and Lessons Learned. Edited by Anne Bayefski, 125–150. The Hague: Kluwer Law International, 2000.
  398. Save Citation »Export Citation »E-mail Citation »
  399. Defends the position that the less effective the overall control exercised by the government of the new state, the more important will be recognition by third states in the process of establishing definitive statehood. Such recognition would eliminate any weaknesses with regard to full and effective control over all of its territory.
  400. Find this resource:
  401. Obligation Not to Recognize
  402.  
  403. The discretionary character of recognition of a secessionist entity as a new state disappears completely in case of violation of a peremptory norm of international law (see Violation of Peremptory Norms and Consequences). Notwithstanding the old state practice concerning non-recognition (already exposed in Lauterpacht 1941), some authors, such as Verhoeven 1975, express doubts concerning both its existence and its utility. These criticisms seem today to be unfounded and there is no doubt that the obligation of non-recognition forms part and parcel of general international law, says Turns 2003 and Christakis 2006. Dawidowicz 2010 shares this conclusion, focusing on an analysis of the codification in Article 41 of the International Law Commission’s Articles on the Responsibility of States of the principle that “No State shall recognize as lawful a situation created by a serious breach by a State of an obligation arising under a peremptory norm of general international law.” Even if the obligation exists, it must be demonstrated that it is not an empty shell. Unfortunately, to date the question of the precise content of the obligation of non-recognition has met with little attention in legal literature. Most authors do not address the question at all. The International Law Commission itself has avoided the issue. Nonetheless, Talmon 2006 and Christakis 2006 try to clarify the content and to evaluate the effectiveness of the obligation. While both authors conclude that the obligation can prove to be a powerful tool to reinforce the principle ex injuria jus non oritur, they also highlight the multiple difficulties that may arise in complying with this obligation as borne out also by the hesitations and the inconsistencies of national and international courts on this issue.
  404.  
  405. Christakis, Theodore. “L’obligation de non-reconnaissance des situations créées par le recours illicite la force ou d’autres actes enfreignant des règles fondamentales.” In The Fundamental Rules of the International Legal Order: Jus Cogens and Obligations Erga Omnes. Edited by Christian Tomuschat and Jean-Marc Thouvenin, 127–166. The Hague: Martinus Nijhoff, 2006.
  406. DOI: 10.1163/ej.9789004149816.i-472Save Citation »Export Citation »E-mail Citation »
  407. The principle is not symbolic but implies many specific obligations of states. Nevertheless, international law accepts some adjustment in order to protect the populations against excessive rigidity. This opens the door for difficult value judgments between acts jure gestionis and acts jure imperii. Available online.
  408. Find this resource:
  409. Dawidowicz, Martin. “The Obligation of Non-recognition of an Unlawful Situation.” In The Law of International Responsibility. Edited by James Crawford, Alain Pellet, and Simon Olleson, 677–686. Oxford: Oxford University Press, 2010.
  410. Save Citation »Export Citation »E-mail Citation »
  411. Concludes that the obligation of non-recognition as codified in Article 41 of the ILC’s Articles on State Responsibility is customary law and applies to any unlawful situation resulting from a breach of peremptory norms.
  412. Find this resource:
  413. Lauterpacht, Hersch. “The Principle of Non-recognition in International Law.” Legal Problems in the Far Eastern Conflict (1941): 129–156.
  414. Save Citation »Export Citation »E-mail Citation »
  415. Presents the emergence of the principle of non-recognition in international law and explains the application of this principle in relation to the invasion of China by Japan in 1931 and 1937.
  416. Find this resource:
  417. Talmon, Stefan. “The Duty ‘Not to Recognise as Lawful’ a Situation Created by the Illegal Use of Force or Other Serious Breaches of a Jus Cogens Obligation: An Obligation without Real Substance?” In The Fundamental Rules of the International Legal Order: Jus Cogens and Obligations Erga Omnes. Edited by Christian Tomuschat and Jean-Marc Thouvenin, 99–125. The Hague: Martinus Nijhoff, 2006.
  418. DOI: 10.1163/ej.9789004149816.i-472Save Citation »Export Citation »E-mail Citation »
  419. The obligation operates in the case of a factual situation that also takes the form of a legal claim (e.g., to statehood) intended to have erga omnes effects and may prove a powerful sanction by the international community. But its scope of application seems to be rather limited.
  420. Find this resource:
  421. Turns, David. “The Stimson Doctrine of Non Recognition: Its Historical Genesis and Influence on Contemporary International Law.” Chinese Journal of International Law 2 (2003): 105–143.
  422. DOI: 10.1093/oxfordjournals.cjilaw.a000464Save Citation »Export Citation »E-mail Citation »
  423. Provides a reminder of the historical circumstances involving the genesis of the Stimson Doctrine, then focuses on contemporary practice. Using examples of the use of non-recognition in cases such as Rhodesia, the Bantustans, and the Turkish Republic of Northern Cyprus, Turns concludes that the obligation of non-recognition is today part of customary law. Available online by subscription.
  424. Find this resource:
  425. Verhoeven, Joe. La reconnaissance internationale dans la pratique contemporaine: Les relations publiques internationales. Paris: Pedone, 1975.
  426. Save Citation »Export Citation »E-mail Citation »
  427. A very critical approach. Following the thesis that recognition has mainly political effects, Verhoeven attacks non-recognition as a “fanciful” principle having gone “bankrupt” and as a “hollow rhetorical formula,” the only objective of which has been to give states a “wrong pernicious good conscience.”
  428. Find this resource:
  429. De Facto Unrecognized Entities
  430.  
  431. The refusal to recognize an entity that seems to meet the criteria for statehood can be either the result of a legal obligation, in cases in which an entity achieved effectiveness after violation of a peremptory norm (e.g., external aggression), the result of the reluctance of third states having doubts about the effectiveness of the separatist territory and unwilling to interfere in the domestic affairs of the parent state, or, finally and more simply, the result of an exercise of discretion for political matters. Whatever the reason, the problem for international law and international relations entails how to deal with an entity that exercises effective control over a specific territory but is recognized by no state (or has obtained only very limited recognition). The problem is important because, as Pegg 1998 notes, at any given time, probably anywhere from five to fifteen de facto states are in existence around the world. Unfortunately, the existing literature on this subject is limited. But the few studies published on what legal scholarship sometimes calls “de facto states” are very helpful. Pegg 1998 explains both the impact of the de facto State on the international legal order and how international society deals with the de facto state. Bahcheli, et al. 2004 criticizes the international community for its reluctance to deal with de facto entities. The authors explain that some de facto states appear able to manage without international approval, while others suffer considerable hardship as a result of sanctions and of barriers to trade and travel that are put in their place. Schoiswohl 2004 highlights the various legal uncertainties surrounding nonrecognized de facto regimes using Somaliland as a case study. Verhoeven 1985 tries to identify the effects of non-recognition in the decisions of domestic courts. Finally, Fröwein 2009 considers that, although de facto regimes do not have “normal contact” with states, they are not completely denied status and are treated as special subjects of international law (See also Obligation Not to Recognize).
  432.  
  433. Bahcheli, Tozun, Barry Bartmann, and Henry Srebrnik, eds. De Facto States: The Quest for Sovereignty. London: Routledge, 2004.
  434. Save Citation »Export Citation »E-mail Citation »
  435. A very “friendly” approach to de facto regimes. Criticizes the international community and the UN because they continue to recognize the authority of the state from which the secession occurred, even though its writ no longer runs in the breakaway region, and though its legitimacy is rejected by the region’s population.
  436. Find this resource:
  437. Fröwein, Jochen A. “De Facto Regime”. In Max Planck Encyclopedia of Public International Law. Edited by Rüdiger Wolfrum. Amsterdam: North-Holland, 2003.
  438. Save Citation »Export Citation »E-mail Citation »
  439. State practice shows that entities that in fact govern a specific territory for a prolonged period will be treated as partial subjects of international law. They will be held responsible, agreements of different nature may be concluded with them, and some sort of intercourse is certain to take place with states.Available online by subscription.
  440. Find this resource:
  441. Pegg, Scott. International Society and the De Facto State. Aldershot, UK: Ashgate, 1998.
  442. Save Citation »Export Citation »E-mail Citation »
  443. Examines the impact that de facto states have on international society and international law and assesses how they are dealt with by those two bodies through a focus on four case studies: Eritrea (before independence ), Somaliland, Tamil Eelam, and the “Turkish Republic of Northern Cyprus.”
  444. Find this resource:
  445. Schoiswohl, Michael. Status and (Human Rights) Obligations of Non-recognized De Facto Regimes in International Law: The Case of “Somaliland”: The Resurrection of Somaliland against All International “Odds”: State Collapse, Secession, Non-recognition and Human Rights. Leiden, The Netherlands: Martinus Nijhoff, 2004.
  446. Save Citation »Export Citation »E-mail Citation »
  447. Attempts to identify legal rules that bind de facto regimes such as Somaliland. Proposing a “functional approach” to de facto regimes, the author argues that such entities are subject to obligations under international (human rights) law to the extent that they assume governmental tasks.
  448. Find this resource:
  449. Verhoeven, Joe. “Relations internationales de droit privé en l’absence de reconnaissance d’un état, d’un gouvernement ou d’une situation.” RCADI 192 (1985): 9–232.
  450. Save Citation »Export Citation »E-mail Citation »
  451. Examines the impact of non-recognition on relations of a private character and on domestic law. This study complements the author’s seminal monograph (1975) on recognition.
  452. Find this resource:
  453. Uti Possidetis Outside the Colonial Context
  454.  
  455. The applicability of uti possidetis (a principle according to which new states emerging from decolonization shall inherit the colonial administrative borders that they held at the time of independence), outside the colonial context has created major controversies in international legal scholarship. The point of departure was Opinion No. 3 of 11 January 1992 of the European Community Arbitration Commission on Yugoslavia, which advised that Yugoslavia’s internal federal borders became international borders following the accession to independence of four of the federation’s republics in the early 1990s (See Judicial and Quasi-Judicial Decisions). This first, historic transposition of the principle of uti possidetis juris in the postcolonial world was heavily criticized by many authors, as summarized in Radan 2000. Ratner 1996 argued that the application of uti possidetis to the breakup of states today both ignores critical distinctions between internal lines and international boundaries and, more important, is profoundly at odds with current trends in international law and politics. Similarly, Bartozzz 1997 considers that the application of uti possidetis to Yugoslavia was doubtful. According to the author, the principle should be used not as a matter of course but only as a guideline in cases in which it may help to resolve a dispute and where the relevant parties consent to its application. But uti possidetis also has many proponents. Shaw 1997 heralds this principle in considering that the conclusion with regard to state practice is “manifest”: uti possidetis applies as a presumption in all cases and the territorial framework of the transition to independence is that of the former unit within accepted administrative borders. Sorel and Mehdi 1994 also seems to accept this conclusion concerning state practice, although the authors put as a condition to the applicability of the principle its capacity to prevent or end conflict. On the contrary, Lalonde 2002 is critical of uti possidetis. The author sounds a cautionary note, affirming that the idea that uti possidetis provides a one-size-fits-all, legally incontestable solution to all territorial disputes is an illusion. This major division in the legal literature is well reflected in the most complete collection of essays on the matter in Corten, et al. 1999, in which the major problem of the relationship between uti possidetis and the principle of effectiveness is also discussed.
  456.  
  457. Bartozzz, Tomas. “Uti Possidetis: Quo Vadis?” Australian Year Book of International Law 18 (1997): 37–96.
  458. Save Citation »Export Citation »E-mail Citation »
  459. The version of uti possidetis fabricated as a response to the Yugoslavian crisis is legally defective and should be rejected. Uti possidetis, both in the traditional (Latin-American) and newer (African) formulations, must be applied with caution in boundary disputes.
  460. Find this resource:
  461. Corten, Olivier, B. Delcourt, P. Klein, and N. Levrat, eds. Démembrements d’états et délimitations territoriales: L’uti possidetis en question(s). Brussels: Bruylant, 1999.
  462. Save Citation »Export Citation »E-mail Citation »
  463. One of the best books on the topic of uti possidetis outside the colonial context. Offers a very pluralistic view of the subject with contributions either in favor of, or against, the applicability of uti possidetis in the postcolonial creation of States.
  464. Find this resource:
  465. Lalonde, Suzanne. Determining Boundaries in a Conflicted World: The Role of Uti Possidetis. Montreal: McGill-Queen’s University Press, 2002.
  466. Save Citation »Export Citation »E-mail Citation »
  467. The uti possidetis applied in Yugoslavia was an entirely new version that can derive no legitimacy from colonial precedents. Nothing justifies conferring binding status on the principle. While it may have considerable utility in some cases, it is only one principle among many that must be considered if future disputes are to be resolved so as to promote long-term peace and stability.
  468. Find this resource:
  469. Radan, Peter. “Post-Secession International Borders: A Critical Analysis of the Opinions of the Badinter Arbitration Commission.” Melbourne University Law Review 24.1 (2000): 50–76.
  470. Save Citation »Export Citation »E-mail Citation »
  471. None of the bases used by the Badinter Commission in order to transpose uti possidetis to noncolonial situations is justified upon close analysis of the relevant legal principles. A new and more flexible approach to post-secession international borders is needed.
  472. Find this resource:
  473. Ratner, Steven. “Drawing a Better Line: Uti Possidetis and the Borders of New States.” American Journal of International Law 90.4 (1996): 590–624.
  474. DOI: 10.2307/2203988Save Citation »Export Citation »E-mail Citation »
  475. A policy or rule that transforms all administrative borders into international boundaries creates a significant hazard in the name of simplicity: the temptation of ethnic separatists to divide the world further along administrative lines. The extension of uti possidetis to modern breakups leads to genuine injustices and instability.
  476. Find this resource:
  477. Shaw, Malcolm. “Peoples, Territorialism and Boundaries.” European Journal of International Law 8 (1997): 478–507.
  478. Save Citation »Export Citation »E-mail Citation »
  479. There is nothing lying in the way of an acceptance in international law of uti possidetis as applying to all situations of transition to independence. Both the history of decolonization and subsequent practice are fully in conformity with the principle, while contradictory claims have met with international opposition.
  480. Find this resource:
  481. Sorel, Jean-Marc, and Rostane Mehdi. “L’uti possidetis entre la consécration juridique et la pratique: Essai de réactualisation.” Annuaire Français de Droit International 40 (1994): 11–40.
  482. DOI: 10.3406/afdi.1994.3181Save Citation »Export Citation »E-mail Citation »
  483. The authors consider that the major criterion for the acceptance or not of the applicability of uti possidetis outside the colonial context is its capacity to bring stability and to avoid conflict. They express some doubts concerning the adaptability of the principle in all situations.
  484. Find this resource:
  485. Remedial Secession
  486.  
  487. If the overwhelming majority of legal scholars (see External Self-Determination and Secession) and authorities (see Judicial and Quasi-Judicial Decisions) accept that there is no “general” right to secession outside the colonial context, a major point of friction concerns the eventual existence of a “qualified” right to secession in cases of breach of internal self-determination and gross violation of human rights. The point of departure is the saving clause of UN General Resolution 2625 (UN General Assembly 1970), which was read as subordinating respect for territorial integrity to compliance by the state, “with the principle of equal rights and self-determination of peoples” and to the possession “of a government representing the whole people belonging to the territory without distinction.” In the academic arena, Lee Buchheit was one of the earliest proponents of such a “remedial right of secession,” arguing, on the basis of Resolution 2625, that a denial of political freedom and/or human rights may legitimate a separatist claim (Buchheit 1978). Since then, this idea has been defended by many scholars in works such as Tomuschat 2006, which emphasizes the need to offer a last resort to oppressed populations. In a similar but also more prudent way some scholars analyze state practice and conclude, in works such as Griffioen 2009, on the basis mostly of opinio juris, that remedial secession has emerged as a right in positive international law. On the other side of the spectrum, Corten 1999 and Tancredi 2008 doubt both the existence of a right of remedial secession de lege lata and its utility de lege ferenda, highlighting the risk of instrumental abuse of the theory. The recent Proceedings of the ICJ in the Kosovo Advisory Opinion, which constitutes a “must-read” for researchers, for the first time made it possible for many States to give a legal opinion on this subject and demonstrated the strong divisions within the international community on the subject of remedial secession.
  488.  
  489. Buchheit, Lee. Secession: The Legitimacy of Self-Determination. New Haven, CT: Yale University Press, 1978.
  490. Save Citation »Export Citation »E-mail Citation »
  491. Considers that remedial secession seems to occupy a status as the lex lata. International law recognizes a continuum of remedies corresponding to the various degrees of oppression inflicted upon a particular group by its governing state. These remedies range from protection of individual rights to minority rights, and they end with secession as the ultimate remedy.
  492. Find this resource:
  493. Corten, Olivier. “À propos d’un désormais ‘classique’: Le droit àl’autodétermination en dehors des situations de décolonisation, de Théodore Christakis.” Revue Belge de Droit International 36 (1999): 340–347.
  494. Save Citation »Export Citation »E-mail Citation »
  495. A very critical approach to the theory of remedial secession. Corten strongly opposes the existence of such a qualified right to secession in positive international law and denies its interest in underlying that the theory could easily be abused by powerful states.
  496. Find this resource:
  497. Griffioen, Christine. “Self-Determination as a Human Right: The Emergency Exit of Remedial Secession.” PhD diss., Utrecht University, 2009.
  498. Save Citation »Export Citation »E-mail Citation »
  499. The main conclusion is that, even though there is no “extensive and virtually uniform” state practice to support a right of remedial secession, there is substantial opinio iuris on remedial secession in the international community, and the concept of modern custom indicates that such a “substantial manifestation” of opinio juris may compensate for the relative lack of practice.
  500. Find this resource:
  501. Proceedings of the ICJ in the Kosovo Advisory Opinion 2010: Written and Oral Statements.
  502. Save Citation »Export Citation »E-mail Citation »
  503. The best expression of the opinion juris of states on remedial expression so far. Some states seemed to support the theory (Albania, Estonia, Finland, Germany, Ireland, Jordan, Lithuania, Maldives the Netherlands, Poland, Russia, Slovenia, Switzerland, and the authors of the Declaration Kosovo), while others seemed to oppose it (Argentina, Azerbaijan, Belarus, Bolivia, Brazil, Burundi, China, Cyprus, Iran, Romania, Slovakia, Serbia, Spain, Venezuela, and Vietnam).
  504. Find this resource:
  505. Tancredi, Antonello. “Neither Authorized nor Prohibited? Secession and International Law after Kosovo, South Ossetia and Abkhazia.” Italian Yearbook of International Law 18 (2008): 37–62.
  506. Save Citation »Export Citation »E-mail Citation »
  507. The remedial secession theory is not the object of a “general practice accepted as law,” neither de lege lata nor de lege ferenda. The cases of Kosovo, South Ossetia, and Abkhazia have not given rise to a general practice accepting the existence of such a right.
  508. Find this resource:
  509. Tomuschat, Christian. “Secession and Self-Determination.” In Secession: International Law Perspectives. Edited by Marcelo G. Kohen, 23–45. Cambridge, UK: Cambridge University Press, 2006.
  510. DOI: 10.1017/CBO9780511494215Save Citation »Export Citation »E-mail Citation »
  511. Supports the remedial secession theory based essentially on deductive reasoning: the individual is no longer regarded as a simple object, thus international law must allow the members of a community suffering structural discrimination—amounting to grave prejudice affecting their lives—to strive for secession as a measure of last resort after all other methods employed to bring about change have failed.
  512. Find this resource:
  513. UN General Assembly. Resolution 2625 (XXV) of 24 October 1970 (“Friendly Relations Declaration”).
  514. Save Citation »Export Citation »E-mail Citation »
  515. The point of departure of the theory of remedial secession is based on a contrario interpretation of the “saving clause” contained in the part of the resolution devoted to self-determination. This saving clause has been repeated in many subsequent resolutions and quoted in legal opinions (see Judicial and Quasi-Judicial Decisions).
  516. Find this resource:
  517. Alternatives to Secession
  518.  
  519. Scholars, practitioners, politicians, and diplomats have often searched for alternative solutions to secession. While government legitimacy, effective participation of all the various segments of the society in the decision-making process, and respect for human rights and for the rule of law have often been considered as necessary, the international community has also often turned to solutions involving autonomy and complex power-sharing in order to find solutions to ethno-political conflicts. Dinstein 1981 stems from a very specific historical event—the Camp David Accords for peace in the Middle East—but several of the contributions and case studies remain interesting today. Hannum 1996 and Lapidoth 1997 remain among the most useful books on the subject and demonstrate that, while granting autonomy to groups has succeeded in resolving or, at least, taming some conflicts, it has failed to resolve others. Weller and Metzger 2008 investigates whether long-standing secessionist conflicts have been addressed effectively through the significant number of self-determination settlements that were generated in response to the wave of internal conflicts of the 1990s. In none of these works is there the suggestion that a general right to autonomy exists in positive international law. Indeed, a draft convention on self-determination through self-administration, discussed in Danspeckgruber and Watts 1997, was met with a glacial approach in the UN General Assembly in 1993. The only current universal text (having a soft law and thus a nonbinding character) recognizing a right to autonomy or self-government is the UN Declaration on the Rights of Indigenous People, discussed in Wiessner 2008.
  520.  
  521. Danspeckgruber, Wolfgang, and Arthur Watts, eds. Self-Determination and Self-Administration: A Sourcebook. Boulder, CO: Lynne Rienner, 1997.
  522. Save Citation »Export Citation »E-mail Citation »
  523. Scholars and practitioners discuss legal, political, economic, sociological, and strategic aspects of self-determination and internal self-rule. Of particular interest is the commentary of the Liechtenstein draft convention on self-determination through self-administration.
  524. Find this resource:
  525. Dinstein, Yoram, ed. Models of Autonomy. Piscataway, NJ: Transaction Books, 1981.
  526. Save Citation »Export Citation »E-mail Citation »
  527. Using as a pretext the Camp David autonomy process agreed to in 1978, the contributors discuss the theory and practice of autonomy and different legal aspects of such power-sharing; includes several case studies.
  528. Find this resource:
  529. Hannum, Hurst. Autonomy, Sovereignty, and Self-Determination: The Accommodation of Conflicting Rights. Rev. ed. Philadelphia: University of Pennsylvania Press, 1996.
  530. Save Citation »Export Citation »E-mail Citation »
  531. Through an analysis of international legal norms and a very useful examination of several specific case studies and autonomous arrangements (including India and the Punjab, the Kurds, Northern Ireland, Spain and the Basque country and Catalonia), the author searches for means of accommodating ethno-political conflicts using mechanisms of “internal self-determination.”
  532. Find this resource:
  533. Lapidoth, Ruth. Autonomy: Flexible Solutions to Ethnic Conflicts. Washington, DC: United States Institute of Peace, 1997.
  534. Save Citation »Export Citation »E-mail Citation »
  535. The book focuses on regimes of autonomy and self-rule as a potential solution to ethnic conflict. Discusses both territorial autonomy (applying to a distinct area inhabited by an ethnic group) and personal autonomy (applying to all group members within a state, regardless of their place of residence).
  536. Find this resource:
  537. Weller, M., and B. Metzger, eds. Settling Self-Determination Disputes: Complex Power-Sharing in Theory and Practice. Leiden, The Netherlands: Martinus Nijhoff, 2008.
  538. DOI: 10.1163/ej.9789004164826.i-794Save Citation »Export Citation »E-mail Citation »
  539. Investigates a mix of cases concerning complex power-sharing settlements that concurrently deploy autonomy, governmental and executive power-sharing, veto and voting mechanisms, human and minority rights regimes, dispute settlement mechanisms, and a layer of international involvement or even international governance.
  540. Find this resource:
  541. Wiessner, Siegfried. “Indigenous Sovereignty: A Reassessment in Light of the UN Declaration on the Rights of Indigenous People.” Vanderbilt Journal of Transnational Law 41.4 (2008): 1141–1176.
  542. Save Citation »Export Citation »E-mail Citation »
  543. Discusses the fact that the UN declaration reduced the exercise of the right of self-determination in Article 3 to a right to “autonomy or self-government in matters relating to their internal and local affairs.” Concludes that the range of self-government guaranteed by the declaration remains unclear.
  544. Find this resource:
Advertisement
Add Comment
Please, Sign In to add comment
Advertisement
Public Pastes
Advertisement
We use cookies for various purposes including analytics. By continuing to use Pastebin, you agree to our use of cookies as described in the Cookies Policy.  OK, I Understand
Not a member of Pastebin yet?
Sign Up, it unlocks many cool features!