Self-determination as a human right : the emergency exit of remedial secession 9789052131962, 9052131961

Citation preview

Self-Determination as a Human Right The Emergency Exit of Remedial Secession

Christine Griffioen

Science Shop of Law, Economics and Governance, Utrecht University Supervised by the Institute of International, Social and Economic Public Law

August 2010

CIP GEGEVENS KONINKLIJKE BIBLIOTHEEK, DEN HAAG Griffioen, C. Self-determination / C. Griffioen Utrecht: Science Shop of Law, Economics and Governance, Utrecht University. Supervised by the Institute of International, Social and Economic Public Law ISBN: 978-90-5213-196-2 Headwords:Self-determination, secession Science Shop of Law, Economics and Governance Janskerkhof 3 3512 BK UTRECHT, The Netherlands Tel. +31(0)30-2537025 Website: www.uu.nl/kennispunten/rebo This publication may be completely or partially quoted provided the author and the Science Shop of Law, Economics and Governance are mentioned and no changes will be made in the quotes.

‘Self-determination has never simply meant independence. It has meant the free choice of people.’ ROSALYN HIGGINS

Acknowledgements ‘Joyful is the person who finds wisdom, the one who gains understanding.’ PROVERBS 3:13 I spent the first eight years of my life in an unusual place. I grew up in the jungle of Irian Jaya, a province of Indonesia which today is called Papua. In 1949, the Dutch East Indies were handed over to Indonesia, with the exception of the then Netherlands New Guinea. The refusal of the Netherlands to hand over Papua to Indonesia led to growing tensions between the two countries. In October 1962 the Netherlands agreed to hand New Guinea over to a temporary United Nations administration.1 In August 1962 the Netherlands and Indonesia agreed that the United Nations would subsequently transfer the administration of New Guinea to Indonesia.2 UNTEA administered New Guinea from October 1962 to May 1963, when Indonesia assumed total control and responsibility. Under Article XVIII of the New York Agreement Indonesia undertook to ascertain the wishes of the people of West Papua through a consultation process and to hold a referendum on Papua’s political status. The Papua’s were to exercise their right of self-determination before the end of 1969 and would be given the choice whether they would prefer to be independent or formally become a part of Indonesia. In spite of this ‘Act of Free Choice’, the integration of West Irian into Indonesia amounted to de facto annexation and a denial of the right to selfdetermination. First, the method of consultation was that of the musjawarah system, which undoubtedly was not in accordance with international practice. No real and direct consultation of the population was made; the consultation was indirect in that Regional Councils were called upon to decide which of the options to accept. Second, UN staff were unable to properly supervise the elections for the consultative assemblies. Finally, the Indonesian authorities put strong pressure on the population of West Irian in order to secure support for integration into Indonesia.3 The Indonesian ‘Act of Free 1

The United Nations Temporary Executive Authority (UNTEA). Agreement Between the Republic of Indonesia and the Kingdom of the Netherlands Concerning West New Guinea (West Irian), Signed at the Headquarters of the United Nations, New York, on 15 August 1962 (“The New York Agreement”). 3 The government even prohibited the most fundamental rights, the right to freedom of expression, movement and assembly. Presidential Decree No. 8/1963 said: ‘In the region of West Irian, it shall for the time being, be prohibited to undertake political activity in the form of rallies, meetings, demonstrations or the printing, publication, announcement, issuance, dissemination, trading or public display of articles, pictures or photographs without permission of the Governor or an official appointed by him.’ Quoted in W. Mandowen, ‘West-Papua and the Right to Self-determination. A Challenge to Human Rights’, in: Th. Rathgeber (ed.), Economic, Social and Cultural Rights in West-Papua, Germany: Foedus-Verlag 2005, p. 29. The Anti2

i

Choice’ was rather an ‘Act of No Choice’ and the denial of the right to self-determination ended as a human tragedy for the Papuan People.4 Despite the fact that Indonesia has introduced special autonomy laws in Papua it is doubtful whether these laws genuinely allow Papuans to exercise their right of self-determination.5 The Papuans are still repressed and their culture and existence as a people is threatened by Indonesia’s migration policy, allowing many Javanese to settle in Papua. As a result of this policy the Papuans are likely to become a minority in their own territory. Moreover, Papuans suffer from discrimination and have no sovereignty over their natural resources.6 The tragic situation of the Papua’s was the starting point of this thesis. The fact that the Papuans have been denied their right of selfdetermination and are still not able to exercise it made me wonder whether international law might allow them to exercise their right of self-determination externally, i.e. by becoming independent. However, during my research I soon learned that I would limit myself focussing on the Papuans, for the phrase self-determination has inspired many people all over the world for almost a century. My supervisor, Cedric Ryngaert also advised me to take a broader perspective. I would like to take this opportunity to thank him for his time and support in writing this thesis. His critical remarks were challenging and encouraged me to extend my limits and broaden my horizons. Writing this thesis has been a long and sometimes arduous process, but it has resulted in a greater understanding on my part of the issue of self-determination. I would like to thank my parents who have supported me from the day I decided to go back to the university until today. But most of all I would like to thank Robert, my dear husband, for his support, love and encouragement throughout this exigent time. Bangkok, April 21, 2009 Christine Griffioen

Subversion legislation led to several military operations resulting in many casualties and the loss of thousands of lives on the part of the Papuans. 4 W. Mandowen, ‘West-Papua and the Right to Self-determination. A Challenge to Human Rights’, in: Th. Rathgeber (ed.), Economic, Social and Cultural Rights in West-Papua, Germany: Foedus-Verlag 2005, pp. 28-31. In May 2000, a UN official in New York stated that West Papua had been a shameful case in the history of the United Nations. See also the Report of the Robert F. Kennedy Memorial (2004); The Papua Report, March 2004. See also A. Cassese, Self-determination of peoples: a legal reappraisal, Cambridge: Cambridge University Press 1995, pp. 82-86. 5 J. Bertrand, ‘Indonesia’s quasi-federalist approach: Accommodation amid strong integrationist tendencies’, International Journal of Constitutional Law, Vol. 5, 2007, pp. 576605. 6 Papua is extremely rich in natural resources, in particular oil.

ii

Summary The phrase ‘self-determination’ has a strong appeal. In a nutshell, it gives peoples a free choice which allows them to determine their own destiny.7 Traditionally, a distinction has been made between external and internal self-determination. However, for reasons of international peace and security the right of self-determination needs to be balanced with the territorial integrity of States. That is why outside the colonial context, the emphasis must be on the internal aspect of self-determination. This thesis examines self-determination as a human right, focusing on the central question whether international law allows for a right of external self-determination in the form of unilateral secession when the internal right of self-determination is breached. It is argued that there is a right of unilateral secession based on customary international law, despite the fact that State practice is limited. According to the theory of modern custom, ‘a substantive manifestation of’ opinio iuris ‘may compensate for a relative lack of practice’.8 The author argues that there is strong opinio iuris within the international community in support of a right of unilateral secession, albeit that this right is subject to very strict conditions and may only be invoked as a last resort. Peoples are entitled to resort to unilateral secession only when they are persistently excluded from political participation, suffer from gross violations of fundamental human rights and have exhausted every local remedy available to find a peaceful solution to the conflict. In other words, remedial secession may be used as an ‘emergency exit’ only.9

7 Expert opinion prepared in 1992 by T.M. Franck, R. Higgins, A. Pellet, M.N. Shaw and C. Tomuschat, ‘The Territorial Integrity of Québec in the Event of the Attainment of Sovereignty, in: A. Bayefski (ed.), Self-determination in International Law: Quebec and Lessons Learned, The Hague: Kluwer Law International 2000, p. 248, para. 1.17. 8 Statement of Principles Applicable to the Formation of General Customary International Law’ by the Committee on Formation of Customary (General) International Law of the International Law Association, London Conference 2000, available at , p. 40. 9 See P.H. Kooijmans, ‘Zelfbeschikkingsrecht. Naar een Nieuwe Interpretatie?’, in: N. Sybesma-Knol and J. van Bellingen (eds.), Naar een nieuwe interpretatie van het Recht op Zelfbeschikking, Brussel: VUB Press 1995, p. 168.

iii

iv

Table of contents Acknowledgements Summary Table of contents

i iii v

1

Introduction

1

2 2.1 2.2 2.2.1 2.2.2 2.2.3 2.3 2.3.1 2.3.2 2.3.3 2.4 2.4.1 2.4.2 2.5 2.5.1 2.5.2 2.5.3 2.5.4

Self-Determination in the Colonial Context 5 Introduction 5 Self-Determination as a Political Principle 5 The Enlightenment, Nationalism, Lenin and Wilson 5 The First World War and the Paris Peace Conference 6 The League of Nations 7 Conventional Law 10 The United Nations Charter 10 The International Bill of Rights 15 The African Charter on Human and Peoples’ Rights 17 Customary Law 18 The General Assembly 18 The International Court of Justice 23 Analyzing Self-Determination in the Colonial Context 29 The People 29 The Content of Self-Determination 31 The Status of Self-Determination 33 Self-Determination in Relation to Other Principles of International Law 36 Status and Representation of National Liberation Movements under International Law 39 Conclusion 40

2.6 2.7 3 3.1 3.2 3.2.1 3.2.2 3.2.3 3.2.4 3.2.5 3.3 3.3.1

Self-Determination in the Post-Colonial Context 43 Introduction 43 The International Response to Self-Determination Claims Outside the Colonial Context 44 The Reunification of the German State 44 The Breakup of the Soviet Union 45 The ‘Dissolution’ of the Socialist Federal Republic of Yugoslavia 47 Kosovo 48 Conclusion 49 Conventional Law 50 The International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights 50

v

3.3.2 3.3.3 3.4 3.4.1 3.4.2 3.4.3 3.4.4 3.4.5 3.4.6 3.4.7

The African Charter on Human and Peoples Rights Conclusion Customary Law The General Assembly The Helsinki Final Act 1975 The Charter of Paris for a New Europe 1990 The International Court of Justice The Human Rights Committee The Committee on the Elimination of Racial Discrimination The African Commission on Human Rights and Peoples’ Rights 3.4.8 1993 Vienna Conference on Human Rights 3.4.9 Declaration on the Rights of Indigenous Peoples 3.4.10 Statements by States 3.5 Analyzing Self-Determination in the Post-Colonial Context 3.5.1 The People 3.5.2 The Content of Self-Determination 3.5.3 Internal Self-Determination: a Right? 3.5.4 Self-determination in Relation to Other Human Rights and Principles of International Law 3.6 Conclusion 4 4.1 4.2 4.2.1 4.2.2 4.2.3 4.3 4.3.1 4.3.2 4.3.3 4.4 4.4.1 4.5 4.5.1 4.5.2 4.5.3 4.6 4.6.1 4.6.2 4.6.3

vi

54 55 55 55 59 61 64 66 70 70 72 73 78 80 80 83 86 87 90

Self-Determination and Remedial Secession 93 Introduction 93 Theories on Unilateral Secession 94 International Law is Neutral about Secession 95 International Law Recognises an Absolute Right of Secession 95 International Law Acknowledges a ‘Qualified’ Right of Secession 96 Treaties 98 The Charter of the United Nations 98 The International Human Rights Covenants 99 Protocol I Additional to the Geneva Conventions of 151 101 Customary International Law 102 The ‘Safeguard Clause’ 102 Case Law 104 The Åland Islands Dispute 104 The African Commission on Human and Peoples Rights, Katangese Peoples’ Congress v Zaïre (1995) 105 Supreme Court of Canada, Reference re Secession of Quebec (1998) 105 State Practice 107 Recognition 107 Secession Outside the Colonial Context 111 Failed Secessionist Attempts Outside the Colonial Context 115

4.6.4 4.6.5 4.7 4.8

Remedial Secession 123 Kosovo 126 Beneficiaries and Criteria for Remedial Secession De Lege Lata 132 Conclusion 136

5 5.1 5.2

Conclusion Recapitulation and Conclusion Enhancing the Enforcement of Self-Determination

Appendix Appendix Appendix Appendix Appendix

I II III IV V

Select Bibliography

139 139 140 145 148 151 153 155 157

vii

viii

1

Introduction

‘No other concept is as powerful, visceral, emotional, unruly, as steep in creating aspirations and hopes as self-determination.’10 It seems almost as if there is ‘a kind of magic’ in the phrase ‘selfdetermination’.11 The list of nations and peoples claiming selfdetermination is endless and unfortunately the list of conflicts in the world that are related to self-determination claims is equally long. Examples include the rather recent conflict in the Balkans, which resulted in the creation of six new States and a seventh whose status is still uncertain, and the conflicts in Chechnya, Abkhazia, South Ossetia, Nagorno Karabach, Western Sahara, Aceh, West Papua, Bougainville, East Timor, Southern Thailand, Tibet and Israel. Somewhat closer to home are the conflicts in Northern Ireland and the Basque country, not to mention the self-determination claims of many indigenous peoples all over the world. These claims and conflicts are but a few examples to illustrate the powerful appeal of the right to self-determination.12 Self-determination has been referred to as a fundamental principle of international law and with its inclusion in the International Human Rights Covenants it became a human right. It was first included in the Charter of the United Nations as one of the guiding ‘Purposes and Principles’ of the Organisation, and subsequently it has been proclaimed in numerous international instruments.13 In a nutshell, the right to self-determination gives peoples a free choice which allows them to determine their own destiny.14 According to Article 1 (1) of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, selfdetermination is the right of all peoples to ‘freely determine their 10 W. Danspeckgruber, in: M. C. van Walt van Praag & O. Seroo (eds.), ‘The Implementation of the Right to Self-Determination as a Contribution to Conflict Prevention. Report of the International Conference of Experts held in Barcelona from 21 to 27 November 1998, organized by the UNESCO Division of Human Rights Democracy and Peace and the UNESCO Centre of Catalonia’, Centre UNESCO de Catalunya, 1999, available at , p. 10. 11 See the album and title track by Queen, ‘A Kind of Magic’, 1986. 12 See e.g. the list of members of the Unrepresented Nations and Peoples Organization, available at . 13 See e.g. the Declaration of Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, adopted by the United Nations General Assembly in 1970, the Helsinki Final Act adopted by the Conference on Security and Co-operation in Europe (CSCE) in 1975, the African Charter of Human and Peoples' Rights of 1981, the Charter of Paris for a New Europe adopted by the CSCE in 1990, the Vienna Declaration and Programme of Action of 1993 and the Declaration on the Rights of Indigenous Peoples adopted by the United Nations General Assembly in 2007. 14 Expert opinion prepared in 1992 by T.M. Franck, R. Higgins, A. Pellet, M.N. Shaw and C. Tomuschat, ‘The Territorial Integrity of Québec in the Event of the Attainment of Sovereignty, in: A. Bayefski (ed.), Self-determination in International Law: Quebec and Lessons Learned, The Hague: Kluwer Law International 2000, p. 248, para. 1.17.

1

political status and freely pursue their economic, social and cultural development’. This right can be exercised in a variety of ways, and traditionally a distinction has been made between external and internal self-determination. The external aspect of self-determination developed in the colonial context and, as will be seen later, resulted in self-determination becoming almost ‘synonymous’ with decolonisation and independence.15 The internal aspect of self-determination has its roots in the concept of self-determination as advocated by US President Wilson and was reinvented after the end of the Cold War in the early nineties. Internal self-determination refers to the right of a people to ‘participate in the decision-making processes of the State’.16 Despite the powerful appeal of the right of self-determination, there are a few problems associated with it. Apart from being a source of many violent conflicts, the principal shortcoming of self-determination is that there is no generally accepted definition of the rights holders, which has seriously affected the exercise of this right. Some States have tried to limit the group of beneficiaries arguing that only colonial peoples have the right of self-determination. Others have tried to limit the scope of the right, arguing that once a people have achieved independence, the right of self-determination is exhausted. Obviously, the reason that many consider the external aspect of selfdetermination problematic is that it conflicts outright with another important principle of international law, the territorial integrity of States. Therefore, while the international community has recognised self-determination as a general principle of international law, some States have been reluctant to recognise its external dimension beyond decolonisation. However, this thesis will argue that neither of these arguments can be maintained. Recognizing the inherent tension between selfdetermination and the territorial integrity of States, it is submitted that the right of self-determination is a universal right which is applicable outside the colonial context and should be defined as broadly as possible, including both internal and external aspects. Nevertheless, for reasons of international peace and security the right of self-determination needs to be balanced with other principles of international law, in particular the sovereignty and territorial integrity of States. That is why outside the colonial context, the emphasis must be on the internal aspect of self-determination. But what if a State persistently denies a people the fundamental right of internal self-determination? What if a people do not have a free choice but are repressed and suffer from gross violations of basic 15

M. Pomerance, Self-Determination in Law and Practice. The New Doctrine in the United Nations, The Hague: Martinus Nijhoff Publishers 1982, p. 25. 16 D. Raič, Statehood and the Law of Self-Determination, The Hague: Kluwer Law International 2002, p. 237.

2

human rights, and all possible remedies for a peaceful solution to the conflict have been exhausted? Should those people not be allowed a ‘self-help remedy’ in the form of external self-determination?17 This thesis will examine self-determination as a human right, focussing on the principal question of whether international law supports the claim that a breach of the internal right of self-determination leads to the right of external self-determination, e.g. a right of unilateral secession. To be able to answer this question the author will undertake an extensive analysis of relevant international instruments, judicial decisions, State practice and the writings of legal scholars. Given the inextricable link between decolonisation and selfdetermination, the second Chapter will provide some insights into the colonial context in which the right of self-determination developed. As will be seen, the period of decolonisation has had an enormous impact on self-determination and, to clarify this, specific attention will be given to the beneficiaries, the scope and the status of selfdetermination under international law, including how it relates to other principles of international law. Chapter 3 will examine selfdetermination in non-colonial situations, focussing in particular on the internal aspect of the right. The post-Cold War era provided an excellent breeding ground for the development of internal selfdetermination, emphasizing participatory rights and representative (democratic) governance. Again, specific attention will be given to the rights holders, the meaning and the status of self-determination under international law, including how it relates to other human rights and principles of international law. Having thus provided the necessary background on self-determination, Chapter 4 will venture into the external aspect of self-determination outside the colonial context. Conventional law on unilateral secession will be examined, followed by an analysis of State practice and opinio iuris in order to be able to identify the existence of a customary rule on unilateral secession. The emphasis of this Chapter will lie on the central question this thesis seeks to answer, whether international law allows for a right of external self-determination in the form of unilateral secession as an ‘emergency exit’ when the internal right of selfdetermination is breached.18 The fifth and final Chapter will provide a recapitulation and some concluding remarks, followed by a short examination of the options available to enhance the international legal enforcement or supervision of self-determination as a human right. It is absolutely necessary to find a sustainable solution, so that

17

L.C. Buchheit, Secession. The Legitimacy of Self-Determination, New Haven and London: Yale University Press 1978, p. 94. 18 P.H. Kooijmans, ‘Zelfbeschikkingsrecht. Naar een Nieuwe Interpretatie?’, in: N. SybesmaKnol and J. van Bellingen (eds.), Naar een nieuwe interpretatie van het Recht op Zelfbeschikking, Brussels: VUB Press 1995, p. 168.

3

from this point onwards peoples will be able to exercise their fundamental right of self-determination in a peaceful way.

4

2

Self-Determination in the Colonial Context

‘Nearly forty years ago a Professor of Political Science who was also President of the United States, President Wilson, enunciated a doctrine which was ridiculous, but which was widely accepted as a sensible proposition, the doctrine of self-determination. On the surface it seemed reasonable: let the people decide. It was in fact ridiculous because the people cannot decide, until somebody decides who are the people.’19 2.1

Introduction

In order to fully understand self-determination and to be able to clarify the meaning of it, this Chapter sets out to describe the colonial context in which it developed. Colonialism is defined in the Concise Oxford English Dictionary as ‘the policy or practice of acquiring political control over another country, occupying it with settlers, and exploiting it economically’.20 After the Second World War selfdetermination became the most important tool to abolish this practice. From that point self-determination developed from a political principle into a legal rule of international law that became almost ‘synonymous’ with decolonisation.21 The first section of this Chapter will describe the philosophical origins of self-determination and how it started as a political principle. The next section will examine how the political principle transformed into a legal principle when it was incorporated into the Charter of the United Nations, which is followed by a section on the development of customary rules on self-determination, mainly focussing on the external aspect; the right to decolonisation. The holders of the right of self-determination and what it meant in the colonial context will be explored in the fifth section. The Chapter will conclude with a short recapitulation and some critical remarks. 2.2

Self-Determination as a Political Principle

2.2.1

The Enlightenment, Nationalism, Lenin and Wilson

Any discussion of the right to self-determination should start with the Enlightenment, the American Declaration of Independence of 1776

19

I. Jennings, The Approach to Self-Government, Cambridge: Cambridge University Press 1956. Quoted in J. Crawford, The creation of states in international law, Oxford: Clarendon Press 2006, p. 124. 20 C. Soanes & A. Stevenson, Concise Oxford English Dictionary, 11th edition (revised), Oxford: Oxford University Press 2006. 21 Pomerance, supra note 6.

5

and the French Revolution of 1789.22 However, this period has already been adequately discussed by numerous writers. It suffices to keep in mind that the ideas that were developed during that time had a great impact on the concept of self-determination. In fact, the ideas of ‘representative government’ and ‘popular sovereignty’, that Locke and Rousseau put forward, lie at the heart of self-determination as it first developed in Western Europe and the United States.23 In Central and Eastern Europe, self-determination had a nationalistic flavour.24 The First World War and the Bolshevik Revolution turned selfdetermination into an international concept advocated enthusiastically by Lenin and Wilson.25 For Lenin, self-determination provided an opportunity to advance his political agenda.26 Rather than being a concept for the benefit of peoples as such, self-determination was used as a means to support socialist objectives.27 On the other side of the ocean, Wilson saw the concept of self-determination from an entirely different point of view. His version of self-determination was essentially based on Western conceptions of democratic government.28 In February 1918, Wilson asserted that ‘[p]eoples are not to be handed about from one sovereignty to another by an international conference or an understanding between rivals and antagonists. National aspirations must be respected; peoples may now be dominated and governed by their own consent. Self-determination is not a mere phrase, it is an imperative principle of action which statesman will henceforth ignore at their peril.’29

2.2.2

The First World War and the Paris Peace Conference

The principle of self-determination was also one of the underlying motivations of the Allied Powers during the First World War.30 At the Peace Conference in Paris they tried to take the principle of selfdetermination as their point of departure, but this was not an easy task as there were many problems associated with it.31 First of all, it was not clear to whom self-determination was meant to apply.32 This 22

Cassese, Self-determination of peoples: a legal reappraisal, Cambridge: Cambridge University Press 1995, p. 11. 23 T.D. Musgrave, Self-Determination and National Minorities, New York: Oxford University Press 1997, pp. 2-4. See also S. Smis, A Western Approach to the International Law of SelfDetermination: Theory and Practice, Unpublished PhD Thesis, Brussels: Vrije Universiteit Brussel 2001, p. 15. 24 Musgrave, supra note 14, pp. 4-9. Also Smis, supra note 14, pp. 22-33. 25 Cassese, supra, note 13, p. 13. 26 Ibid., p. 18. 27 Smis, supra note 14, p. 36. Cassese, supra note 13, p. 18. 28 Musgrave, supra note 14, p. 22. Cassese, supra note 13, p. 19. 29 Musgrave, supra note 14, p. 24, quoting H.W.V. Temperley, A History of the Peace Conference of Paris, Vol. I and IV, London: Oxford University Press 1920 and 1921. (emphasis added). 30 Cassese, supra note 13, pp. 23-24. 31 Musgrave, supra note 14, pp. 26-27. 32 Smis, supra note 14, p. 43.

6

lack of clarity led US Secretary of States Robert Lansing to make the following prophetic statement: ‘When the President talks of “self-determination” what unit has he in mind? Does he mean a race, a territorial area or a community? Without a definite unit which is practical, application of this principle is dangerous to peace and stability…[…] The phrase is simply loaded with dynamite. It will raise hopes which can never be realized. It will, I fear, cost thousands of lives. In the end it is bound to be discredited, to be called the dream of an idealist who failed to realize the danger until too late to check those who attempt to put the principle in force. What a calamity the phrase was ever uttered! What misery it will cause!’.33

Secession posed another stumbling block.34 If self-determination would be granted to everyone, there was the risk of disintegration and war, but to apply it arbitrarily would not be fair either.35 The participants at the Conference also had difficulty deciding how selfdetermination was to be implemented.36 In light of all these problems it was to be expected that, after the Conference had ended, Wilson and the other parties at Versailles would be ‘charged with the betrayal of the principle and the application of a double standard’.37 Accusations of this kind would come back to haunt many politicians struggling with the concept of self-determination in the years ahead. It must be admitted that Lansing did have a very clear view of the problems associated with self-determination. 2.2.3

The League of Nations

In spite of the fact that Wilson fervently proposed to include the principle of self-determination in the Covenant of the League of Nations, his proposal was not supported by the Allies and, as a consequence, the Covenant remained silent on self-determination.38 It would take an additional twenty five years before selfdetermination would change from a political into a legal principle, when it was included in the Charter of the United Nations. In the interwar period the Great Powers tried to make up for their lack of support for the inclusion of self-determination in the Covenant in two separate ways: the protection of minorities and the mandate system.39

33

R. Lansing, ‘Self-Determination’, Saturday Evening Post, 9 April 1921. Quoted by M. Pomerance, ‘The United States and Self-Determination: Perspectives on the Wilsonian Conception’, American Journal of International Law, Vol. 70, 1976, p. 10. 34 Smis, supra note 14, p. 43. 35 Ibid., pp. 43-44. 36 Ibid., p. 44. 37 Pomerance, supra, note 6, p. 5. 38 Smis, supra note 14, pp. 50-51. Musgrave, supra note 14, p. 30. 39 See, generally Smis, supra note 14, pp. 53-71.

7

Minority protection was seen as an important alternative to selfdetermination and the peace treaties that were signed with several States at the Peace Conference contained provisions that were to protect their minorities.40 Special minorities’ treaties were imposed on some of the new States that were created at Versailles.41 The minorities’ treaties regime was supervised by the League of Nations, but the system did not work effectively for a number of reasons.42 First, the minority States resented the fact that the treaties were forced on them and moreover, that the system was applied selectively.43 Therefore, they were not inclined to cooperate, which resulted in mistreatment and persecution of minorities.44 Second, the minorities themselves sometimes used the system to keep certain privileges and some of them adopted a superior attitude towards the majority population.45 Third, the fact that the system was born out of a lack of support for self-determination also undermined its potential.46 Before the Second World War, the special protection of minorities in international law was abandoned and it would not be until 1966, with the adoption of the International Covenant on Civil and Political Rights, that minorities re-emerged on the international scene.47 The mandate system was based on Article 22 of the League Covenant, providing that ‘[t]o those colonies and territories which as a consequence of the late war have ceased to be under the sovereignty of the States which formerly governed them and which are inhabited by peoples not yet able to stand by themselves under the strenuous conditions of the modern world, there should be applied the principle that the well-being and development of such peoples form a sacred trust of civilisation and that securities for the performance of this trust should be embodied in this Covenant’.48

Mandated territories were divided into three different types, ‘according to the stage of the development of the people, the geographical situation of the territory, its economic conditions and other similar circumstances’.49 The whole system was subject to international supervision with a Permanent Mandate Commission as an advisory body to the Council of the League.50 While Article 22 did 40

Cassese, supra note 13, p. 26. Musgrave, supra note 14, p. 41. Cassese, supra note 13, p. 26. Smis, supra note 14, pp. 60-61. Musgrave, supra note 14, p. 55. 43 Musgrave, supra note 14, p. 55-56. Cassese, supra note 13, p. 26. 44 Musgrave, supra note 14, p. 55-56. 45 Ibid., p. 56. 46 Cassese, supra note 13, p. 26. 47 Article 27 of the ICCPR contains rights for individuals belonging to minorities. Smis, supra note 14, p. 61. 48 The full text of the Covenant of the League of Nations is available at . 49 Article 22 of the Covenant of the League of Nations. 50 Smis, supra note 14, p. 67. 41

42

8

not specifically mention it, self-determination was underlying the mandate system, which was designed to administer the territories of former colonies as a trust while stimulating self-government, until the populations of these territories would be able to become independent.51 The Åland Islands Case, in which the League of Nations was asked to settle the dispute between Sweden and Finland over the Åland Islands, provides a very good insight into the legal status of the principle of self-determination in the 1920s.52 The Åland Islands form a cluster of islands in the Baltic Sea between Finland and Sweden and were under Swedish rule until 1809 when Finland and the Islands both became a part of Russia.53 During the period of Russian rule the Åland Islanders managed to preserve their Swedish language and culture and as soon as Finland proclaimed its independence from Russia in 1917, the Islanders asked to be reunited with Sweden.54 The Islanders appealed to the principle of self-determination to support their request, but Finland refused and the dispute was brought before the Council of the League of Nations.55 The Council appointed a Committee of Jurists to determine whether the dispute was an international matter, thus falling within the competence of the League, or was a domestic issue over which the League had no jurisdiction.56 The report of the Committee first pointed out that ‘[a]lthough the principle of self-determination of peoples plays an important part in modern political thought, especially since the Great War, it must be pointed out that there is no mention of it in the Covenant of the League of Nations. Its recognition in a certain number of international treaties cannot be considered as sufficient to put it upon the same footing as a positive rule of the Law of Nations’.57

The Committee’s view that this was a international issue over which the League had jurisdiction was endorsed by the League Council, which subsequently appointed a Commission of Rapporteurs to advise on the solution of the dispute.58 The report of the Commission of Rapporteurs repeated the conclusion of the Committee of Jurists that self-determination was not a rule of positive international law and recommended that the Åland Islands remain a part of Finland, who 51

H. Hannum, ‘Rethinking Self-Determination’, Virginia Journal of International Law, Vol. 34, 1993, p. 6. Smis, supra note 14, pp. 69, 71. 52 Hannum, supra note 42, pp. 8-9. 53 Musgrave, supra note 14, p. 32. 54 Smis, supra note 14, p. 77. Musgrave, supra note 14, pp. 32-33. 55 Musgrave, supra note 14, p. 33. Smis, supra note 14, p. 77. 56 Cassese, supra note 13, p. 28. 57 Report of the International Committee of Jurists Entrusted by the Council of the League of Nations with the Task of Giving an Advisory Opinion upon the Legal Aspect of the Åland Island Question, League of Nations Official Journal, Special Supplement No. 3, 1920, p. 5. Quoted by Musgrave, supra note 14, p. 34. 58 Smis, supra note 14, p. 79. Cassese, supra note 13, p. 29.

9

would be obliged to establish special autonomy arrangements for the Islanders to guarantee the preservation of their culture.59 There are two points with respect to the Åland Islands Case that need to be emphasised. First, the Committee of Jurists had an interesting view on ‘the relationship between self-determination and the protection of minorities’.60 According to the Committee, ‘both have a common object - to assure to some national Group the maintenance and free development of its social, ethnical or religious characteristics’.61 The Committee went on to note that if ‘geographical, economic and other similar considerations’ would not allow for self-determination to be exercised, the protection of minorities could provide ‘a solution in the nature of a compromise’.62 Second, it is important to note that the Committee of Jurists and the Commission of Rapporteurs both considered the possibility of persistent discrimination of a minority.63 According to the Committee of Jurists, such a case would fall within the jurisdiction of the League.64 The Commission of Rapporteurs went even further and mentioned the possibility of secession.65 The Commission’s view on this subject will be discussed in the fourth Chapter. 2.3

Conventional Law

2.3.1

The United Nations Charter

The Second World War had deep and long lasting consequences on the national and international spheres. The international legal order as we know it today has been influenced to a great extent by this War and its aftermath. The principle of self-determination also underwent a significant change in this period. Whereas the previous section has shown that in the interwar period self-determination was a only a political principle, the post-war period that will be described in this section will show the birth of self-determination as a legal principle and its subsequent growth into a legal right. On August 14, 1941 Roosevelt and Churchill had already outlined the plan for a new world order in the Atlantic Charter, containing eight ‘principles of common policy’.66 Two of these principles in essence 59

Cassese, supra note 13, p. 30. Hannum, supra note 42, p. 10. Cassese, supra note 13, p. 30. 61 Report of the International Committee of Jurists, supra note 48, p. 6. Quoted by Cassese, supra note 13, p. 30. 62 Ibid. Quoted by ibid., pp. 30-31. 63 Cassese, supra note 13, p. 31. 64 Report of the International Committee of Jurists, supra note 48, p. 5. Quoted by Cassese, supra note 13, p. 31. 65 League of Nations, Report presented to the Council of the League by the Commission of Rapporteurs, LN Council Doc. B7/21/68/106, 1921, pp. 28-29. Quoted by Cassese, supra note 13, pp. 31-32. 66 The full text of the Atlantic Charter is available at . 60

10

referred to self-determination, without specifically mentioning it.67 In April 1945, the United Nations Conference on International Organization took place in San Francisco, during which the Charter of the United Nations was drafted. The Dumbarton Oaks proposals formulated the previous year by the Four Powers formed the basis of the discussions, but since they did not mention self-determination, the principle was not discussed at first.68 Nevertheless, a Soviet proposal supported by the Four Powers secured the inclusion of selfdetermination in Article 1 of the Charter.69 Although some States supported the new provision, others expressed concern, or even outright criticism.70 Most of the concern and criticism focused on the issue of secession, as many States were afraid that self-determination would be interpreted as including a right of secession.71 The statement of the Colombian delegate illustrates this fear: ‘If it [self-determination] means self-government, the right of a country to provide its own government, yes, we would certainly like it to be included; but if it were to be interpreted, on the other hand, as connoting a withdrawal, the right of withdrawal or secession, then we should regard that as tantamount to international anarchy, and we should not desire that it should be included in the text of the Charter’.72

At the end of the San Francisco Conference the principle of selfdetermination appeared in the Charter of the United Nations in two places, Chapter I, Article 1(2) containing the purposes of the Organization and Article 55, Chapter IX, on international economic and social cooperation. According to Article 1(2) one of the purposes of the United Nations is: ‘to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace’.

67

‘Second, they desire to see no territorial changes that do not accord with the freely expressed wishes of the peoples concerned; Third, they respect the right of all peoples to choose the form of government under which they will live; and they wish to see sovereign rights and self government restored to those who have been forcibly deprived of them.’ Ibid. (emphasis added). See Smis, supra note 14, p. 91. 68 J. Summers, Peoples and International Law. How Nationalism and Self-Determination Shape a Contemporary Law of Nations, Leiden: Martinus Nijhoff Publishers 2007, p. 146. Musgrave, supra note 14, p. 63. 69 Amendments Proposed by the Governments of the United States, the United Kingdom, the Soviet Union, and China: “Chapter I…2. To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples and to take other appropriate measures to strengthen universal peace”. Doc. 2 G/29, UNCIO, vol. III, at p. 622. Quoted by Summers, supra note 59, p. 146. See also Cassese, supra note 13, p. 38. 70 Cassese, supra note 13, p. 38-39. 71 Ibid., p. 39-40. 72 See the microfilmed minutes (unpublished) of the debates of the First Committee of the First Commission of the San Francisco Conference, 14-15 May and 1 and 11 June, 1945, Library of the Palais des Nations, Geneva, p. 20. (emphasis added). Quoted by Cassese, supra note 13, p. 39-40.

11

Article 55 provides that: ‘With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote: a. higher standards of living, full employment, and conditions of economic and social progress and development; b. solutions of international economic, social, health, and related problems; and international cultural and educational cooperation; and c. universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.’73

After having studied the debates on Article 1(2) and the report of the Syrian Rapporteur to the drafting Commission,74 Cassese concludes that the Charter principle of self-determination ‘boils down to very little’.75 According to Cassese, self-determination as enunciated in Charter of the United Nations did not include a right of secession.76 However, others have argued that the travaux préparatoires are unclear on this matter, a point which will be discussed more detailed in the third Chapter.77 Cassese also holds that self-determination as proclaimed in the Charter did not give colonial peoples the right to independence.78 But a statement from the Soviet Foreign Minister reveals at least a different opinion on this matter: ‘We must first of all see to it that dependent countries are enabled as soon as possible to take the path of national independence’.79 According to the Minister the United Nations should facilitate ‘the realization of the principles of equality and self-determination of nations’ in order to promote the achievement of this goal.80 Cassese also does not believe selfdetermination to include ‘the right of the people of a sovereign State freely to choose its rulers through regular, democratic and free elections’.81 However, the parties did associate self-determination with ‘popular sovereignty’, which refers to the internal aspect of selfdetermination and the right to self-government.82 Given this ambiguity, it is submitted here that it is by no means certain what the Charter principle of self-determination actually does 73

See also Article 56, providing that: ‘All Members pledge themselves to take joint and separate action in co-operation with the Organization for the achievement of the purposes set forth in Article 55.’ 74 UNCIO, vol. VI, 455 and 714 ff. Quoted by Cassese, supra note 13, p. 41. 75 Cassese, supra note 13, p. 41-42. 76 Ibid., p. 42. 77 See, e.g. Buchheit, supra note 8, p. 73. Also Musgrave, supra note 14, pp. 63-64. 78 Cassese, supra note 13, p. 42. 79 R.B. Russell, A History of the United Nations Charter, Washington: Brookings Institution 1958, p. 811. 80 Ibid. 81 Cassese, supra note 13, p. 42. 82 B. Driessen, A Concept of Nation in International Law, The Hague: TMC Asser Instituut 1992, pp. 49-50.

12

or does not mean.83 If we consider the context of the phrase and the object and purpose of the United Nations Charter the most that can be said is that the principle of self-determination as proclaimed in Article 1(2) was meant to express one of the goals of the United Nations: it was believed that self-determination would further the development of friendly relations among States and strengthen universal peace.84 Thus, self-determination as enunciated in the Charter was deemed a guiding legal principle rather than a binding right under international law.85 The meaning of the word ‘peoples’ also remains uncertain, for no definition was included in the Charter itself and the travaux do not clarify this issue either.86 Years later the General Assembly would conclude that ‘the Charter […] contained no elaboration or explanation of the concept of a ‘people’ and there was no text or definition to determine what ‘people’ was’.87 As will be seen later, this uncertainty would continue to hamper the exercise of the right of selfdetermination, for until the present day the ‘peoples’ as the holders of the right have not been identified. Although the word ‘self-determination’ is nowhere to be found in Article 73 of Chapter XI of the Charter on non-self-governing territories and Article 76 of Chapter XII of the Charter on the international trusteeship system, it has been argued that ‘the drafters of the Charter considered Chapters XI and XII as specific applications of the principle of self-determination’.88 However, it remains to be seen whether this is actually true. The parties decided to develop two separate regimes for dependent territories, a regime for non-selfgoverning territories and a regime for trust territories. According to Article 73, Members of the United Nations administering non-self-governing territories were obliged ‘to develop self-government, to take due account of the political aspirations of the peoples, and to assist them in the progressive development of their free political institutions, according to the particular circumstances of each territory and its peoples and their varying stages of advancement’.89

83

See also Musgrave, supra note 14, p. 63-64. And Smis, supra note 14, p. 109. See Article 31 (1) of the Vienna Convention on the Law of Treaties 1969, available at . Cassese, supra note 13, p. 43. Smis, supra note 14, p. 114. Pomerance, supra note 6, p. 9. Y.Z. Blum, ‘Reflections on the Changing Concept of SelfDetermination’, Israel Law Review, Vol. 10, 1975, at p. 511 notes that ‘[c]learly then, selfdetermination, […] was not originally perceived as an operative principle of the Charter. It was regarded as a goal to be attained at some indeterminate date in the future; it was one of the desiderata of the Charter rather than a legal right that could be invoked as such’. 85 H. Hannum, Autonomy, Sovereignty, and Self-Determination. The Accommodation of Conflicting Rights, Philadelphia: University of Pennsylvania Press 1990, p. 33. Also Smis, supra note 14, p. 114. And Cassese, supra note 13, p. 43. 86 Smis, supra note 14, p. 109. 87 UN Doc. A/6799 (1967), available at . 88 Smis, supra note 14, p. 102. 89 Article 73 (b) of the Charter of the United Nations. 84

13

The drafting history of the Article reveals that the terms ‘selfgovernment’ and ‘independence’ were debated extensively by the parties, but as they were unable to agree whether self-government would or should include independence, the word ‘independence’ was not included in Article 73.90 The fact that there is no reference to selfdetermination in the Article, not even implicitly, makes it rather unlikely that the drafters intended this to be a ‘specific application’ of the principle.91 Moreover, self-determination of non-self-governing territories would become a very controversial issue in the period of decolonisation that followed the adoption of the Charter.92 The development of self-determination in the context of decolonisation will be discussed in paragraph 2.4. Chapters XII and XII of the Charter regulated the international trusteeship system that was designed to replace the mandate system of the League of Nations.93 Article 76 of the Charter contained ‘[t]he basic objectives of the trusteeship system, in accordance with the Purposes of the United Nations laid down in Article 1 of the present Charter’. By referring to Article 1 of the Charter, this formulation thus implicitly referred to the principle of self-determination.94 Moreover, one of the objectives of the trusteeship system was ‘to promote the political, economic, social, and educational advancement of the inhabitants of the trust territories, and their progressive development towards self-government or independence as may be appropriate to the particular circumstances of each territory and its peoples and the freely expressed wishes of the peoples concerned, and as may be provided by the 95 terms of each trusteeship agreement’.

Along these lines it can be argued that under the trusteeship system the achievement of independence was certainly regarded as a possible way for the population of trust territories to exercise selfdetermination. Be that as it may, it must be repeated here that at the time the Charter was drafted, self-determination was not a legal right, but merely a guiding legal principle, the content of which urgently needed further specification.96 Nevertheless, the inclusion of the principle of self-determination in the Charter of the United Nations, a multilateral treaty establishing an International Organization, is significant. From then on, self-determination was no longer a political principle, it had taken its first steps onto the stage of international law. Section 2.5 of

90 91 92 93 94 95 96

Smis, supra note 14, p. 103. See also Musgrave, supra note 14, p. 65-66. Ibid. Ibid., p. 64. Ibid., p. 65. Article 76 (b) of the Charter of the United Nations (emphasis added). Smis, supra note 14, p. 114.

14

this Chapter will further elaborate the content of self-determination and to whom it was meant to apply. 2.3.2

The International Bill of Rights

While the Charter of the United Nations contained several provisions that referred to ‘human rights and fundamental freedoms’, the content of these provisions still needed to be elaborated.97 Therefore, after the adoption of the Charter, the international community undertook to formulate the ‘International Bill of Human Rights’. Eventually this Bill of Rights would include the Universal Declaration on Human Rights that was adopted on 10 December 1948 and the two International Human Rights Covenants that were adopted on 16 December 1966. Despite the efforts of the Soviet Union, the Universal Declaration of Human Rights did not mention self-determination.98 Nevertheless, one cannot help but to notice elements of self-determination in the Declaration.99 First, the preamble referred to the need to protect human rights, ‘if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression’. Second, according to Article 21 (3), ‘The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures’.

This Article expressed the idea of ‘popular sovereignty’, that has always formed the core of self-determination.100 After the adoption of the Universal Declaration, the General Assembly requested the Commission on Human Rights to continue drafting a legally binding instrument on human rights.101 Again, there was a Soviet proposal to include an Article on self-determination for colonial peoples in the Covenant on Human Rights, which was supported by other socialist countries and developing countries.102 However, it may not come as a surprise that many Western States were not in favour of the inclusion of such a right in a legally binding instrument because it could jeopardise their colonial interests.103 To draw the attention away from these interests, Western States started stressing the 97 Summers, supra note 59, p. 155. Also Cassese, supra note 13, p. 47. See Preamble, Article 1 (3), 13 (b), 55 (c), 62 (2), 68, 76 (c) of the Charter. 98 G.I. Tunkin, Theory of International Law, Cambridge MA: Harvard University Press 1974, p. 64. 99 Summers, supra note, 59, p. 155. 100 Ibid., p. 156. 101 Smis, supra note 14, p. 401. Cassese, supra note 13, p. 47. 102 Cassese, supra note 13, p. 48-49, 52. 103 Ibid., p 50.

15

universality of self-determination.104 A good example of this strategy is the statement of the Netherlands that ‘[t]here were more peoples and nations outside the colonial orbit which were deprived of all opportunity of determining their political status than 105 there were within it’.

As they tried to make sure that the principle of self-determination that would be included in the Covenants would not be limited to the colonial context, their tactics resulted in broadening the scope of the Article.106 In the meantime, it was decided that the Covenant would be divided into two separate Covenants, both containing an Article on selfdetermination.107 The drafting process took almost two decades, starting as early as 1947 and ending with the adoption of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR) by the General Assembly in 1966.108 Common Article 1 of the two Human Rights Covenants reads as follows: 1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. 2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence. 3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter 109 of the United Nations.

With the inclusion of a provision on self-determination in two Human Rights Covenants, it could no longer be denied that the political principle had definitely developed into a positive rule of international law. Moreover, common Article 1 granted the ‘right of selfdetermination’ to ‘all peoples’, not only colonial peoples. Because the 104

Summers, supra note 59, p. 165. Netherlands, 10 GAOR (1955) 3rd Cmittee., 671st mtg., (A/C.3/SR.671) para. 3. Quoted by ibid., p. 165. 106 Cassese, supra note 13, p. 52. 107 Summers, supra note 59, p. 158. 108 Smis, supra note 14, p. 401. Both Covenants entered into force in 1976. On 5 April 2009 164 out of 192 UN Member States had ratified the ICCPR and 160 had ratified the ICESCR. See . 109 The full text of the two Covenants on Human Rights is available at . 105

16

scope of this right is thus not confined to the colonial context, the content of common Article 1 will be discussed more detailed in the following Chapter. 2.3.3

The African Charter on Human and Peoples’ Rights

Another convention containing a provision on self-determination is the African Charter on Human and Peoples’ Rights, or the Banjul Charter.110 The Charter was adopted in 1981 by the 18th Assembly of Heads of State and Government of the Organization of African Unity (OAU) and entered into force in October 1986. Article 20 of the Banjul Charter provides that 1. All peoples shall have the right to existence. They shall have the unquestionable and inalienable right to self-determination. They shall freely determine their political status and shall pursue their economic and social development according to the policy they have freely chosen. 2. Colonized or oppressed peoples shall have the right to free themselves from the bonds of domination by resorting to any means recognized by the international community. 3. All peoples shall have the right to the assistance of the State Parties to the present Charter in their liberation struggle against foreign domination, be it political, economic or cultural.

While the first paragraph of the Article grants the right to selfdetermination to ‘all peoples’, the second paragraph draws attention to colonised and oppressed peoples.111 Hence, under the Banjul Charter self-determination is practically equated with decolonisation.112 Since the European Convention on Human Rights and the American Convention on Human Rights do not mention selfdetermination, the African Charter is the only regional human rights instrument that contains a provision on self-determination.113 To avoid ‘difficult discussion’, the drafters of the Charter deliberately decided not to define the term ‘peoples’.114 The role of the African Commission on Human Rights in the interpretation of selfdetermination and in defining the holders of the right will be discussed in the next Chapter.

110 The full text of the Banjul Charter is available at . All Member States of the African Union have ratified the Charter. 111 R.N. Kiwanuka, ‘The Meaning of “People” in the African Charter on Human and Peoples’ Rights’, The American Journal of International Law, Vol. 82 (1988), p. 88. 112 Smis, supra note 14, p. 176. 113 M.K. Addo, ‘Political Self-Determination Within the Context of the African Charter on Human and Peoples’ Rights’, Journal of African Law, Vol. 32, 1988, pp. 183-184. 114 See Report of O.A.U. Secretary-General on Draft African Charter on Human and Peoples’ Rights. O.A.U. Doc. C.M./1149, para. 13. Quoted by Addo, ibid., p. 184.

17

2.4 2.4.1

Customary Law The General Assembly

After the adoption of the Charter of the United Nations the international community became more and more concerned with the ‘fight against colonialism’.115 The General Assembly in particular took a very active stance in this matter and as a result of this, the process of decolonisation became the Organisations top priority.116 With the adoption of numerous resolutions linking self-determination to decolonisation, the General Assembly contributed in an important way to the development of customary rules.117 This paragraph will discuss three General Assembly resolutions on self-determination that stand out, but first it is necessary to make a preliminary remark on the legal value of General Assembly resolutions in general. It has convincingly been argued that ‘General Assembly resolutions can contribute to the creation of rules of international law’ in a number of ways.118 For present purposes it suffices to mention one of these ways, namely when a General Assembly resolution helps to develop, establish or clarify a rule of customary law.119 However, it is important to keep in mind that the legal value of each resolution should be judged on its own merits, taking into account a number of factors.120 In this respect Rosalyn Higgins has pointed out that ‘As with much of international law, there is not easy answer to the question: What is the role of resolutions of international organizations in the process of creating norms in the international system? To answer the question we need to look at the subject-matter of the resolutions in question, at whether they are binding or recommendatory, at the majorities supporting their adoption, at repeated practice in relation to them, as evidence of opinio

115

Smis, supra note 14, p. 116. Ibid. 117 Ibid., p. 115. 118 Ibid., p. 119. See also Cassese, supra note 13, pp. 69-70. 119 Smis, supra note 14, pp. 121-122. See also the opinion of the ICJ in Military and Paramilitary Activity in and against Nicaragua (Nicaragua v. United States of America), ICJ Reports (1986), available at , para. 188, in which the Court stated that ‘opinio juris may, though with all due caution, be deduced from, inter alia, the attitude of the Parties and the attitude of States towards certain General Assembly resolutions,’. The Court referred to General Assembly Resolution 2625 (XXV), ‘Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among states in Accordance with the Charter of the United Nations’ of 24 October 1970 (“Friendly Relations Declaration”), to conclude that ‘[t]he effect of consent to the text of such resolutions cannot be understood as merely that of a “reiteration or elucidation” of the treaty commitment undertaken in the Charter. On the contrary, it may be understood as an acceptance of the validity of the rule or set of rules declared by the resolution by themselves’. See also the ‘Statement of Principles Applicable to the Formation of General Customary International Law’ by the Committee on Formation of Customary (General) International Law of the International Law Association, London Conference 2000, pp. 55-65, available at . 120 Ibid., p. 127. 116

18

iuris. When we shake the kaleidoscope and the pattern falls in certain ways, 121 they undoubtedly play a significant role in creating norms’.

The adoption of General Assembly Resolution 1514 (XV) entitled ‘Declaration on the Granting of Independence to Colonial Countries and Peoples’, by the General Assembly on 14 December 1960 has been called ‘the beginning of a revolutionary process within the United Nations’ and ‘an attempt to revise the Charter in a binding manner’.122 According to its preamble, the resolution was aimed at ‘bringing to a speedy and unconditional end colonialism in all its forms and manifestations’ and in paragraph two it declared that ‘All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development’.

While this paragraph seems to grant the right of self-determination to ‘all peoples’, the first paragraph specifically refers to peoples subject to ‘alien subjugation, domination and exploitation’. The ‘revolutionary’ part of the resolution becomes clear by comparing it with Articles 73 and 76 of the UN Charter on non-self-governing and trust territories. Whereas Articles 73 and 76 distinguish between these two, paragraph five of the resolution considers them equal, and that both are entitled to self-determination.123 Moreover, whereas Articles 73 and 76 refer to the development of self-government and independence leaving the administrating powers some discretion to consider ‘the particular circumstances of each territory’, paragraph three and five of the resolution adamantly require ‘complete independence’ for all dependent territories, whether they are ready for it or not.124 The last important point is that paragraph four of the resolution prohibits the use of force against dependent peoples in order to allow them to exercise their right of self-determination in a peaceful manner.125 As to the legal value of this resolution, Cassese argues that it ‘contributed to the gradual transformation of the ‘principle’ of selfdetermination’ into a legal right for non-self-governing peoples’.126 In 1961 the Special Committee on Decolonization was established by the

121

R. Higgins, The Development of International Law Through the Political Organs of the United Nations, London: Oxford University Press 1969, p. 28. 122 Pomerance, supra note 6, p. 11. For the full text of the resolution, see Appendix I. 123 Smis, supra note 14, p. 133. 124 Ibid. Also Pomerance, supra note 6, p. 11. 125 Ibid. Ibid., p. 12. 126 Cassese, supra note 13, p. 70. See also the Study prepared by A. Cristescu, Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, ‘The Right to Self-Determination: Historical and Current Development on the Basis of United Nations Instruments’, UN Doc. E/CN.4/Sub.2/404/Rev.1, 1981, para. 39.

19

General Assembly, to monitor the implementation of Resolution 1514 (XV) and to make recommendations on its application.127 The landmark resolution on decolonisation was followed by another anti-colonial resolution that was adopted the next day by the General Assembly: Resolution 1541 (XV) concerning the ‘Principles which should guide Members in Determining whether or not an obligation exists to transmit the information called for under Article 73e of the Charter’.128 As the title indicates, this resolution was meant to provide a number of ‘guiding principles’ to enable members to determine whether they were under an obligation to transmit the information requested by Article 73 (e) of the UN Charter. Principle I of the resolution pointed out that Chapter XI of the UN Charter was meant to apply to territories ‘known to be of the colonial type’, which according to Principle II were ‘in a dynamic state of evolution and progress towards a “full measure of self-government”’. While Resolution 1514 granted the right of self-determination to colonial peoples, Resolution 1541 clarified that colonial peoples were ‘the inhabitants of non-self-governing territories’.129 Principle IV of the resolution defined a non-self-governing territory by applying the ‘salt water theory’, according to which a territory is non-self-governing if it is ‘geographically separate and is distinct ethnically and/or culturally from the country administering it’.130 According to Principle V, other elements to be considered were elements of ‘administrative, political, juridical, economical or historical nature.’ In Principle VI the Resolution specified three possible ways in which self-determination could be achieved:131 (1) Emergence as a sovereign independent state; (2) Free association with an independent state; or (3) Integration with an independent state.

Because independence was the preferred means of exercising selfdetermination, the resolution stipulated that free association and integration should be the result of the free choice of the peoples of the territory concerned, ‘expressed through informed and democratic processes’.132 While neither Resolution 1514 (XV) nor Resolution 1541 (XV) are legally binding instruments,133 the latter does seem to have greater legal value because ‘[i]t is consistent with the UN Charter and

127 General Assembly Resolution 1654 (XVI), . 128 For an extract of the resolution, see Appendix II. 129 Smis, supra note 14, p. 134. 130 Ibid., note 208. 131 Ibid., p. 134. 132 Musgrave, supra note 14, p . 72. 133 Summers, supra note 59, pp. 205-206.

20

27

November

1961,

available

at

with state practice’, whereas Resolution 1514 (XV) was rather ‘carrying the political message’.134 The fact that Resolution 1514 (XV) and 1541 (XV) were anticolonialist documents makes it hardly surprising that they were not supported by most Western States. These two resolutions were to a large extent the product of Soviet, socialist and Third World efforts to eradicate colonialism. This was not the case with General Assembly Resolution 2625 (XXV), ‘Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among states in Accordance with the Charter of the United Nations’, adopted unanimously on 24 October 1970, thus reflecting the views of developing, socialist and Western States.135 Resolution 2625 (XXV) is the result of a study of fundamental Charter principles, undertaken by a Special Committee of the General Assembly.136 The Friendly Relations Declaration has been referred to as a rare example of ‘instant’ customary law, i.e. it is the unanimous expression of opinio iuris by the international community on a number of principles of international law and, despite the fact that there is no accompanying State practice, the adoption of the resolution created customary law by itself.137 It cannot be denied that the resolution does have great legal value, which is supported by the fact that the ICJ has referred to it in a number of cases138 and the fact that national courts have mentioned it in their cases.139 International lawyers also consider it to be an important legal document140 and Cassese concludes that the Declaration was ‘instrumental in crystallising a growing consensus concerning the extension of self-

134

Smis, supra note 14, pp. 134, 136. For an extract of the resolution, see Appendix III. Musgrave, supra note 14, pp. 74-75. Musgrave, supra note 14, p. 74. 137 Statement of Principles, supra note 110, pp. 61-65. See also the Nicaragua case, supra note 110, para. 188. On the concept of ‘instant’ customary international law, see B. Cheng, ‘United Nations Resolutions on Outer Space: “Instant” International Customary Law’, Indian Journal of International Law, Vol. 5, 1965. The concept of ‘instant’ or ‘modern’ customary international law will be explained more detailed in Chapter 4. 138 Nicaragua case, supra note 110, paras. 188, 191. Advisory Opinion on Western Sahara, ICJ Reports 1975, para. 58; and Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ Reports 2004, paras. 87-88, 156. All available at . 139 Summers, supra note 59, p. 214, quoting Constitutional Court of the Russian Federation, Tatarstan Case, 30:3 Statutes and Decisions: The Laws of the USSR and Its Successor States (1994) pp. 40-41; Constitutional Court of the Russian Federation, Chechnya Case, 31:5 Statutes and Decisions: The Laws of the USSR and Its Successor States (1995) p. 52. See also Supreme Court of Canada, Re. Secession of Quebec, in: A. Bayefski, Self-determination in International Law: Quebec and Lessons Learned, The Hague: Kluwer Law International 2000, pp. 494, 496, 498. 140 See, e.g. Hannum, supra note 42, p. 14: ‘Adopted without a vote by the General Assembly after years of negotiation, the Declaration on Friendly Relations may be considered to state existing international law. Its provisions therefore possess unusual significance for a General Assembly Resolution’. 135

136

21

determination to other areas’ than the area of non-self-governing peoples.141 The resolution enumerates seven principles, the fifth of which is ‘the principle of equal rights and self-determination of peoples’.142 According to the Declaration, ‘[i]n their interpretation and application the above principles are interrelated and each principle should be construed in the context of the other principles’.143 The resolution thus balances the principle of self-determination with other principles of international law, such as the principles of territorial integrity, nonintervention and the prohibition on the use of force.144 The balancing exercise is best illustrated with Paragraph 7 of Principle V, stating that ‘Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour’.

As will be seen in the following Chapters, in many cases the principle of territorial integrity in particular would override the principle of selfdetermination. Paragraph 1 of Principle V states ‘By virtue of the principle of equal rights and self-determination of peoples enshrined in the Charter of the United Nations, all peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development, and every State has the duty to respect this right in accordance with the provisions of the Charter.’

These words, their context as well as the drafting history of this paragraph supports the view that self-determination as formulated in this resolution was not only meant to apply to colonial peoples but instead was meant to be a ‘universal right’, which was granted to all

141

Cassese, supra note 13, p. 70. The seven principles of the Declaration are: I the principle that States shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations; II the principle that States shall settle their international disputes by peaceful means in such a manner that international peace and security and justice are not endangered; III the principle concerning the duty not to intervene in matters within the domestic jurisdiction of any State, in accordance with the Charter; IV the duty of States to co-operate with one another in accordance with the Charter; V the principle of equal rights and selfdetermination of peoples; VI the principle of sovereign equality of States; VII the principle that States shall fulfil in good faith the obligations assumed by them in accordance with the Charter. 143 General Part 2 of the Declaration. 144 Smis, supra note 14, p. 137. Summers, supra note 59, p. 216. 142

22

peoples.145 Besides being aimed at promoting friendly relations and co-operation among States, a more specific goal of self-determination was to bring a speedy end to colonialism.146 While Resolution 1541 (XV) enumerates three modes of exercising self-determination, the Declaration adds a fourth possibility, ‘the emergence into any other political status freely determined by a people’.147 Paragraph 7 of Principle V, also referred to as the ‘safeguard clause’, is noteworthy because it seems to make the protection of territorial integrity dependent on whether or not the government of a State is representative.148 This paragraph points in the direction of the internal or democratic aspect of self-determination, as well as to the possibility of ‘remedial secession’, both of which will be discussed in the following Chapters. The process of decolonisation, sparked by the General Assembly, can be considered to have been rather successful. Since the United Nations was created in 1945, more than 80 former colonies have been able to exercise their right of self-determination and have gained their independence. At this moment, there are 16 non-selfgoverning territories remaining. However, it has not been a success story in every respect. Paragraph 2.5 will address several shortcomings of the way in which the United Nations, in particular the General Assembly, has handled self-determination claims in context of decolonisation. Except for the Friendly Relations Declaration, which has a broader scope, the Resolutions of the General Assembly on self-determination have specifically made the connection between self-determination and decolonisation.149 Starting with the ‘revolutionary’ Declaration on Decolonization, followed by the consolidating Resolution 1541 (XV) and ending with the authoritative Friendly Relations Declaration, the General Assembly has contributed in a very meaningful way to the progressive development of the right of self-determination. The following section will examine the pronouncements of the International Court of Justice on the right of self-determination. 2.4.2

The International Court of Justice

Whereas the General Assembly Resolutions that have been discussed in the previous section have been instrumental in furthering the development of the right of self-determination, the International Court of Justice has made an important contribution to this development by ‘confirming the legal status’ of these resolutions.150 145 146 147 148 149 150

Ibid. Also Musgrave, supra note 14, p. 75. Paragraph 2 of the Declaration. Musgrave, supra note 14, p. 76. Ibid. Ibid., p. 69. Smis, supra note 14, p. 177.

23

In addition to this it is important to note that self-determination in the context of decolonisation was still a controversial issue at the time these resolutions were adopted and the pronouncements of the Court have thus played an important role in clarifying the content of the norm.151 The first case in which the Court had to consider the principle of selfdetermination was the Advisory Opinion on Namibia.152 A longstanding conflict between the General Assembly and South Africa over the mandated territory of South West Africa (Namibia) had already resulted in three Advisory Opinions and two Judgments of the Court.153 In 1966 the General Assembly had decided to terminate the mandate because South Africa had ‘failed to fulfil its obligations’ and consequently decided to put South West Africa ‘under the direct responsibility of the United Nations’.154 After several resolutions calling upon South Africa to withdraw from Namibia155 and declaring South Africa’s continued presence in Namibia illegal,156 the Security Council asked the International Court of Justice for an Advisory Opinion on the matter. Referring to the ‘object and purpose’ of the mandate system the Court pointed out that ‘the subsequent development of international law in regard to non-selfgoverning territories, as enshrined in the Charter of the United Nations, made the principle of self-determination applicable to all of them. The concept of the sacred trust was confirmed and expanded to all “territories whose peoples have not yet attained a full measure of self-government” (Art. 73). Thus it clearly embraced territories under a colonial régime. Obviously the sacred trust continued to apply to League of Nations mandated territories on which an international status had been conferred earlier. A further important stage in this development was the Declaration on the Granting of Independence to Colonial Countries and Peoples (General Assembly resolution 1514 (XV) of 14 December 1960), which embraces all peoples and territories which “have not yet attained independence”. Nor is it possible to leave out of account the political history of mandated territories

151

Ibid. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports (1971), available at . Musgrave, supra note 14, p. 85. 153 See, generally, T.D. Gill (ed.), Rosenne’s The World Court. What It is and how It works, Leiden: Martinus Nijhoff Publishers 6th Complete Revised Edition 2003, pp. 137-142. 154 General Assembly Resolution 2145 (XXV), 27 October 1966, available at , declaring in paragraph 3 ‘that South Africa has failed to fulfil its obligations in respect of the administration of the Mandated Territory and to ensure the moral and material well-being and security of the indigenous inhabitants of South West Africa and has, in fact, disavowed the Mandate’. In paragraph 4 it was decided ‘that the Mandate conferred upon His Brittanic Majesty to be exercised on his behalf by the Government of the Union of South Africa is therefore terminated, that South Africa has no other right to administer the Territory and that henceforth South West Africa comes under the direct responsibility of the United Nations’. 155 Security Council Resolution 269, 12 August 1969, available at . 156 Security Council Resolution 276, 30 January 1970, available at . 152

24

in general. […] This is but a manifestation of the general development which 157 has led to the birth of so many new States’.

With this statement, the Court validated the practice of the United Nations, in particular the General Assembly, with respect to non-selfgoverning and trust territories, and confirmed that this practice had affected the principle of self-determination under international law.158 The next case in which the Court had to address the principle of selfdetermination was the Advisory Opinion on Western Sahara.159 After Spain had agreed to decolonise the Western Sahara a dispute arose when both Morocco and Mauritania claimed the territory, and in 1975 the General Assembly requested the International Court of Justice to give an Advisory Opinion on the issue.160 The Court started out by giving an extensive overview of United Nations practice with respect to the principle of self-determination, mentioning the inclusion of the principle in the Charter of the United Nations, recalling the adoption of General Assembly Resolutions 1514 (XV), 1541 (XV) and 2625 (XXV) and quoting its own jurisprudence in the Namibia Opinion.161 This overview indicates that the Court tried to present selfdetermination as a rule of customary international law, the ‘essence’ of which, according to the Court, was 162

‘the need to pay regard to the freely expressed will of peoples’.

It has been argued that even though the Court was considering selfdetermination in a colonial context, this statement may also apply outside the colonial context.163 In this respect the Western conception of self-determination that was described in paragraph 2.2.1. may be recalled, according to which self-determination meant ‘representative government’ and ‘popular sovereignty’. This Western or Wilsonian 157

Namibia, supra note 143, para. 52. Smis, supra note 14, pp. 182-183. A. Cassese, ‘The International Court of Justice and the right of peoples to self-determination’, in: V. Lowe V. & M. Fitzmaurice (eds.), Fifty years of the International Court of Justice. Essays in honour of Sir Robert Jennings, Cambridge: Cambridge University Press 1996, p. 354. See also para. 53: ‘the Court must take into consideration the changes which have occurred in the supervening half-century, and its interpretation cannot remain unaffected by the subsequent development of law, through the Charter of the United Nations and by way of customary law. Moreover, an international instrument has to be interpreted and applied within the framework of the entire legal system prevailing at the time of the interpretation. In the domain to which the present proceedings relate, the last fifty years, as indicated above, have brought important developments. These developments leave little doubt that the ultimate objective of the sacred trust was the selfdetermination and independence of the peoples concerned. In this domain; as elsewhere, the corpus iuris gentium has been considerably enriched, and this the Court, if it is faithfully to discharge its functions, may not ignore.’ 159 Western Sahara, supra note 129. 160 Musgrave, supra note 14, p. 85. 161 Smis, supra note 14, p. 185. See Western Sahara, supra note 129, paras. 54-73. 162 Western Sahara, supra note 129, para. 59. Smis, supra note 14, p. 185. Cassese, supra note 149, pp. 357-358. 163 Smis, supra note 14, p. 185. Cassese, supra note 149, p. 359. 158

25

understanding of self-determination will be discussed in greater detail in the next Chapter on self-determination outside the colonial context. Another point the Court made is that ‘The validity of the principle of self-determination, defined as the need to pay regard to the freely expressed will of peoples, is not affected by the fact that in certain cases the General Assembly has dispensed with the requirement of consulting the inhabitants of a given territory. Those instances were based either on the consideration that a certain population did not constitute a “people” entitled to self-determination or on the conviction that a consultation was totally unnecessary, in view of special 164 circumstances’.

With this statement the Court clarified that there was a legal obligation to hold a referendum when colonial peoples were exercising their right of self-determination, except if a population was not a ‘people’ or in case of ‘special circumstances’.165 Unfortunately the Court did not specify those special circumstances and, given the fact that there was no definition of a people, this legal obligation could be easily dispensed with. In fact, the sad story is that the people of Western Sahara have not been able to exercise their right of selfdetermination until this very day. After the Court issued its Opinion, Morocco and Mauritania both annexed part of the territory, but met resistance from the Polisario Front, a national liberation movement. Mauritania backed out in 1979 and Morocco managed to occupy a large part of the territory. In 1991 a ceasefire was signed between Morocco and the Polisario Front under the supervision of MINURSO, a UN peacekeeping mission. Even though a referendum was scheduled for 1992, at the time of writing no referendum has been held and the dispute between Morocco and Polisario continues. In 2005 Peter van Walsum was appointed as the UN Secretary-General’s Personal Envoy for Western Sahara, but he has not managed to bring the parties together. Recently the Security Council has extended the mandate of MINURSO.166 In the Frontier Dispute between Burkina Faso and Mali,167 the Court examined the relationship between self-determination and uti possidetis. The principle of uti possidetis, or the principle of ‘the intangibility of frontiers inherited from colonisation’, is a rule of international law that ‘freezes the territorial title’ at the moment a colony achieves independence.168 According to the Court

164

Western Sahara, supra note 129, para. 59. Cassese, supra note 149, p. 359. S/Res/1813, 30 April 2008, available at . 167 Frontier dispute (Burkina Faso/Republic of Mali), ICJ Reports (1986), available at . 168 Cassese, supra note 149, p. 361. See also ibid., paras. 20, 30. 165 166

26

‘the principle is not a special rule which pertains solely to one specific system of international law. It is a general principle, which is logically connected with the phenomenon of the obtaining of independence, wherever it occurs. Its obvious purpose is to prevent the independence and stability of new States being endangered by fratricidal struggles provoked by the challenging of frontiers following the withdrawal of the administering 169 power’.

After having said this, the Court observed that ‘[a]t first sight this principle conflicts outright with another one, the right of peoples to self-determination. In fact, however, the maintenance of the territorial status quo in Africa is often seen as the wisest course, to preserve what has been achieved by peoples who have struggled for their independence, and to avoid a disruption which would deprive the continent of the gains achieved by much sacrifice. The essential requirement of stability in order to survive, to develop and gradually to consolidate their independence in all fields, has induced African States judiciously to consent to the respecting of colonial frontiers, and to take account of it in the 170 interpretation of the principle of self-determination of peoples’.

This statement has rightly been criticized, because it obviously is a political rather than a legal decision.171 According to the Court, when the principle of self-determination conflicts with the principle of uti possidetis, the latter prevails over the former ‘for reasons of stability’.172 The most recent case in which the Court has considered the principle of self-determination in the colonial context is the Case Concerning East Timor.173 After the Portuguese left East Timor, the territory was annexed by Indonesia, an act that was condemned by the international community. A very bloody civil war broke out and the repressive Indonesian occupation would last for 25 years. The Security Council and the General Assembly both adopted numerous resolutions rejecting the annexation and reaffirming the right of the people of East Timor to self-determination and independence.174 In 1989 Australia concluded the Timor Gap Treaty with Indonesia, concerning the delimitation of the continental shelf between East Timor and Australia and providing for the joint exploitation of petroleum resources that were located under this continental shelf.175 169

Frontier dispute, supra note 158, para. 20. Ibid., para. 25. 171 Smis, supra note 14, p. 188. Cassese, supra note 149, p. 362. Summers, supra note 59, p. 273. 172 Ibid. 173 Case Concerning East Timor (Portugal v. Australia), ICJ Reports 1995, available at . 174 See SC Res. 384 (22 Dec. 1975), SC Res. 389 (22 Apr. 1976). And GA Res. 3485(XXX) (12 Dec. 1975), GA Res. 31/53 (1 Dec. 1976), GA Res. 32/34 (28 Nov. 1977), GA Res. 33/39 (13 Dec. 1978), GA Res. 34/40 (21 Nov. 1979), GA Res. 35/27 (11 Nov. 1980), GA Res. 36/50 (24 Nov. 1981), GA Res 37/30 (23 Nov. 1982). 175 Gill, supra note 144, p. 192. 170

27

In 1991 Portugal brought a claim against Australia at the International Court of Justice because it had strong objections to the conclusion of this treaty, which according to Portugal not only violated the right of self-determination of the East Timorese, including the right to permanent sovereignty over their natural resources, but also violated Portugal’s status as administering power over East Timor.176 Indonesia could not be summoned, because it had not accepted the Courts jurisdiction.177 This was also the reason that the Court agreed with the argument Australia had put forward, that it had no jurisdiction to decide the case because ‘in order to decide the claims of Portugal, it would have to rule, as a prerequisite, on the lawfulness of Indonesia's conduct in the absence of that State’s consent’.178 Portugal had argued that this argument was not applicable in the present case, because of the erga omnes character of the right of self-determination, which Australia was legally obliged to respect, regardless of the unlawful conduct of Indonesia.179 The Court responded to this argument by pointing out that ‘[i]n the Court’s view Portugal's assertion that the right of peoples to selfdetermination, as it evolved from the Charter and from United Nations practice, has an erga omnes character, is irreproachable. The principle of self-determination of peoples has been recognized by the United Nations Charter and in the jurisprudence of the Court […]; it is one of the essential principles of contemporary international law. However, the Court considers that the erga omnes character of a norm and the rule of consent to 180 jurisdiction are two different things’.

The Court did mention that for Australia and Portugal, the territory of East Timor remained a non-self-governing territory and that the people of East Timor still had the right to self-determination.181 With this confirmation, the Court ‘conferred legitimacy to the struggle for self-determination’ of the East Timorese.182 A financial crisis in Indonesia combined with strong international pressure finally forced the Indonesian government in 1999 to agree to conduct a UNsupervised referendum in East Timor. The people of East Timor were given the choice whether they preferred special autonomy within Indonesia or independence. When almost 80% of the voters had chosen independence, Timorese pro-Indonesia militias supported by 176

Ibid. Smis, supra note 14, p. 189. See Case Concerning East Timor, supra note 164, para. 33. 177 Gill, supra note 144, p. 192. 178 Case Concerning East Timor, supra note 164, para. 35. See also Monetary Gold Removed from Rome in 1943 (Italy v. France, United Kingdom of Great Britain and Northern Ireland and United States of America), ICJ Reports 1954, available at , p. 32. 179 Case Concerning East Timor, supra note 164, para. 29. 180 Ibid. (emphasis added). 181 Ibid., paras. 31, 37. 182 P. Hilpold, ‘Self-Determination In The 21st Century – Modern Perspectives For An Old Concept’, Israel Yearbook on Human Rights, Vol. 36, 2006, p. 258.

28

the Indonesian army started attacking civilians that had voted for independence. The UN intervened by sending a peacekeeping force, INTERFET, followed by a temporary UN administration, UNTAET. In May 2002, after having suffered for more than 25 years, the people of East Timor were finally able to exercise their right of selfdetermination and declared the independence of the Democratic Republic of Timor-Leste. In conclusion, the pronouncements of the International Court of Justice have indeed contributed considerably to clarifying the status of self-determination under international law.183 Not only did the Court confirm the existence of a right of self-determination for colonial peoples, it also unravelled the essence of self-determination, ‘the need to pay regard to the freely expressed will of peoples’.184 The following paragraph will focus more closely on the ‘people’, the content and the status of self-determination in the colonial context and will consider its relationship with other principles of international law. 2.5 2.5.1

Analyzing Self-Determination in the Colonial Context The People

One of the major shortcomings of the concept of self-determination is that it does not define to whom it applies. To recall the words of Sir Ivor Jennings: ‘On the surface it seemed reasonable: let the people decide. It was in fact ridiculous because the people cannot decide, until somebody decides who 185 are the people.’

However, it has been argued that within the colonial context, selfdetermination was mainly interpreted as applying to ‘colonial peoples’.186 Moreover, it is assumed that self-determination applied to the inhabitants of non-self-governing territories as a whole, indicating a ‘territorial definition’ of the term ‘people’.187 Hannum has pointed out that during the period that self-determination developed from a Charter principle into a right,

183

Cassese, supra note 149, p. 363. Ibid. Smis, supra note 14, p. 185. Western Sahara, supra note 129, para. 59. 185 Jennings, supra note 10. 186 H. Quane, ‘The United Nations and the Evolving Right to Self-Determination’, International and Comparative Law Quarterly, Vol. 47 July 1998, p. 555. See also Smis, supra note 14, p. 197. 187 Smis, supra note 14, pp. 102, 155. A. Eide, ‘The National Society, Peoples and EthnoNations: Semantic Confusions and Legal Consequences’, Nordic Journal of International Law, Vol. 64, 1995, p. 357. Quane, supra note 177, pp. 555-556. Musgrave, supra note 14, p. 149. 184

29

‘the United Nations continued to refer rhetorically to the right of all peoples to self-determination, when what it really meant was the right of colonial territories to independence. […] It did not matter how many “peoples” were found within them, although obviously each contained many different peoples, nations and ethnic groups. Thus, in general, territories, not 188 peoples, enjoyed the right to independence’.

In the period of decolonisation, the United Nations thus seemed to prefer an objective, ‘territorial definition’ of a people instead of a more subjective, ‘ethnic criterion’.189 This conclusion has been reached on the basis of an analysis of UN practice in that period, because in most cases the whole population of a non-self-governing or trust territory achieved independence, whereby the former colonial boundaries became the boundaries of the newly established State.190 Nevertheless, it has been pointed out that the practice of the United Nations in the colonial context has not been consistent at all.191 In this respect, a few examples can be mentioned. The territory of Ruanda-Urundi, was separated ‘on ethnic grounds’ into two States, Rwanda and Burundi.192 The British Cameroons were divided, with Northern Cameroon joining Nigeria and Southern Cameroon joining French Cameroon.193 Moreover, in a number of cases the United Nations has allowed colonies achieving independence to absorb, or rather annex, territories that were never part of the territory before it became independent, and in most cases the population of these territories was not properly consulted.194 Examples include the annexation of Goa by India, the annexation of West New Guinea by Indonesia, the annexation of Ifni by Morocco and last but not least, the annexation of Western Sahara by Morocco (and Mauritania). In fact, the conflict over Western Sahara that continues until this day is the best example of how difficult it is to ‘identify the “self” in an objective way’.195 The conclusion that ‘people’ meant ‘colonial people’ has also been based on an interpretation of Article 1(2) of the Charter in light of 188

H. Hannum, ‘The Right of Self-Determination in the Twenty-First Century’, in: R.P. Claude and B.H. Weston (eds.), Human Rights in the World Community. Issues and Action, Philadelphia: University of Pennsylvania Press 2006, p. 243-244. See also W.G. Werner, ‘SelfDetermination and Civil War’, Journal of Conflict and Security Law, Vol. 6, No. 2, 2001, p. 176. 189 Smis, supra note 14, p. 155. See also Pomerance, supra note 6, p. 18. Hannum, supra note 76, p. 454 stating that ‘nineteenth century “national” self-determination gave way to twentieth century “territorial” self-determination’. And W. Ofuatey-Kodjoe, ‘Self-Determination’, in: O. Schachter & C.C. Joyner (eds.), United Nations Legal Order, Vol. I, Cambridge: Cambridge University Press 1995, p. 374. 190 Pomerance, supra note 6, p. 18. 191 Ibid., p. 19. 192 Ibid. 193 Ibid. 194 Ibid., p. 20. 195 Hilpold, supra note 173, p. 256. See also M. Koskenniemi, ‘National Self-Determination Today: Problems of Legal Theory and Practice, International and Comparative Law Quarterly, Vol. 43, April 1994, pp. 260, 263. And Pomerance, supra note 6, p. 23.

30

Chapter XI and XII of the Charter, suggesting that ‘peoples’ refers to ‘peoples in non-self-governing or trust territories’.196 Paragraph 6 of Resolution 1514 (XV), prohibiting the disruption of the territorial integrity of a country is also invoked to support the territorial definition of a people.197 Additional support for a territorial definition of a people may be found in Resolution 1541 (XV), defining a nonself-governing territory and enumerating three ways in which such a territory may achieve self-government.198 Be that as it may, in section 2.3.1. of this Chapter it has been pointed out that Article 1(2) contains no definition of ‘people’ and that the drafting history does not clarify this issue either. Moreover, section 2.3.2 of this Chapter has revealed that self-determination as proclaimed in Article 1 of the Human Rights Covenants was not limited to colonial situations, but had a broader scope. Besides, in section 2.4.1 it was argued that self-determination as formulated in the Friendly Relations Declaration was granted to all peoples, not only colonial peoples. In addition, it must be noted that the General Assembly has identified non-colonial peoples as holders of a right of self-determination, e.g. the ‘South African people’.199 The right of the ‘Palestinian people’ to self-determination has been recognised by both the General Assembly200 and the International Court of Justice.201 On the basis of the foregoing arguments, it is submitted here that even though in the colonial context attempts have been made to ‘solve’ the problem of a lacking definition by interpreting the term ‘people’ as referring to ‘the inhabitants of a separate colonial territory’,202 such a narrow interpretation is not supported by consistent UN practice nor by the texts on self-determination that have been analysed in this Chapter.203 In other words, there is still no generally accepted definition of a ‘people’ under international law. 2.5.2

The Content of Self-Determination

While the meaning of the term ‘people’ remains unclear, the content of self-determination is not so difficult to define. According to 196

Musgrave, supra note 14, p. 150. See Ofuatey-Kodjoe, supra note 180, p. 374. Musgrave, supra note 14, p. 150. See G.J. Simpson, ‘The Diffusion of Sovereignty: Self-Determination in the Post-Colonial Age’, Stanford Journal of International Law, Vol. 32, 1996, p. 272, stating that ‘[t]roughout the 1950s and 1960s, “colonial self-determination” referred to a mode of self-determination based on a highly specific definition of colonialism. […] The Afro-Asian states, and subsequently the United Nations itself, subscribed to a theory of salt-water colonialism: Self-determination could only apply to territories which were separated from their metropolitan parent by oceans or high seas’. 199 GA Res. 2396 (XXIII), 2 Dec. 1968, available at . 200 GA Res. 2672C (XXV), 8 Dec. 1970, available at . 201 Wall Opinion, supra note 129, para 118. 202 Werner, supra note 179, p. 176. 203 Musgrave, supra note 14, p. 151. 197 198

31

Resolution 1514 (XV) and Article 1 of the Human Rights Covenants it grants peoples the right to ‘freely determine their political status and freely pursue their economic, social and cultural development’. Article 1(2) of the Human Rights Covenants links self-determination with ‘permanent sovereignty over natural wealth and resources’.204 Selfdetermination thus contains a political and an economic aspect, but this subparagraph will only focus on the right of peoples to ‘freely determine their political status’. In the colonial context, the focal point was the right of external selfdetermination, i.e. the right of a people to choose its international political status.205 Resolution 1541 (XV) and the Friendly Relations Declaration identify four ways in which the right of self-determination may be exercised: (a) emergence as a sovereign independent state; (b) free association with an independent state; (c) integration with an independent state; or (d) emergence into any other political status freely determined by a people. In the Western Sahara case, the World Court confirmed the validity of both resolutions but defined the essence of self-determination as ‘the need to pay regard to the freely expressed will of the peoples’, indicating that it considered the way in which self-determination was exercised more important than the final outcome.206 However, United Nations practice in the context of decolonisation indicates that there was ‘a strong pro-independence bias’.207 General Assembly resolutions have used the terms self-determination and independence together so often that many believe them to be ‘synonymous’.208 Despite this preference for independence, the previous paragraph already pointed out that the UN decolonisation practice has not been consistent, and that in many cases either the people were not offered the choice of independence, or were not offered a choice at all.209 A final point that needs to be considered is whether the right of external self-determination is a ‘continuing right’.210 In other words, does it expire after it has been exercised, or does a people have a right to change its political status more than once? Even though Cassese has argued that the right of external self-determination can be exercised only once, after which it expires, others have argued

204

Pomerance, supra note 6, p. 24. See GA Res. 1314 (XIII), 12 Dec. 1958 and GA Res. 1803 (XVII), 14 Dec. 1962, available at , both stating that ‘permanent sovereignty over natural wealth and resources’ is ‘a basic constituent of the right to selfdetermination’. 205 Cassese, supra note 13, p. 72. 206 Western Sahara, supra note 129, paras. 54-59. Pomerance, supra note 6, pp. 24-25. 207 Pomerance, supra note 6, p. 25. 208 Ibid. 209 Ibid., p. 26. 210 Cassese, supra note 13, p. 54.

32

that international law is unclear on this matter.211 The author believes that neither the instruments that have been examined in this Chapter, nor UN practice support the assumption that the right of external self-determination can be exercised only once. Therefore, if a certain people have opted for association with another State, that people would still have the right to choose to be independent, and vice versa.212 In summary, while the content of the right of self-determination in the colonial context is clear, practice has not always been consistent. Thus, ‘anti-colonial results’ were considered more important than ‘self-determination methods’.213 The international community may be criticized for ‘betraying’ the principle of self-determination and applying ‘double standards’ in the same way Wilson and the peacemakers at Versailles were criticized.214 2.5.3

The Status of Self-Determination

After having analysed the content of self-determination and addressing the question to whom it applies, it is necessary to address the legal status of self-determination under international law within the colonial context. This Chapter has pointed out that the roots of self-determination can be found in the eighteenth century, from where it developed as a political principle advocated by Lenin and Wilson. In the early twentieth century States clearly did not accept self-determination as a legal rule, while the political principle was applied arbitrarily and ‘to a large extent subordinated to other concerns’.215 However, with the inclusion of self-determination in the Charter of the United Nations, the political principle without doubt entered the legal plane.216 This paragraph will analyse the legal status of self-determination taking account of international conventions, international custom and judicial decisions, all of which have been identified as sources of international law in Article 38 of the Statute of the International Court of Justice. Starting with international conventions, self-determination was included in the Charter of the United Nations and in the two Human Rights Covenants. With its inclusion in the UN Charter, selfdetermination became a principle of international law. The General Assembly has emphasised the validity of the principle of self-

211

Ibid., supra note 3, p. 73. Hilpold, supra note 173, p. 254. See also S. Hillebrink, The Right to Self-Determination and Post-Colonial Governance: the Case of the Netherlands Antilles and Aruba, The Hague: T.M.C. Asser Press 2008. 212 See the example of the Netherlands Antilles and Aruba. Hillebrink, supra note 202. 213 Pomerance, supra note 6, p. 28. See Western Sahara, supra note 129, para. 59. 214 Pomerance, supra note 6, p. 5. 215 Cassese, supra note 13, pp. 24, 26. 216 Ibid., p. 43.

33

determination in the Friendly Relations Declaration,217 when it declared that ‘The principles of the Charter which are embodied in this Declaration constitute basic principles of international law, and consequently appeals to all States to be guided by these principles in their international conduct and to develop their mutual relations on the basis of the strict observance of 218 these principles’.

The inclusion of the right of self-determination in common Article 1 of the two International Human Rights Covenants which have been signed by a majority of States has further strengthened its legal status.219 As regards international custom, the resolutions of the General Assembly and the pronouncements of the International Court of Justice have both contributed to the creation of self-determination as a rule of customary international law.220 On the basis of its competence under Articles 10, 13 and 14 of the Charter, the General Assembly was able to formulate numerous resolutions and declarations on self-determination.221 As Cristescu points out ‘what is beyond challenge, is the fact that, […] resolutions may be considered to lay down rules which are binding upon States. They become part of customary law in general, that is to say, of the whole body of rules and principles established by general usage and recognized as having the force of law. This clearly applies to the resolutions and declarations of the United Nations concerning self-determination. They have contributed not only to the formation of the law on decolonization, but also to the interpretation and practical application of the rules of law relating to self222 determination’.

The International Court of Justice has endorsed the General Assembly resolutions on self-determination and ‘confirmed the existence of the right to self-determination’ in the Advisory Opinions on Namibia and Western Sahara.223 Moreover, in the East Timor case the Court emphasised that the right of self-determination has an erga omnes

217

Cristescu, supra note 117, paras. 130, 133-134. Friendly Relations Declaration, supra note 110, General Part, para. 3. (emphasis added). Ofuatey-Kodjoe, supra note 169, p. 368. Cristescu, supra note 117, para. 138. 220 Cristescu, supra note 117, paras. 141-143. 221 Ibid., para. 47. Cristescu also quotes a statement of the Office of Legal Affairs of the United Nations Secretariat: ‘in view of the greater solemnity and significance of a ‘declaration’, it may be considered to impart, on behalf of the organ adopting it, a strong expectation that Members of the international community will abide by it. Consequently, in so far as the expectation is gradually justified by State practice, a declaration may by custom become recognised as laying down rules binding upon States’. UN Doc. E/CN.4/L.610 (1962), para. 4. 222 Cristescu, supra note 117, para. 151. See also Cassese, supra note 13, p. 70. Smis, supra note 14, p. 199. And Ofuatey-Kodjoe, supra note 180, pp. 368-370. 223 Ofuatey-Kodjoe, supra note 180, pp. 370-371. 218

219

34

character and identified it as ‘one of the essential principles of contemporary international law’.224 While it has even been argued that self-determination is a peremptory norm of international law,225 a number of authors has argued against this proposition.226 The existence of self-determination as a norm of ius cogens is not very likely for three reasons: first, there seems to be a lack of support to this effect by an important segment of the world community,227 second, there are examples of treaties that conflict with self-determination,228 and third, when conflicting with other principles of international law, such as uti possidetis or the principle of territorial integrity, these principles generally override the principle of self-determination.229 On the basis of the previous paragraphs and the foregoing analysis it can be concluded that in the context of decolonisation, a customary rule of international law has been created, granting peoples living under colonial, alien and racist domination a right to selfdetermination.230 Conventional law has also recognised selfdetermination as a legal principle in the Charter of the United Nations and it has been incorporated as a collective human right in the two International Human Rights Covenants. Thus, self-determination ‘is a legal concept which finds expression both as a principle of international law and as a subjective right’.231 The following

224 Case Concerning East Timor, supra note 164, para. 29. The Court confirmed the erga omnes character of self-determination in the Wall Opinion, supra note 129, paras. 88, 156. 225 According to Article 53 of the Vienna Convention on the Law of Treaties a peremptory norm of international law (jus cogens) is: ‘a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.’ Authors supporting the ius cogens character of self-determination include Cassese, supra note 13, p. 140; Judge Ammoun, Separate Opinion, Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Second Phase (Merits), ICJ Reports 1970, p. 304; I. Brownlie, Principles of Public International Law, 4th Edition, Oxford: Clarendon Press 1990, p. 513; H. Gross Espiell, ‘Self-Determination and Jus Cogens’, in: A. Cassese (ed.), UN Law/Fundamental Rights: Two Topics in International Law, Alphen aan den Rijn: Sijthoff & Noordhoff 1979, pp. 167-173; K. Doehring, ‘Self-Determination’, in: B. Simma (ed.), The Charter of the United Nations: A Commentary, Oxford: Oxford University Press 1994, p. 70; S.J. Anaya, ‘Self-Determination as a Collective Right under Contemporary International Law’, in: P. Aikio & M. Scheinin (eds.), Operationalizing the Right of Indigenous Peoples to SelfDetermination, Turku: Åbo Akademi University 2000, p 3; and Raič, supra note 7, p. 444. 226 See, e.g., Pomerance, supra note 6, p. 70; Summers, supra note 59, p. 392; Cristescu, supra note 117, para. 154; J. Crawford, ‘Book Review of Antonio Cassese, Self-Determination of Peoples: A Legal Reappraisal’, American Journal of International Law, Vol. 90, 1996, p. 332. 227 Summers, supra note 59, p. 389. 228 Ibid., pp. 380-391, quoting the examples of the Timor Gap Treaty of 1989 between Australia and Indonesia, the Treaty of Utrecht 1713 between Britain and Spain, and the SinoBritish Joint Declaration of 1984. 229 Summers, supra note 59, p. 391. 230 Smis, supra note 14, p. 197. 231 Cristescu, supra note 117, para. 139. See also Cassese, supra note 13, pp. 126-133, identifying a principle of self-determination and a set of customary rules, complementing each other. Summers, supra note 59, pp. 379-387, notes that the words ‘principle’ and ‘right’ have been and are often used ‘interchangeably’ in connection with self-determination. See e.g. the

35

paragraph will examine how self-determination relates to other principles of international law. 2.5.4

Self-Determination International Law

in

Relation

to

Other

Principles

of

Self-determination often clashes with other principles of international law, such as the sovereign equality of states and territorial integrity, uti possidetis, non-intervention and the prohibition on the use of force in international relations.232 As regards the conflicting principle of uti possidetis, it has been pointed out in section 2.4.2 that the International Court of Justice was in favour of a political solution. According to the Court, in case of a conflict between the two principles the need for stability would require uti possidetis to prevail over self-determination.233 Whatever the merit of such a solution, it has been argued that the General Assembly has not been equally helpful in suggesting solutions in case of other clashing principles.234 On the contrary, following the example of Resolution 1514 (XV) numerous resolutions have simply ‘restated the “territorial integrity versus self-determination” problem’.235 There is one important resolution however, that does indicate a solution in a very specific situation. According to Paragraph 7 of Principle V of the Friendly Relations Declaration, the principle of self-determination takes precedence over the principle of territorial integrity in case a government is not representative of the whole territory. This provision is often referred to as ‘the safeguard clause’. It has been invoked to support the existence of a right of unilateral secession as a remedy against violations of basic human rights, and for this reason it will be discussed in Chapter 4. Pomerance has pointed out that UN practice as regards ‘territorial integrity versus self-determination’ seems to indicate that ‘the specific identity of the claimants – whose territorial integrity is pitted against whose self-determination – remains a crucial, if not the critical 236 factor’.

The principle of territorial integrity continues to challenge the right of self-determination outside the colonial context. As regards the principle of non-intervention, Cassese has noted that it does not apply when oppressed peoples are trying to exercise their Friendly Relations Declaration, Western Sahara, supra note 129, paras. 55, 57, 59, 70, 71, 161, 162. And Case Concerning East Timor, supra note 164, para. 29. 232 Pomerance, supra note 6, p. 43. 233 Frontier dispute, supra note 158, para. 25. 234 Pomerance, supra note 6, p. 43. 235 Ibid. 236 Ibid., p. 44.

36

right of self-determination, because States are allowed and even encouraged to support their struggle.237 The status and representation of national liberation movements under international law will be discussed in the following paragraph. The prohibition on the use of force poses another challenge to the right of self-determination. However, the tension between the prohibition on the use of force and the right to self-determination has been mitigated with the revival of the medieval ‘just war’ doctrine, according to which the struggle of national liberation movements fighting for self-determination against ‘colonial, alien or racist domination’ is considered to be a ‘legitimate struggle’.238 In this respect two important examples must be mentioned. Article 7 of the Definition of Aggression239, contains a provision that was intended to ‘exempt self-determination struggles from any restrictions’ on the use of force.240 Another example is the adoption of General Assembly Resolution 3103 (XXVIII), ‘Basic Principles of the Legal Status of the Combatants Struggling Against Colonial and Alien Domination and Racist Regimes’ on 12 December 1973, which was the prelude to the adoption of the First Additional Protocol to the Geneva Conventions (AP I).241 According to Paragraph 1 of Resolution 3103 (XXVIII) ‘[t]he struggle of peoples under colonial and alien domination and racist regimes for the implementation of their right to self-determination and

237

Cassese, supra note 13, pp. 175-176, 155-158. See Paragraph 5 of Principle V of the Friendly Relations Declaration, where it is stated that ‘[e]very State has the duty to refrain from any forcible action which deprives peoples referred to above in the elaboration of the present principle of their right to self-determination and freedom and independence. In their actions against, and resistance to, such forcible action in pursuit of the exercise of their right to self-determination, such peoples are entitled to seek and to receive support in accordance with the purposes and principles of the Charter’. (emphasis added). See also Paragraph 3 of GA Res. 3070 (XXVIII), 30 Nov. 1973, available at , calling ‘upon all States, in conformity with the Charter of the United Nations and with relevant resolutions of the United Nations, to recognize the right of all peoples to self-determination and independence and offer moral, material and any other assistance to all peoples struggling for the full exercise of their inalienable right to self-determination and independence’. (emphasis added). 238 Pomerance, supra note 6. p. 48. 239 GA Res. 3314 (XXIX), Definition of Aggression, adopted by the General Assembly without a vote on 14 December 1974, available at . 240 Pomerance, supra note 6, p, 58. Article 7 provides as follows: ‘Nothing in this Definition, and in particular article 3, could in any way prejudice the right to self-determination, freedom and independence, as derived from the Charter, of peoples forcibly deprived of that right and referred to in the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, particularly peoples under colonial and racist regimes or other forms of alien domination: nor the right of these peoples to struggle to that end and to seek and receive support, in accordance with the principles of the Charter and in conformity with the above-mentioned Declaration’. 241 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, available at .

37

independence is legitimate and in full accordance with the principles of 242 international law’.

According to Paragraph 3 of the Resolution, national liberation struggles ‘are to be regarded as international armed conflicts in the sense of the 1949 Geneva Conventions’, and those who are fighting for freedom enjoy combatant status. Paragraph 4 of the Resolution states that those combatants are also ‘to be accorded the status of prisoners of war’, enjoying the same treatment as provided for in the Third Geneva Convention.243 With the adoption of Article 1 AP I, the scope of the Geneva Conventions was broadened to include ‘armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of 244 the United Nations’.

Thus, if there is (i) an armed conflict in which a people is fighting against colonial domination, alien occupation or a racist régime and if they are (ii) fighting to exercise their right of self-determination, this paragraph will be applicable and consequently, these peoples will enjoy the protection on international humanitarian law. According to Article 96 (3) of AP I the authority representing these peoples may address a unilateral declaration to the depositary, which will have the effect of bringing the Conventions and the Protocol into force. As a result of this the authority will have the same rights and obligations as a State.245 Self-determination as a fundamental principle of international law may clash with other principles of international law and this may pose difficult questions. While the tension between self-determination and 242

(emphasis added). See also GA Res. 2105 (XX) of 20 Dec. 1965 and GA Res. 2621 (XXV) of 12 October 1970, available at , containing similar statements. 243 Geneva Convention (III) relative to the Treatment of Prisoners of War, 12 August 1949, available at . 244 Article 1 (4) of Additional Protocol I, supra note 232. See generally on Article 1 C. Pilloud et al (eds.), Commentary on the additional protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, Geneva: International Committee of the Red Cross, Dordrecht: Martinus Nijhoff Publishers 1987, pp. 33-56. 245 Article 96 (3) reads as follows: ‘The authority representing a people engaged against a High Contracting Party in an armed conflict of the type referred to in Article 1, paragraph 4, may undertake to apply the Conventions and this Protocol in relation to that conflict by means of a unilateral declaration addressed to the depositary. Such declaration shall, upon its receipt by the depositary, have in relation to that conflict the following effects: (a) the Conventions and this Protocol are brought into force for the said authority as a Party to the conflict with immediate effect; (b) the said authority assumes the same rights and obligations as those which have been assumed by a High Contracting Party to the Conventions and this Protocol; and (c) the Conventions and this Protocol are equally binding upon all Parties to the conflict.’

38

territorial integrity continues to be problematic, this section has demonstrated that international law is quite clear in cases where selfdetermination clashes with the principles of non-intervention and the non-use of force. In such a situation, the latter principles ‘must yield’ to the principle of self-determination, since States are allowed to support self-determination struggles246 and given the fact that national liberation movements are allowed to use force in their struggle for self-determination. The next paragraph will shortly discuss the status and representation of national liberation movements under international law. 2.6

Status and Representation of National Movements under International Law

Liberation

‘Despite the promising language of the United Nations Charter, opening with the words “[w]e the peoples of the United Nations”, nations and peoples are, in practice, denied a significant place in the international legal order’.247 It was only in the context of decolonisation and apartheid that the representatives of national liberation movements were ‘regularly invited’ to participate in proceedings at the United Nations.248 Hence, organizations such as ZANU and ZAPU (Zimbabwe), SWAPO (Namibia), ANC and PAC (South Africa), PAIGC (Guinea-Bissau) and FRELIMO (Mozambique) were given a voice at the United Nations.249 The ANC and PAC even obtained ‘observer status’ at the United Nations, granting a more permanent right to take part in the debates of the General Assembly.250 The Palestinian Liberation Organization (PLO) also acquired ‘observer status’ in 1974 and Palestine is currently the only entity ‘having received a standing invitation to participate as observer […] in the sessions and the work of the General Assembly and maintaining [a] permanent observer mission[...] at Headquarters’.251 Other national liberation movements, such as the Frente Polisario (Western Sahara), are sometimes invited to make statements during

246

Cassese, supra note 13, p. 176. M.C. van Walt van Praag, ‘The Position of UNPO in the International Legal Order’, in: C. Brölmann et al (eds.), Peoples and Minorities in International Law, Dordrecht: Martinus Nijhoff Publishers 1993, p. 313. 248 Ibid., p. 315. See also A.C. Zollner, ‘International Representation of Peoples and Minorities’, in: C. Brölmann et al (eds.), Peoples and Minorities in International Law, Dordrecht: Martinus Nijhoff Publishers 1993, pp. 305-306. 249 Zollner, supra note 239, p. 306. 250 Ibid. 251 Blue Book ‘Permanent Missions to the United Nations No. 298’, March 2008 (updated 14 October 2008), available at . See GA Res 3237 (XXIX), 22 Nov. 1974 (observer status); A/Res/43/160, 9 Dec. 1988 (right to circulate communications without intermediary); A/Res/43/177, 15 Dec. 1988 (Palestine); A/Res/52/250, 7 July 1998 (right to participate in general debate and additional rights). 247

39

UN proceedings.252 In 2000, the UN Permanent Forum on Indigenous Issues (UNPFII) was established, an advisory body to the Economic and Social Council.253 Recently, indigenous peoples were given the opportunity to participate in the Working Group that drafted the United Nations Declaration on the Rights of Indigenous Peoples of 13 September 2007. This short overview reveals that the status and representation of peoples under international law is inadequate at the moment. Therefore, a large number of nations, peoples and minorities have joined the Unrepresented Nations and Peoples Organization (UNPO) that was established in 1991 to ‘fill the vacuum in the legal order’.254 It is to be hoped that the United Nations will open its doors more often for those peoples that are still unrepresented in the international community so that they can make their claims heard. 2.7

Conclusion

This Chapter set out to describe the colonial context in which selfdetermination developed. Starting out as a political principle rooted in the Enlightenment and eighteenth-century nationalism, selfdetermination played a significant part at the Peace Conference at Versailles and in the interwar period. However, the principle was applied inconsistently in those days and was easily set aside when there were other ‘geopolitical, economic or strategic interests’ at stake.255 With its inclusion in the Charter of the United Nations, selfdetermination transformed from a political into a legal principle. Selfdetermination was even proclaimed as a human right in the two International Human Rights Covenants. The Charter principle of self-determination needed further clarification and the General Assembly took up this task. In a number of progressive resolutions, the General Assembly identified the population of non-self-governing and trust territories as holders of the right to self-determination and declared that it was to be exercised through independence, free association, integration or any other political status desired by the people. The International Court of Justice endorsed the resolutions of the General Assembly in its Advisory Opinions on Namibia and Western Sahara. If the ‘actual behaviour’ of States and their pronouncements in this period of time are added to these resolutions and opinions, it can be safely asserted 252 See e.g. the ‘Report of the Special Committee on the Situation with regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples for 2008’, available at , pp. 25, 45. 253 See . The mandate of UNPFII includes discussing ‘indigenous issues related to economic and social development, culture, the environment, education, health and human rights.’ 254 Van Walt van Praag, supra note 238, p. 320. 255 Cassese, supra note 13, p. 25.

40

that there is enough evidence of State practice and opinio iuris to support the existence of a rule of customary international law according to which ‘colonial peoples’ and peoples suffering from alien or racist domination have a right to external self-determination.256 However, even though the International Court of Justice had identified ‘the need to pay regard to the freely expressed will of peoples’ as the core of self-determination,257 there have been many cases in which the ‘will of peoples’ was ‘blatantly set aside’.258 In this respect, the legal principle of self-determination in the period of decolonisation suffered from the same arbitrariness and ‘double standards’ as the political principle in the pre-Charter period had suffered. The next Chapters will make clear that this would continue to be a feature of self-determination. The inclusion of self-determination as a human right in the two Human Rights Covenants not only confirmed the status of selfdetermination as a right under international law, it also evinced that self-determination was a universal and a ‘continuing right’, not confined to the colonial context nor to peoples living under colonial, alien or racist regimes.259 The following Chapter will discuss the development of self-determination beyond decolonisation.

256 257 258 259

Ibid., p. 70. Smis, supra note 14, p. 197. Western Sahara, supra note 129, para. 59. Cassese, supra note 13, p. 79. See ibid., p. 54.

41

42

3

Self-Determination in the Post-Colonial Context

‘At this stage, it is too late to put the genie of self-determination back in its colonialist bottle. Too many additional claims have now been validated; too large a meaning has been invested in the language of self-determination.’260 3.1

Introduction

The previous Chapter described the transformation of the political principle of self-determination into a rule of public international law. In the colonial context the right of self-determination became almost ‘synonymous’ with independence, and many socialist and Third World countries interpreted self-determination narrowly as only applying to colonial peoples.261 They believed that once dependent peoples had been able to exercise their right of self-determination by becoming independent, the right ‘expired’.262 However, outside the colonial context, doctrine and state practice often discern ‘internal’ and ‘external’ self-determination as two ‘different modes of implementation’ of the right.263 Hence those who try to limit the right of self-determination to colonial situations only emphasise external self-determination and fail to take account of the ‘internal’ aspect.264 Even in the high tide of decolonisation several instruments on selfdetermination were adopted that were meant to give it a broader meaning. As stated before, the right of self-determination that was included in the International Human Rights Covenants and in the Friendly Relations Declaration was clearly not limited to colonial situations. In the Advisory Opinion on Western Sahara the International Court of Justice also defined self-determination in a more general sense as ‘the need to pay regard to the freely expressed will of peoples’.265 In addition, State practice, doctrine and several other international instruments affirm self-determination as an ‘ongoing right’, the application of which is not confined to the colonial context.266 260 R. Falk, ’Self-Determination Under International Law: The Coherence of Doctrine Versus the Incoherence of Experience’, in: W. Danspeckgruber (ed.), The Self-Determination of Peoples. Community, Nation and State in an Interdependent World, London: Lynne Rienner Publishers Inc. 2002, p. 38. 261 Pomerance, supra note 6, p. 25. A. Rosas, ‘Internal Self-Determination’, in: C. Tomuschat (ed.), Modern Law of Self-Determination, Dordrecht: Martinus Nijhoff Publishers 1993, pp. 227-228. Raič, supra note 7, pp. 226-227. 262 Cassese, supra note 13, p. 73. 263 Raič, supra note 7, p. 227. 264 Ibid., pp. 227-228. 265 Western Sahara, supra note 129, para. 59. 266 Raič, supra note 7, p. 228. See also Cassese, supra note 13, pp. 101-102. V.P. Nanda, ‘What Does Self-Determination Mean in the Post Cold War Era?’, Work paper published by the

43

Be that as it may, Simpson correctly stated that ‘the nature of the model which will replace colonial self-determination is uncertain’ and ‘[i]t certainly will not be easy to define a right to self-determination with potential applications beyond the colonial context. Nonetheless, self-determination’s legal relevance depends on its expansive redefinition.’267 This Chapter will address self-determination as a ‘continuing right’ outside the colonial context, mainly focussing on the internal aspect of the right.268 First, it is important to describe the post-colonial era in which self-determination developed, starting with the end of the Cold War in the early nineties and the international response to postcolonial self-determination claims. The second paragraph will examine conventional law reflecting the ‘continuing character’ of selfdetermination.269 Several relevant international instruments will be discussed in the next paragraph, followed by an analysis of the right of self-determination outside the colonial context. The Chapter will be concluded with some final observations. 3.2

The International Response to Self-Determination Claims Outside the Colonial Context

3.2.1

The Reunification of the German State

The fall of the Berlin Wall in November 1989 has been widely perceived as symbolizing the end of the Cold War. Within one year this historical event led to the reunification of East and West Germany. In March 1990 free elections were held in East Germany in which 80 percent of the East Germans exercising their right of selfdetermination voted in favour of unification with West Germany.270 Within six months the Federal Republic of Germany (West Germany) and the German Democratic Republic (East Germany) had signed a unification treaty, the preamble of which referred to the union as an act of self-determination.271 The four Great Powers expressed their agreement with the German unity when they signed the ‘Treaty on

World Jurist Association for the Eighteenth Biennial Conference on the Law of the World in Doha, Qatar, September 21-26, 1997, p. 2. Werner, supra note 179, pp. 171-172. And Koskenniemi, supra note 186, p. 242. 267 Simpson, supra note 189, pp. 274, 286. 268 Cassese, supra note 13, p. 54. 269 Raič, supra note 7, p. 228. 270 W. Czaplinski, ‘Current Developments. The Reunification of Germany’, American Journal of International Law, Vol. 86, 1992, p. 153. 271 The Unification Treaty between the FRG and the GDR (Berlin, 31 August 1990), available at .

44

the Final Settlement with respect to Germany’.272 According to the preamble of this treaty the parties welcomed ‘the fact that the German people, freely exercising their right of selfdetermination, have expressed their will to bring about the unity of Germany as a state so that they will be able to serve the peace of the world as an equal and sovereign partner in a united Europe’.

The end of the Cold War thus enabled the German people to exercise its right of self-determination, an act which clearly occurred outside the colonial context and enjoyed the support of the international community.273 3.2.2

The Breakup of the Soviet Union

The population of the former Soviet Union consisted of a large number of ethnic groups. The Soviet constitution had established fifteen republics based on the largest ethnic group within each territory.274 Attempts at reforming the extremely centralized and oppressive communist Soviet Union with the policies of glasnost and perestroika did not succeed.275 In fact, these policies only increased nationalist aspirations within the Union and in the end led to its disintegration, starting in the early nineties when thirteen of the fifteen Union Republics declared independence from the Soviet Union.276 Concerns about international peace and security may explain the international community’s reaction to these events, stressing the need to maintain the territorial integrity of the Soviet Union.277 Cassese has rightly argued that the Baltic States could have made a valid claim for self-determination on the basis of their annexation pursuant to the illegal 1939 Molotov-Ribbentrop pact which was also in violation of the prohibition on the use of force.278 This point of view is supported by a resolution of the General Assembly,

272

Treaty on the Final Settlement with respect to Germany (Moscow, 12 September 1990), available at . The treaty was signed by the FRG and the GDR, the U.S., France, the UK and the USSR. 273 See the statement of the President of the General Assembly on behalf of the General Assembly on 3 October 1990, in which he welcomed a united Germany, A/45/PV.18 (provisional record), available at . 274 Musgrave, supra note 14, p. 108. The Republics of the Soviet Union were: Armenia, Azerbaijan, Belorussia, Estonia, Georgia, Kazakhstan, Kirghizia, Latvia, Lithuania, Moldavia, Russia, Tajikistan, Turkmenistan, Ukraine and Uzbekistan. 275 Ibid., p. 109. 276 Ibid., pp. 109-110. 277 Ibid., p. 110. Quane, supra note 177, pp. 565-566. 278 Cassese, supra note 13, pp. 260-262.

45

‘[r]ecalling with particular satisfaction that independence was restored in 279 Estonia, Latvia and Lithuania through peaceful and democratic means’.

According to Cassese, the other twelve republics did not have a right to self-determination and certainly not a right of secession under international law at that time.280 As will be explained in Chapter four, the breakup of the Soviet Union was a case of consensual secession. Moreover, it is important to note that according to the Republics, they were exercising their right to self-determination when they declared their independence.281 This is supported by the fact that most of the twelve republics held a referendum on the issue of secession which, as we have seen in the previous Chapter, was required by the principle of self-determination, defined as ‘the need to pay regard to the freely expressed will of peoples’.282 Ultimately, the international community recognised the new States and they were all admitted as member States of the United Nations.283 With respect to the process of recognition it is important to take note of the fact that the European Community and its member States made recognition dependent on whether certain requirements were met.284 According to the Declaration on the ‘Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union’, ‘[t]he Community and its Member States confirm[ed] their attachment to the principles of the Helsinki Final Act and the Charter of Paris, in particular 285 the principle of self-determination’.

279 A/Res/48/18, 15 November 1993, available at . (emphasis added). See also the statement of the Dutch Presidency of the European Community that ‘[t]he Community and its member States warmly welcome the restoration of the sovereignty and independence of the Baltic States, which they lost in 1940. They have consistently regarded the democratically elected parliaments and governments of these States as the legitimate representatives of the Baltic peoples’. Quoted by C. Warbrick, ‘Recognition of States’, International and Comparative Law Quarterly, Vol. 41, 1992, p. 474. (emphasis added). 280 Cassese, supra note 13, p. 264. 281 See e.g. the report submitted by Armenia under Article 40 of the ICCPR, stating that ‘[h]aving as its goal the creation of a democratic State ruled by law, and exercising the right of peoples to self-determination, Armenia embarked upon the process of establishment of independent statehood’ (CCPR/C/92/Add. 2, 1998, p. 2). And the report of Ukraine, according to which ‘[r]elying on article 1 of the International Covenant on Civil and Political Rights and basing its actions on its domestic legislation in accordance with internationally recognized legitimate procedures, the people of Ukraine gave effect in 1991 to their right to selfdetermination’ (CCPR C/95/Add. 2, 1994, p. 6). Both reports are available at . 282 Western Sahara, supra note 129, para. 59. Cassese, supra note 13, p. 266. 283 See Musgrave, supra note 14, p. 113. Recognition of the new States was not problematic, because the secession was consensual. See also H. Hannum, ‘Self-Determination in the Twenty-First Century’, in: H. Hannum and E.F. Babbit (eds.), Negotiating Self-Determination, Oxford: Rowman & Littlefield Publishers, Inc. 2006, p. 62. Also Quane, supra note 177, p. 566. 284 Smis, supra note 14, p. 325. 285 Declaration on ‘Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union’ (16 December 1991), European Journal of International Law, Vol. 4, 1993, p. 72. (emphasis added).

46

The guidelines required ‘respect for […] the rule of law, democracy and human rights’ and ‘guarantees for the rights of ethnic and national groups and minorities in accordance with the commitments subscribed to in the framework of the CSCE’. As Cassese pointed out, ‘recognition was made dependent on democratic rule, that is, internal self286 determination’.

The European Community thus ‘affirmed the close link existing between external and internal self-determination’ by making respect for the rule of law, democracy and human rights a ‘sine qua non’ for the achievement of independence.287 This was a revolutionary development. Moreover, the European Community ‘stressed the link between self-determination and the protection of minorities’.288 3.2.3

The ‘Dissolution’ of the Socialist Federal Republic of Yugoslavia

The population of the former Socialist Federal Republic of Yugoslavia (SFRY) also consisted of a large number of ethnic groups. The SFRY was composed of six republics, Bosnia-Herzegovina, Croatia, Macedonia, Montenegro, Serbia and Slovenia and there were two Autonomous Provinces within Serbia, Kosovo and Vojvodina. The ‘dissolution’ of Yugoslavia was caused by ‘conflicting nationalist forces’ and growing ‘ethnic tensions’ which culminated into a civil war after Croatia and Slovenia had declared their independence.289 The initial reaction of the international community to the Yugoslav crisis was similar to the way it reacted to the Soviet crisis.290 Western States were unwilling to watch Yugoslavia fall apart and stressed the need to preserve its territorial integrity.291 However, the crisis escalated very quickly and as soon as the European Community realised that a breakup of Yugoslavia was inevitable it changed its policy.292 In August 1991 the EC convened the ‘Peace Conference on Yugoslavia’ and set up an ‘Arbitration Committee’ which would have the task of ‘monitoring’ whether the seceding republics were able to

286

Cassese, supra note 13, p. 268. See also Hilpold, supra note 173, pp. 279-280. Cassese, supra note 13, pp. 268, 273. Ibid., p. 268. See also Musgrave, supra note 14, p. 112. 289 Musgrave, supra note 14, pp. 113-114. The issue of whether the Yugoslav crisis was a case of secession or dissolution or both will be addressed in the next Chapter. Hence the use of quotation marks. 290 Musgrave, supra note 14, p. 115. 291 Ibid. Hannum, supra note 274, p. 63, quoting M. Weller, ‘The International Response to the Dissolution of the Socialist Federal Republic of Yugoslavia’, American Journal of International Law, Vol. 86, 1992, p. 569. P. Radan, The Break-up of Yugoslavia and International Law, London: Routledge 2000, pp. 160-161. And W. Zimmermann, Origins of a Catastrophe, New York: Times Books, rev. ed. 1999, pp. 133-138. 292 Musgrave, supra note 14, pp. 116-117. Smis, supra note 14, p. 237. Hannum, supra note 274, p. 63. 287 288

47

fulfil the conditions of the EC member States.293 These conditions were enumerated in a Declaration issued on 16 December 1991 containing the ‘Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union’.294 The Badinter Commission first addressed three legal issues that needed to be clarified.295 In Opinions 4 through 7 the Arbitration Commission considered the applications of Bosnia-Herzegovina, Croatia, Macedonia and Slovenia, all wishing to be recognised as independent States.296 It is important to note that in all of these cases ‘the Committee ascertained in particular whether or not referendums on independence had been held in each republic, as well as whether each republic had committed itself to respecting the rights of individuals, groups 297 and minorities’.

While Croatia, Macedonia and Slovenia met all the conditions set out by the European Community, in Bosnia-Herzegovina the Commission required a referendum to ascertain the will of ‘the whole population’.298 After a referendum on independence was held a civil war broke out in Bosnia-Herzegovina, which lasted for three years and ended with the signing of the Dayton Peace Accords on 14 December 1995.299 3.2.4

Kosovo

In 1999 the Kosovo crisis broke out as ‘the last, but still unfinished episode of the inter-ethnic conflict in the Balkans that has led to the dismemberment of the SFRY’.300 On 17 February 2008, the Provisional Institutions of Self-Government Assembly of Kosovo declared independence. The reactions of the international community have 293

Cassese, supra note 13, p. 271. Hannum, supra note 274, p. 64. The Arbitration Committee comprised the presidents of the Constitutional Courts of France, Italy, Germany, Belgium, and Spain and came to be known as the Badinter Commission, after its President, Robert Badinter. 294 Musgrave, supra note 14, p 117. Hannum, supra note 274, p. 63-64. These requirements were also applied during the recognition process of the seceding Soviet Republics. See the ‘Guidelines on Recognition’ supra note 276. See also Declaration on Yugoslavia, Extraordinary EPC Ministerial Meeting, Brussels, 16 December 1991, European Journal of International Law, Vol. 4, 1993, p. 73. 295 Cassese, supra note 13, p. 271. Opinions 1-3 are reproduced in European Journal of International Law, Vol. 3, No. 1, 1992, pp. 182-185. In the First Opinion, the Commission discussed whether this was a case of secession or dissolution. In the Second Opinion, the Commission addressed the question whether the Serbian population in Croatia and BosniaHerzegovina had the right to self-determination. The Third Opinion considered whether the internal boundaries between Croatia and Serbia and between Bosnia-Herzegovina and Serbia could be regarded as frontiers in terms of public international law. 296 Cassese, supra note 13, p. 272. Opinions 4-10 are reproduced in European Journal of International Law, Vol. 4, No. 1, 1993, pp. 74-84. 297 Cassese, supra note 13, p. 272. 298 Ibid. 299 Musgrave, supra note 14, p. 120. 300 Smis, supra note 14, p. 391.

48

been mixed. The Kosovo crisis including the recent declaration of independence will be discussed in the next Chapter. For the purpose of this Chapter it is important to mention that the international community reacted to Kosovo’s declaration of independence with the deployment of the European Union Rule of Law Mission in Kosovo (EULEX), ‘to assist and support the Kosovo authorities in the rule of law area, specifically in the police, judiciary and customs areas’.301 3.2.5

Conclusion

It is very important to analyse State practice in response to selfdetermination claims outside the colonial context. In this respect, three important points can be made. First of all, the cases that have been described in this paragraph support the existence of a right of self-determination outside the colonial context. The reunification of Germany, the secession of 14 Soviet republics and the ‘dissolution’ of Yugoslavia were all instances of self-determination that took place in a non-colonial situation. Second, as the previous Chapter pointed out, in the colonial context self-determination was considered to be a right of the whole population of a certain territory. In other words, a people was territorially defined. State practice during the breakup of the Soviet Union and Yugoslavia indicates that Western states had changed their point of view and were ready to acknowledge that there could be more than one people on a certain territory and that those peoples had the right of self-determination.302 Third, in reaction to the events in the former Soviet Union and Yugoslavia the member states of European Community have established ‘general criteria for recognizing the new States’.303 Cassese summarizes these criteria as (i) the free expression of the will of the population concerned, by way of plebiscites or referendums and (ii) the firm commitment to respect the rule of law, human rights, and the 304 rights of groups and minorities.

Therefore, Cassese concludes ‘the basic requirement of internal self-determination has been proclaimed and indeed respect for it, as well as respect for the rights of minorities, have been raised to the status of sine qua non before the endorsement of 305 external self-determination’.

301 302 303 304 305

See . Musgrave, supra note 14, p. 124. Cassese, supra note 13, p. 273. Ibid. Ibid. This point will also be elaborated further in the next Chapter on remedial secession.

49

3.3

Conventional Law

After having analysed State practice in relation to self-determination claims outside the colonial context, the next step will be to examine whether conventional law supports the existence of a right of selfdetermination beyond decolonisation. Therefore, the present paragraph will study three human rights conventions containing a provision on self-determination: the two International Human Rights Covenants and the African Charter on Human and Peoples’ Rights, a regional convention. 3.3.1

The International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights

In paragraph 2.3.2 it was already noted that a right of selfdetermination was included in Article 1 of both Human Rights Covenants. If we examine common Article 1 in light of the Vienna Convention on the Law of Treaties, the following observations can be made. According to Article 31 (1) of the Vienna Convention, the general rule of interpretation of treaties is ‘the ordinary meaning to be given to the terms of the treaty in their context 306 and in the light of its object and purpose.’

A first look at the text of common Article 1 (1) of the Human Rights Covenants reveals that the right of self-determination is granted to ‘all peoples’. The ordinary meaning of these words thus indicates that the right of self-determination is not confined to colonial situations but may indeed have a ‘universal and continuous character’.307 Rosas also concludes that ‘Article 1 is not restricted to peoples living under colonial domination but applies, in principle at least, to all peoples. This is clear from the wording of paragraph 1, and while some States […] in the early stages made efforts to achieve some such limitation, these efforts failed, and there seems to have 308 been a growing understanding that the text meant what it said’.

Further support for this conclusion may be found if we consider the ‘context’ of the Article in light of the ‘object and purpose’ of the treaties. The fact that the right of self-determination was included in two Human Rights Covenants, the obvious aim of which is to protect human rights, makes it very unlikely that it would only apply to a

306 307 308

50

(emphasis added). Raič, supra note 7, p. 228. Rosas, supra note 252, p. 242.

specific category of peoples.309 However, as the previous Chapter already pointed out there is no definition of the term ‘peoples’. It is thus necessary to have recourse to the drafting history of the treaty as a ‘supplementary means of interpretation’.310 During the drafting of the Article several proposals to define the term ‘peoples’ were made, but in the end the drafters decided that it ‘should be understood “in its most general sense and that no definition was necessary”’.311 It does not become clear what the drafters meant with the phrase ‘in its most general sense’, but at least it suggests that ‘peoples’ not only referred to ‘dependent peoples’ but was intended to have a broader meaning. The problem of defining the term ‘peoples’ will be dealt with extensively in paragraph 3.5.1. As regards the scope of Article 1, the travaux of the Third Committee reveal that ‘[m]uch of the discussion on article 1 had related the question of selfdetermination to the colonial issue, but that was only because the peoples of Non-Self-Governing and Trust Territories had not yet attained 312 independence’.

This point of view was shared by many delegations asserting that ‘the right would be proclaimed in the covenants as a universal right and for 313 all time’.

A point Cassese has noted is that whereas draft Article 1 stated that ‘all peoples shall have the right to self-determination’, Article 1 as it was adopted states that ‘all peoples have the right to selfdetermination’.314 Apparently, the present tense was used ‘to

309

Quane, supra note 177, p. 559. Article 32 of the Vienna Convention on the Law of Treaties. 311 Quane, supra note 177, p. 559-560, quoting from M.J. Bossuyt, Guide to the ‘Travaux Préparatoires’ of the International Covenant on Civil and Political Rights, Dordrecht: Martinus Nijhoff Publishers 1987, p. 32. 312 Raič, supra note 7, p. 229, note 9, quoting UN GAOR, 10th sess., Ann., 20 Sept. – 20 Dec. 1955, Doc. A/3077, 8 Dec. 1955, Report of the Third Comm., p. 33. Cf. UN Doc. A/C.3/SR.309, 9 Nov. 1950, para 57 (Saudi Arabia); UN Doc. A/C.3/SR.310, 10 Nov. 1950, paras. 23-24 (Belgium); UN Doc. A/C.3/SR.311, 10 Nov. 1950, paras. 30-32 (Mexico); A/C.3/SR.362, 8 Dec. 1951, para. 11 (Afghanistan); UN Doc. A/C.3/SR.649, 1 Nov. 1955, paras. 34-36 (Lebanon). See, generally, Bossuyt, supra note 302, pp. 41-45. 313 See UN Doc. A/C.3/SR.312, 13 Nov. 1950, para. 3 (Ethiopia); UN Doc. A/C.3/SR.364, 10 Dec. 1951, para.17 (United States); UN Doc. A/C.3/SR.399, 23 Jan. 1952, para. 53 (Iran); UN Doc. A/C.3/SR.402, 24 Jan. 1952, para. 13 (Yugoslavia); UN Doc. A/C.3/SR.644, 26 Oct. 1955, para. 1 (Denmark); UN Doc. A/C.3/SR.650, 2 Nov. 1955, para. 13 (Ecuador); UN Doc. A/C.3/SR.699, 3 Dec. 1956, paras. 12-13 (New Zealand); para. 31 (Lebanon). See also UN Doc. E/CN.4/SR.254 (1952), p. 5, arguing that the right of self-determination was a universal right. 314 Cassese, supra note 13, p. 54. 310

51

emphasize the fact that the right referred to is a permanent one’.315 Some States argued that if the right of self-determination would be limited to ‘colonial peoples’, this would undermine its legitimacy.316 According to Belgium ‘The principle of self-determination was universal; to attempt to limit its application to an arbitrary defined category of population would be to distort 317 a great principle and seriously weaken its value’.

Yugoslavia stated that ‘It was hard to see how “all” peoples could enjoy the right of selfdetermination if only one class of signatory States was under an obligation 318 to ensure the exercise of the right’.

A textual interpretation of paragraph 3 also supports the existence of a right of self-determination beyond the colonial context. According to Article 1 (3) ‘[t]he States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter 319 of the United Nations’.

While this paragraph specifically addresses States that are responsible for non-self-governing and trust territories, it can only be interpreted as referring to an obligation of all State parties to promote and respect the right of self-determination.320 Thus the ordinary meaning of Article 1 and the travaux préparatoires both support the conclusion that self-determination is a ‘universal’ right and therefore not confined to colonial situations.321 In other

315 Comment made by the Chairman of the Working Party of the Third Committee when he presented the draft to the Third Committee (UN Doc., A/C.3/SR.668, para. 3), quoted by Cassese, supra note 13, p. 54. 316 J. Summers, ‘The Status of Self-determination in International Law: A Question of Legal Significance or Political Importance?’, Finnish Yearbook of International Law, Vol. 14, 2003, p. 275. 317 7 GAOR (1952) 3rd Cmttee., 446th mtg., (A/C.3/SR.446) para. 31, quoted by Summers, ibid. 318 10 GAOR (1955) 3rd Cmttee., 657th mtg., (A/C.3/SR.657) para. 12, quoted by Summers, ibid. 319 (emphasis added). 320 Raič, supra note 7, p. 229. See also Quane, supra note 177, p. 559. 321 Smis, supra note 14, p. 426. Cassese, supra note 13, p. 54. See also Cristescu, supra note 117, para. 214, stating that ‘[t]he right of peoples to self-determination is not an individual right; it is a collective right which, in the International Covenants on Human Rights, has been distinguished from other individual rights placed before them and proclaimed as a universal and perpetual right’. (emphasis added).

52

words, the right of self-determination as proclaimed in the two Human Rights Covenants is ‘a continuing right’.322 Article 1 stimulated the development of the concept of internal selfdetermination in an important way, because it connected selfdetermination with civil and political rights.323 It has been argued that the ‘flexibility’ and ‘adaptability’ of self-determination has allowed it to attain a new ‘free-standing meaning’ outside the colonial context.324 The Reports submitted to the Human Rights Committee by State Parties under Article 40 of the Covenant support this claim. Those Reports are evidence of ‘subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation’ and will be discussed in paragraph 3.4.5.325 A final point that may be mentioned is that India made a declaration on Article 1 when it adopted the Covenants: ‘With reference to Article 1 of the …[Covenants] … the Government of the Republic of India declares that the words ‘the right of self-determination’ appearing in [this article] apply only to the peoples under foreign domination and that these words do not apply to sovereign independent States or to a section of a people or nation – which is the essence of 326 national integrity’.

The Government of the Federal Republic of Germany issued a formal declaration of protest327 against this declaration, and this response was joined by France328 and the Netherlands.329 Considering the fact that India is the only country that made a declaration to this effect and given the protests of three States against this declaration, there must have been general agreement that self-determination did apply beyond the colonial context.330 The reaction of the Human Rights Committee to this declaration will be discussed in paragraph 3.4.5. To conclude, Article 1 grants an ‘ongoing’ right of self-determination by virtue of which ‘all peoples freely determine their political status and freely pursue their economic, social and cultural development’, indicating the internal aspect of the right.331 It is submitted here that the strongest argument for the ‘continuing character’ of selfdetermination and its internal dimension is provided by the fact that it was included in two human rights covenants aimed at the universal

322 323 324 325 326 327 328 329 330 331

Cassese, supra note 13, p. 54. Ibid. Hilpold, supra note 173, p. 262. Article 31 (3) (b) of the Vienna Convention on the Law of Treaties. See UN Doc. CCPR/C/2/Rev. 4, 24 Aug. 1994, p. 25, available at . Ibid., pp. 50-51. Ibid, p. 50. Ibid., pp. 52-53. Cassese, supra note 13. p. 60. Ibid., p. 101. Rosas, supra note 252, p. 243.

53

protection of human rights and without doubt applicable in the relationship between a State and its own population.332 3.3.2

The African Charter on Human and Peoples Rights

It may not come as a surprise that African States regarded selfdetermination primarily as a right of decolonisation.333 As the previous Chapter explained, it was mostly because of the efforts of Third World countries, supported by socialist countries, that the General Assembly started on its anti-colonialist quest, which resulted in a number of progressive resolutions on self-determination. As a result of these efforts self-determination became almost ‘synonymous’ with decolonisation, a point of view which is also reflected in the African Charter.334 Despite this fact, it must be noted that the African Charter was adopted in 1981, when there were not many colonies left in Africa.335 This makes it very unlikely that self-determination as proclaimed in the African Charter would only apply in the colonial context.336 Moreover, the same argument that was used in connection with the right self-determination as proclaimed in the International Human Rights Covenants may be invoked here. The African Charter is a human rights treaty and therefore, the right of self-determination must have a universal character. A textual interpretation of Article 20 (1) of the Charter reveals the internal aspect of self-determination and its application beyond decolonisation.337 According to Article 20 (1) ‘All peoples […] shall have the unquestionable and inalienable right to selfdetermination. They shall freely determine their political status and shall pursue their economic and social development according to the policy they 338 have freely chosen.’

An important development is that the African Commission on Human and Peoples’ Rights also started looking at self-determination from an internal point of view.339 The African Commission on Human and Peoples’ Rights will be dealt with in paragraph 3.4.7.

332

Rosas, supra note 252, p. 243. Raič, supra note 7, p. 235. Smis, supra note 14, p. 175. 334 Ibid., p. 176. 335 Raič, supra note 7, p. 232. 336 Ibid. 337 Rosas, supra note 252, p. 245. Raič, supra note 7, p. 232. Rosas quotes a recent comprehensive study on the African Charter in which it is concluded that Article 20 has an internal dimension. See F. Ouguergouz, La Charte Africaine des Droits de l’Homme et des Peuples. Historique, portée juridique et contribution à la protection des droits de l’homme en Afrique, Paris: Presses Universitaires de France 1993, pp. 181-191. 338 (emphasis added). 339 Smis, supra note 14, p. 176, note 29. 333

54

3.3.3

Conclusion

The three conventions that have been discussed in this paragraph are the only human rights conventions containing a provision on the right of self-determination. No other international or regional human rights treaty mentions the right of self-determination. After having studied the provisions on self-determination in the International Human Rights Covenants and the African Charter on Human and Peoples’ Rights, the following observations can be made. These conventions lend support to the proposition that self-determination is not a right that is only applicable in the colonial context, but has a broader meaning. Furthermore, these conventions also point to the internal aspect of the right of self-determination. Subsequent practice in relation to these conventions supports the proposition that the broader meaning of self-determination is to be found in its internal dimension. This practice will be discussed in paragraphs 3.4.5 – 3.4.7. 3.4

Customary Law

After having examined conventional law on the right of selfdetermination in search of clues to support its continued relevance outside the colonial context, the following paragraphs will continue this search focussing on customary international law. International instruments, the pronouncements of the International Court of Justice, the practice of human rights treaty bodies and statements of States on self-determination will be examined in order to see whether there is enough State practice and opinio iuris to support a customary right of self-determination beyond decolonisation. 3.4.1

The General Assembly

According to the Friendly Relations Declaration self-determination is a right of ‘all peoples’.340 The Declaration defines self-determination as ‘the right freely to determine, without external interference, their political 341 status and to pursue their economic, social and cultural development.’

The language, context and the travaux préparatoires of the Declaration all indicate that the principle of self-determination has a universal scope.342 First of all, the ordinary meaning of the words ‘all

340

Friendly Relations Declaration, supra note 110. Ibid., Principle V, Paragraph 1. 342 Quane, supra note 177, p. 562, quoting 25 G.A.O.R. Supp. No.18 for the drafting history of the Declaration. See also Smis, supra note 14, p. 138. 341

55

peoples’ supports a broad interpretation of the principle.343 Second, the context of the principle, a declaration containing principles of international law concerning friendly relations and co-operation among States, suggests that self-determination applies to all States.344 Third, the report of the drafting committee reveals that it ‘was agreed that [the Declaration] … should contain a general statement of 345 the principle, stressing its universality’.

The ‘universal character of the principle’ was also emphasised by a number of States.346 Considering the ‘saving clause’ of Paragraph 7 of Principle V of the Friendly Relations Declaration there is no doubt that selfdetermination continues to be applicable outside the colonial context.347 According to Paragraph 7 ‘[n]othing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory 348 without distinction as to race, creed or colour’.

This paragraph affirms that self-determination is not a principle that only States administering non-self-governing or trust territories have to abide by.349 On the contrary, it insists that all States must respect the right to self-determination.350 Moreover, they must ‘respect this right with regard to their own peoples’.351 This interpretation is supported by numerous General Assembly resolutions.352 343

Quane, supra note 177, p. 562. Smis, supra note 14, p. 138. Quane, supra note 177, p. 562. Ibid., note 138 quoting 25 G.A.O.R. Supp. No. 18, p. 41. 346 Ibid., note 139, quoting 25 G.A.O.R. Supp. No. 18, p. 91 (France), p. 88 (Italy), p. 104 (Australia), p. 122 (US), 25 G.A.O.R. A/C.6/SR.1182 and Corr.1, para. 4 (Portugal), para. 28 (Spain), and 25 G.A.O.R. A/PV.1860, 5-6 (representative of the ‘African Group’). 347 Raič, supra note 7, p. 230. 348 (emphasis added). 349 Raič, supra note 7, p. 231. 350 Ibid. 351 Ibid. 352 Ibid. See UN Doc. A/Res/36/10, 28 Oct. 1981, para. 1, where General Assembly reaffirms ‘that the universal realization of the right of all peoples, including those under colonial, foreign and alien domination, to self-determination is a fundamental condition for the effective guarantee and observance of human rights and for the preservation and promotion of such rights’ (emphasis added). The same phrase is used in the resolutions on the ‘universal realization of the right of peoples to self-determination’ the General Assembly adopts annually. See e.g., UN Doc. A/Res/37/42, 3 Dec. 1982; UN Doc. A/Res/38/16, 22 Nov. 1983; UN Doc. A/Res/39/18, 25 Nov. 1984; UN Doc. A/Res/40/24, 29 Nov. 1985; UN Doc. A/Res/41/100, 4 Dec. 1986; UN Doc. A/Res/42/94, 7 Dec. 1987; UN Doc A/Res/43/105, 8 Dec. 1988; UN Doc. A/Res/44/80, 8 Dec. 1989; UN Doc. A/Res/54/155, 29 Feb. 2000; UN Doc. A/Res/55/85, 4 Dec. 2000; UN Doc. A/Res/56/141, 19 Dec. 2001; UN Doc. A/Res/57/197, 18 Dec. 2002; UN 344 345

56

Paragraph 7 also raises the important question of whether the postcolonial right of self-determination may also apply to groups within a State or whether it only applies to the population as a whole.353 First, the fact that it is considered necessary to stress the need to preserve the territorial integrity when exercising the right of self-determination indicates that a State may comprise more than one people and that each people within that State is entitled to self-determination.354 Second, Cassese has interpreted the ‘safeguard clause’ of Paragraph 7 of the Friendly Relations Declaration narrowly in the sense that it only grants racial or religious (sub)groups that are excluded from the political decision-making process a right of self-determination, while ‘linguistic or national groups do not have a concomitant right’.355 This narrow interpretation has been rightly criticised by Raič, because a government that ‘persistently excludes’ certain groups within its territory from participating in the political decision-making process cannot be considered ‘representative of the whole people’.356 Raič convincingly argues that the phrase ‘without distinction as to race, creed or colour’ must be interpreted broadly as referring to the prohibition of discrimination in general. To support his argument he points out that Article 1 of the International Convention on the Elimination of All Forms of Racial Discrimination also defines ‘racial discrimination’ broadly as ‘any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin […].’

Moreover, the Vienna Declaration of 1993, which will be discussed in section 3.4.8, not only reaffirmed Paragraph 7 of the Friendly Relations Declaration, but also widened its scope referring to ‘a Government representing the whole people belonging to the territory 357 without distinction of any kind’.

Doc. R/Res/58/161, 22 Dec. 2003; UN Doc. A/Res/59/180, 20 Dec. 2004; UN Doc. A/Res/60/145, 16 Dec. 2005; UN Doc. A/Res/61/150, 19 Dec. 2006; UN Doc. A/Res/62/144, 18 Dec. 2007; UN Doc. A/Res/63/163, 18 Dec. 2008. 353 Raič, supra note 7, p. 248. 354 Ibid., pp. 248-249. See the Supreme Court of Canada in Reference re Secession of Quebec, in: A. Bayefski (ed.), Self-determination in International Law: Quebec and Lessons Learned, The Hague: Kluwer Law International 2000, pp. 495-496. And Commission on Human Rights, Sub-Commission on the Prevention of Discrimination and Protection of Minorities, Working Group on Indigenous Populations, UN Doc. E/CN.4/Sub.2/AC.4/1996/2, 10 June 1996, para. 19, available at . Several other instruments addressing the right of selfdetermination also stress the need to preserve the territorial integrity, e.g. the Helsinki Final Act, the 1993 Vienna Declaration and the Charter of Paris for a New Europe of 1990. These instruments will be discussed in the following paragraphs. 355 Cassese, supra note 13, p. 114. 356 Raič, supra note 7, p. 250. 357 Vienna Declaration and Programme of Action, 25 June 1993, para. 2, available at .

57

According to Raič, the drafting history of the Friendly Relations Declaration also supports the proposition that the right of (internal) self-determination was not meant to apply only to racial or religious groups.358 On the basis of the foregoing analysis, it can be concluded that Paragraph 7 of the Friendly Relations Declaration not only refers to self-determination as a universal right, but that it may also apply to groups of peoples within States. This point will be elaborated further in paragraph 3.5.1. Another conclusion that may be drawn is that the saving clause of the Friendly Relations Declaration no doubt refers to the internal aspect of self-determination.359 While Simpson considers this ‘innovative’, it actually brings to mind the traditional, Western perception of self-determination which links the principle with representative government.360 Hence, Paragraph 7 of the Friendly Relations Declaration may be called a revival of Wilsonian selfdetermination. The Declaration is also important in a more controversial way, because it provides a very strong argument to support the existence of a right of remedial secession if a government

358

Raič, supra note 7, p. 255. Raič quotes a large number of delegations who stated that the right of self-determination had ‘universal application’. See UN Doc. A/AC.125/SR.69, 4 Dec. 1967, p. 4 (Yugoslavia); UN Doc. A/AC.125/SR.69, 4 Dec. 1967, p. 12 (France); UN Doc. A/AC.125/SR.69, 4 Dec. 1967, p. 22 (Kenya); UN Doc. A/AC.125/SR.70, 4 Dec. 1967, p. 13 (Cameroon); UN Doc. A/AC.125/SR.91, 21 Oct. 1968, p. 107 (Guatemala); UN Doc. A/AC.125/SR.92, 21 Oct. 1968, p. 128 (United States); UN Doc. A/AC.125/SR.101, 5 Nov. 1969, p. 32 (the Netherlands); UN Doc. A/AC.125/SR.104, 5 Nov. 1969, p. 44 (Czechoslovakia); UN Doc. A/AC.125/SR.105, 5 Nov. 1969, p. 54 (United Kingdom); UN Doc. A/AC.125/SR.105, 5 Nov. 1969, p. 49 (Romania); UN Doc. A/AC.125/SR.106, 5 Nov. 1969, p. 62 (Soviet Union); UN Doc. A/AC.125/SR.106, 5 Nov. 1969, p. 64 (France). Ibid., p. 253, note 109. Raič also refers to the fact that the view of the United Kingdom (UN Doc. A/AC.125/L44, 19 July 1967) and the United States (UN Doc. A/AC.125/L32, 12 Apr. 1966) ‘that a State was conducting itself in compliance with the right of self-determination if it possessed a government which was representative as to all distinct peoples of the State was explicitly supported by Australia (UN Doc. A/AC.125/SR.70, 4 Dec. 1967, p. 6), Ghana (UN Doc. A/AC.125/SR.68, 4 Dec. 1967, pp. 17-19), Canada (UN Doc. A/AC.125/SR.69, 4 Dec. 1967, pp. 11-12), France (UN Doc. A/AC.125/SR.69, 4 Dec. 1967, p. 15), Chili (UN Doc. A/AC.125/SR.93, 21 Oct. 1968, p. 148) and the Netherlands (UN Doc. A/AC.125/SR.107, 5 Nov. 1969, p. 87)’. Ibid., p. 254. According to Raič ‘none of the other participating States with the exception of Cameroon (UN Doc. A/AC.125/SR.107, 5 Nov. 1969, pp. 70-71) contested, rejected or questioned that part of the British and American proposals. When, during the discussions, concern was expressed, in particular by the socialist and developing States, with regard to any reference to subgroups as holders of the right to self-determination, this was mainly on the ground that they feared the inclusion of far too liberal a phrase which might be interpreted as authorizing these subgroups to secede at will’. Ibid. See e.g. the statement of Kenya, UN Doc. A/AC.125/SR.107, 5 Nov. 1969, p. 88 and of Romania, UN Doc. A/AC.125/SR.105, 5 Nov. 1969, p. 49. Both quoted by ibid, p. 255. 359 Cassese, supra note 13, p. 110. Raič, supra note 7, p. 235. C. Tomuschat, ‘SelfDetermination in a Post-Colonial World’, in: C. Tomuschat (ed.), Modern Law of SelfDetermination, Dordrecht: Martinus Nijhoff Publishers 1993, p. 19, also refers to the ‘safeguard clause’ as ‘pointing the way to a new and enlarged understanding of selfdetermination in the post-colonial era’. See also P. Thornberry, ‘The Democratic or Internal Aspect of Self-Determination With Some Remarks on Federalism’, in: C. Tomuschat (ed.), Modern Law of Self-Determination, Dordrecht: Martinus Nijhoff Publishers 1993, p. 120. 360 Simpson, supra note 189, p. 271.

58

is not ‘representative’. This subject will be discussed in the following Chapter. 3.4.2

The Helsinki Final Act 1975

One of the first international instruments containing a provision on self-determination that was certainly not meant to apply to colonial situations is the Helsinki Final Act of 1975. It was the official document containing the agreement of the parties to the Conference on Security and Co-operation in Europe (CSCE), the predecessor of the Organization for Security and Cooperation in Europe (OSCE) that was established during the Cold War. Both sides realized that stability and cooperation in the region would be mutually beneficial and therefore some sort of agreement was necessary.361 Even though the product of the Conference, the Helsinki Final Act, is not a treaty, it is a ‘politically binding agreement’.362 Amongst other things, the Final Act contains ten ‘Principles Guiding Relations between Participating States’, one of which is the principle of equal rights and selfdetermination of peoples. 363 Principle VIII, paragraph 2 of the Final Act defines self-determination as ‘By virtue of the principle of equal rights and self-determination of peoples, all peoples always have the right, in full freedom, to determine, when and as they wish, their internal and external political status, without external interference, and to pursue as they wish their political, economic, social and 364 cultural development.’

The inclusion of the right of self-determination in a Declaration that was meant to apply to the peoples of Europe, who were at the time not subject to colonial domination, definitely rebuts the assertion that self-determination only applies in colonial situations.365 Furthermore, self-determination as proclaimed in the Helsinki Final Act is quite ‘progressive’ when compared to the pronouncements on 361

Smis, supra note 14, p. 157. ‘OSCE Handbook. The Organization for Security and Co-operation in Europe’, Vienna 2007, available at , p. 3. See the Final Act of the CSCE, signed in Helsinki on 1 August 1975, available at ibid. 363 The ten principles, based on the UN Charter and the Friendly Relations Declaration are: I. Sovereign equality, respect for the rights inherent in sovereignty; II. Refraining from the threat or use of force; III. Inviolability of frontiers; IV. Territorial integrity of States; V. Peaceful settlement of disputes; VI. Non-intervention in internal affairs; VII. Respect for human rights and fundamental freedoms, including the freedom of thought, conscience, religion or belief; VIII. Equal rights and self-determination of peoples; IX. Co-operation among States; X. Fulfilment in good faith of obligations under international law. 364 (emphasis added). 365 Cassese, supra note 13, p. 286. Raič, supra note 7, p. 231, quoting G. Arangio-Ruiz, ‘Human Rights and Non-Intervention in the Helsinki Final Act’, Human Rights, Vol. 157, 1977, pp. 227-228 states that ‘the argument that a reference to self-determination in the Final Act would therefore be unnecessary, was explicitly rejected during the Helsinki Conference’. See also Koskenniemi, supra note 186, p. 242. 362

59

self-determination that have been made within the context of the United Nations.366 The language of paragraph 2 makes it very clear that the right of self-determination was not confined to the colonial context.367 There is no doubt that the phrase ‘all peoples always have the right’ was intended to affirm the universal scope of selfdetermination.368 In addition, the phrase ‘when and as they wish’ warrants the conclusion that the right of self-determination is ‘a continuing right’.369 Like any other instrument containing a reference to selfdetermination the Final Act does not attempt to define the meaning of the term ‘peoples’ either, but the drafting history indicates that ‘peoples’ referred to ‘the entire population of a State’.370 The travaux préparatoires also clarify that the parties at the Conference agreed that the term peoples did not include minorities.371 Instead, the Final Act deals with minorities separately in Principle VII.372 It is important to note that Principle VIII of the Helsinki Final Act ‘explicitly’ refers to the internal dimension of self-determination.373 According to Cassese ‘[t]he debates preceding the adoption of the Helsinki Declaration illustrate that the phrase ‘in full freedom’ reflects the Western view that the right of self-determination cannot be implemented if basic human rights and fundamental freedoms, in particular the freedom of expression and 374 association, are not ensured to all members of the people concerned’.

Highlighting the internal aspect of self-determination by making the connection between self-determination, democracy and human rights, the Helsinki Final Act ‘breaks new ground in international relations’.375 This instrument not only shows that self-determination continues to be relevant outside the colonial context, but also that beyond

366

Smis, supra note 14, p. 163. Ibid. 368 Ibid. Also Summers, supra note 59, p. 236. 369 Cassese, supra note 13, p. 285. Also Smis, supra note 14, p. 164. 370 Raič, supra note 7, p. 246, quoting A. Cassese, ‘Political Self-Determination - Old Concepts and New Developments’, in: A. Cassese (ed.), UN Law/Fundamental Rights, Two Topics in International Law, Sijthoff & Noordhoff, 1979, p. 151. 371 Cassese, supra note 13, p. 289. Smis, supra note 14, pp. 163-164. 372 Smis, supra note 14, p. 164. Principle VII, paragraph 4 states that: ‘[t]he participating States on whose territory national minorities exist will respect the right of persons belonging to such minorities to equality before the law, will afford them the full opportunity for the actual enjoyment of human rights and fundamental freedoms and will, in this manner, protect their legitimate interests in this sphere.’ 373 J. Salmon, ‘Internal Aspects of the Right to Self-Determination: Towards a Democratic Legitimacy Principle?’, in: C. Tomuschat (ed.), Modern Law of Self-Determination, Dordrecht: Martinus Nijhoff Publishers 1993, p. 268. Raič, supra note 7, p. 235. 374 Cassese, supra note 13, p. 286, note 13, quoting A. Cassese, ‘The Helsinki Declaration and Self-Determination’, in: T. Buergenthal (ed.), Human Rights, International Law and the Helsinki Accord, New York: Allanheld 1977, pp. 95-99, 102-103. 375 Cassese, supra note 13, p. 286. Smis, supra note 14, p. 164. 367

60

decolonisation the emphasis has shifted from its external to its internal dimension. 3.4.3

The Charter of Paris for a New Europe 1990

After the parties had reached an agreement at Helsinki, several CSCE ‘follow-up meetings’ were held.376 With regard to the instruments that were adopted during these follow-up meetings it has been argued that, insofar as they referred to self-determination, the right was ‘downplayed’, because it was feared that ‘it may well open a Pandora’s box for many States and because it may complicate rather than resolve the issues facing [..] Europe at that time.377 The author does not agree with this argument for the following reason. While the end of the Cold War liberalized Eastern Europe and the Soviet Union, led to an improvement in international relations between East and West and paved the way to the reunification of Germany, it also resulted in the collapse of the Soviet Union and Yugoslavia.378 Thus, while the parties at the Paris Summit in 1990 had reason to be optimistic about the future of Europe, they also realized that ‘while self-determination could be liberating, it could also be highly destabilizing’.379 French President François Mitterrand expressed this thought during his opening speech at the summit when he asked: ‘have we overcome the division of Europe into two blocs only to see it disintegrate as a result of aspirations which had been too long stifled by 380 force?’.

Therefore, it seems that the Charter of Paris for a New Europe381 that was adopted during the summit does not ‘downplay’ selfdetermination, but rather ‘balances’ it with other principles,382 such as the principle of territorial integrity, in the same way the Friendly Relations Declaration and the Helsinki Declaration have done. Political events in the Soviet Union and Yugoslavia caused the parties at the summit to take a careful stance on self-determination, but this was not a new phenomenon. Previous instruments containing a provision on self-determination, including those that were specifically aimed at colonial situations, have always balanced the principle with other 376

OSCE Handbook, supra note 353, pp. 4-6. Cassese, supra note 13, p. 293 quoting T. Buergenthal, ‘CSCE Human Dimension: The Birth of a System’, AEL, Vol. I, Book 2, 1990, p. 179. 378 Summers, supra note 59, p. 239. 379 Ibid. OSCE Handbook, supra note 353, p. 6. Smis, supra note 14, p. 298. 380 Summers, supra note 59, p. 239, quoting France (CSCE/SP/VR.1) p. 3. 381 Charter of Paris for a New Europe, Paris, 21 November 1990, available at . 382 Summers, supra note 59, p. 239 referring to Cassese, supra note 13, pp. 292-296. And referring to J. Salo, ‘Self-Determination: An Overview of History and Present State with Emphasis on the CSCE Process’, Finnish Yearbook of International Law, Vol, 2, 1991, p. 320. 377

61

principles, in particular the principle of territorial integrity. Therefore, the State representatives at the Paris Summit were not the first to consider self-determination as a ‘legitimate aspiration’, which nevertheless ‘needed to be considered with other principles and wider interests of peace and stability’.383 While Cassese has argued that ‘[t]he seemingly restrictive approach increasingly taken by the CSCE is chiefly motivated by political factors’, in particular the fear of secession, it is submitted here that political factors have always cast a shadow over the right of self-determination, even in the colonial context.384 As will be elaborated in the following Chapter, political factors constitute the principal reason why self-determination and secession continue to have a problematic relationship. Summers also considers the Charter’s reference to self-determination ‘a trimmed down version of Principle VIII of the Final Act’.385 According to him, ‘[t]he universal significance of the right, its basis for friendly relations and its internal and external aspects were all cut’.386 However, as noted before, this seems to be a rather strong statement. The relevant part of the Charter provides as follows: ‘Our relations will rest on our common adherence to democratic values and to human rights and fundamental freedoms. We are convinced that in order to strengthen peace and security among our States, the advancement of democracy, and respect for and effective exercise of human rights, are indispensable. We reaffirm the equal rights of peoples and their right to selfdetermination in conformity with the Charter of the United Nations and with the relevant norms of international law, including those relating to 387 territorial integrity of States’.

In reaction to Summer’s statement, several arguments can be made. First of all, it must be noted that the Charter’s provision on selfdetermination is to be found under the heading ‘Friendly Relations among Participating States’. Given this context, it is difficult to see how self-determination could not be a guiding principle in the relations among the parties to the Charter. Second, the overall context and the fact that the Charter refers to self-determination and human rights in the same paragraph both support its ‘universal significance’.388 Third, the parties to the Charter ‘solemnly pledge[d] [their] full commitment to the Ten Principles of the Helsinki Final Act’, which makes it unlikely that they intended to ‘trim down’ the

383

Summers, supra note 59, p. 241. See Cassese, supra note 13, p. 293. Summers, supra note 59, p. 239. 386 Ibid. 387 Charter of Paris, supra note 372, ‘Friendly Relations among Participating States’, para. 7, (emphasis added). 388 See Summers, supra note 59, p. 239. 384 385

62

provisions on self-determination.389 Fourth, while it is true that the Charter does not specifically refer to external self-determination, an implicit reference to it is to be found in the phrase ‘in conformity with […] the relevant norms of international law’.390 Fifth, the context of the provision on self-determination referring to democracy, human rights and fundamental freedoms clearly points to the internal dimension of self-determination.391 In fact, the Charter is rather unique compared to other international instruments in the sense that it strongly emphasises the parties’ commitment to democracy, of which it gives a very clear definition.392 Hence, there is no doubt that the CSCE established an important ‘link between democracy, political pluralism, human rights and [the] rule of law’.393 On the basis of these arguments it can be concluded that the Charter of Paris did not ‘downplay’ or ‘trim down’ the right of selfdetermination as provided for in the Helsinki Final Act at all. On the contrary, the Charter played an important part in the progressive development and clarification of the internal and ‘continuing’ aspect of self-determination, emphasizing democracy, human rights and the rule of law.394 In this manner the Charter of Paris actively continued, rather than slowed down, the ‘Helsinki process’.395 The parties at the Paris Summit also took steps to institutionalize the CSCE by establishing a Council, a Committee of Senior Officials, a Conflict Prevention Centre and an Office for Free Elections, which later became the Office for Democratic Institutions and Human Rights (ODIHR).396 In 1995 the CSCE was renamed Organization for Security and Co-operation in Europe (OSCE).397

389 Charter of Paris, supra note 372, ‘Friendly Relations among Participating States’, para. 2. See Summers, supra note 59, p. 239. 390 Charter of Paris, supra note 372, ‘Friendly Relations among Participating States’, para. 7. 391 See Cassese, supra note 13, p. 294. 392 Smis, supra note 14, p. 299. ‘We undertake to build, consolidate and strengthen democracy as the only system of government of our nations. In this endeavour, we will abide by the following: Human rights and fundamental freedoms are the birthright of all human beings, are inalienable and are guaranteed by law. Their protection and promotion is the first responsibility of government. Respect for them is an essential safeguard against an over-mighty State. Their observance and full exercise are the foundation of freedom, justice and peace. Democratic government is based on the will of the people, expressed regularly through free and fair elections. Democracy has as its foundation respect for the human person and the rule of law. Democracy is the best safeguard of freedom of expression, tolerance of all groups of society, and equality of opportunity for each person. Democracy, with its representative and pluralist character, entails accountability to the electorate, the obligation of public authorities to comply with the law and justice administered impartially. No one will be above the law.’ Charter of Paris, supra note 372, ‘Human Rights, Democracy and Rule of Law’, paras. 1-4, (emphasis added). 393 Cassese, supra note 13, p. 294. See also Thornberry, supra note 350, p. 123. 394 Cassese, supra note 13, p. 294. 395 Ibid. 396 OSCE Handbook, supra note 353, p. 6. See also Smis, supra note 14, p. 301, quoting M. van der Stoel, ‘The Heart of the Matter. The Human Dimension of the OSCE’, Helsinki Monitor, Vol. 7, 1996, p. 28. 397 OSCE Handbook, supra note 353, p. 8.

63

After having discussed the OSCE’s contribution to the development of the right to self-determination outside the colonial context, the next section will analyse the jurisprudence of the International Court of Justice to see whether the Court supports the existence of a postcolonial right to self-determination. 3.4.4

The International Court of Justice

The previous Chapter has shown that after the inclusion of selfdetermination in the Charter of the United Nations, the principle became almost synonymous with decolonisation and that the pronouncements of the International Court of Justice in the context of decolonisation have also clarified its status as a rule of international law.398 However, while it was stated before that the Court, in its Advisory Opinion on Western Sahara, identified ‘free choice’ as the ‘essence’ of self-determination, indicating a universal interpretation of the right, it may still be argued that this opinion was given in a colonial context.399 Therefore, it remains important to examine cases or opinions in which the Court dealt with self-determination outside the colonial context. First of all, the Nicaragua case needs to be mentioned, in which the Court specifically stated that it was not ‘concerned with the process of decolonization’.400 While this was a case concerning the principle of non-intervention rather than that of self-determination, the Court did make an implicit reference to the latter principle when considering the content of the former: ‘the principle forbids all States or groups of States to intervene directly or indirectly in internal or external affairs of other States. A prohibited intervention must accordingly be one bearing on matters in which each State is permitted, by the principle of State sovereignty, to decide freely. One of these is the choice of a political, economic, social and

cultural

system,

and

the

formulation

of

foreign

policy.

Intervention is wrongful when it uses methods of coercion in regard to such choices, which must remain free ones’.401

One cannot help but notice the similarity between these words and the provisions on self-determination in Article 1(1) of the International Human Rights Covenants and Paragraph 1 of Resolution 1514 (XV).402 Along these lines it can be argued that with this statement, given outside the colonial context, the Court in fact 398

See Musgrave, supra note 14, p. 90. Western Sahara, supra note 129, para. 59. Raič, supra note 7, p. 277. Cassese, supra note 149, pp. 357-358. 400 Nicaragua case, supra note 110, para. 206. 401 Ibid., para. 205, (emphasis added). See Musgrave, supra note 14, p. 86. 402 Musgrave, supra note 14, p. 86. 399

64

affirmed the universal scope of ‘the right to freely choose a political, economic, social and cultural system’, in other words, the right of self-determination.403 In the Wall Opinion,404 the Court addressed the issue of Palestinian self-determination from the viewpoint of the legal consequences of the wall Israel had built on the West-Bank.405 It is important to keep this ‘narrow focus’ in mind because it prevented the Court from considering the right of self-determination in a more general way.406 However, there is no doubt that the Court’s pronouncements on selfdetermination were given outside the colonial context. The Court first confirmed that ‘the existence of a “Palestinian people” is no longer in issue’, and that the ‘legitimate rights’ of the Palestinian people ‘include the right to self-determination’.407 It seems that all of the judges, including Judge Buergenthal, dissenting on other grounds, agreed with this statement.408 After having said this the Court went on to consider how the right of self-determination of the Palestinian people was affected by the construction of the wall.409 According to the Court, the construction of the wall created a situation contrary to international law for two reasons. First of all, international law prohibits the forceful annexation of territory.410 Secondly, Israel breached international humanitarian law by allowing Israeli settlements on the Occupied Palestinian Territory.411 On the basis of these two violations of international law, the Court identified a third, concluding that the wall ‘thus severely impedes the exercise by the Palestinian people of its right to self-determination, and is therefore a breach of Israel’s obligation to respect that right’.412 In other words, Israel’s violation of the right to self-determination of the Palestinian people was the result of its prior forceful annexation of

403

Ibid., p. 87. Wall Opinion, supra note 129. Summers, supra note 59, p. 263. 406 Ibid. 407 Wall Opinion, supra note 129, para. 118. 408 Summers, supra note 59, p. 263. See Wall Opinion, supra note 129, Declaration of Judge Buergenthal, para. 4. 409 Summers, supra note 59, p. 263. 410 According to the Court, this was done by creating ‘a “fait accompli” on the ground that could well become permanent, [which] would be tantamount to de facto annexation”, and by giving expression ‘in loco to illegal measures taken by Israel with regard to Jerusalem and the settlements as deplored by the Security Council’. Wall Opinion, supra note 129, para. 121-122. See Summers, supra note 59, p. 263. 411 Wall Opinion, supra note 129, para. 91-101, 120, 122. As the Court correctly pointed out, article 49 (6) of the Fourth Geneva Convention prohibits an Occupying Power to ‘deport or transfer parts of its own civilian population into the territory it occupies’. Moreover, according to the Court ‘[t]here is also a risk of further alterations to the demographic composition of the Occupied Palestinian Territory resulting from the construction of the wall inasmuch as it is contributing […] to the departure of Palestinian populations from certain areas’. Ibid., para. 122. See Summers, supra note 59, pp. 263-264. 412 Wall Opinion, supra note 129, para. 122. See Summers, supra note 59, p. 264. 404 405

65

Palestinian territory and the endorsement of Israeli settlements on that territory, both in violation of international law.413 Since the Court considered self-determination in relation to these two violations of international law, the scope of the right was ‘limited’.414 Moreover, like most cases of self-determination, the right to selfdetermination of the Palestinian people also had political implications which hampered the Court’s interpretation.415 Nevertheless, the Court’s pronouncements on the right of self-determination in the Wall Opinion do confirm its applicability in a post-colonial setting.416 In summary, both the Nicaragua case and the Wall Opinion lend support to the proposition that self-determination is not confined to the colonial context. The following section will focus on the views of the Human Rights Committee in relation to the right of self-determination in non-colonial situations. 3.4.5

The Human Rights Committee

The Human Rights Committee has issued a General Comment on selfdetermination, which supports the existence of a right to selfdetermination beyond decolonisation.417 In General Comment 12, on Article 1 of the International Covenant on Civil and Political Rights, the Committee pointed out that ‘Paragraph 3, in the Committee's opinion, is particularly important in that it imposes specific obligations on States parties, not only in relation to their own peoples but vis-à-vis all peoples which have not been able to exercise or have been deprived of the possibility of exercising their right to selfdetermination. […] The obligations exist irrespective of whether a people entitled to self-determination depends on a State party to the Covenant or 418 not’.

Not only has the Human Rights Committee questioned States’ parties on Article 1 outside the colonial context, but in reaction to General Comment 12 States’ parties have also started reporting on their

413

Summers, supra note 59, p. 264. Ibid. Ibid. See Wall Opinion, supra note 129, Separate Opinion of Judge Kooijmans, para. 32, according to whom the right of self-determination of the Palestinian people was ‘imbedded in a much wider context than the construction of the wall and has to find its realization in this wider context.’ Also ibid., Separate Opinion of Judge Higgins, para. 30, considering the pronouncement of the Court ‘quite detached from reality’. Even though Higgins emphasised that ‘if the wall had never been built, the Palestinians would still not yet have exercised their right to self-determination’, she also admitted that the ‘larger problem’ of the right to selfdetermination of the Palestinian people ‘is beyond the question put to the Court for an opinion’. 416 See Wall Opinion, supra note 129, Separate Opinion of Judge Higgins, para. 29-30. 417 Raič, supra note 7, pp. 229-230. 418 Human Rights Committee, General Comment 12, Art. 1, 21st session, 1984, available at , (emphasis added). For the full text of General Comment 12, see Appendix IV. 414 415

66

efforts to implement self-determination ‘in relation to their own peoples’.419 It has been noted before that outside the colonial context the emphasis has been put on internal self-determination, referring to its application ‘within’ States, and that self-determination is thus a ‘continuing right’ with a universal character.420 There is no doubt that the Human Rights Committee had the internal dimension of selfdetermination in mind when it drafted its General Comment on common Article 1.421 According to the Committee ‘The right of self-determination is of particular importance because its realization is an essential condition for the effective guarantee and observance of individual human rights and for the promotion and strengthening of those rights. […] Article 1 enshrines an inalienable right of all peoples as described in its paragraphs 1 and 2. By virtue of that right they freely ‘determine their political status and freely pursue their economic, social and cultural development’. The article imposes on all States parties corresponding obligations. […] With regard to paragraph 1 of article 1, States parties should describe the constitutional and political processes 422 which in practice allow the exercise of this right’.

It is important to note that the Committee is of the opinion that the right to self-determination ‘and the corresponding obligations concerning its implementation are interrelated with other provisions of the Covenant’, which clearly points to the internal aspect of selfdetermination.423 Even though it must be admitted that early practice of the Committee indicates that the Committee focussed mainly on external self-determination, recent practice shows that the Committee is getting more and more interested in internal aspects of self-determination.424 419

Raič, supra note 7, p. 230, quoting UN Doc. A/39/40, 20 Sept. 1984, para. 323 (Gambia); UN Doc. A/46/40, 10 Oct. 1991, para. 50 (Canada); UN Doc. A/45/40, 4 Oct. 1990, para. 542 (Zaire); UN Doc. A/47/40, 9 Oct. 1992, paras. 194-195 (Iraq). See also the Committee’s reaction to the periodic report of Azerbaijan, UN Doc. A/49/40, 21 Sept. 1994, p. 51, para. 296, ‘that under article 1 of the Covenant, [the principle of self-determination] applies to all peoples and not merely to colonized peoples’, quoted by ibid. And the Third Periodic Report of Peru, UN Doc. CCPR/C/83/Add.1, 21 March 1995; the Fourth Periodic Report of Colombia, UN Doc. CCPR/C/64/Add.3, 8 Oct. 1996; the First Periodic Report of Georgia, UN Doc. CCPR/C/100/Add.1, 5 Nov. 1996; and the Fourth Periodic Report of Canada, UN Doc. CCPR/C/103/Add. 5, 15 Oct. 1997, also quoted by ibid. See also D. McGoldrick, The Human Rights Committee. Its Role in the Development of the International Covenant on Civil and Political Rights, Oxford: Clarendon Press 1994, pp. 252-253. 420 Raič, supra note 7, p. 234. Cassese, supra note 13, p. 54. See also Smis, supra note 14, p. 415. 421 Raič, supra note 7, p. 234. See also Thornberry, supra note 350, p. 112-113. And Rosas, supra note 252, p. 244. 422 General Comment 12, supra note 409. 423 Ibid. Raič, supra note 7, p. 246, refers to ‘the right to freedom of thought (Article 18) and expression (Article 19), the right of peaceful assembly (Article 21), the right to freedom of association (Article 22), the right to take part in public affairs, to vote and to be elected (Article 25), as well as the provision on the prohibition of discrimination (Article 26)’. 424 Smis, supra note 14, p. 414. Also Cassese, supra note 13, pp. 62-64. See e.g. Concluding observations of the Human Rights Committee, UN Doc. CCPR/C/79/Add.118, 25 April 2000

67

Furthermore, according to a study of State Reports submitted under Article 40 of the ICCPR, governments are increasingly giving attention to the ways in which their own population is exercising its right of internal self-determination.425 In this respect it is important to note that the majority of these reports have linked internal selfdetermination with human rights and democracy.426 In General Comment 25 on Article 25 of the ICCPR, the Human Rights Committee also observed this connection when it stated that ‘[a]rticle 25 lies at the core of democratic government based on the consent of the people and in conformity with the principles of the Covenant. The rights under article 25 are related to, but distinct from, the right of peoples to self-determination. By virtue of the rights covered by article 1 (1), peoples have the right to freely determine their political status and to enjoy the right to choose the form of their constitution or government. Article 25 deals with the right of individuals to participate in those processes which 427 constitute the conduct of public affairs.’

Lately, States Parties with a heterogeneous population have started granting autonomy rights to certain ‘ethnic or linguistic groups’ within their territory as ‘an alternative means of implementing the right of self-determination’.428 This development strengthens the view that there may be ‘more than one people’ within a State, a point which will (Congo), in which ‘[t]he Committee notes with concern that the Congolese people have been unable, owing to the postponement of general elections, to exercise their right to selfdetermination in accordance with article 1 of the Covenant’. See also Concluding observations of the Human Rights Committee, UN Doc. CCPR/CO/74/SWE, 24 April 2002 (Sweden), UN Doc. CCPR/CO/82/FIN, 2 December 2004 (Finland), UN Doc. CCPR/C/CAN/CO/5, 20 April 2006 (Canada), UN Doc. CCPR/C/NOR/CO/5, 25 April 2006 (Norway), UN Doc. CCPR/C/USA/CO/3/Rev.1, 18 December 2006 (United States of America), UN Doc. CCPR/C/CHL/CO/5, 18 May 2007 (Chile). 425 Raič, supra note 7, p. 246, quoting H. Quane, ‘A right to Self-Determination for the Kosovo Albanians?’, Leiden Journal of International Law, Vol. 13, 2000, pp. 221-222. According to the survey, 97 State Reports were analysed, 87 of which commented on self-determination. 69 of these Reports discussed the internal aspect of self-determination in a direct or indirect manner. More recent references to internal self-determination are to be found in the following State Reports: UN Doc. CCPR/C/HRV/2, 2 December 2008, pars. 14-24 (Croatia); UN Doc. CCPR/C/TCD/1, 6 June 2008, paras. 16-25 (Chad); UN Doc. CCPR/C/ARG/4, 13 March 2008, para. 143 (Argentina); UN Doc. CCPR/C/MDA/2, 26 December 2007, paras. 125-127 (Republic of Moldova); UN Doc. CCPR/C/AZE/3, 10 December 2007, paras. 19-20 (Azerbaijan); UN Doc. CCPR/C/RWA/3, 27 November 2007, para. 125 (Rwanda); UN Doc. CCPR/C/NIC/3, 19 October 2007, paras. 10-13 (Nicaragua); UN Doc CCPR/C/BWA/1, 2 May 2007, paras. 76-84 (Botswana); UN Doc. CCPR/C/SMR/2, 10 January 2007, para. 59 (San Marino). 426 In particular State Reports emphasizing the connection between the right to selfdetermination and the right to political participation (Article 25 ICCPR). See Hilpold, supra note 173, p. 274, quoting S. Wheathley, ‘Democracy in International Law: A European Perspective’, International and Comparative Law Quarterly, Vol. 51, 2002, p. 232. See also Raič, supra note 7, p. 274. 427 Human Rights Committee, General Comment 25, Art. 25, 57st sess., 1996, para. 1 and 2, available at (emphasis added). 428 Smis, supra note 14, pp. 416-417. See, e.g. UN Doc. CCPR/C/ESP/5, 5 February 2008, paras. 18-19 (Spain); UN Doc. CCPR/C/RUS/6, 5 February 2008, paras. 1-5 (Russian Federation); UN Doc. CCPR/C/GBR/6, 18 May 2007, para. 214 (United Kingdom); UN Doc. CCPR/C/DNK/5, 20 November 2007, paras. 5-55 (Denmark); UN Doc. CCPR/C/FIN/2003/5, 24 July 2003, paras. 86-93 (Finland).

68

be elaborated in paragraph 3.5.1.429 During the last decade the right to self-determination of indigenous peoples also received the attention of the Human Rights Committee.430 A last point that needs to be addressed is the reaction of the Human Rights Committee to the reservation India made when it acceded to the International Human Rights Covenants, which was discussed in paragraph 3.3.1. First, it must be noted that the Committee has questioned India on this reservation, has expressed the view that it considers it contrary to the object and purpose of the Covenant and has continuously urged India to withdraw it.431 Secondly, in General Comment 24 on reservations, the Committee has stated that even though reservations are permitted by Article 19(3) of the Vienna Convention, they may not be contrary to the object and purpose of the treaty.432 Applying the object and purpose test to the Covenant, the Committee has noted that ‘[a] reservation to article 1 denying peoples the right to determine their own political status and to pursue their economic, social and cultural development, would be incompatible with the object and purpose of the 433 Covenant’.

With this statement, it seems the Committee implicitly referred to the reservation India made to Article 1. The Committee’s reaction to India’s reservation thus lends support to the proposition that selfdetermination is not confined to colonial situations, but instead applies to all peoples living within sovereign, independent States. On the basis of the foregoing analysis it can be concluded that the Human Rights Committee has endorsed the view that selfdetermination is applicable outside the colonial context and that in the last few decades, the Committee has been mainly concerned with the internal aspect of self-determination. Likewise, States have also established a link between internal self-determination, human rights and political participation and have considered it applicable to their own population.

429

Smis, supra note 14, p. 417. S. Errico, ‘The Draft UN Declaration on the Rights of Indigenous Peoples: An Overview’, Human Rights Law Review, Vol. 7, 2007, p. 748. See, e.g. the Concluding Observations of the Human Rights Committee: UN Doc. CCPR/C/79/Add.105, 7 April 1999 (Canada); UN Doc. CCPR/C/79/Add.112, 1 November 1999 (Norway); UN Doc. CCPR/C/BRA/CO/2, 2 November 2005 (Brazil); and UN Doc. CCPR/C/CAN/CO/5, 27 October 2005 (Canada). 431 Smis, supra note 14, pp. 426-428. See e.g. Concluding Observations of the Human Rights Committee, 4 August 1997, UN Doc CCPR/C/79/Add.81. 432 Human Rights Committee, General Comment 24, Issues relating to reservations made upon ratification or accession to the Covenant or the Optional Protocols thereto, or in relation to declarations under article 41 of the Covenant, 52nd sess., 1994, available at , para. 6. 433 Ibid., para. 9. 430

69

3.4.6

The Committee on the Elimination of Racial Discrimination

Regardless of the fact that there is no reference to self-determination in the International Convention on the Elimination of All Forms of Racial Discrimination, the Committee on the Elimination of Racial Discrimination has issued a General Recommendation on the right to self-determination.434 In paragraph 4 the Committee observed that ‘[i]n respect of the self-determination of peoples two aspects have to be distinguished. The right to self-determination of peoples has an internal aspect, that is to say, the rights of all peoples to pursue freely their economic, social and cultural development without outside interference. In that respect there exists a link with the right of every citizen to take part in the conduct of public affairs at any level, as referred to in article 5 (c) of the International Convention on the Elimination of All Forms of Racial Discrimination. In consequence, Governments are to represent the whole population without distinction as to race, colour, descent or national or ethnic origin. The external aspect of self-determination implies that all peoples have the right to determine freely their political status and their place in the international community based upon the principle of equal rights and exemplified by the liberation of peoples from colonialism and by the prohibition to subject peoples to alien subjugation, domination and 435 exploitation.’

With this statement, the Committee not only pointed out that the internal aspect of self-determination is linked with the right to political participation and that discrimination of certain groups within a State would thus violate this right, it also made a far-reaching statement on external self-determination. Moreover, the Committee unequivocally pointed out that self-determination continues to be applicable beyond decolonisation. The existence of a post-colonial right of external self-determination will be examined in greater detail in the following Chapter. 3.4.7

The African Commission on Human and Peoples’ Rights

Even though initially self-determination, as proclaimed in the African Charter, was primarily associated with decolonisation, during the last two decades the African Commission on Human and People’s Rights has given more attention to internal self-determination.436 According 434

General Recommendation No. 21, 48th sess., 1996, available at . (emphasis added). 436 Smis, supra note 14, p. 176, note 29. Also Raič, supra note 7, p. 247. See e.g. the Resolution on Nigeria, adopted by the Commission at its 16th sess., 25 Oct.-3 Nov. 1994, Banjul, The Gambia, ‘[calling] upon the Nigerian military government to respect the right of free participation in government and the right to self-determination and hand over the government to freely elected representatives of the people without unnecessary delay’. See also the Resolution on the Gambia, which was adopted during the same session. Both resolutions are available at . See also R. Murray, The African 435

70

to the Guidelines for National Periodic Reports issued by the African Commission, States’ parties must inform the Commission on ‘legislative and administrative machinery that exists to give effect to provisions of the article, namely that [a]ll communities are allowed participation in political activities and are allowed equal opportunities in economic activities of the country both of which should be according to 437 choices they have made independently.’

the full the the

The internal dimension of self-determination has also been observed by States’ parties.438 The Commission’s observations in the case of Katangese Peoples’ Congress v. Zaire lend support to the proposition that ethnic subgroups are entitled to internal self-determination.439 The Katangese Peoples’ Congress had turned to the Commission to seek endorsement of its liberation struggle and to find support for its wish to achieve independence from Zaire, because according to the Congress, the Katangese People had not been able to exercise its right of self-determination.440 First, the Commission took note of the fact that ‘[t]he issue in the case is not self-determination for all Zaireans as a people but specifically for the Katangese’ and concluded that ‘prima facie the Katangese constituted a people for the purpose of selfdetermination’.441 The Commission went on to observe that ‘self-determination may be exercised in any of the following ways: independence, self-government, local government, federalism, confederalism, unitarism or any other form of relations that accords with the wishes of the people but fully cognizant of other recognized principles such 442 as sovereignty and territorial integrity’.

As there was no ‘evidence that the people of Katanga are denied the right to participate in Government as guaranteed by Article 13 (1) of the African Charter’, Katanga was ‘obliged to exercise a variant of self-determination that is compatible with the sovereignty and Commission on Human and Peoples Rights and International Law, Oxford: Hart Publishing 2000, pp. 104-109. 437 Guidelines for National Periodic Reports, Human Rights Law Journal, Vol. 11, 1990, p. 417, (emphasis added). 438 Raič, supra note 7, p. 247, note 85, quoting the First and Second Periodic State Report of Senegal, 1992, The African Commission on Human and Peoples’ Rights, Examination of State Reports, 12th session, Oct. 1992: Gambia, Zimbabwe and Senegal, App.II. And quoting the statements by the representatives of Gambia during the examination of the State Report of Gambia, The African Commission on Human and Peoples’ Rights, Examination of State Reports, 12th session, Oct. 1992, pp. 17 and 21-22. 439 Raič, supra note 7, p. 255, quoting the African Commission on Human and Peoples’ Rights, Communication No. 75/92, Katangese Peoples’ Congress v. Zaire, Decision taken at its 16th Session, Banjul, The Gambia, 1994. 440 Ibid., p. 256. 441 Ibid. 442 Ibid.

71

territorial integrity of Zaire.’443 This case will be discussed further in the next Chapter on Secession. However it is important to note the Committee’s reference to the internal dimension of self-determination and its identification of ethnic subgroups as holders of the right. After having discussed the views of several human rights treaty bodies, the next paragraph will focus on yet another United Nations instrument containing a provision on self-determination, the Vienna Declaration of 1993. 3.4.8

1993 Vienna Conference on Human Rights

The World Conference on Human Rights, held in Vienna in 1993 was both a ‘Nightmare’ and a ‘Noble Dream’.444 At the end of the Conference 160 UN Member States agreed to adopt the ‘Vienna Declaration and Programme of Action’.445 The Declaration reflects the general trend of the early nineties, establishing a link between human rights, democracy and internal self-determination.446 In part I, paragraph 8 of the Declaration it is stated that ‘Democracy, development and respect for human rights and fundamental freedoms are interdependent and mutually reinforcing. Democracy is based on the freely expressed will of the people to determine their own political, economic, social and cultural systems and their full participation in all aspects of their lives. In the context of the above, the promotion and protection of human rights and fundamental freedoms at the national and international levels should be universal and conducted without conditions attached. The international community should support the strengthening and promoting of democracy, development and respect for human rights 447 and fundamental freedoms in the entire world.’

One cannot help but notice the similarity between this paragraph and what has been identified in this Chapter as the internal aspect of selfdetermination.448 The right of self-determination itself is provided for in paragraph 2 of the Declaration.449 443

Summers, supra note 59, p. 266. S. Marks, ‘Nightmare and Noble Dream: The 1993 World Conference on Human Rights’, Cambridge Law Journal, Vol. 53, 1994, pp. 54-62. 445 Vienna Declaration, supra note 348. Smis, supra note 14, p. 144. The General Assembly endorsed the Declaration in UN Doc. A/Res/48/121, 20 Dec. 1993. Since the adoption of the Declaration many General Assembly resolutions on self-determination have mentioned the Vienna Declaration. For the most recent example, see UN Doc. A/Res/62/146, 18 December 2007. See also the Preamble of the United Nations Declaration on Indigenous Peoples, adopted by the General Assembly on 13 September 2007, available at . 446 Hilpold, supra note 173, p. 273. 447 Vienna Declaration, supra note 348, (emphasis added). 448 Hilpold, supra note 173, p. 273. 449 According to paragraph 2 ‘[a]ll peoples have the right of self-determination. By virtue of that right they freely determine their political status, and freely pursue their economic, social and cultural development. Taking into account the particular situation of peoples under colonial or other forms of alien domination or foreign occupation, the World Conference on Human Rights recognizes the right of peoples to take any legitimate action, in accordance with the 444

72

The first part of paragraph 2 literally repeats common Article 1(1) of the two Human Rights Covenants.450 The rest of the paragraph emphasises the ‘traditional’ aspects of self-determination, referring to ‘the particular situation of colonial peoples’ and the right to territorial integrity.451 However, the paragraph also recognises a right of selfdetermination outside the colonial context. First it must be noted that according to this paragraph, the Conference considers ‘the denial of the right of self-determination a violation of human rights’. As stated before, there is no reason to assume that human rights would only apply to colonial peoples. Second, the Vienna Declaration not only recalls the Friendly Relations Declaration, it also connects the right of self-determination and representative government using similar language.452 Therefore, it can be concluded that the Vienna Declaration acknowledges that the right of self-determination applies to all peoples within a State, not only colonial peoples or peoples subject to alien domination or occupation. Whereas both the Friendly Relations Declaration and the Vienna Declaration link representative government with self-determination, the latter is more ‘progressive’, because it requires States to have a representative government ‘without distinction of any kind’.453 On the basis of this phrase it may even be argued that the right of self-determination also applies to minorities.454 This argument will be discussed further in paragraph 3.5.1. The following paragraph will discuss the application of the right of self-determination to a very specific group of peoples within independent States, i.e. indigenous peoples. 3.4.9

Declaration on the Rights of Indigenous Peoples 2007

The adoption of the United Nations Declaration on the Rights of Indigenous Peoples by the UN General Assembly on 13 September 2007 not only represents a significant development as regards the protection of the rights of indigenous peoples, it has also contributed to the acknowledgment and clarification of the right of selfCharter of the United Nations, to realize their inalienable right of self-determination. The World Conference on Human Rights considers the denial of the right of self-determination as a violation of human rights and underlines the importance of the effective realization of this right. In accordance with the Declaration on Principles of International Law concerning Friendly Relations and Cooperation Among States in accordance with the Charter of the United Nations, this shall not be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and selfdetermination of peoples and thus possessed of a Government representing the whole people belonging to the territory without distinction of any kind’, (emphasis added). 450 Smis, supra note 14, p. 145. 451 Hilpold, supra note 173, p. 273. 452 Smis, supra note 14, p. 145. 453 Ibid. See also Raič, supra note 7, p. 273. 454 Smis, supra note 14, p. 146. See also Raič, supra note 7, p. 255.

73

determination ‘outside traditional contexts’.455 The right of selfdetermination is one of the key rights proclaimed in the Declaration and, as a result of this, the drafting process took a significant amount of time and has been quite difficult.456 Most of the discussion focussed on whether indigenous groups were actually ‘peoples’.457 Another important point of discussion was the content and the scope of the right of self-determination in relation to indigenous peoples.458 As regards the first question, it must be noted that the drafters of the Declaration were not able to agree on a definition of the term ‘peoples’.459 On the one hand, indigenous peoples have argued ‘that they are peoples in the sense used by other United Nations instruments’.460 State representatives, on the other hand, have tried to ‘narrow down the meaning of the term “peoples” with a view of preventing the appeal to the right of self-determination’.461 The

455

C.E. Foster, ‘Articulating Self-determination in the Draft Declaration on the Rights of Indigenous Peoples’, European Journal of International Law, Vol. 12, No. 1, 2001, pp. 141. According to Foster ‘in different situations self-determination has had different meanings’. She recognises three specific contexts: ‘the self-determination of colonial or dependent peoples and of peoples under alien domination or foreign occupation; the self-determination of racial groups suffering oppression [e.g. apartheid]; and the ongoing self-determination of the whole population of a state’. Ibid., p. 143. It seems that the first two of the categories Foster mentions (‘colonial’ and ‘racial’ self-determination) can be considered traditional. Hilpold, supra note 173, p. 266 also refers to ‘the need of a contextual reading of the right to selfdetermination’. See generally, Errico, supra note 421, p. 755. Also S. Errico, ‘The UN Declaration on the Rights of Indigenous Peoples is Adopted: An Overview’, Human Rights Law Review, Vol. 7, 2007, p. 756. The Declaration was adopted by a majority of 144 states in favour, 4 votes against (Australia, Canada, New Zealand and the United States) and 11 abstentions (Azerbaijan, Bangladesh, Bhutan, Burundi, Colombia, Georgia, Kenya, Nigeria, Russian Federation, Samoa and Ukraine). See . 456 C.M. Brölman & M.Y.A. Zieck, ‘Some Remarks on the Draft Declaration on the Rights of Indigenous Peoples’, Leiden Journal of International Law, Vol. 8, 1995, p. 104. Summers, supra note 59, p. 243. In 1982 the Working Group on Indigenous Populations was established under the UN Sub-Commission on the Prevention of Discrimination and Protection of Minorities. According to Errico, supra note 421, p. 742, note 7 ‘[i]t is worth noting the use of the word ‘populations’ instead of ‘peoples’ which reflected States’ fears about the implications potentially flowing from the definition of indigenous groups as ‘peoples’, in particular, regarding the principle of self-determination’. In 1993 the Working Group had managed to agree on a draft declaration and in 1994 the Sub-Commission approved of this draft. Subsequently the draft was presented to the Commission on Human Rights and another Working Group was established. This Working Group continued working on the draft Declaration until the beginning of 2006. In June 2006, the draft Declaration was adopted by the Human Rights Council (replacing the Commission on Human Rights), after which it was presented to the Third Committee of the General Assembly. Following another round of discussions the Declaration was finally adopted by the General Assembly during its 61st session in 2007. Summers, supra note 59, p. 243. See also Errico, supra note 421, pp. 743-745. It is important to note that representatives of indigenous groups and organisations took part in the drafting process of the Declaration. 457 Summers, supra note 59, p. 244. 458 Ibid. 459 Smis, supra note 14, p. 149. 460 Ibid. See, e.g., Annex II, Proposals by Indigenous Representatives, Explanatory Note on the Use of the Term Indigenous ‘Peoples’, E/CN.4/2001/85, p. 32, available at . 461 Smis, supra note 14, p. 149.

74

Working Group took the indigenous peoples point of view,462 and in Article 2 of the Declaration it is stated that ‘[i]ndigenous peoples and individuals are free and equal to all other peoples and individuals and have the right to be free from any kind of discrimination, in the exercise of their rights, in particular that based on 463 their indigenous origin or identity’.

Despite the lack of a definition of the term ‘peoples’, the Working Group has used the definition developed by Martinez Cobo and identified five criteria to determine whether a people can be considered indigenous.464 The second hurdle in the discussion between State representatives and indigenous representatives was the meaning of the right of selfdetermination and its scope.465 According to Article 3 of the Declaration ‘[i]ndigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development’.

There is no doubt that this provision was inspired by Article 1 (1) of the International Human Rights Covenants.466 Article 4 of the Declaration explains in greater detail the content of the right to selfdetermination of indigenous peoples, stating that ‘[i]ndigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions’.

462 Ibid. According to the Working Group ‘[i]ndigenous peoples are unquestionably ‘peoples’ in every political, social, cultural and ethnological meaning of this term. They have their own specific languages, laws, values and traditions; their own long histories as distinct societies and nations; and a unique economic, religious and spiritual relationship with the territories in which they have lived. It is neither logical nor scientific to treat them as the same ‘peoples’ as their neighbours, who obviously have different languages, histories and cultures. The United Nations should not pretend, for the sake of a convenient legal fiction, that those differences do not exist.’ UN Sub-Commission on the Prevention and Protection of Minorities, Discrimination against Indigenous Peoples. Explanatory note concerning the draft declaration on the rights of indigenous peoples, UN Doc. E/CN.4/Sub.2/1993/26/Add.1, paras. 7-8, available at . 463 (emphasis added). 464 Smis, supra note 14, p. 149. See Martinez Cobo, Study on the Problem of Discrimination against Indigenous Populations, Vol. 5, UN Doc. E/CN.4/Sub.2/1986/7/Add.4, paras. 379-380, available at . The five criteria are: (1) traditional lands, (2) historical continuity, (3) distinct cultural characteristics , (4) non-dominance, and (5) self-identification and group consciousness. See UN Doc. E/CN.4/Sub.2/AC.4/1995/3, available at . 465 Summers, supra note 59, p. 247. 466 Technical Review of the United Nations Draft Declaration on the Rights of Indigenous Peoples: Note by the Secretariat, UN Doc. E/CN.4/Sub.2/1994/2, p. 7, para. 30, available at .

75

During the discussions on self-determination, many State representatives questioned whether the right of self-determination as proclaimed in various treaties and UN instruments had developed into a rule of customary law, reaching beyond the colonial context.467 Even though some States were willing to acknowledge a right of selfdetermination for indigenous peoples, they tried to limit the scope of the right by excluding its external dimension and stating that it only meant autonomy or internal self-government, as provided for in Article 4.468 First of all, it must be noted that autonomy and internal selfgovernment may be considered examples of possible means of exercising the right of self-determination rather than a limitation of the right as such.469 Moreover, indigenous representatives pointed out that according to a number of international instruments, the right of self-determination belongs to all peoples470 and that ‘[t]he Human Rights Committee […] had already recognised indigenous peoples’ right to self-determination’.471 Any attempt to limit the scope of the right would thus not only be unlawful, it would also be discriminating.472 Professor Daes, Chairperson of the Working Group on Indigenous Populations, has written a very insightful explanatory note to the Draft Declaration, in which she points out that self-determination as a ‘continuing dynamic right’ has ‘taken on a new meaning in the postcolonial era’.473 According to Professor Daes, the post-colonial right of 467

Summers, supra note 59, p. 247. See e.g. E/CN.4/Sub.2/1993/29, p. 17, para. 52, available at , (New Zealand): ‘[A] distinction could be made between the right of self-determination as it currently existed in international law, a right which developed essentially in the post-Second World War era and which carried with it a right of secession, and a proposed modern interpretation of self-determination within the bounds of a nation-State, covering a wide range of situations but relating essentially to the right of a people to participate in the political, economic and cultural affairs of a State on terms which meet their aspirations and which enable them to take control of their own lives.’ See also the statement by the Australian Government during the 1993 session of the Working Group: ‘[r]ealization of the right of self-determination is not limited in time to the process of decolonization nor is it accomplished solely by a single act or exercise. Rather it entails the continuing right of all peoples and individuals within each state to participate fully in the political process by which they are governed.’ Quoted by G. Alfredsson, ‘The Right of Self-Determination and Indigenous Peoples’, in: C. Tomuschat (ed.), Modern Law of Self-Determination, Dordrecht: Martinus Nijhoff Publishers 1993, p. 51. 468 Summers, supra note 59, p. 247. See e.g. the statements of Columbia, E/CN.4/1997/102, p. 59, para. 312 and Finland, E/CN.4/2001/85, p. 13, para. 76. 469 Summers, supra note 59, p. 248. 470 Summers, supra note 59, p. 249. See, e.g. statements by the National Aboriginal and Islander Legal Services, E/CN.4/Sub.2/1993/29, p. 18, para. 58 and by the International Work Group for Indigenous Affairs, E/CN.4/2000/84, p.13, para.76. 471 Summers, supra note 59, p. 249. See e.g. Saami Council, E/CN.4/2000/84, p. 12, para. 71 and E/CN.4/2001/85, p.18, para. 105. 472 Summers, supra note 59, p. 249. See e.g. World Council of Indigenous Peoples, E/CN.4/1995/WG.15/4, p. 9, para. 6. 473 Professor Daes concludes that ‘[s]elf-determination’ is a continuing dynamic right, in the sense that it can be reawakened if, at any moment, representative democracy fails and no

76

self-determination is internal rather than external, and mainly requires representative government and ‘democratic power sharing’.474 During the drafting process of the Declaration members of the Working Group have also discussed internal self-determination, in particular the right of political participation.475 Article 5 of the Declaration provides another example of how indigenous peoples may exercise their right of self-determination: ‘Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, 476 economic, social and cultural life of the State.

On the basis of the foregoing analysis, the following observations can be made. First of all, the acknowledgement of a right of selfdetermination for indigenous peoples provides another example of the continued relevance of the right outside the colonial context. Second, the Declaration not only stresses the internal aspect of selfdetermination, it also provides an ‘innovative’ example of how selfdetermination may be exercised.477 Article 4 of the Declaration refers to autonomy as a right of indigenous peoples.478 Thirdly, the Declaration indicates that ‘ethnic subgroups’ may also be entitled to internal self-determination.479 Fourth, despite the fact that the alternatives exist for the defence of fundamental rights and freedoms. The concept of ‘selfdetermination’ has accordingly taken on a new meaning in the post-colonial era. Ordinarily, it is the right of citizens of an existing, independent State to share power democratically. However, a State may sometimes abuse this right of its citizens so grievously and irreparably that the situation is tantamount to classic colonialism, and may have the same legal consequences. The international community and the present writer discourage secession as a remedy for the abuse of fundamental rights, but, as recent events around the world demonstrate, secession cannot be ruled out completely in all cases. The preferable course of action, is to encourage the State in question to share power democratically with all groups, under a constitutional formula that guarantees that the Government is ‘effectively representative’. Explanatory note, supra note 453, at pp. 4-5. 474 Ibid. 475 Foster, supra note 446, p. 151. According to Canada ‘self-determination is now seen by many as a right which can continue to be enjoyed in a functioning democracy in which citizens participate in the political system and have the opportunity to have input in the political processes that effect them’. Statement of Canada to the CHR intersessional working group, October 1999 (emphasis added). Norway was of the opinion that ‘the right to selfdetermination includes the right of indigenous peoples to participate at all levels of decisionmaking in legislative and administrative matters and the maintenance and development of their political and economic systems.’ Statement of Norway to the CHR intersessional Working Group, October 1999 (emphasis added). Both quoted by Foster, supra note 446, p. 151. 476 (emphasis added). With respect to internal self-determination, see also Article 18, stating that ‘[i]ndigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decisionmaking institutions. (emphasis added). 477 Smis, supra note 14, p. 154. 478 Errico, supra note 421, p. 749. 479 Raič, supra note 7, p. 258, note 134. According to Raič, ‘[t]he Declaration has been drafted from the perspective of indigenous peoples as subgroups within a State, that is, as a specific category of ‘peoples’ and as such entitled to self-determination of peoples.’ See e.g. the

77

majority of indigenous peoples do not have secessionist aspirations,480 Article 46 (1) stresses the territorial integrity or political unity of sovereign and independent States.481 Thus, it may be concluded that the Declaration has made an important contribution to the development of the right of self-determination in the post-colonial era, despite the fact that it is not a legally binding instrument.482 3.4.10 Statements by States While the previous paragraphs have identified ‘the continuing character of self-determination’ in several instruments, the pronouncements of the International Court of Justice, the practice of the Human Rights Committee, the Committee on the Elimination of Racial Discrimination and the African Commission on Human and Peoples’ Rights, a number of States have also made statements expressing opinio iuris on the existence of the right outside the colonial context.483 Speaking on behalf of the European Community and its member States, the United Kingdom made the following statement: ‘[o]n the question of self-determination, the Twelve fully recognize that right, the exercise of which is an ongoing process and is indissociable from 484 the other provisions of the [Human Rights Covenants].

According to the United Kingdom ‘self-determination is not a one-off exercise. It cannot be achieved for any 485 people by one revolution […]. It is a continuous process’.

Another statement on behalf of the member States of the European Community was made by Greece ‘[t]he fundamental right of self-determination was violated either by [colonialism], by the existence of a racist regime such as South Africa’s or

Explanatory Note, supra note 453, para. 23, according to which ‘[i]ndigenous peoples have the right to self-determination in accordance with international law, subject to the same criteria and limitations as applied to other peoples in accordance with the Charter of the United Nations’. 480 Thornberry, supra note 350, p. 130. Summers, supra note 59, p. 250. See also E/CN.4/1996/84, p. 11, para. 47. 481 Despite this provision, indigenous peoples may have a customary right to secession under international law. This point will be elaborated further in the next Chapter. 482 Errico, supra note 421, p. 755. 483 Raič, supra note 7, p. 232. 484 Ibid. See UN GAOR, 47th sess., Third Committee, A/C.3/47/SR.3, 5 Oct. 1992, para. 22, available at . 485 Statement of the Representative of the United Kingdom to the Third Committee of the General Assembly, 12 October 1984, British Yearbook of International Law, Vol. 55, 1984, p. 432.

78

by foreign intervention of occupation, or by denying people regular 486 opportunities to choose their governments and social systems freely’.

More recent statements in support of a post-colonial right of selfdetermination have been made in the context of Kosovo’s declaration of independence. Burkina Faso, for example, recognised the independence of Kosovo ‘[r]éaffirmant l’importance de l’égalité entre les peuples et de leur droit 487 naturel à disposer d’eux-mêmes’.

Recognizing Kosovo’s independence, Albania made the following statement: ‘The Government of Republic of Albania considers the creation of the State of Kosovo as a historical event, sanctioning the right of Kosovo citizens for 488 self-determination […].’

During a meeting of the Security Council on the situation in Georgia, the representative of the Russian Federation noted that ‘It is necessary to emphasize that, in accordance with the [Friendly Relations] Declaration, every State must refrain from any violent actions that might deprive people of their right to self-determination, freedom and independence. The actions of States must also comply with the principles of equality and the self-determination of peoples. States must also have governments that represent all the people living on their territory. There can be no doubt that Saakashvili’s regime in no way complies with those high 489 standards established by the international community’.

In the context of Israel’s recent attack on Gaza, the representative of Qatar made the following statement during a meeting of the Security Council: ‘Arab States and other peace-loving countries of the world were unanimous in expressing their solidarity with the Palestinian people in connection with their suffering as a result of Israel’s brutal occupation and recent attack on Gaza, and well as in standing by Palestinians in their just struggle to achieve their legitimate and inalienable rights, in particular their right to independence, self-determination and statehood on their own national soil, 490 with Jerusalem as its capital. 486

Statement of Greece on behalf of the members of the EC, UN GAOR, 43rd sess., Third Committee, A/C.3/43/SR.4, 10 Oct. 1988, p. 8, para. 30, available at . 487 Declaration de Reconnaissance de l’Etat du Kosovo, fait à Ouagadougou, le 23 avril 2008, available at . 488 Statement of Prime Minister of Albania Mr. Sali Berisha on Recognition of Independence of Kosova, 18 February 2008, available at . 489 Statement of Mr. Churkin (Russian Federation), UN Doc. S/PV/5969, 28 August 2008, p. 9, available at , (emphasis added). 490 Statement of Mr. Al-Mahmoud (Qatar), UN Doc. S/PV/6061, 6 January 2009, p. 33, available at , (emphasis added).

79

These are but a few examples of States that have recognised the existence of the right of self-determination outside the colonial context. It must also be noted that these statements refer to both the internal and external dimension of self-determination. The following paragraphs will focus more closely on the beneficiaries, the content and status of self-determination and its relation to other human rights and principles of international law. 3.5

3.5.1

Analyzing Context

Self-Determination

in

the

Post-Colonial

The People

The previous Chapter has shown that, in the colonial context, the beneficiaries of the right of self-determination have mostly been defined using a territorial criterion. According to this point of view the right of self-determination applied to ‘[t]he entire population of a colony or other dependent territory’.491 In post-colonial situations however, it is not so easy to determine who is entitled to selfdetermination.492 In the previous paragraphs it has been argued that self-determination cannot be limited to the period of decolonisation.493 Therefore, Raič has argued that ‘the particular application of self-determination during that historical period must be seen as the application of a general rule in a specific context, not 494 as a limitation of the right ratione personae’.

Outside the colonial context, several definitions of the term ‘people’ can be distinguished. First of all, according to ‘the representative government definition’495 ‘self-determination is an ongoing and universal right whereby the population of a given territorial unit exercises popular sovereignty in the choice of its 496 government’.

491

Raič, supra note 7, p. 243. Smis, supra note 14, p. 155. Werner, supra note 179, p. 176. See, however, Pomerance, supra note 6, p. 19, stating that ‘UN practice has been far less consistent than is assumed in this respect’. 492 Werner, supra note 179, p. 176. 493 Raič, supra note 7, p. 243. See also Musgrave, supra note 14, p. 151, who after a textual analysis of Article 1 (2) of the UN Charter, the Friendly Relations Declaration and Article 1 of the International Human Rights Covenants refers to United Nations practice and concludes that ‘the term “people” […] cannot be limited to colonial situations’. 494 Raič, supra note 7, p. 243. Hilpold, supra note 173, p. 266 and Foster, supra note 446, p. 143 also refer to the need of a contextual reading of the right to self-determination. See also the Expert opinion by Franck, Higgins, Pellet, Shaw and Tomuschat, supra note 5, pp. 241303, para. 1.17 and 3.07. 495 Musgrave, supra note 14, p. 151. 496 Ibid.

80

This phrase clearly defines a people as ‘the entire population of a territorial unit’, regardless of whether it is dependent or independent.497 Support for this definition can be found in Paragraph 7 of Principle V of the Friendly Relations Declaration and in Article 1(1) of the two International Human Rights Covenants.498 According to Rosalyn Higgins self-determination ‘refers to the right of the majority within a generally accepted political unit to the exercise of power.’499 Principle VIII of the Helsinki Declaration also lends support to ‘the representative government definition’ of peoples.500 However, this definition ignores the ethnic, linguistic, cultural and religious differences between populations within a certain territory, which brings us to ‘the ethnic definition’ of a people.501 Whereas it has been argued that outside the colonial context the international community does not recognise ethnic, linguistic or religious groups as holders of the right of self-determination,502 postcolonial State practice indicates that the term ‘people’ may also apply to ‘the highest constituent units of federal States in the process of dissolution’, at least if these units have been formed on an ethnic basis.503 Furthermore, the 1993 Vienna Declaration ‘reinforces’ the conclusion that according to Paragraph 7 of Principle V of the Friendly Relations Declaration the right of internal self-determination applies at least to racial and ethnic groups within independent States.504 Moreover, the African Commission on Human Rights has identified ethnic subgroups as holders of the right of internal self-determination in the case of the Katangese Peoples’ Congress v. Zaire.505 The Supreme Court of Canada506 and the Constitutional Court of the Russian Federation507 both agreed with this point of view. Many international lawyers hold the opinion that subgroups, including ethnic groups within independent States, are entitled to internal selfdetermination.508 Additional support for this position can be found 497

Ibid. Ibid. See also the previous paragraphs, explaining common Article 1 of the International Human Rights Covenants and the Friendly Relations Declaration. 499 Higgins, supra note 112, p. 104. 500 Musgrave, supra note 14, p. 152. 501 Ibid. 502 Quane, supra note 177, p. 570-571, stating that this ‘has been counterbalanced […] by the adoption of international instruments on minority rights. 503 Ibid., p. 571. See e.g. the reaction of the international community to the events in the former Soviet Union and Yugoslavia. According to Quane, supra note 177, p. 571 however, State practice on this subject is ‘limited and equivocal’. 504 Raič, supra note 7, p. 255. 505 Katangese Peoples’ Congress v. Zaire, supra note 430. Raič, supra note 7, p. 255. 506 Reference re Secession of Quebec, supra note 345, p. 495. (‘[i]t is clear that a ‘people’ may include only a portion of the population of an existing state’). 507 Tartastan case, Constitutional Court of the Russian Federation, Judgment, 13 March 1992, translated in: ‘Statutes and Decisions, The Laws of the USSR and Its Successor States’, Vol. 30, No. 3, May-June 1994, pp. 32-44, quoted by Raič, supra note 7, p. 256-257, note 130. 508 See e.g. I. Brownlie, ‘The Rights of Peoples in Modern International Law’, in: J. Crawford (ed.), The Rights of Peoples, 1988, p. 5; Buchheit, supra note 8, pp. 9-11, 14; T.M. Franck, ‘The Emerging Right to Democratic Governance’, American Journal of International Law, Vol. 498

81

within the United Nations509 and within the European context.510 State practice also indicates that ethnic subgroups have been recognised as holders of the right of self-determination.511 Raič has identified the following criteria to define a people in an ethnic sense: ‘(1) a group of individual human beings who enjoy some or all of the following features: (a) a (historical) territorial connection, on which territory the group forms a majority; (b) a common history; (c) a common ethnic identity or origin; (d) a common language; (e) a common culture; (f) a common religion or ideology;

86, 1992, p. 59; Hannum, supra note 42, pp. 35-39; and J. Klabbers and R. Lefeber, ‘Africa: Lost Between Self-Determination and Uti Possidetis’, in: C. Brölman et al. (eds.), Peoples and Minorities in International Law, Dordrecht: Martinus Nijhoff Publishers 1993, pp. 38-42. 509 See e.g. UN Doc. A/Res/441 (V) 2 December 1950 (the Ewe tribe in West Africa); UN Doc. A/Res/1723 (XVI), 20 December 1961 (Tibetans); UN Doc. S/Res/724, 15 December 1991, para. 7, urging ‘all States and parties to refrain from any action which might contribute to increasing tension […] and to impeding or delaying a peaceful and negotiated outcome to the conflict in Yugoslavia which would permit all the peoples of Yugoslavia to decide upon and to construct their future in peace’. (emphasis added). The UN Declaration on Indigenous Peoples also ‘strongly supports the position that ethnic subgroups must be regarded as holders of the right of internal self-determination’. Raič, supra note 7, p. 258, note 134. 510 EC Declaration on the Situation in Yugoslavia, 5 July 1991, quoted by Raič, supra note 7, p. 237, note 39; Council of Europe, Parliamentary Assembly Resolution 233, 22 April 1997 (Abkhazia); and Vienna Declaration, CSCE Parliamentary Assembly, 8 July 1994, para. 21, calling upon the Council of Ministers ‘to place discussion of self-determination and the related issues of territorial integrity and the stability of States on the agenda of the Permanent Committee, with a view to defining the reasonable limits to the pursuit of self-determination and setting guidelines so as to enable the territories where different national groups exist to implement innovative forms of self-government and guarantee, at the institutional level, the maintenance and development of the linguistic-cultural identities in those territories’, quoted by ibid, p. 258, note 135, (emphasis added). 511 Raič, supra note 7, p. 258, note 136. See e.g. the numerous territorial autonomy arrangements for ethnic sub-groups in Colombia, Denmark (Greenland), Ethiopia, France (Corsica), India (Nagaland), Indonesia (Aceh and West Papua), Moldova (Gagauzia), Norway (Sami), Russia (Tartastan and Bashkortostan), the Philippines (Mindanao), South Africa, the Sudan, and the United Kingdom (Scotland and Wales). See also ‘federal state forms in which the administrative division of the country is essentially based on ethnic considerations, such as Russia, [the former] Federal Republic of Yugoslavia and Ethiopia’. See also ‘the willingness of States to grant territorial political autonomy to peoples within their territory’, e.g. Abkhazia and South Ossetia. Ibid., p. 285-288. See also the State Party Reports under Article 40 of the ICCPR, e.g. UN Doc. CCPR/C/GEO/3, 7 November 2006, paras. 23-42 (Georgia); UN Doc. CCPR/C/ESP/5, 5 February 2008, paras. 18-19 (Spain); UN Doc. CCPR/C/RUS/6, 5 February 2008, paras. 1-5 (Russia); UN Doc. CCPR/C/USA/3, 28 November 2005, paras. 4-25 (United States); UN Doc. CCPR/C/COL/2002/5, 18 September 2002, para. 495 (Colombia); UN Doc. CCPR/C/BEL/2003/4, 16 May 2003, referring to HRI/CORE/1/Add.1/Rev.1, 6 April 1995 (Belgium); UN Doc. CCPR/C/DNK/5, 20 November 2007, paras. 5-55 (Denmark); and UN Doc. CCPR/C/FIN/2003/5, 24 July 2003, paras. 86-93 (Finland). Smis, supra note 14, p. 417, also notes that ‘autonomy in the context of self-determination brings us close to the suggestion that states can be inhabited by more than one people’.

82

(2) the belief of being a distinct people distinguishable from any other people inhabiting the globe, and the wish to be recognized as such, as well 512 as the wish to maintain, strengthen and develop the group’s identity.’

Consequently, any group within a State that meets these criteria would be entitled to internal self-determination.513 In this respect it is important to distinguish ‘peoples’ from ‘minorities’, because according to the international instruments that have been discussed in the previous paragraphs, only the former have the right of selfdetermination.514 However, some authors have argued that a minority can sometimes constitute a ‘people’.515 The most recent qualification of the term peoples can be found in the United Nations Declaration on the Rights of Indigenous Peoples.516 After having discussed the beneficiaries of self-determination in non-colonial situations, the following paragraph will examine the new meaning of the right. 3.5.2

The Content of Self-Determination

The previous paragraphs have pointed out that outside the colonial context the emphasis has been put on internal self-determination rather than external self-determination.517 Internal self-determination refers to ‘the relationship between a people and “its own” State or government’518 and may be defined as ‘a mode of implementation of political self-determination which denotes a right of a people to participate […] in the decision-making processes of the State’.519 A majority of international lawyers agrees with this definition.520 512

Raič, supra note 7, p. 262, quoting amongst others Cristescu, supra note 117, pp. 40-41, para. 279 and UNESCO, International Meeting of Experts on Further Study of the Concept of the Rights of Peoples, Final Report and Recommendations, 22 February 1990, UN Doc. SHS89/CONF.602/7, pp. 7-8. See generally on the difficulty of identifying the ‘nations’ that possess this right, Koskenniemi, supra note 186, pp. 262-264. 513 Raič, supra note 7, p. 264. 514 Ibid., pp. 265-266, note 165. See Article 1 and Article 27 of the ICCPR; Principle VII and Principle VIII of the Helsinki Final Act 1975 of the CSCE; and the CSCE Charter of Paris of 1990. See Tomuschat, supra note 350, p. 15 and Human Rights Committee, General Comment 23, Art. 27, 50th sess., 1994, available at . 515 See Raič, supra note 7, pp. 265-272. See also Musgrave, supra note 14, pp. 170-171. 516 United Nations Declaration on the Rights of Indigenous Peoples, adopted by the General Assembly on 13 September 2007, available at . 517 See e.g. Raič, supra note 7, p. 234. Also Smis, supra note 14, p. 415. 518 Thornberry, supra note 350, p. 101. 519 Raič, supra note 7, p. 237. 520 Ibid. See e.g., the Expert opinion by Franck, Higgins, Pellet, Shaw and Tomuschat, supra note 5, p. 278, para. 3.07 according to whom ‘all peoples and parts of peoples are entitled to the recognition of their identity and to participate in the expression of the political will within the State’; Klabbers and Lefeber, supra note 499, p. 43, stating that ‘[i]n a multipeople state, it means that each people should be given the opportunity to participate in the decisionmaking process of the state’; Franck, supra note 499, p. 59 points out that ‘[selfdetermination] now entitles peoples in all states to free, fair and open participation in the democratic processes of governance freely chosen by each state’; Hannum, supra note 42, pp. 33-35; Buchheit, supra note 8, p. 16 refers to ‘the right of all groups in a State to influence governmental behaviour in accordance with constitutional processes’; and Kooijmans, supra

83

However, it is important to note that there are many ways in which internal self-determination, or ‘the right to participate’, can be exercised.521 Participation can be either direct or indirect, e.g. through ‘representative’ government or devolution.522 As explained previously, both the Friendly Relations Declaration and the Vienna Declaration have established a link between selfdetermination and representative government.523 Still, the question remains what ‘representative’ government actually means.524 There is no doubt that a government that is representative cannot be discriminatory.525 Moreover, it has been argued that ‘representative government’ means ‘representative democratic government’.526 In particular over the last two decades the term ‘representative government’ has been interpreted as referring to ‘representative or liberal democracy’.527 Some authors have even argued that there is an ‘emerging right to democratic governance’.528 A detailed analysis of whether international law recognises a right to democracy would be outside the scope of this thesis. However, a few general points can be made. First of all, it is very unlikely that ‘representative government’ necessarily implies Western or liberal democracy.529 The drafting history of the Friendly Relations Declaration indicates that ‘representative government’ was not intended to impose a specific type of government.530 Secondly, it is important to note that in the Western Sahara case, the International Court of Justice has stated that

note 9, pp. 162-164. According to the Explanatory note, supra note 453, para. 19, the right of internal self-determination entitles ‘a people to choose its political allegiance, to influence the political order in which it lives, and to preserve its cultural, ethnic, historical or territorial identity’. 521 Raič, supra note 7, p. 237 522 Ibid., p. 239. 523 Ibid., p. 273. 524 Ibid. 525 Ibid. 526 Ibid., p. 273-274. See e.g. General Comment 25, supra note 418. Also R. Higgins, ‘International Law and the Avoidance, Containment and Resolution of Disputes’, Hague Recueil, 1991 V, pp. 165-166. 527 Raič, supra note 7, p. 275. 528 Franck, supra note 499. See also B. Boutros-Ghali, ‘An Agenda for Democratization’, Supplement to the Reports A/50/332 and A/51/512 on Democratization, 17 December 1996. See generally, G.H. Fox and B.R. Roth (eds.), Democratic Governance and International Law, Cambridge: Cambridge University Press 2000. 529 Raič, supra note 7, pp. 275-276. According to ibid., p. 275, ‘the classical Western conception of democracy’ implies ‘representative legislative bodies acting under procedures of majority rule, freely elected under universal suffrage, competition for office, periodic elections and the rule of law’. See also Salmon, supra note 364, p. 277. See also J. Wouters, B. de Meester and C. Ryngaert, ‘Democracy and International Law’, Netherlands Yearbook of International Law, Vol. 34, 2003, pp. 154-155. 530 Raič, supra note 7, p. 276.

84

‘[n]o rule of international law, in the view of the Court, requires the structure of a State to follow any particular pattern, as is evident from the 531 diversity of the forms of State found in the world today’.

In the Nicaragua case the ICJ re-emphasised that international law does not require States to have a certain political system.532 A number of authors has correctly concluded that there is currently no right to democratic governance under international law.533 Thirdly, to argue that ‘representative government’ refers to Western or liberal democratic government, would not give peoples a ‘free choice’, which is the essence of the right to self-determination.534 Therefore, it can be concluded that ‘under general international law internal self-determination seems to require the existence of a ‘representative’ government, which arguably includes Western conceptions of representative democratic governance, but may also include other forms of government which are considered to be 535 representative by the people concerned’.

Consequently, any government that persistently blocks certain peoples on its territory from participating in the decision-making

531

Western Sahara, supra note 129, para. 94. Nicaragua case, supra note 110, para. 263. According to the ICJ ‘[h]owever the régime in Nicaragua be defined, adherence by a State to any particular doctrine does not constitute a violation of customary international law; to hold otherwise would make nonsense of the fundamental principle of State sovereignty on which the whole of international law rests, and the freedom of choice of the political, social, economic and cultural system of a State. […] The Court cannot contemplate the creation of a new rule opening up a right of intervention by one State against another on the ground that the latter has opted for some particular ideology or political system. 533 Wouters, De Meester & Ryngaert, supra note 520, p. 156. S. Wheatley, ‘Democracy in International Law: A European Perspective’, International and Comparative Law Quarterly, Vol. 51, 2002, pp. 225, 233. 534 Raič, supra note 7, pp. 276-277. According to Salmon, supra note 364, p. 280, ‘[t]he real difficulty of the matter is to define how a people exercises its internal right to selfdetermination. […] In the Western countries it is generally believed that the only right answer is a system of liberal regime coupled with market economy. Such reasoning is purely ideological; there are many regimes in the World which are not similar to Western parliamentarism and which may, however, be viewed as truly representative of the peoples concerned according to their own social and historic traditions. […] Moreover the historical failure of the marxist-leninist model does not necessarily mean that other socialist systems are per se excluded from the democratic model. One should not be mesmerized by a purely liberal concept of democracy based on a list of formal rights and institutional processes. Democracy could also mean a relationship, governed - governors, with participation functions.’ See also Thornberry, supra note 350, p. 116, stating that ‘[t]here are clearly strong and weak senses of ‘representation’- from merely speaking for or on behalf of a represented group, to continually ‘making present’ their views, a much stronger sense.’ 535 Raič, supra note 7, pp. 278-279. See also the Expert opinion by Franck, Higgins, Pellet, Shaw and Tomuschat, supra note 5, para. 3.08, stating that ‘[self-determination] implies the right to one’s own identity, the right to choose and the right to participate […]. Identity and democracy are its two essential components’. Hilpold, supra note 173, p. 281 also points out that democracy is similar to effective participation which in turn is connected to the concept of internal self-determination. See also Wheatley, supra note 524, p. 230. 532

85

process acts in violation of the right to self-determination.536 The latest trend in international law has been the development of devolution as a means of exercising the right of self-determination.537 Article 4 of the UN Declaration on the Rights of Indigenous Peoples is innovative in this respect, granting indigenous peoples the right to autonomy or self-government as a means of exercising their right to self-determination. Even though at present there is no right to autonomy under international law,538 it seems that States are increasingly adopting a positive stance towards autonomy, because granting autonomy while preserving the territorial integrity of States contributes to international peace and security.539 In summary, selfdetermination as applied to non-colonial situations essentially grants peoples a right to political participation, which can be exercised in a variety of ways. The following section will consider the status of internal self-determination under international law. 3.5.3

Internal Self-Determination: a Right?

The previous paragraphs have pointed out that, outside the colonial context, self-determination has been recognised as a right of peoples in the Human Rights Covenants, the African Charter, the Friendly Relations Declaration, the Helsinki Final Act, the Paris Charter, the Vienna Declaration and in the Declaration on the Rights of Indigenous Peoples.540 In this new context, self-determination can be seen as an ‘ongoing right’, which is ‘primarily applicable […] in the relationship between a State and the population of that State’.541 In addition to the opinio iuris as expressed in the various Declarations mentioned previously, the status of internal self-determination as a ‘positive legal right’ under international law is supported by State practice.542 In this respect the State Reports under Article 40 of the 536 Raič, supra note 7, pp. 279-280, referring to the discriminatory Smith régime in Southern Rhodesia and Apartheid in South Africa. See also Koskenniemi, supra note 186, pp. 247-248, stating that ‘the definition of colonisation as ‘alien subjugation, domination and exploitation’ is not limited to a Third World context but seems to cover all situations where a foreign minority imposes its rule on the majority. It is not difficult to extend this sense to any situation where an ethnic group becomes the object of human rights abuses or at least a denial of equal rights.’ See also Resolution 2002/72 of 25 April 2002 of the Commission on Human Rights (Human Rights Council), in which the Commission established a link between democracy, human rights and self-determination. 537 Simpson, supra note 189, p. 281. 538 Raič, supra note 7, p. 283. See also Smis, supra note 14, p. 397. In the previous paragraph it was stated that the UN Declaration on the Rights of Indigenous Peoples is not legally binding. 539 Smis, supra note 14, p. 397. See e.g. the initial approach of the international community towards Serbia(-Montenegro) and Kosovo. Simpson, supra note 189, p. 282 argues that ‘the failure of the United Nations and the European Community to adopt the devolutionary approach may have doomed the enterprise in Bosnia-Herzegovina’. 540 Raič, supra note 7, p. 284. 541 Ibid. 542 Ibid., p. 285.

86

ICCPR that have been discussed in section 3.4.5. may be recalled.543 As stated before, devolution may also be considered a means of exercising the right of internal self-determination. Therefore, if a State grants a certain people within its territory autonomy rights, this may be seen as an acknowledgement of the right of internal selfdetermination.544 Even though not all States recognise the right of internal selfdetermination, and despite the fact that there are still countries where the right is disregarded, its ‘universal validity’ cannot be denied.545 It should not come as a surprise that oppressive governments contradict the existence of internal self-determination as a rule of customary international law.546 In this respect it has rightly been argued that the persistent objector doctrine should be applied restrictively in case of human rights.547 In summary, ‘international instruments, state practice, jurisprudence and doctrine point to the conclusion that internal self-determination must be qualified as a right of nations and peoples under general international law’.548 As noted before, the right has erga omnes character549 and it has even been argued that internal selfdetermination can be regarded as jus cogens.550 After having reached this conclusion, the only question that needs to be answered is how the right of internal self-determination relates to other human rights and principles of international law. 3.5.4

Self-determination in Relation to Other Human Rights and Principles of International Law

As noted before, many international instruments on selfdetermination contain a provision on the right of self-determination, while at the same time emphasizing the territorial integrity of

543

Ibid. Ibid., pp. 285-286, recalling the numerous autonomy arrangements in countries all over the world. 545 Ibid., p. 288. 546 Ibid., quoting Cassese, supra note 13, pp. 102-108 and pp. 323-324, who is of the opinion that under contemporary international law the right of the whole population of sovereign States to internal self-determination is a conventional norm only (ICCPR). However, at pp. 302-322 and pp. 346 ff. Cassese observes that ‘a customary rule on internal selfdetermination as the right of the whole population of a sovereign State is currently taking shape in the international community’ and there may even be an emerging right to ‘pluralistic representative democracy’ for this group. At the moment, 164 States are parties to the ICCPR () and some States not party to the ICCPR are party to the African Charter, another instrument confirming the right of peoples to internal self-determination. 547 H. Lau, ‘Rethinking the Persistent Objector Doctrine in International Human Rights Law’, Chicago Journal of International Law, Vol. 6, 2005-2006, pp. 495-510. 548 Raič, supra note 7, p. 288. 549 Case Concerning East Timor, supra note 164, para. 29. 550 Rosas, supra note 252, p. 247. Cassese, supra note 13, pp. 133-140. See also the list of authors in favour of the jus cogens character of self-determination, supra note 216. 544

87

sovereign and independent States.551 According to Koskenniemi minority protection has provided a helpful tool for States to deal with the ‘tension’ that exists between self-determination and territorial integrity.552 While the instruments on self-determination that have been discussed in the previous paragraphs all attempted to exclude secession, these instruments have also pointed out that the territorial integrity of a State is not protected if that State persistently discriminates against certain groups within its territory.553 Koskenniemi referred to this ‘apparent paradox’ as ‘the triad of selfdetermination-territorial integrity-minority protection’.554 United Nations Secretary-General Boutros Boutros-Ghali also signalled the conflict between self-determination and territorial integrity in his report ‘An Agenda for Peace’:555 ‘[I]f every ethnic, religious or linguistic group claimed statehood, there would be no limit to fragmentation, and peace, security and economic well556 being for all would become ever more difficult to achieve.’

The Secretary-General also points to minority protection, stating that ‘[o]ne requirement for solutions to these problems lies in commitment to human rights with a special sensitivity to those of minorities, whether 557 ethnic, religious, social or linguistic.’

According to Boutros-Ghali, ‘[t]he sovereignty, territorial integrity and independence of States within the established international system, and the principle of self-determination for peoples, both of great value and importance, must not be permitted to work 558 against each other in the period ahead.’

Underlying these problems is the ‘erroneous assumption’ that the right to self-determination and the right to independence are two sides of the same coin.559 However, it must be emphasised that the essence of self-determination is ‘free choice’ and that independence is only one of the options when a people exercises its right to self-

551

Koskenniemi, supra note 186, p. 256. Ibid. Ibid. 554 Ibid. 555 Koskienniemi, supra note 186, p. 256. An Agenda for Peace. Preventive diplomacy, peacemaking and peace-keeping. Report of the Secretary-General pursuant to the statement adopted by the Summit Meeting of the Security Council on 31 January 1992, 17 June 1992, paras. 17-19, available at . 556 An Agenda for Peace, supra note 546, para. 17. 557 Ibid., para. 18. 558 Ibid., para. 19. 559 Expert opinion by Franck, Higgins, Pellet, Shaw and Tomuschat, supra note 5, para. 1.17. See also Raič, supra note 7, p. 306. 552 553

88

determination.560 In fact, it has been pointed out before that the right of self-determination is ‘context-dependent’.561 Whereas in the colonial context, self-determination became almost synonymous with independence, this Chapter has argued that beyond decolonisation self-determination has acquired a new meaning. However, it may equally be argued that the original Western, or Wilsonian, view of self-determination was re-invented. Be that as it may, it is important to examine how post-colonial internal self-determination relates to human rights.562 According to Cassese, self-determination ‘pre-supposes freedom of opinion and expression (Article 21), freedom of association (Article 22), the right to vote (Article 25(b)), and more generally the right to take part in the conduct of public affairs, directly or through freely chosen representatives (Article 25(a)). Whenever these rights are recognized for individuals, the people as a whole enjoy the right of internal (political) self-determination; whenever these rights are trampled upon, the 563 right of the people to self-determination is infringed.’

It has been argued that there is no need for internal selfdetermination, because individual human rights offer adequate protection for peoples within States.564 Along these lines, Tomuschat has questioned whether internal self-determination is a collective human right at all.565 However, the fact that there is a link between internal self-determination and other human rights does not make the internal aspect ‘superfluous’.566 In this respect it is important to realise that ‘the identity of a group as such is not the equivalent of the sum of the identities of its members’.567 Moreover, it must be kept in mind that self-determination is a collective human right and, as such, is intended to offer protection to groups of peoples rather than individuals. Even though individual human rights are important with a view to safeguarding the rights of peoples, they may not always offer ‘sufficient’ protection.568 If a people is systematically discriminated or repressed by a majority within a certain territory it is very unlikely that individual human rights would be able to protect its ‘collective identity’ or ‘collective 560

Expert opinion by Franck, Higgins, Pellet, Shaw and Tomuschat, supra note 5, para. 1.17. Ibid. Hilpold, supra note 173, p. 263. 563 A. Cassese, ‘The Self-Determination of Peoples’, in: L. Henkin (ed.), The International Bill of Rights: The Covenant on Civil and Political Rights, New York: Colombia University Press 1981, p. 97. 564 J. Donnelly, Universal Human Rights in Theory and Practice, Ithaca (NY): Cornell University Press 1989, p. 148. 565 C. Tomuschat, ‘Democratic Pluralism: The Right to Political Opposition’, in: A. Rosas and J. Helgesen (eds.), The Strength of Diversity: Human Rights and Pluralist Democracy, Dordrecht: Nijhoff 1992, p. 39. 566 Hilpold, supra note 173, p. 263. 567 Raič, supra note 7, p. 240. Also Hilpold, supra note 173, p. 263. See generally on group rights v. individual rights, ibid., pp. 287-288. 568 Raič, supra note 7, p. 240. 561 562

89

interests’.569 The predicament of indigenous peoples all over the world provides a very good example of this problem. The specific identity of a people may even cease to exist if the ‘collective interests’ of the group are disregarded.570 Moreover, according to the General Assembly, ‘the effective guarantee and observance of individual human rights’ depends on ‘the universal realisation of the right of self-determination’.571 On the one hand, self-determination presupposes individual freedom, but on the other hand individual freedom is best protected if a people is able to exercise its right of self-determination.572 In other words, ‘the development and protection of individual identity’ and ‘the development and protection of group identity’ are interdependent.573 Hence, internal self-determination not only serves ‘the well-being of a people’, it also aims at ‘the well-being of its individual members’.574 It can be concluded that ‘starting from the assumption that the right to self-determination nowadays,

i.e. in a post-colonial setting, applies to all peoples in all situations where they are subject to oppression in the form of subjugation, domination and exploitation by others the human rights approach opens a formidable 575 avenue to find a balanced solution sensitive to all interests involved’.

3.6

Conclusion

This Chapter has pointed out that self-determination is applicable in the post-colonial era and that ‘outside the colonial context, international law strongly favours the internal aspect of self-determination: the right of peoples to participate in the 569

Ibid. Ibid. The General Assembly annually adopts a resolution in which it states that ‘the universal realization of all peoples to self-determination […] is a fundamental condition for the effective guarantee and observance of human rights and for the preservation and promotion of such rights’. See supra, note 343. The Human Rights Committee shares this point of view, see General Comment 12, supra note 409. See also Ominayak and the Lubicon Lake Band v. Canada, Communication No. 167/1984, 26 March 1990, UN Doc. A/45/40, para. 13.3, available at ; See also the Commission on Human Rights, Resolution 3 (XXXI), 11 Feb. 1975; the Arbitration Commission of the International Conference on Yugoslavia, Opinion 2, supra note 286; the statements of a great number of States (see, e.g. Afghanistan: UN Doc. A/C.3/SR.309, 9 Nov. 1950, paras. 52-53, Soviet Union: UN Doc. A/C.3/SR.309, 9 Nov. 1950, para. 60, Poland: UN Doc. A/C.3/SR.310, 10 Nov. 1950, para. 33, Ethiopia: UN Doc. A/C.3/SR.399, 23 Jan. 1952, para. 45, Ireland: UN Doc. A/C.3/SR.399, 23 Jan. 1952, para. 50, Greece: UN Doc. A/C.3/SR.647, 28 Oct. 1955, para. 1, Yugoslavia: UN Doc. A/C.3/SR.647, 28 Oct. 1955, para. 38); and the writings of international lawyers. See P.H. Kooijmans, ‘Tolerance, Sovereignty and Self-Determination’, Netherlands International Law Review, 1996, pp. 214-215 and Cristescu, supra note 117, pp. 32-33. 572 Raič, supra note 7, p. 241. 573 Ibid. 574 Ibid., p. 242. 575 Hilpold, supra note 173, p. 264, quoting R. McCorquodale, ‘Self-Determination: A Human Rights Approach’, International and Comparative Law Quarterly, Vol. 43, 1994, pp. 883-885. 570 571

90

political system of an existing state. International law, in other words, favours inclusion (the right to participate in the political frameworks of existing states) over exclusion (the right to secede from an existing 576 state).’

The traditional colonial model has thus been redefined in the form of internal self-determination. As regards the beneficiaries of the right of self-determination, State practice during the dissolution of Yugoslavia and the Soviet Union has been revolutionary in the sense that, until then, Western States had taken a traditional territorial point of view as regards selfdetermination.577 The reaction of Western States to the Soviet and Yugoslav crises indicates their acknowledgment of the fact that there could be more than one people living within the territory of a certain State and that these peoples were entitled to self-determination.578 The expansion of the holders of the right of self-determination has been confirmed by subsequent international instruments, jurisprudence, the practice of the Human Rights Committee, the Commission on the Elimination of Racial Discrimination, the African Commission on Human and Peoples Rights, as well as State practice and doctrine. But the scope of the right of self-determination in the post-colonial context has also been expanded. One of the principal reasons that a number of States have consistently denied a right of selfdetermination outside the colonial context, is that the right has been equated with secession. However, it has been pointed out that this is a false assumption.579 Higgins made it clear that ‘[s]elf-determination has never simply meant independence. It has meant 580 the free choice of people.’

Outside the colonial context this free choice has become more important and has been reaffirmed by the instruments, jurisprudence, practice and doctrine referred to above. The right of internal selfdetermination has emphasised the importance of political participation through representative government to the effect that a community is able to influence its future. The events in the Soviet Union and in Eastern Europe have also induced an important change. In reaction to the events the member states of European Community have established general criteria for

576

Werner, supra note 179, p. 177. Musgrave, supra note 14, p. 123. Ibid., p. 124. 579 See the Expert opinion by Franck, Higgins, Pellet, Shaw and Tomuschat, supra note 5, para. 1.17. 580 R. Higgins, Problems and Process: International Law and How We Use it, Oxford: Clarendon Press 1994, p. 119. 577 578

91

recognising new states.581 In this manner, States have made the exercise of the right of external self-determination dependent on whether the right of internal self-determination and the rights of minorities have been guaranteed.582 Even though this Chapter has made it clear that outside the colonial context the main focus has been on the internal aspect of self-determination, the following Chapter will examine whether there may also be a right of external self-determination in non-colonial situations.

581

Cassese, supra note 13, p. 273, enumerates among these criteria ‘(i) the free expression of the will of the population concerned, by way of plebiscites or referendums and (ii) the firm commitment to respect the rule of law, human rights, and the rights of groups and minorities’. 582 Ibid.

92

4

Self-Determination and Remedial Secession

‘Until recently in international practice the right to self-determination was in practical terms identical to, and indeed restricted to, a right to decolonisation. In recent years a consensus has seemed to emerge that peoples may also exercise a right to self-determination if their human rights are consistently and flagrantly violated or if they are without representation at all or are massively under-represented in an undemocratic and discriminatory way. If this description is correct, then the right to self-determination is a tool which may be used to reestablish international standards of human rights and democracy.’583 4.1

Introduction

In the previous Chapter it has been argued that the right of selfdetermination is a continuing right, and that beyond decolonisation the internal dimension of self-determination has been emphasised rather that the external aspect.584 Nevertheless, there are examples of external self-determination outside the colonial context, such as the secession of Singapore from Malaysia, the dissolution of Czechoslovakia or the reunification of Germany, to name a few. The international community did not consider these instances of external self-determination very problematic, probably because they all occurred consensually. Unilateral secession, on the other hand, has always been a very controversial issue under international law. It has been defined as ‘the separation of part of the territory of a State which takes place in the 585 absence of the prior consent of the previous sovereign’.

It is not difficult to understand why traditionally, the international community has been very reluctant to consider the possibility of a right of external self-determination in the form of secession outside the colonial context.586 First of all, ‘the international community is not 583

Case of Loizidou v. Turkey, European Court of Human Rights, 18 December 1996, concurring opinion of Judge Wildhaber, joined by Judge Ryssdal, available at . 584 Werner, supra note 179, p. 177. See also H. Hannum, ‘Self-Determination, Yugoslavia, and Europe: Old Wine in New Bottles?’, Transnational Law & Contemporary Problems, Vol. 3, 1993, p. 58. 585 J. Dugard & D. Raič, ‘The role of recognition in the law and practice of secession’, in: M.G. Kohen (ed.), Secession. International Law Perspectives, Cambridge: Cambridge University Press 2006, p. 102. Raič, supra note 7, p. 308. Cf. Crawford, supra note 10, p. 375. 586 Crawford notes that ‘[e]ven in the context of separate colonial territories, unilateral secession was the exception. Self-determination was in the first instance a matter for the colonial authority to implement; only if it was blocked by the colonial authority did the United Nations support unilateral secession. Outside the colonial context, the United Nations is extremely reluctant to admit a seceding entity to membership against the wishes of the government of the state from which it purported to secede. In fact there is no case since 1945

93

a suicide club’.587 The recognition of a right of unilateral secession would seriously impair the sovereignty and territorial integrity of States, thereby undermining the state-centred system on which international law is built. Moreover, it was feared that ‘[i]f every ethnic, religious or linguistic group claimed statehood, there would be no limit to fragmentation, and peace, security, and well-being for all would become even more difficult to achieve’.588 Indeed, many secessionist claims have been violently opposed by the parent State which has resulted in bloody civil wars. But as long as the controversy over this issue is not solved, secessionist wars will certainly continue to threaten international peace and security, causing gross violations of human rights and the loss of many lives. This makes it extremely important to consider whether secessionists actually have a valid claim. Does contemporary international law recognise a right of unilateral secession based on the right of self-determination? This Chapter tries to answer this question and starts by examining the writings of international lawyers on the issue of a possible right of unilateral secession and whether it may be an absolute or a qualified right. The following paragraphs will focus on the primary sources of international law in search of a right of unilateral secession. First of all, conventional law will be scrutinised, to see whether it supports the existence of such a right. After this, State practice and opinio iuris will be examined in order to be able to determine whether there may be a right of unilateral secession under customary international law. International instruments as well as judicial decisions concerning unilateral secession will be studied, followed by an analysis of State practice in relation to cases of unilateral secession that occurred outside the colonial context. The next paragraph will focus more closely on remedial secession, in particular the problem of defining the holders of the right and which circumstances may warrant the invocation of this right. The Chapter will conclude answering the question whether unilateral secession is lex lata or de lege ferenda. 4.2

Theories on Unilateral Secession

The topic of unilateral secession has been hotly debated by many scholars. In all of the discussions, three main points of view stand out. According to one group of scholars, international law is neutral about secession. Another group argues that international law recognises an absolute right of secession. A third group claims that

where it has done so.’ J.R. Crawford, ‘State Practice and International Law in Relation to Secession, The British Yearbook of International Law, Vol. 69, 1998, p. 116. 587 J. Castellino, ‘David Raič. Statehood & the Law of Self-Determination’, European Journal of International Law, Vol. 16, 2005, p. 792. Cf. H.L.A. Hart, The Concept of Law, Oxford: Clarendon Press 1994, p. 192. 588 An Agenda for Peace, supra note 546.

94

international law acknowledges a ‘qualified’ right of secession. The following sections will review the merits of each of these viewpoints. 4.2.1

International Law is Neutral about Secession

A number of writers have argued that there is no right of secession under international law. However, as international law does not prohibit secession either, they have argued that international law is neutral about secession.589 Secession is considered to be a political act instead of a legal act.590 In other words, ‘the existence or disappearance of the state is a question of fact’, not law.591 Most authors do acknowledge that, despite this neutrality, international law will recognise the fact of a successful secession after it has taken place.592 Nevertheless, it is submitted here that at this moment it is too early to preclude the existence of a right of secession under international law. The next paragraphs will first offer an analysis of conventional law, State practice and opinio juris in order to be able to determine whether there is a right of unilateral secession under contemporary international law. 4.2.2

International Law Recognises an Absolute Right of Secession

According to another group of authors, international law grants an absolute right of unilateral secession.593 Some have based this right on nationalist theories, claiming that each ‘nation’ must have the right of self-determination, including the right to form an independent State.594 Others have based an absolute right of unilateral secession

589

Crawford, supra note 10, p. 390. Also Hannum, supra note 42, p. 42. And T.M. Franck, ‘Postmodern Tribalism and the Right to Secession’, in: C. Brölmann et al (eds.), Peoples and Minorities in International Law, Dordrecht: Martinus Nijhoff Publishers 1993, p. 12. Also Report by Thomas M. Franck: “Opinion Directed at Question 2 of the Reference”, in: A. Bayefski, Selfdetermination in International Law: Quebec and Lessons Learned, The Hague: Kluwer Law International 2000, p. 79. And Smis, supra note 14, p. 203. 590 Musgrave, supra note 14, p. 210. 591 Opinion 1 of the Badinter Commission, supra note 586. Also Smis, supra note 14, p. 203. 592 Higgins, supra note 571, pp. 169-171. R. Higgins, ‘Postmodern Tribalism and the Right to Secession. Comments by R. Higgins’, in: C.M. Brölmann et al. (eds.), Peoples and Minorities in International Law, Dordrecht: Nijhoff 1993, p. 33. Franck, supra note 580, p. 12. Crawford, supra note 577, p. 87. See also the Expert opinion by Franck, Higgins, Pellet, Shaw and Tomuschat, supra note 5, p. 284. Also Supreme Court of Canada in Reference re Secession of Quebec, supra note 345, pp. 500-502, 505. 593 Buchanan has characterized the view of these authors as ‘Primary Right Theories’, indicating that a right of secession exists irrespective of any prior violation of rights. In other words, it is not a remedial right. See A. Buchanan, Justice, Legitimacy, and SelfDetermination. Moral Foundations for International Law, Oxford: Oxford University Press 2004, p. 352. 594 W. Norman, ‘The Ethics of Secession as the Regulation of Secessionist Politics’, in: M. Moore (ed.), National Self-Determination and Secession, Oxford: Oxford University Press 1998, p. 35. Buchanan, supra note 584, pp. 352-353 calls this ‘Ascriptivist Theories’, because membership

95

on ‘liberal democratic theory’, arguing that the only true basis for legitimate state authority is the consent of the people and that therefore, they must also have the right to take it back.595 An absolute right of secession has also been based on ‘plebiscitary right theories’, arguing that if a majority in a certain territory wishes to secede, it should be granted the right of unilateral secession.596 The existence of an absolute right of secession seems very unlikely for it would seriously undermine the territorial integrity of States.597 Moreover, it could be very dangerous. If each nation, ethnic group or majority population would have an absolute right of secession this would inevitably lead to fragmentation, causing instability or civil war and possibly even ‘ethnic cleansing’.598 This may have serious implications for international peace and security. 4.2.3

International Secession

Law

Acknowledges

a

‘Qualified’

Right

of

A large number of international lawyers have argued that there is a ‘qualified’ right of secession under international law.599 One of the earliest proponents of a ‘remedial right of secession’ is Buchheit, arguing that ‘a denial of political freedom and/or human rights’ may validate a separatist claim.600 According to Buchheit ‘[t]he focus of attention here is on the condition of the group making the claim. Remedial secession envisions a scheme by which, corresponding to the various degrees of oppression inflicted upon a particular group by its governing State, international law recognizes a continuum of remedies ranging from protection of individual rights, to minority rights, and ending with secession as the ultimate remedy. At a certain point, the severity of a State’s treatment of its minorities becomes a matter of international concern. This concern […] may finally involve an international legitimation of a right to secessionist self-determination as a self-help remedy by the aggrieved group (which seems to have been the approach of the General 601 Assembly in its 1970 declaration)’.

of the group that is allowed to secede is defined by ‘ascriptive characteristics’, such as ethnicity or nationality. 595 Hannum, supra note 42, p. 43. See H. Beran, The Consent Theory of Political Obligation, London: Croom Helm 1987. 596 Buchanan, supra note 584, p. 353. Also Raič, supra note 7, p. 310. 597 Raič, supra note 7, pp. 310-311. Dugard & Raič, supra note 576, p. 106. 598 See An Agenda for Peace, supra note 546. Also Higgins, supra note 583, p. 35. And C. Tomuschat, ‘Secession and Self-Determination’, in: M.G. Kohen (ed.), Secession. International Law Perspectives, Cambridge: Cambridge University Press 2006, p. 29. 599 The ‘qualified secession doctrine’ is proponed by Raič, supra note 7, p. 324. 600 Buchheit, supra note 8, p. 94. 601 Ibid., p. 222.

96

It is important to note that numerous writers support the existence of a ‘remedial right of secession’ under international law.602 Although they sometimes have different views on the conditions that warrant the exercise of the right, many writers recognise that gross violations of human rights, extreme oppression or a denial of internal selfdetermination allow for the remedy of unilateral secession. It has also been argued that unilateral secession may remedy situations of inequality and repression amounting to ‘neocolonialism’.603 According to Franck ‘when a minority within a sovereign state – especially if it occupies a discrete territory within that state – persistently and egregiously is denied political and social equality and the opportunity to retain its cultural identity, […] it is conceivable that international law will define such repression, prohibited by the Political Covenant, as coming within a somewhat stretched definition of colonialism. Such repression, even by an independent state not normally thought to be “imperial” would then give rise to a right of 604 “decolonization”.’

Although it seems reasonable to argue that peoples suffering from ‘internal colonialism’ should be able to exercise their right of selfdetermination in the same way colonial peoples have done, a right of unilateral secession should not be restricted to cases of neocolonialism, i.e. when peoples are repressed in a way that resembles traditional colonialism.605 More generally, a right of unilateral secession may be invoked as a remedy in cases of gross violations of fundamental human rights, serious oppression or when a people is not permitted to exercise its right of internal self-determination.606 From a moral point of view, the doctrine of ‘remedial secession’ is very well-founded. As the previous Chapter has pointed out, the right of self-determination is a right of ‘all peoples’, not only colonial peoples. Even if the term ‘peoples’ is interpreted narrowly as referring 602 See e.g., Cassese, supra note 13, pp. 118-120. Also Cristescu, supra note 117, para. 173. Franck, supra note 580, p. 79. Hannum, supra note 179, p. 244. Kooijmans, supra note 9, pp. 157-168. D. Murswiek, ‘The Issue of a Right of Secession – Reconsidered’, in: C. Tomuschat (ed.), Modern law of self-determination, Dordrecht: Nijhoff 1993, pp. 26-27. A. Pavkovic & P. Radan, Creating New States. Theory and Practice of Secession, Aldershot: Ashgate 2007, pp. 232-239. Raič, supra note 7, pp. 326, 328. Tomuschat, supra note 589, p. 42. 603 Franck, supra note 580, pp. 13-14 stating that India e.g. based its intervention in East Pakistan in 1971 on this theory. This intervention led to the secession of East Pakistan (Bangladesh) from West Pakistan. Raič, supra note 7, p. 326, note 63, points out that the ‘Belgian thesis’ proponed a similar argument. According to this thesis, Chapter XI of the UN Charter (Declaration Regarding Non-Self-Governing Territories) should not be restricted to traditional colonialism, but should also apply to peoples in metropolitan States finding themselves in a ‘colonial situation’. See UN GAOR, 4th Comm., 9th Sess., 419th mtg, 2 Nov. 1954, para. 20. See P. Thornberry, ‘Self-Determination, Minorities, Human Rights: A Review of International Instruments’, International and Comparative Law Quarterly, Vol. 38, October 1989, pp. 873-875. 604 Franck, supra note 580, pp. 13-14. 605 Raič, supra note 7, p. 328. 606 Ibid. Also Buchheit, supra note 8, p. 222.

97

to ‘the whole people belonging to the territory’607 of an independent State, this people as a whole would still be entitled to the right of self-determination. Starting from the assumption that every right must have a remedy, it seems justified that if the government of an independent State systematically precludes a certain group from exercising this right of (internal) self-determination or seriously violates its basic human rights, there must be a means for this people to secure its right. However, outside the colonial context, no remedy seems to be available. Whereas the Special Committee of 24 on Decolonization has taken on the role of protecting the right of colonial peoples to self-determination, the international community adopted a ‘hands off approach’ towards self-determination claims outside the colonial context, in particular external self-determination.608 Not even the Human Rights Committee is willing to hear self-determination claims under Optional Protocol 1 to the ICCPR. Therefore, the present writer shares the point of view that the predicament of many oppressed peoples in the world today warrants a right of unilateral secession, as a ‘self-help remedy’ and ‘a last resort’ if there is no alternative left.609 From a legal point of view, however, it is still unclear whether international law recognises a right of ‘remedial secession’. Therefore, it is necessary to examine the two principal sources of international law, conventional law and customary law, to determine the status of ‘remedial secession under international law. Is a right of ‘remedial secession’ lex lata or de lege ferenda? The next paragraph may shed some light on this subject. It will start with an analysis of treaty law in search of a right of secession, followed by a discussion of the most cited paragraph in the context of secession, the ‘safeguard clause’.610 4.3 4.3.1

Treaties The Charter of the United Nations

The travaux préparatoires of the UN Charter reveal two points of view on the subject of self-determination and secession: ‘[c]oncerning the principle of self-determination, it was strongly emphasised on the one side that this principle corresponds closely to the will and desires of 607

Friendly Relations Declaration, supra note 110, Principle V, Paragraph 7. L.M. Frankel, ‘International Law of Secession: New Rules for a New Era’, Houston Journal of International Law, Vol. 14, 1992, p. 544. 609 Buchheit, supra note 8, p. 222. Canadian Supreme Court in Reference re Secession of Quebec, supra note 345, p. 498. 610 The ‘safeguard clause’ or the ‘saving clause’ has been articulated for the first time in the Friendly Relations Declaration (Principle 5, Paragraph 7). It was reiterated in the Vienna Declaration (Part I, Paragraph 2) and in the General Assembly Declaration on the Occasion of the Fiftieth Anniversary of the UN, A/Res/50/49, 24 Oct. 1995, para. 1, available at . 608

98

peoples everywhere and should be clearly enunciated in the Charter; on the other side, it was stated that the principle conformed to the purposes of the Charter only insofar as it implied the right of selfgovernment of peoples and not the right of secession’.611 Although some authors have pointed out that the drafters ‘did not intend to create a right of secession’612, others have concluded that ‘[a]n attempt to include a right of secession within the Charter’s meaning of the phrase “self-determination” cannot be conclusively supported or discredited by reference to the travaux préparatoires of the San Francisco conference.’613 Given this controversy, and keeping in mind the fact that Article 32 of the Vienna Convention considers the drafting history a ‘supplementary means of interpretation’, other means of interpretation may be more appropriate. But a textual interpretation of the phrase ‘self-determination’ in Article 1(2) and 55 of the Charter does not really clarify whether self-determination includes a right of secession. The only point that can be made is that the ‘context’ in which the phrase self-determination was put (Chapter 1, Purposes and principles and Chapter IX, International Economic and Social Cooperation, respectively) and the ‘object and purpose’ of the Charter (to build an international organization of sovereign States with a view to maintaining international peace and security) do not support the existence of a right of secession as part of selfdetermination. Therefore, an examination of ‘subsequent practice’ is needed to make clear whether self-determination could also mean secession.614 This will be done in paragraph 4.6. 4.3.2

The International Human Rights Covenants

Common Article 1 of the International Human Rights Covenants is also silent on the issue of unilateral secession.615 According to Article 1, self-determination gives ‘all peoples’ a right to ‘freely determine their political status’. On the basis of a textual interpretation of the words ‘freely determine their political status’, the following observations can be made. First of all, as regards the ‘context’ of these words, they occupy a cardinal position in a human rights treaty, the ‘object and purpose’ of which obviously is to protect human rights.616 Secondly, this phrase refers to external political self611 Final Report of the Sixth Committee, San Francisco 1945, UNCIO, doc. 343, I/1/16, Vol. 6 296 (1945), quoted by N.G. Hansen, Modern Territorial Statehood, Unpublished PhD Thesis Leiden University, 11 November 2008, pp. 87, available at . 612 Murswiek, supra note 593, p. 35. See also Smis, supra note 14, p. 110, 204. 613 Buchheit, supra note 8, p. 73. See also Musgrave, supra note 14, p. 182. 614 See Article 31 (3) (b) of the Vienna Convention on the Law of Treaties. 615 Smis, supra note 14, p. 209. 616 It has been noted before that the Human Rights Committee in General Comment 12 observed that ‘[t]he right of self-determination is of particular importance because its realization is an essential condition for the effective guarantee and observance of individual

99

determination, i.e. ‘the right to determine and protect one’s own international status without outside interference’,617 which can be exercised in three ways, either by creating an independent State, integrating into another State or associating with another State.618 However a third point, which has been noted previously, is that there is no conclusive definition of the term peoples. This means that it is still uncertain whether a people in a certain State, as a whole, are allowed to determine their political status, or whether an ethnic group or minority can also exercise this right, which would imply it has a right of unilateral secession. It all depends on the interpretation of the term ‘peoples’, which unfortunately leads to a dead end. State practice in relation to a possible right of secession based on the right of self-determination as granted in the Covenants does not lead very far either. As noted before, the Human Rights Committee does not consider self-determination claims under the first Optional Protocol to the ICCPR.619 Most State reports do not mention secession and, if they do, it usually is from a domestic point of view, which does not help to clarify international law.620 General Comments of the Human Rights Committee or the comments of its individual members are not very illuminating either.621 The drafting history of Article 1 shows that States were not able to agree on the issue of secession.622 Some States were reluctant to accept self-determination as a legal right623 and asked ‘whether even States having no colonies were indeed prepared to face the consequences of assuming a legal obligation to promote the right of selfdetermination within their borders, and to consent to abide by the [Human 624 Rights] Committee’s decision on any claims that might be made’.

They argued that a right of self-determination included a right of secession and thus should not be included as a right in the Covenant, for that would be ‘tantamount to an incitement to insurrection and

human rights and for the promotion and strengthening of those rights. It is for that reason that States set forth the right of self-determination in a provision of positive law in both Covenants and placed this provision as article 1 apart from and before all of the other rights in the two Covenants. (emphasis added). See also Rosas, supra note 252, p. 243. 617 Smis, supra note 14, p. 406. The previous Chapter has clarified the internal aspect of this phrase. 618 General Assembly Resolution 1541 (XV) concerning the ‘Principles which should guide Members in Determining whether or not an obligation exists to transmit the information called for under Article 73e of the Charter’. 619 Smis, supra note 14, p. 209. 620 Ibid. 621 Ibid. See General Comment 12, supra note 409. 622 Smis, supra note 14, pp. 209-210. 623 Ibid., p. 209. 624 United Kingdom, 10 UN GAOR, 3d Comm., 642d meeting at 90-91, para. 15, UN Doc. A/C3/SR.642 (1955), quoted by Buchheit, supra note 8, p. 80, note 148.

100

separatism’.625 As States also disagreed on the beneficiaries of the right, it can safely be asserted that ‘[t]he travaux are quite inconclusive’.626 In sum, the UN Charter and the two Human Rights Covenants do not prohibit unilateral secession, but they do not recognise a right to secede either.627 4.3.3

Protocol I Additional to the Geneva Conventions of 1949

According to Article 1 (4) of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (AP I), the protection of the Protocol includes ‘armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of 628 the United Nations’.

Interestingly, it has been argued that a teleological reinterpretation of this provision lends support to the existence of a right to secede as a ‘last resort’ for oppressed peoples and for peoples who are subjected to gross violations of fundamental human rights.629 According to the General Assembly, the treatment of combatants struggling for independence was ‘inhuman’.630 The purpose of Article 1 (4) of AP I thus seems to have been the need to respect ‘the dignity and worth of the human person’.631 Although the travaux préparatoires of Article 1 (4) and the underlying General Assembly Resolution 3103 (XXVIII)632 indicate that this provision was meant to apply only in cases of decolonisation and apartheid, a more extensive interpretation may be possible.633 In light of the prohibition of racial discrimination, torture and genocide under contemporary international law the purpose of respecting human dignity would 625

Belgium, 10 UN GAOR, 3d Comm., 643d meeting at 94, para. 10, UN Doc. A/C3/SR.643, quoted by Buchheit, supra note 8, p. 80, note 149. See also Smis, supra note 14, p. 209. 626 Tomuschat, supra note 589, p. 26. 627 Raič, supra note 7, pp. 316-317. See also Tomuschat, supra note 589, p. 26. Also Smis, supra note 14, pp. 204, 209. 628 Additional Protocol I, supra note 232. 629 W. Timmermann, ‘Self-Determination Beyond the Decolonization Context: The Case for a Right of Suppressed Peoples to Secession’, in: Prof. K. Koufa (ed.), Multiculturalism and International Law, Thessaloniki: Sakkoulas Publications 2007, pp. 368-372, 375. 630 G.A. Res. 3103 (XXVIII), Basic principles of the legal status of the combatants struggling against colonial and alien domination and racist regimes, 12 December 1973, available at < http://www.un.org>. 631 Ibid. 632 Ibid. 633 Timmermann, supra note 620, p. 368.

101

certainly be served by allowing suppressed peoples to secede, and by granting them the protection of international humanitarian law in their efforts to this effect.634 A teleological interpretation is not only supported by Article 31 of the Vienna Convention on the Law of Treaties, but has also been employed in order to protect human rights and human dignity by the European Court of Human Rights,635 the International Court of Justice636 and the International Criminal Tribunal for the Former Yugoslavia.637 Although this argument is very appealing, it seems a bit far-fetched, and therefore may not be very convincing. 4.4

Customary International Law

4.4.1

The ‘Safeguard Clause’

A more convincing argument for a right of unilateral secession is to be found by an a contrario reading of the ‘safeguard clause’ of the Friendly Relations Declaration,638 which was reaffirmed in the Vienna Declaration,639 and the General Assembly Declaration on the Occasion

634

Ibid., p. 370. Case of Soering v. the United Kingdom, European Court of Human Rights, 7 July 1989, para. 87, available at . In this case, the Court has noted that ‘the object and purpose of the Convention as an instrument for the protection of individual human beings require that its provisions be interpreted and applied so as to make its safeguards practical and effective’. 636 Namibia, supra note 143, para. 53. The Court observed that ‘an international instrument has to be interpreted and applied within the framework of the entire legal system prevailing at the time of the interpretation’. See also the dissenting opinion of Judge M. Alvarez in the Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide Advisory Opinion, ICJ Reports (1951), available at , stating that ‘the said conventions must not be interpreted with reference to the preparatory work which preceded them; they are distinct from that work and have acquired a life of their own; they can be compared to ships which leave the yards in which they have been built, and sail away independently, no longer attached to the dockyard. These conventions must be interpreted without regard to the past, and only with regard to the future’. 637 Prosecutor v. Tadic, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Appeals Chamber, 2 October 1995, paras. 91-92. According to the Appeals Chamber Article 3 of the ICTY Statute has to be interpreted according to its object and purpose, which is ‘to ensure that no serious violation of international humanitarian law is taken away from the jurisdiction of the International Tribunal’. The Appeals Chamber concludes that ‘if correctly interpreted, Article 3 fully realizes the primary purpose of the establishment of the International Tribunal, that is, not to leave unpunished any person guilty of any such serious violation, whatever the context within which it may have been committed.’ This position has been reaffirmed by the Appeals Chamber in Prosecutor v. Delalic et al., Case No. IT-96-21-A, Appeals Judgment, 20 February 2001, para. 172. In this case the Appeals Chamber concluded that ‘[i]n light of the fact that the majority of the conflicts in the contemporary world are internal, to maintain a distinction between the two legal regimes and their criminal consequences in respect of similarly egregious acts because of the difference in nature of the conflicts would ignore the very purpose of the Geneva Conventions, which is to protect the dignity of the human person’. Both available at . 638 Friendly Relations Declaration, supra note 110, Paragraph 7 of Principle V. 639 Vienna Declaration, supra note 348, Part I, Paragraph 2. 635

102

of the Fiftieth Anniversary of the UN.640 In the latter resolution the ‘safeguard clause’ reads as follows: ‘This shall not be construed as authorizing or encouraging any action that would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples and thus possessed of a Government representing the whole people 641 belonging to the territory without distinction of any kind’.

Numerous authors have pointed out that if this paragraph is read a contrario, it implies that the territorial integrity or political unity of a sovereign and independent State will no longer be protected if it does not conduct itself in compliance with the principle of equal rights and self-determination of peoples and if the government is unrepresentative.642 In other words, if a State persistently denies a people its right of internal self-determination that State forfeits its right to territorial integrity, and consequently the people may have the remedy of external self-determination, i.e. unilateral secession.643 While conventional law leaves the issue of secession up in the air, Paragraph 7 of the Friendly Relations Declaration provides the most convincing legal argument in favour of secession. Even though it must be admitted that ‘General Assembly resolutions are not usually [legally] binding as such’, they ‘can in appropriate circumstances constitute evidence of existing customary law’.644 According to the International Court of Justice in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons ‘[General Assembly resolutions] can, in certain circumstances, provide evidence important for establishing the existence of a rule or the emergence of an opinio juris. To establish whether this is true of a given General Assembly resolution, it is necessary to look at its content and the conditions of its adoption; it is also necessary to see whether an opinio juris exists as to its normative character. Or a series of resolutions may show the gradua1 645 evolution of the opinio juris required for the establishment of a new rule’.

640

General Assembly Declaration on the Occasion of the Fiftieth Anniversary of the UN, supra note 601. 641 (emphasis added). 642 See e.g. Raič, supra note 7, pp. 317-324. Also generally, Cassese, supra note 13, p. 118120, stating at p. 119 that ‘since the possibility of impairment of territorial integrity is not totally excluded, it is logically admitted’. Knop, Diversity and Self-Determination in International Law, Cambridge: Cambridge University Press 2002, pp. 74-77, Timmermann, supra note 620, pp. 372-373, Pavkovic & Radan, supra note 593, pp. 234-236. See also Reference re Secession of Quebec, supra note 345, pp. 498-500, also referring to Paragraph 7 of the Friendly Relations Declaration. Crawford, supra note 10, p. 119. 643 Raič, supra note 7, p. 321. Dugard & Raič, supra note 576, pp. 103-104, 137. 644 Statement of Principles, supra note 110, pp. 56-57. See also the text accompanying note 110. 645 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, ICJ Reports 1996, para. 70, available at .

103

As noted before in paragraph 2.4.1, the Friendly Relations Declaration has been referred to as a rare example of ‘instant’ customary law. It is submitted here that the ‘safeguard clause’ as first enunciated in the Friendly Relations Declaration, and repeated in the various declarations and resolutions mentioned before, at least evinces a strong opinio iuris on the part of the international community that respect for the territorial integrity of a State is dependent on whether its government is representative. Moreover, the author shares the point of view of many other authors, that the ‘safeguard clause’ implicitly authorises secession, albeit a ‘qualified’ right of secession, for it can only be exercised in exceptional circumstances.646 The exact circumstances under which this right may be invoked will be analysed in greater detail in paragraph 4.7. The following section will first evaluate (semi-) judicial decisions in support of a right of remedial secession. 4.5 4.5.1

Case Law The Ǻland Islands Dispute

One of the earliest cases in which the possibility of secession as a last resort was acknowledged, is the Ǻland Islands Case. In this case, the Commission of Jurists first concluded that ‘[p]ositive international law does not recognize the right of national groups, as such, to separate themselves from the State of which they form a part by 647 the simple expression of a wish’.

The Commission of Rapporteurs looking into the matter shared this view, but nevertheless considered that ‘[t]he separation of a minority from the State of which it forms part and its incorporation in another State can only be considered as an exceptional solution, a last resort when the State lacks either the will or the power to enact and apply just and effective guarantees [of religious, linguistic and 648 social freedom]’.

While the legal value of this statement may be small, it is illustrative of the fact that as early as 1921, international lawyers considered unilateral secession as a remedy in case of human rights violations.

646 The ‘qualified secession doctrine’ is proponed by Raič, supra note 7, p. 324. See also Cassese, supra note 13, p. 112, stating that ‘[o]ne thing is made very clear: any licence to secede must be interpreted very strictly’, p. 118, ‘Close analysis of both the text of the Declaration and the preparatory work warrants the contention that secession is not ruled out but may be permitted only when very stringent requirements have been met’. 647 Quoted by Raič, supra note 7, p. 329. 648 Ibid.

104

4.5.2

The African Commission on Human and Peoples Rights, Katangese Peoples’ Congress v Zaïre (1995)

In the case of Katangese Peoples’ Congress v. Zaire the African Commission on Human and Peoples’ Rights seemed to acknowledge the possibility of a right of unilateral secession in case of ‘concrete evidence of violations of human rights to the point that the territorial integrity of Zaire should be called into question’ or if there would be ‘evidence that the people of Katanga are denied the right to participate in 649 Government as guaranteed by Article 13 (1) of the African Charter’.

Since there was no evidence to this effect, Katanga was ‘obliged to exercise a variant of self-determination that is compatible with 650 the sovereignty and territorial integrity of Zaire’.

This decision indicates that the remedy of unilateral secession may be available if a people is barred from exercising its internal right of selfdetermination or when it suffers from gross violations of human rights.651 4.5.3

Supreme Court of Canada, Reference re Secession of Quebec (1998)

According to a study of the International Law Association (ILA) decisions of national courts, being organs of the State may also be regarded as State practice.652 Moreover, the ILA has acknowledged that ‘it is often difficult or impossible to separate the two elements’, i.e. to distinguish State practice and opinio iuris.653 In Reference re Secession of Quebec, the Supreme Court of Canada addressed the right of external self-determination.654 The pronouncements of the Court can be regarded as State practice, but at the same time they undoubtedly express opinio iuris on the right of external selfdetermination. According to the Court, there are two clear cases in which external self-determination is permitted under international law.655 The first case is the right of colonial peoples to claim independence by exercising their right of self-determination.656 The 649

Katangese Peoples’ Congress v. Zaire, supra note 430, para. 6. Ibid. 651 Raič, supra note 7, p. 330. Also Timmermann, supra note 620, p. 374. 652 Statement of Principles, supra note 110, pp. 17-18. 653 Ibid., p. 7. See also P. Haggenmacher, ‘La doctrine des deux éléments du droit coutumier dans la pratique de la Cour internationale’, Revue Générale de Droit International Public, Vol. 90, 1986, pp. 5, 114. 654 Reference re Secession of Quebec, supra note 345, pp. 498-500. 655 Ibid., p. 498. 656 Ibid. 650

105

second undisputed case is the right of external self-determination for peoples ‘subject to alien subjugation, domination or exploitation outside a colonial context’.657 Furthermore, the Court noted that international lawyers have identified a third case in which external self-determination may be legitimate and that ‘[a]lthough this third circumstance has been described in several ways, the underlying proposition is that, when a people is blocked from the meaningful exercise of its right to self-determination internally, it is entitled, as a last resort, to exercise it by secession. The Vienna Declaration […] requirement that governments represent “the whole people belonging to the territory without distinction of any kind” adds credence to the assertion that such a 658 complete blockage may potentially give rise to a right of secession.’

It has already been pointed out in the previous paragraph that the ‘saving clause’ contains a very persuasive legal argument for a right of remedial secession. The fact that the Court also refers to it in the context of secession supports this statement. While the Court took note of the fact that ‘it remains unclear whether this third proposition actually reflects an 659 established international law standard’,

it did conclude that ‘the international law right to self-determination only generates, at best, a right to external self-determination in situations of former colonies; where a people is oppressed, as for example under foreign military occupation; or where a definable group is denied meaningful access to government to pursue their political, economic, social and cultural development. In all three situations the people in question are entitled to a right to external selfdetermination because they have been denied the ability to exert internally 660 their right to self-determination.’

As the Court considered the third circumstance to be ‘manifestly inapplicable’ in this case, Quebec was not permitted under international law to secede unilaterally from Canada.661 However, the Court did recognise a constitutional obligation for the parties to negotiate the possibility of a secession, especially after a ‘clear expression of a clear majority of Quebecers that they no longer wish to remain in Canada’.662 This is an important point, which will be elaborated in paragraph 7, as the criteria for exercising the right of 657 658 659 660 661 662

Ibid. Ibid., Ibid., Ibid., Ibid. Ibid.,

106

pp. 498-499. p. 499. p. 500. pp. 503-504.

remedial secession will be discussed. Furthermore, the Court draws attention to the importance of recognition by the international community for a declaration of independence to be successful.663 If either party has been unwilling to negotiate, this may influence the recognition process in case unilateral secession takes place.664 Therefore, the conduct of both parties in a self-determination conflict is crucial, for it may influence whether or not the international community will consider a secession legitimate, which consequently will have effect upon the decision whether it will recognise the newly established State or not.665 The connection between recognition, secession and how the parties of a secessionist dispute can influence the reaction of the international community will be discussed in the next section. The secessions of Bangladesh, Croatia and Kosovo present good examples of the status of unilateral secession to as a ‘tool’ to redress a wrong.666 Before turning to these cases, however, it must be kept in mind that the context in which the Quebecers advanced their claim differs from that of the Bengalis, Croatians and Kosovars in every respect.667 While the people of Quebec have been able to exercise their right of internal self-determination and have not suffered serious oppression and gross violations of fundamental human rights, the people of Bangladesh, Croatia and Kosovo have endured extreme violations of non-derogable human rights, notably the right to life, in addition they have been violently repressed and were effectively barred from exercising their internal right of selfdetermination.668 4.6 4.6.1

State Practice Recognition

As the Canadian Supreme Court observed in the Reference re Secession of Quebec, it is important to pay attention to the relationship between recognition and secession. As stated before, the right of external self-determination can be exercised by secession, as a way to create a new independent State. Even though it is true that recognition does not ‘provide any retroactive justification for the act of secession’,669 it is an important element of State practice in response to external self-determination in the form of secession. In other words, the moment a State exists, as a fact, as a result of a successful secession, the reaction of the international community may 663 664 665 666 667 668 669

Ibid., pp. 490, 505. Ibid. Ibid. Case of Loizidou v. Turkey, supra note 574. Hansen, supra note 602, pp. 127-128. Ibid. Reference re Secession of Quebec, supra note 345, p. 505.

107

influence whether it will also have a legal status. This section will first explain the theory of recognition in international law in short. Article 1 of the Inter-American Convention on the Rights and Duties of States (“Montevideo Convention”), which developed into a rule of customary international law, requires four criteria for the attainment of statehood: a permanent population, a defined territory, a government and the capacity to enter into relations with the other states.670 Along these lines it would seem that if an entity meets all four of these criteria, it can be considered a State.671 However, things are not as simple as they appear, for there are two points of view concerning ‘the legal nature and effect of recognition’: the declaratory theory and the constitutive theory.672 In short, according to the declaratory theory, recognition is ‘merely a formal acknowledgement of an already existing fact’.673 Therefore, under the declaratory theory, a State that meets the four Montevideo criteria not only ‘exists as a fact’, it also instantly has ‘international legal personality’.674 In other words, it is not dependent on the recognition of other States to become a subject of international law.675 The constitutive theory on the other hand, argues that ‘[t]hrough recognition only and exclusively a State becomes an International Person and a subject of International Law’.676 While this theory thus concedes the existence of a State ‘as a fact’ in the same way as the declaratory theory concedes, the essential difference between the two is that the constitutive theory argues that only after a State is recognised, it will have ‘international personality’.677 ‘Recognition therefore becomes an additional requirement of statehood’.678 A thorough discussion on the merits of both theories of recognition will exceed the scope of this thesis. However, a few comments can be made. An important point of criticism as regards the constitutive theory is that it leads to uncertainty.679 While some States may decide to recognise a certain new State, others may not and the result of the constitutive theory will thus be that the status of that State will remain uncertain.680 Lauterpacht referred to this situation

670

Raič, supra note 7, p. 24. Inter-American Convention on Rights and Duties of States, December 26, 1933. The Montevideo Convention is available at . 671 Raič, supra note 7, p. 24. 672 Ibid., p. 28. 673 Ibid., p. 32. 674 Ibid. 675 Ibid. 676 L.F.L. Oppenheim, International Law: A Treatise, Vol. I, Peace, London: Longmans, Green and Co., (1st ed.), 1905, p. 110, quoted by Raič, supra note 7, p. 29. 677 Raič, supra note 7, p. 30 678 Dugard & Raič, supra note 576, p. 97. 679 Ibid. 680 Ibid. Also M.N. Shaw, International Law, Cambridge: Cambridge University Press 2003, p. 369.

108

as a ‘grotesque spectacle’681 and tried to remedy it by arguing that States have a duty to recognise a new State that meets the Montevideo criteria.682 However, State practice indicates that States do not share this point of view and (non-)recognition seems to be politically motivated rather than the result of a supposed legal obligation.683 There are cases of premature recognition684 as well as cases in which recognition was withheld despite the fact that the required criteria of statehood were met.685 A definite answer in this debate is difficult to find.686 On the one hand, ‘the political nature of recognition has prompted support for the declaratory school’,687 on the other hand recognition does have ‘an important consolidating effect with respect to statehood, especially in situations where the government of the recognised State is not fully effective’.688 The constitutive theory thus links up with the declaratory theory through the fourth criterion of statehood, i.e. the capacity to enter into diplomatic relations with other states. From a practical point of view it has been noted that ‘if an entity, while meeting the conditions of international law as to statehood, went totally unrecognized, this would undoubtedly hamper the exercise of its rights and duties, especially in view of the absence of diplomatic relations, but it would not seem in law to amount to a decisive 689 argument against statehood itself.’

Again, it must be concluded that a definite answer is difficult to find. As the Badinter Commission correctly pointed out in Opinion 8,

681 H. Lauterpacht, Recognition in International Law, Cambridge: Cambridge University Press 1963, p. 78. 682 Ibid., p. 6. 683 Dugard & Raič, supra note 576, p. 98. Also Shaw, supra note 671, p. 369. See also Opinion 11 of the Badinter Commission, 16 July 1993, International Legal Materials, Vol. 32, pp. 15871589, in which the Commission noted that recognition is ‘a discretionary act that other states may perform when they choose and in a manner of their own choosing, subject only to compliance with the imperatives of general international law’. 684 See e.g., the premature recognition of Bosnia Herzegovina. Bosnia Herzegovina was recognised by the European Community and the United States on 7 April 1992 and was admitted as a member of the United Nations on 22 May 1992 (GA Res. 46/237, 22 May 1992). At that time, there was a civil war going on in Bosnia Herzegovina which means that it cannot be maintained that the ‘traditional criteria of statehood’ were met. The government of Bosnia Herzegovina was not effective, nor was there ‘complete control over the territory’. See Dugard & Raič, supra note 576, pp. 131-132, 135. 685 See, e.g. the situation of Abkhazia, which the international community (except for Russia and Nicaragua) has refused to recognise as a State, despite the fact that the ‘traditional criteria of statehood’ have been met. See Raič, supra note 7, p. 419. The example of Abkhazia will be discussed in the next section. 686 Shaw, supra note 671, p. 369. Also Dugard & Raič, supra note 576, p. 99. 687 Dugard & Raič, supra note 576, p. 98. According to the Badinter Commission, ‘the existence or disappearance of the state is a question of fact’ and ‘the effects of recognition by other states are purely declaratory’. Opinion 1, supra note 286. 688 Raič, supra note 7, pp. 39, 427. See also Dugard & Raič, supra note 576, p. 99. 689 Shaw, supra note 671, p. 371. See also Raič, supra note 7, p. 39 and Dugard & Raič, supra note 576, pp. 98-99.

109

‘while recognition of a state by other states has only declarative value, such recognition, along with membership of international organizations, bears witness to these states’ conviction that the political entity so recognised is a reality and confers on it certain rights and obligations under international 690 law.’

The arbitrariness of recognition caused by its discretionary character is somewhat mitigated by the fact that recently, collective (international) recognition is being used in addition to the ‘traditional’ practice of individual recognition.691 Examples of collective recognition are recognition by the European Community or the granting of membership of the United Nations.692 This is a welcome trend, especially if it is used together with a set of guidelines, containing the policy of the recognising entities.693 One point of criticism with respect to the constitutive theory that has been put forward is important to note within the context of this Chapter. If we accept that the right of self-determination includes the right to independence, the constitutive theory cannot be maintained.694 The reason for this is that after a unilateral secession the parent State usually will not be inclined to recognise the newly established State.695 That way, according to the constitutive theory, a parent State would be able to effectively block the exercise of the right of (external) self-determination of a people living within its territory.696 In other words, as Raič correctly pointed out ‘if recognition would be considered constitutive for the international personality of the State in question little, if anything, would remain of the right to self-determination of peoples. This cannot be assumed in light of the 697 fundamental position of this right in international law.’

He goes on to note that

690

Opinion 8, supra note 287. In the same way, the Canadian Supreme Court in Reference re Secession of Quebec, supra note 345, pp. 500-502, stated that ‘[n]o one doubts that legal consequences may flow from political facts’ and that ‘although recognition by other states is not, at least as a matter of theory, necessary to achieve statehood, the viability of a would-be state in the international community depends, as a practical matter, upon recognition by other states. That process of recognition is guided by legal norms. However, international law is not alone constitutive of statehood and, critically, does not relate back to the date of secession to serve retroactively as a source of a “legal” right to secede in the first place.’ 691 According to Dugard & Raič, supra note 576, pp. 99-100, 134 ‘it is fair to conclude that many States have achieved statehood by admission to the United Nations and that this procedure for recognition co-exists alongside the traditional method of unilateral recognition. Any description of the law of recognition that fails to take account of this development cannot lay claim to be an accurate reflection of State practice’. 692 Ibid., pp. 99-100, 134. See also Shaw, supra note 671, p. 388. 693 See, e.g. the ‘Guidelines on Recognition’, supra note 276. 694 Raič, supra note 7, p. 36. 695 Ibid. Serbia, e.g., persistently refuses to recognise Kosovo. 696 Raič, supra note 7, p. 36. 697 Ibid. See also ibid., p. 29.

110

‘combining the law of self-determination and recognition practice in the field of unilateral secession leads to the conclusion that if an entity is recognized as a State, while it has been established as a result of unilateral secession, and its creation is sought to be justified on the basis of the right of external self-determination, the recognition of statehood implies the recognition of the applicability of a right of unilateral secession of the people in question. Recognition has thus assumed a dual role: it is not only the State which is recognized, but also the right of external self-determination of the people 698 concerned.’

Keeping this in mind, the present paragraph will analyse cases of unilateral secession outside the colonial context. Throughout the analysis, considerable attention will be given to recognition as an important element of State practice in relation to secession, in order to be able to answer the question whether there is a right of unilateral secession under international law. It must be stressed that it is not submitted here that recognition retroactively creates a right to secede.699 An evaluation of the recognition practice of states in relation to secession may only serve to shed some light on the question whether the international community considers unilateral secession legitimate under exceptional circumstances, what those circumstances are and whether this implies that there may be additional or ‘modern’ criteria for statehood apart from the ‘traditional’ Montevideo criteria.700 4.6.2

Secession Outside the Colonial Context

There have been many cases of external self-determination in the form of secession outside the colonial context. At the outset, it must be noted that dissolution of a State has been distinguished from secession.701 The importance of the distinction between dissolution and secession lies in the fact that when a State dissolves, that State will cease to exist and all parts of the former State will be its equal successors.702 In case of secession, the ‘old’ State will continue to exist and the entities that have seceded will have to be recognised as

698

Ibid., pp. 426-427. This view is supported by the concurring opinion of Judge Wildhaber, joined by Judge Ryssdal in the Case of Loizidou v. Turkey, supra note 574, stating that ‘[w]hen the international community in 1983 refused to recognise the [Turkish Republic of Northern Cyprus] as a new State under international law […] it by the same token implicitly rejected the claim of the "TRNC" to self-determination in the form of secession. Cf. the Canadian Supreme Court in Reference re Secession of Quebec, supra note 345, pp. 490, 500-502, 505. 699 Reference re Secession of Quebec, supra note 345, p. 501. 700 Raič, supra note 7, p. 88. 701 Ibid., p. 358. 702 Ibid. Crawford, supra note 577, p. 92-93. The distinction also has implications for State succession. See e.g., Article 34 and 35 of the Vienna Convention on Succession of States in respect of Treaties, 23 August 1978, entered into force on 6 November 1996, available at .

111

new States by the international community.703 Sometimes opinions differ whether a certain situation is a case of secession or dissolution, which makes it impossible to make a clear distinction between the two at all times.704 Examples of secession outside the colonial context include the separation of Singapore from Malaysia in 1965, which took place on the basis of a Separation Agreement between the two parties.705 The Separation Agreement indicates that this was a case of consensual secession rather than unilateral secession. The international community reacted positively and collectively recognised Singapore by admitting the new State as a member of the United Nations.706 The independence of the Baltic States in 1991 is another example of a peaceful secession, although this was not a real case of unilateral secession either, because it was seen as a ‘restoration of independence’, based on the ‘consent of the parties concerned’.707 The Baltic States were admitted as members of the UN after it was clear that the Soviet Union would also recognise their independence.708 The reaction of the international community thus indicates that in cases of secession the international community considers it very important to take account of the attitude of the ‘parent’ State.709 The break-up of the Soviet Union starting in 1991 was a case of secession rather than dissolution, because the legal personality of the ‘old’ State was continued by the Russian Federation.710 This secession was also consensual, because in the end, all of the twelve republics agreed with the break-up of the Soviet Union.711 It is important to note the fact that the Russian Federation as the ‘parent’ State 703

Raič, supra note 7, p. 359. Musgrave, supra note 14, p. 200. According to Crawford, supra note 10, pp. 390-391, ‘in cases of dissolution, no one party is allowed to veto the process’. See also Crawford, supra note 577, pp. 92-93. 704 Raič, supra note 7, pp. 358-359. Also Crawford, supra note 10, p. 390. 705 Crawford, supra note 10, p. 392. 706 Ibid., p. 393. See SC res 213 (1965), 20 September 1965 and GA res 2010 (XX), 1 September 1965. 707 See the statement of the President of the Security Council after the SC had adopted a resolution supporting the applications for UN membership of the three States: ‘The independence of the [Baltic states] was restored peacefully, by means of dialogue, with the consent of the parties concerned, and in accordance with the wishes and aspirations of the three peoples. We can only welcome this development, which obviously represents progress in respecting the principles of the Charter of the United Nations and in attaining its objectives’, SCOR, S/PV/3007, 12 September 1991 (Mr Merimée (France)). (emphasis added). See, generally, Cassese, supra note 13, pp. 258-264. 708 Crawford, supra note 10, p. 394. 709 Ibid. 710 Ibid., p. 395. See, generally, Cassese, supra note 13, pp. 264-268. 711 Crawford, supra note 10, p. 395. On 8 December 1991 Russia, Belarus and Ukraine signed the Treaty establishing the Commonwealth of Independent States (CIS) in Minsk. On 21 December 1991 eight other republics of the former Soviet Union (Armenia, Azerbaijan, Moldova, Kazakhstan, Kirgizstan, Tajikistan, Turkmenistan and Uzbekistan) signed the Protocol to the Agreement establishing the Commonwealth of Independent States at Alma-Ata, Kazakhstan, thus joining the CIS. Both the Treaty and the Protocol are available at .

112

acquiesced in the secession, which apparently influenced the positive attitude of the international community towards the secession.712 Furthermore, the European Community reacted by issuing ‘Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union’,713 which referred to the principle of self-determination and made recognition dependent on five criteria.714 The break-up of the Socialist Federal Republic of Yugoslavia (SFRY) started with the secession of Slovenia and Croatia, which caused a bloody civil war and resulted in the dissolution of Yugoslavia.715 The international community reacted to the events in the SFRY by convening a Conference on Yugoslavia.716 As regards recognition of the constituent republics of the SFRY the Member States of the European Community adopted a common position. They issued a Declaration on Yugoslavia717 and applied the ‘Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union’.718 An Arbitration Commission was established with the task of answering several legal questions and considering the applications for recognition of the republics.719 One of the Opinions the Arbitration Commission issued perfectly illustrates the lack of clarity between secession and dissolution.720 The question the Commission had to answer was whether the situation in Yugoslavia was a case of secession, as Serbia and Montenegro had claimed, or whether the Socialist Federal Republic of Yugoslavia was disintegrating, as the other republics had argued.721 In its first Opinion of 29 November 1991, the Commission concluded that ‘the Socialist Federal Republic of Yugoslavia is in the process of dissolution’.722 However, a number 712

Crawford, supra note 10, p. 395. The eleven States that seceded from the former Soviet Union were all admitted without any objections as members of the United Nations. 713 ‘Guidelines on Recognition’, supra note 276. 714 The five criteria were: (i) respect for the provisions of the Charter of the United Nations and the commitments subscribed to in the Final Act of Helsinki and in the Charter of Paris, especially with regard to the rule of law, democracy and human rights; (ii) guarantees for the rights of ethnic and national groups and minorities in accordance with the commitments subscribed to in the framework of the CSCE; (iii) respect for the inviolability of all frontiers which can only be changed by peaceful means and by common agreement; (iv) acceptance of all relevant commitments with regard to disarmament and nuclear non-proliferation as well as to security and regional stability; (v) commitment to settle by agreement, including where appropriate by recourse to arbitration, all questions concerning State succession and regional disputes. 715 Raič, supra note 7, p. 360. 716 Crawford, supra note 10, p. 396. 717 Declaration on Yugoslavia, supra note 285. 718 Crawford, supra note 10, p. 397. 719 Ibid., p. 396-397. 720 The Opinions of the Commission have been criticized by many writers. See generally, Hannum, supra note 575, pp. 57-69. M. Pomerance, ‘The Badinter Commission: The Use and Misuse of the International Court of Justice’s Jurisprudence’, Michigan Journal of International Law, Vol. 20, 1998, pp. 31-58. Musgrave, supra note 14, pp. 200-207 and P. Radan, ‘PostSecession International Borders: A Critical Analysis of the Opinions of the Badinter Arbitration Commission’, Melbourne University Law Review, Vol. 24, 2000, pp. 50-76. 721 Hannum, supra note 575, p. 63. 722 Opinion 1, supra note 286. Raič, supra note 7, p. 360.

113

of commentators has noted that according to the Commission, Croatia and Slovenia became independent on 8 October 1991.723 As Croatia and Slovenia both declared their independence before the SFRY started disintegrating, this was a case of unilateral secession rather than dissolution.724 The fact that the SFRY was ‘in the process of dissolution’ was very convenient from a political point of view, because this implied that there was no ‘parent’ State to veto the process, which in turn allowed the European Community to recognise the constituent republics without being accused of interfering in the internal affairs of a sovereign State.725 Moreover, labelling the crisis as dissolution ruled out the possibility of setting a precedent for secession.726 Although the Federal Republic of Yugoslavia (Serbia and Montenegro) in the end acquiesced in the secession of the four republics,727 the civil war that started in the end of 1990 and officially ended with the conclusion of the Dayton-Paris Peace Agreement in 1995 clearly indicates that this was not a case of consensual secession. Another point for which the Commission can be criticized is that it invoked the principle of uti possidetis in support of the opinion that ‘the former [administrative] boundaries become frontiers protected by international law’.728 A number of critical authors have rightly pointed out that the Commission was wrong to argue that the principle of uti possidetis is applicable outside the colonial context.729 The most important point that must be made with respect to the Yugoslav crisis is that the recognition of Croatia and BosniaHerzegovina was premature.730 Both entities did not meet the ‘traditional criteria for statehood’ at the time they were recognised by the international community, for the respective governments were not effective, nor was there ‘complete control over the territory’.731 According to Raič ‘Recognition, therefore, had a consolidating effect, as it served to secure the independence of the State and to bolster the effectiveness of its government 732 by lending international legitimacy’.

723 Opinion 11, supra note 674. Raič, supra note 7, p. 360. See also Radan, supra note 711, p. 54. 724 Radan, supra note 711, p. 54. Raič, supra note 7, pp. 360-361. According to Raič, the unilateral secession did result in the dissolution of the SFRY. See also Musgrave, supra note 14, pp. 200-203. 725 Musgrave, supra note 14, p. 203. 726 Musgrave, supra note 14, p. 203. See also Crawford, supra note 10, p. 401. 727 Ibid., p. 398-399. 728 Opinion 3, supra note 286. 729 Hannum, supra note 575, p. 66. Hannum, supra note 274, pp. 64-65. Pomerance, supra note 711, pp. 50-57. Radan, supra note 711, pp. 59-65. 730 Dugard & Raič, supra note 576, p. 135. Also Crawford, supra note 10, p. 400. 731 Dugard & Raič, supra note, 576, pp. 131-132, 135. 732 Ibid., p. 135. See also C. Warbrick, ‘Kosovo: The Declaration of Independence’, International and Comparative Law Quarterly, Vol. 57, July 2008, p. 676, stating that ‘[f]or all

114

The circumstances under which the secession of Croatia took place will be discussed more detailed in the following section, as they provide a good example of unilateral ‘remedial secession’. The secession of Eritrea took place on a consensual basis after an agreement had been reached between the Eritrean Peoples Liberation Front (EPLF) and the Transitional Government of Ethiopia, which had replaced the military regime that had been defeated.733 The international community collectively recognised Eritrea by admitting it as a member of the United Nations.734 From the examples of secession outside the colonial context that have been described so far, the following observations can be made. First of all, except for the case of Yugoslavia, all secessions were consensual, which probably positively influenced the recognition process of the international community. Secondly, the premature recognition of Croatia and Bosnia-Herzegovina had a ‘consolidating effect’.735 Thirdly, it is important to take note of the ‘Guidelines on Recognition’ of the European Community, which apart from the ‘the normal standards of international practice’ laid down five additional criteria as a precondition for recognition.736 However, use of the Guidelines seems to have been a one-off act. The EC Guidelines have not been used in later recognition practice and neither have they been used by other States or entities, indicating they exemplified regional rather than international practice. Nevertheless, the case of Kosovo which will be discussed in paragraph 4.6.5 demonstrates that the essence of the Guidelines, in particular respect for the rule of law, remains important in connection with recognition. Finally, in most cases of secession, the seceding entities considered it appropriate to hold a referendum, which indicates respect for the right of (internal) self-determination.737 4.6.3

Failed Secessionist Attempts Outside the Colonial Context

The list of failed secessionist attempts that took place outside the colonial context is much longer than those secessions that were successful. A few cases stand out and therefore will be discussed in the present section.

the Badinter Commission’s adherence to the orthodoxy of the declaratory theory, some at least of the new States are the products of attempts to create States’, (emphasis added). 733 Crawford, supra note 10, p. 402. 734 Ibid. See SC res 828, 26 May 1993 and GA res 47/230, 28 May 1993. 735 Dugard & Raič, supra note 576, p. 135. 736 ‘Guidelines on Recognition’, supra note 276. See also Crawford, supra note 10, p. 397. 737 Cassese, supra note 13, pp. 262-263, 266, 270.

115

The Turkish Republic of Northern Cyprus The Turkish Republic of Northern Cyprus (TRNC) seceded from Cyprus in 1983, nine years after the Turkish invasion of the island.738 So far, Turkey is the only State that has recognised the TRNC.739 The refusal of the international community to recognise the independence of the TRNC is due to the fact that it was created in violation of the prohibition on the use of force.740 Katanga The secession of Katanga from the Congo in 1960 was also considered unlawful by the international community, and the attempt ended in 1963.741 Katanga seceded shortly after the Congo became independent from Belgium, but was never recognised by any State.742 It is not entirely clear why Katanga’s attempted secession was rejected.743 It has been argued that the international community was concerned with the economic future of the Congo, since the mineral wealth of the country is mainly situated in the province of Katanga.744 Moreover, the secessionist Tshombe regime was not considered representative of the Katangan population.745 The Security Council certainly rejected the intervention of Belgian troops in support of the secession.746 Besides ‘neo-colonialist paranoia’ there was the fear that recognising the secession of Katanga would set a precedent that would lead to other separatist claims within the Congo.747 However, the Security Council did not state that the secession violated general international law.748 It must also be noted that the secession could not have been justified on the basis of the ‘qualified secession 738

Raič, supra note 7, pp. 122-127. Ibid., p. 125. 740 See S/Res/541, 18 Nov. 1983. The Security Council adopts a resolution on Cyprus every year. See, e.g. S/Res/1251, 29 June 1999, ‘[c]alling once more upon all States to respect the sovereignty, independence and territorial integrity of the Republic of Cyprus, and requesting them, along with the parties concerned, to refrain from any action which might prejudice that sovereignty, independence and territorial integrity, as well as from any attempt at partition of the island or its unification with any other country. This resolution was reaffirmed most recently in S/Res/1847, 12 December 2008. 741 Dugard & Raič, supra note 576, p. 133. Also Crawford, supra note 10, pp. 404-405. 742 Crawford, supra note 10, p. 405. See S/Res/169, 24 November 1961, available at , in which the Security Council stressed that the United Nations aimed ‘[t]o maintain the territorial integrity and the political independence of the Republic of the Congo’. Furthermore it ‘completely reject[ed] the claim that Katanga is “a sovereign and independent nation”’ and ‘strongly deprecate[d] the secessionist activities illegally carried out by the provincial administration of Katanga with the aid of external resources and foreign mercenaries’. The Security Council went on to declare that ‘all secessionist activities against the Republic of the Congo are contrary to the Loi fondamentale and Security Council decisions and specifically demand[ed] that such activities […] shall cease forthwith. 743 Raič, supra note 7, p. 334, note 86. 744 Buchheit, supra note 8, p. 152. 745 Ibid. 746 Raič, supra note 7, p. 334, note 86. 747 Buchheit, supra note 8, p. 152. 748 Raič, supra note 7, p. 334, note 86. See UN Doc. S/Res/169, 24 November 1961, supra note 733. 739

116

doctrine’ that was discussed earlier, as the secession clearly was not an ‘ultimum remedium’ for Katanga.749 Biafra In 1967 Biafra attempted to secede from Nigeria, which resulted in a horrible civil war which lasted for almost three years, and caused the death of more than one million people.750 The reaction of the international community was mixed.751 Some States provided direct or indirect support to Biafra, but only five States officially recognised it.752 The United Nations did not even consider the crisis, because it was thought to be a matter of the Organization of African Unity.753 The OAU did not react very effectively either. It stressed the sovereignty and territorial integrity of member States and viewed the situation as an ‘internal affair’ of Nigeria.754 The reason that Biafra did not gain widespread recognition is probably mainly due to political considerations.755 It was feared that recognition of Biafra would have ‘opened the floodgates for an inevitable separatist disintegration’ of Nigeria or even Africa.756 Opinions differ as to whether the Biafrans may have had a legitimate claim of self-determination on the basis of the ‘qualified secession doctrine’.757 Although a right of secession of the Biafrans cannot be excluded altogether, the circumstances of the attempted Biafran secession do differ from the situation that led to the secession of Bangladesh from Pakistan, which will be discussed later. The major difference is that in the case of Biafra, there may have been alternatives to secession.758 Be that as it may, the international community, notably the United Nations, can certainly be criticised for the inactivity it displayed during the Biafran civil war. Chechnya Chechnya proclaimed independence in 1991, and the Russian government reacted to it by trying to negotiate and offering autonomy, but the Chechen leaders would not cooperate.759 As the 749

Raič, supra note 7, p. 334, note 86. Dugard & Raič, supra note 576, p. 111. 751 Buchheit, supra note 8, p. 170. 752 Ibid. 753 Dugard & Raič, supra note 576, p. 111. Also Raič, supra note 7, p. 334. And Buchheit, supra note 8, pp. 168-169. 754 Buchheit, supra note 8, p. 169. 755 Raič, supra note 7, p. 335. 756 Buchheit, supra note 8, p. 174. Also Raič, supra note 7, p. 335. 757 Buchheit, supra note 8, pp. 172-174 considers the Biafrans had a legitimate claim. See also Raič, supra note 7, p. 335. And Dugard & Raič, supra note 576, p. 111. Cf. G.J. Simpson, The Right of Secession in International Law: A New Theory of Legitimacy, Unpublished PhD Thesis University of British Columbia 1989, available at National Library of Canada (Canadian Theses Service), pp. 163-187 who does not think the Biafran people had a right of unilateral secession. 758 Simpson, supra note 748, pp. 185-187. 759 Raič, supra note 7, p. 374. See also C. Panico, Conflicts in the Caucasus : Russia's war in Chechnya, Conflict Studies No. 281, London: Research Institute for the Study of Conflict and 750

117

Chechens would not settle for anything but independence, the Russian Army tried to stop the secession in 1994, resulting in the first Chechen war.760 This devastating war resulted in the death of thousands of civilians and ended with the Khasavyurt Accord in 1996 and the signing of the Moscow Agreement in 1997.761 In the years that followed, the Chechens kept refusing Russian autonomy offers.762 However, the Chechen authorities were not able to maintain law and order in the country, which resulted in gross violations of human rights and caused many displaced persons.763 In reaction to this deteriorating situation, the Russian government started the second Chechen war in October 1999, which formally ended after a few months in February 2000.764 However, violent Chechen insurgency and violent Russian counterinsurgency continues until this very day, causing serious human rights abuses including assassinations, arbitrary killings and torture.765 Despite the fact that the international community has rightly condemned the excessive use of force, and violations of human rights and international humanitarian law by the Russian armed forces in both Chechen wars, it has never recognised the independence of Chechnya but has insisted on the territorial integrity of Russia.766 Although there were obviously (geo)political Terrorism 1995, pp. 7-11. W.T. Atrokhov, ‘The Khasavyurt Accords: Maintaining the Rule of Law and Legitimacy of Democracy in the Russian Federation Amidst the Chechen Crisis’, Cornell International Law Journal, Vol. 32, 1999, pp. 373-374. 760 Ibid. See also A. Eide, ‘Chechnya: In Search of Constructive Accommodation’, Leiden Journal of International Law, Vol. 14, 2001, pp. 432-433. 761 Raič, supra note 7, p. 374. Eide, supra note 751, p. 433. See also ‘First Chechnya War 1994-1996’, available at . M. Kramer, ‘The Perils of Counterinsurgency. Russia’s War in Chechnya’, International Security, Vol. 29, Issue 3, 2004/2005, p. 5. And Atrokhov, supra note 750, pp. 374-381. 762 Raič, supra note 7, p. 375. Atrokhov, supra note 750, pp. 377-378 763 Kramer, supra note 752, pp. 6-7. L. Aron, ‘Chechnya. New Dimensions of the Old Crisis’, American Enterprise Institute for Public Policy Research, February 1, 2003, available at . Raič, supra note 7, p. 374. 764 Eide, supra note 751, p. 434. Raič, supra note 7, p. 374. Kramer, supra note 752, pp. 7-8. 765 ‘Second Chechnya War – 1999-?’, available at . See also C.J. Chivers, ‘Slain Exile Detailed Cruelty of the Ruler of Chechnya’, The New York Times, January 31, 2009, available at . Kramer, supra note 752, pp. 8-12. According to a recent report of Freedom House, Chechnya is one of the world’s most repressive societies: ‘Worst of the Worst. The World’s Most Repressive Societies 2009’, available at . 766 See the report of the Secretary-General on ‘The situation of human rights in the Republic of Chechnya of the Russian Federation’, 20 March 1997, UN Doc. E/CN.4/1997/10, available at . See also the critical ‘Report of the High Commissioner for Human Rights on the Situation in the Republic of Chechnya of the Russian Federation’, 20 February 2001, UN Doc. E/CN.4/2001/36, available at . See also the first three rulings of the European Court of Human Rights, finding Russia guilty of serious violations of human rights in Chechnya: European Court of Human Rights. Isayeva, Yusupova and Bazayeva v. Russia, Isayeva v. Russia and Khashiyev and Akayeva v. Russia, 24 February 2005, available at . See also the statement of US Secretary of State Albright on March 24, 2000, noting that ‘[w]e cannot ignore the fact that thousands of Chechen civilians have died and more than 200,000 have been driven from their homes. Together with other delegations, we have expressed our alarm at the persistent, credible reports of human rights violations by Russian forces in Chechnya, including extrajudicial killings. There are also reports that Chechen separatists have committed abuses, including the

118

reasons for the reaction of the international community, such as the need for stability in the region after the dissolution of the Soviet Union, support for the new democratic regime and fear of setting a precedent which would lead to fragmentation, there are other reasons which may explain the lack of support for Chechen independence.767 First of all, there are doubts as to whether the proclamation of independence was actually supported by the Chechen people as ‘holders of the right of self-determination’.768 Second, throughout the conflict, the Chechen authorities were unwilling to negotiate any ‘alternatives short of secession for the implementation of the right of self-determination’.769 Thirdly, until the start of the first Chechen war, there were no gross violations of human rights which may have supported a claim for remedial secession.770 The Khasavyurt Accord of 1996 excluded secessionist demands for a period of five years, during which the Chechens refused to accept any autonomy offer made by

killing of civilians and prisoners. Our consistent criticism of Russia's policy in the North Caucasus should not be interpreted as a defense of Chechen insurgent groups. We have never questioned Russia's responsibility to defend its territorial integrity or to combat terrorism and lawlessness. But that does not begin to justify the Russian Government's decision to use such massive force against civilians inside Chechnya. The war in Chechnya has greatly damaged Russia's international standing and is isolating Russia from the international community. Russia's work to repair that damage, both at home and abroad, or its choice to risk further isolating itself, is the most immediate and momentous challenge that Russia faces’, available at . (emphasis added). And resolution 2000/58 of the Commission on Human Rights on the ‘Situation in the Republic of Chechnya of the Russian Federation’, 25 April 2000, UN Doc. E/CN.4/RES/2000/58, available at http://www.un.org>, calling upon ‘all parties to the conflict to take immediate steps to halt the hostilities and the indiscriminate use of force and to begin without delay the holding of a political dialogue and effective negotiations with the aim of achieving a peaceful solution to the crisis, which fully respects the territorial integrity and the Constitution of the Russian Federation’, (emphasis added). Crawford, supra note 10, p. 409. Also Raič, supra note 7, p. 375. The only government that has recognised the independence of Chechnya was the Taliban government of Afghanistan. 767 Raič, supra note 7, p. 378. The need for stability in the region is also considered important because of the key position Chechnya occupies in relation to the control of oil resources. See Eide, supra note 751, pp. 434-435. See also J.I. Charney, ‘Self-determination: Chechnya, Kosovo and East Timor’, Vanderbilt Journal of Transnational Law, Vol. 34, 2001. Russia’s veto in the Security Council obviously prevented the adoption of a resolution on the situation in Chechnya. However, it is important to note that the General Assembly was not able to agree on a resolution on Chechnya either. 768 Raič, supra note 7, p. 376. Eide, supra note 751, p. 435. Also Charney, supra note 758. 769 Raič, supra note 7, pp. 376-377. Panico, supra note 750. Atrokhov, supra note 750, pp. 373-374, 377-378. 770 At least recently there had not been any serious violations. It must be kept in mind however, that the Chechens suffered extremely under the regime of Tsar Nicholas in the eighteenth and nineteenth century and during the purges and deportations under Stalin in the twentieth century, before and during the Second World War. See Atrokhov, supra note 750, pp. 369-374. Charney, supra note 758 rightly points out that the Chechens themselves resorted to violence in an early stadium of the conflict, instead of trying to negotiate a peaceful solution. See also Raič, supra note 7, p. 377.

119

Russia.771 For these reasons, it can be argued that there was no ‘qualified right of secession’ for Chechnya.772 Abkhazia Even though the history of Abkhazia’s claim to independence differs from that of Chechnya, there are similar reasons for the international community’s rejection of their attempted secession from Georgia. Abkhazia officially declared its independence from Georgia on 12 October 1999 after a decade of secessionist struggle.773 Until recently, the Security Council has constantly reaffirmed ‘the commitment of all Member States to the sovereignty, independence and territorial integrity of Georgia within its internationally recognized borders’.774 However, the situation changed as a result of the conflict between Russia and Georgia over South Ossetia. On 26 August 2008, Russia decided to recognise both Abkhazia and South Ossetia as independent States.775 This recognition was followed by strong reactions from other States and international organisations, such as the United States,776 NATO,777 the OSCE,778 the Council of Europe779 and the 771

Raič, supra note 7, pp. 377-378. For an overview and analysis of the negotiations between Russia and Chechnya, see C. Blandy, ‘Chechen Status – Wide Differences Remain’, 27 January 1998, Conflict Studies Research Centre, available at . 772 Raič, supra note 7, p. 378. Eide, supra note 751, pp. 435-437, argues for granting Chechnya autonomy within the Russian Federation. 773 Dugard & Raič, supra note 576, p. 117. 774 See S/Res/1808, 15 April 2008, available at . 775 See the statement by the President of Russia, Dmitry Medvedev on 26 August 2008 that ‘[a] decision needs to be taken based on the situation on the ground. Considering the freely expressed will of the Ossetian and Abkhaz peoples and being guided by the provisions of the UN Charter, the 1970 Declaration on the Principles of International Law Governing Friendly Relations Between States, the CSCE Helsinki Final Act of 1975 and other fundamental international instruments, I signed Decrees on the recognition by the Russian Federation of South Ossetia's and Abkhazia's independence. Russia calls on other states to follow its example. This is not an easy choice to make, but it represents the only possibility to save human lives’, available on . 776 See the statement of President Bush on 26 August 2008 that ‘[t]he United States condemns the decision by the Russian President to recognize as independent states the Georgian regions of South Ossetia and Abkhazia. […] The territorial integrity and borders of Georgia must be respected, just as those of Russia or any other country. […] In accordance with United Nations Security Council Resolutions that remain in force, Abkhazia and South Ossetia are within the internationally recognized borders of Georgia, and they must remain so’, available on . 777 See the statement of Secretary-General Jaap de Hoop Scheffer, that ‘[t]his is in direct violation of numerous UN Security Council resolutions regarding Georgia's territorial integrity, resolutions that Russia itself has endorsed. Russia's actions in recent weeks call into question Russia's commitment to peace and security in the Caucasus. NATO firmly supports the sovereignty and territorial integrity of Georgia and calls on Russia to respect these principles’, available on . 778 See the statement of the OSCE Chairman-in-Office, Finnish Foreign Minister Alexander Stubb, that ‘[t]he recognition of independence for South Ossetia and Abkhazia violates fundamental OSCE principles. As all OSCE participating States, Russia is committed to respecting the sovereignty and territorial integrity of others. Russia should follow OSCE principles by respecting the territorial integrity and sovereignty of Georgia’, available on . 779 See the statement of Secretary-General Terry Davis that ‘[t]he unilateral recognition of the independence of Abkhazia and South Ossetia by the Russian Federation violates the territorial

120

European Union,780 all condemning Russia’s action and considering it a violation of international law. So far, only Nicaragua has followed Russia’s example.781 Russia’s recognition of South Ossetia and Abkhazia was probably based on geopolitical reasons and was certainly a reaction to the independence of Kosovo, which Russia has fervently opposed.782 However, this seems rather hypocritical given the fact that until this time, Russia has not recognised Kosovo’s independence. On the other hand, the majority of EU member States and the US could also be accused of ‘double standards’ because of their recognition of Kosovo while refusing to recognise South Ossetia and Abkhazia.783 The right of independence of Kosovo, and the question whether this can be considered a precedent, will be discussed in the following section. It has been argued that there may be two reasons that the international community, except for Russia and Nicaragua, so far has rejected Abkhazia’s claim to independence. First of all, Abkhazia has been unwilling to consider the autonomy Georgia has offered, which ‘suggests that the Abkhazians are not prepared to exhaust effective and peaceful remedies before claiming secession’.784 Secondly, ‘there is no evidence of widespread and serious violations of the fundamental rights of the Abkhazians by Georgia’.785 Thirdly, it is not certain whether Abkhazia’s claim reflects

integrity of a fellow Council of Europe member state. It jeopardises prospects for a negotiated settlement of the dispute about the future status of these two regions. Russia cannot have it both ways. In the past, Russia has strongly supported the principle of territorial integrity. The decision to recognise Abkhazia and South Ossetia must strike any objective observer as being inconsistent with this principle. The ultimate victim of this decision is the international credibility of the Russian Federation. The Russians cannot invoke international law only when they feel like it’, available on . 780 See the Presidency conclusions of the Extraordinary European Council held in Brussels on 1 September 2008, in which ‘[t]he European Council strongly condemns Russia's unilateral decision to recognise the independence of Abkhazia and South Ossetia. That decision is unacceptable and the European Union calls on other States not to recognise this proclaimed independence and asks the Commission to examine the practical consequences to be drawn. It recalls that a peaceful and lasting solution to the conflict in Georgia must be based on full respect for the principles of independence, sovereignty and territorial integrity recognised by international law, the Final Act of the Helsinki Conference on Security and Cooperation in Europe and United Nations Security Council resolutions’, available on . 781 See Decreto No. 46-2008 and Decreto No. 47-2008 of the President of the Republic of Nicaragua, available on . 782 See the statement of Dmitry Medvedev in the Financial Times of 26 August 2008: ‘Meanwhile, ignoring Russia’s warnings, western countries rushed to recognise Kosovo’s illegal declaration of independence from Serbia. We argued consistently that it would be impossible, after that, to tell the Abkhazians and Ossetians (and dozens of other groups around the world) that what was good for the Kosovo Albanians was not good for them. In international relations, you cannot have one rule for some and another rule for others’, available on . 783 See, e.g. N. Popescu, ‘Europe’s Unrecognized Neighbours. The EU in Abkhazia and South Ossetia’, Centre for European Policy Studies, Working Document No. 260/March 2007, p. 18, available on . 784 Dugard & Raič, supra note 576, p. 118. 785 Abkhazia rather seems to be a perpetrator in this respect. Dugard & Raič, supra note 576, p. 118.

121

the wishes of ‘a clear majority within Abkhazia itself’.786 The same three arguments can be put forward with respect to South Ossetia’s claim to independence. The Republic of Serbian Krajina After the proclamation of independence by Croatia on 8 October 1991, the Serb minority in Croatia declared the independence of the Republic of Serbian Krajina on 19 December 1991, but the Republic was never recognised by the international community.787 On the contrary, both the General Assembly and the Security Council stressed the need ‘to preserve [the] territorial integrity [of the Republic of Croatia] within the internationally recognized borders’, and emphasised ‘in this regard that the territories comprising the United Nations Protected Areas are integral parts of the territory of the Republic of Croatia’.788 The General Assembly emphasised ‘that the Serbian-controlled territories of Croatia must be peacefully reintegrated into the rest of the country’.789 The Badinter Commission also addressed the question whether the Serbian population in Croatia and Bosnia-Herzegovina had the right of external self-determination, but the answer was negative.790 In 1995 Croatia managed to re-establish its sovereignty over the territory.791 The rejection of Serbian Krajina’s independence by the international community can be explained by the fact that it was not a case of ‘remedial secession’.792 It has been pointed out that when the Serbs declared their independence, the Croatian government was representative of the population of Croatia as a whole.793 Moreover, the Serbs in Croatia were not discriminated in such a way that they should have a right of unilateral secession and they were not subjected to gross violations of basic human rights either.794 The fact that the Serbs were not willing to ‘negotiate alternative solutions, short of secession’ indicates that they did not intend to exhaust ‘all effective and realistic as well as peaceful solutions’.795 Therefore, it has rightly been concluded that the Serbs did not have a right of unilateral secession.796

786

Ibid. Raič, supra note 7, pp. 386, 389. 788 See A/Res/49/43, 9 Dec. 1994, preamble and para. 4. Also S/Res/815, 30 March 1993, para. 5. And S/Res/1023, 22 Nov. 1995, preamble. 789 See A/Res/49/43, supra note 779, preamble. 790 Opinion 2, supra note 286. 791 Raič, supra note 7, pp. 386, 390. 792 Ibid., p. 390. 793 Ibid., pp. 390-391. 794 Ibid., pp. 391-393. 795 Ibid., p. 393. 796 Ibid. 787

122

Conclusion From the examples of failed secessionist attempts that took place outside the colonial context that were described in this section the following observations can be made. First, the fact that these States were not recognised by the larger part of the international community indicates that most States did not consider their claim legitimate. Second, the reasons for non-recognition included (i) their creation was in violation of fundamental rules of international law such as the the right of self-determination or the prohibition on the use of force, (ii) the claim was not considered to be representative of the people concerned, (iii) secession was not considered an ‘ultimum remedium’, because of the availability of alternatives, (iv) there was no evidence of violation of the right of internal self-determination or gross violations of fundamental human rights, (v) there was fear of setting a precedent which would lead to fragmentation, (vi) (geo)political reasons. 4.6.4

Remedial Secession

The following cases of unilateral secession that took place outside the colonial context need to be described separately, because of their remedial character. Bangladesh The secession of Bangladesh (East Pakistan) from West Pakistan in 1971 is a very good example of ‘remedial secession’. The political and economic inequality between East and West Pakistan had caused many problems for years, and the Bengali people tried to address them by striving for autonomy.797 In December 1970 the Awami League of the Bengalis had won the elections for a National Assembly of Pakistan, with an election programme consisting of a six-point plan aimed at turning Pakistan into a federation.798 However, the uncooperative stance of West Pakistan resulted in a political crisis.799 When the Awami League was not able to take office the Bengalis started a peaceful campaign of non-cooperation.800 West Pakistan reacted to this with ‘a large-scale military operation’.801 The leader of the Bengalis responded with a declaration of independence on 26 March 1971.802 Subsequently, several Awami League leaders were arrested and the bloody civil war that followed led to the death of 797

Dugard & Raič, supra note 576, pp. 120-121. V.P. Nanda, ‘Self-Determination in International Law. The Tragic Tale of Two Cities – Islamabad (West Pakistan) and Dacca (East Pakistan)’, American Journal of International Law, Vol. 66, 1972, p. 323. Also Dugard & Raič, supra note 576, p. 121. 799 Dugard & Raič, supra note 576, p. 121. Also Nanda, supra note 789, p. 323. 800 Nanda, supra note 789, p. 323. Also Dugard & Raič, supra note 576, p. 121. 801 Dugard & Raič, supra note 576, p. 121. 802 Ibid. 798

123

more than one million Bengalis and probably around 10 million refugees.803 The West Pakistan Army used excessive force and some have even accused it of genocide.804 After more than eight months of fighting India intervened on behalf of the Bengalis and within two weeks the West Pakistan Army was defeated.805 India was the first to recognise Bangladesh on 6 December 1971, followed by Bhutan on 7 December 1971.806 The rest of the international community withheld recognition until it was clear that the West Pakistan Army had been defeated.807 However, it is important to note that the recognition of more than 50 States was in fact premature.808 While the ‘traditional criteria of statehood’ require an effective government that has control over the territory, over 50 States recognised Bangladesh when the Indian troops were still in the country.809 On 17 September 1974 Bangladesh was collectively recognised by a majority of States when it became a member of the United Nations.810 It is clear the Bengalis seceded for remedial purposes, which makes the secession of Bangladesh the favourite example of many authors in favour of a right of ‘remedial secession’. The Bengali people was not able to exercise its right of internal self-determination, it was subjected to gross violations of basic human rights culminating in what has been called ‘genocide’ and local remedies were exhausted when their request for autonomy had been denied.811 Croatia The separation of Croatia from the SFRY is another example of unilateral ‘remedial secession’.812 The Croats and Slovenes had become tired of being politically dominated and economically exploited by the Serbs, and first tried to address the issue internally by asking greater autonomy within the Federation.813 Soon it became clear that Serbia would not agree with this but instead wanted to centralise the Federation, and the tensions culminated in a political crisis.814 When Serbia and Montenegro would not permit a Croatian candidate to become President of the Federation, Croatia and 803

Ibid. Nanda, supra note 789, p. 323. Dugard & Raič, supra note 576, p. 121. 806 Ibid. 807 Crawford, supra note 10, p. 393. Also Dugard & Raič, supra note 576, p. 121. 808 Dugard & Raič, supra note 576, p. 123. 809 Ibid. 810 GA Res. 3203 (XXIX), 17 Sept. 1974, available at . On the practice of collective (international) recognition, see text accompanying notes 682 and 683. According to Rule 136 of the Rules of Procedure of the General Assembly, available at , ‘a two-thirds majority of the members present and voting’ is required to be admitted as a member of the United Nations. 811 Dugard & Raič, supra note 576, pp. 122-123. See also Hansen, supra note 602, p. 165. 812 Dugard & Raič, supra note 576, p. 123. 813 Ibid., pp. 123-124. 814 Ibid., p. 124. 804 805

124

Slovenia responded with a declaration of independence on 25 June 1991.815 A civil war broke out when the Yugoslav National Army (YNA) invaded Croatia to suppress the secession and to support the Serbian minority within Croatia.816 Through the diplomatic efforts of the European Community, representatives of the Republic of Slovenia, the Republic of Croatia and the Socialist Federal Republic of Yugoslavia managed to reach an agreement with the Brioni Accord of 7 July 1991.817 The Agreement contained a cease-fire and suspended the declarations of independence of Slovenia and Croatia for a period of three months.818 In this period, the parties had to negotiate with each other in order to reach a solution for the crisis.819 However, soon after the conclusion of the Brioni Accord, a full-scale civil war broke out with the YNA and the Serb minority in Croatia fighting against the Croatians.820 This ferocious war, in which the YNA ‘resorted to a disproportionate and indiscriminate use of force’821 and the practice of ‘ethnic cleansing’, resulted in gross violations of human rights, notably the right to life.822 When Serbia and Montenegro also excluded the other Republics from political participation within the Federation through a coup d’état, Croatia again issued a declaration of independence on 8 October 1991.823 As noted before, the recognition of Croatia by the member States of the European Community on 15 January 1992 was premature, as the government of Croatia did not have complete control over the territory and therefore could not be considered to be effective as required by the ‘traditional criteria for statehood’.824 Moreover, EC recognition rather seemed to depend on the criteria set out in the ‘Guidelines on Recognition’825 issued on 16 December 1991. EC recognition thus had a ‘consolidating effect’ and may be seen as an affirmation that the EC considered the secession legitimate.826 On 22 May 1992, Croatia was collectively recognised when it was admitted as a member of the United Nations.827 It cannot be denied that the secession of Croatia had a remedial character and that it was considered to be lawful. Although Croatia’s declaration of independence on 25 June 1991 seemed unlawful because there were still alternatives instead of secession, it must be 815 Musgrave, supra note 14, p.115. Smis, supra note 14, p. 236. Dugard & Raič, supra note 576, p. 124. 816 Dugard & Raič, supra note 576, p. 124. 817 Ibid. 818 Ibid. 819 Ibid. 820 Ibid. 821 See the Declaration on Yugoslavia, supra note 285. 822 Dugard & Raič, supra note 576, pp. 124-125. 823 Ibid., pp. 125-126. 824 Ibid., p. 135. 825 ‘Guidelines on Recognition’, supra note 276. 826 Dugard & Raič, supra note 576, p. 135. 827 A/Res/46/238, 22 May 1992, available on .

125

noted that later on Croatia did intend to negotiate another solution when it signed the Brioni Accord.828 Only after having been subjected to gross violations of human rights and unable to exercise their right of internal self-determination did the Croatians declare their independence on 8 October 1991. Therefore, Croatia’s secession at that time can be considered an act of ‘remedial secession’, which was considered lawful under international law.829 4.6.5

Kosovo

The most recent example of unilateral secession is the declaration of independence by the Assembly of Kosovo on 17 February 2008.830 The reaction of the international community has been mixed. At the time of writing the independence of Kosovo has been recognised by 56 of the 192 UN member States, including 22 EU member States.831 So far the UN has adopted a neutral stance on the status of Kosovo,832 which can be explained by the fact that the Security Council is still divided over the issue.833 The EU was not able to reach a common position on Kosovo either, and five member States have not recognised its independence.834 Serbia as the ‘parent’ State considers Kosovo’s declaration of independence illegal and has refused to recognise Kosovo. Despite the controversy, the Secretary-General of the UN has ‘reconfigured’ UNMIK in order to adapt it to the new situation.835 On 26 November 2008 the Security Council agreed with the deployment of the EULEX mission in Kosovo, which is based on Security Council Resolution 1244 (1999)836 and designed ‘to assist and support the Kosovo authorities in the rule of law area’.837 On 8 October 2008, the 828

Raič, supra note 7, pp. 361-362. Raič, supra note 7, p. 362. Dugard & Raič, supra note 576, p. 130. See also Murswiek, supra note 593, pp. 30-31. 830 For the full text of the Kosovo Declaration of Independence, see . 831 For an overview of the States that have recognised Kosovo and the recognition texts see the website . 832 See, e.g. the statement of Secretary-General Ban Ki-moon in the Report of the SecretaryGeneral on the United Nations Interim Administration Mission in Kosovo, S/2008/458, 15 July 2008, para. 29, available at . 833 Three permanent members (United States, United Kingdom, France) have recognised Kosovo, one is neutral (China) and the other (Russia) considers the declaration of independence to be unlawful. 834 Spain, Slovakia, Romania, Cyprus and Greece. See ‘EU splits on Kosovo recognition’, available on . 835 See the statement of Secretary-General Ban Ki-moon, supra note 823, para. 3: ‘in the light of the fact that the Security Council is unable to provide guidance, I have instructed my Special Representative to move forward with the reconfiguration of UNMIK as set out in my special report, in order to adapt UNMIK to a changed reality and address current and emerging operational requirements in Kosovo’, available at . 836 S/Res/1244, 10 June 1999, available at . 837 See . And the ‘Statement by the President of the Security Council’, S/PRST/2008/44, 26 November 2008, available at . The United 829

126

General Assembly has supported Serbia’s request to ask the International Court of Justice for an advisory opinion on the legality of Kosovo’s declaration of independence, and adopted a resolution to this effect.838 The Court’s Opinion is not to be expected soon, and in the meantime the status of Kosovo remains uncertain. It is very unlikely that the General Assembly would consider an application for membership of Kosovo before the Court has issued its Opinion. Besides, the Security Council would not be likely to recommend Kosovo’s admission either, given the fact that Russia considers the secession to be illegal. Even though the international community remains divided over the issue, from a legal point of view some arguments can be made in favour of Kosovo’s declaration of independence. While this is not the place to examine the history of Kosovo in detail, the past events obviously have an impact on the legality of Kosovo’s act. At the end of the 1980s, the autonomy of Kosovo was drastically reduced under the Milošević regime, and the Kosovar Albanians have been systematically repressed in the years that followed. In reaction to the violation of their human rights and the severity of the Serbian rule, the Kosovo Liberation Army started to fight back.839 The situation escalated in 1998 and negotiations between Serbian and Albanian representatives under NATO supervision failed, as the Serbs were unwilling to accept the Rambouillet Agreement,840 containing provisions that ‘would have granted substantial autonomy to Kosovo’.841 In reaction to Yugoslavia’s unwillingness to cooperate, and its continuing practice of repression and ‘ethnic cleansing’ of the ethnic Albanians within Kosovo, NATO carried out an extensive bombing campaign against Yugoslavia to stop the Serbs.842 The Kosovo War ended on 9th June 1999, with the signing of the Kumanovo Agreement,843 which laid the basis for the ‘deployment in Kosovo under UN auspices of effective international civil [UNMIK] and security [KFOR] presences’. The Security Council supported ‘the interim administration for Kosovo’ in Resolution 1244, which would have a temporary character: ‘[f]acilitating a political process designed to determine Kosovo’s future status, taking into account the Rambouillet accords’ and [i]n a final stage,

States also participates in EULEX, see the ‘Joint Press Statement by the United States of America and the European Union on U.S. Participation in the EULEX Mission in Kosovo’, available at . 838 A/Res/63/3, 8 October 2008, available at . 839 Warbrick, supra note 723, pp. 676-677. 840 The full text of the Agreement is available at . 841 Warbrick, supra note 723, p. 677. 842 Ibid. 843 The full text of the Military Technical Agreement between the International Security Force (“KFOR”) and the Governments of the Federal Republic of Yugoslavia and the Republic of Serbia is available at .

127

overseeing the transfer of authority from Kosovo’s provisional institutions to 844 institutions established under a political settlement’.

Whereas Resolution 1244 did not specifically address Kosovo’s future status,845 it did reaffirm ‘the commitment of all Member States to the sovereignty and territorial integrity of the Federal Republic of Yugoslavia and the other States of the 846 region, as set out in the Helsinki Final Act and annex 2’.

The negotiation process over the future status of Kosovo took almost ten years and the parties became ever more intransigent, which made it impossible to reach an agreement.847 In February 2007 Martti Ahtisaari, the Secretary-General’s Special Envoy for the future status process for Kosovo, informed the Security Council that ‘[t]he time has come to resolve Kosovo’s status. Upon careful consideration of Kosovo’s recent history, the realities of Kosovo today and taking into account the negotiations with the parties, I have come to the conclusion that the only viable option for Kosovo is independence, to be supervised for 848 an initial period by the international community’.

NATO and the EU were willing to take responsibility for the ‘international supervision’ that Ahtisaari proposed, through KFOR and EULEX.849 Despite Ahtisaari’s proposal further negotiations were undertaken, but they would not lead to a solution.850 After Serbia had rejected the Settlement proposal on 16 January 2008,851 negotiations seemed definitely exhausted.852 A month later, Kosovo unilaterally declared its independence from Serbia. While there are several arguments that can be put forward in support of this unilateral declaration of independence, there are also 844

S/Res/1244, supra note 827, para. 10 and 11 e) and f). Warbrick, supra note 723, p. 677. 846 S/Res/1244, supra note 827, preamble (emphasis added). Annex 2, para. 8 of the resolution also referred to ‘the principles of sovereignty and territorial integrity of the Federal Republic of Yugoslavia’. 847 Warbrick, supra note 723, p. 678. 848 See the Letter dated 26 March 2007 from the Secretary-General addressed to the President of the Security Council, presenting the Report of the Special Envoy of the Secretary-General on Kosovo’s future status, S/2007/168, 26 March 2007, para. 5, available at . Ahtisaari, also stated that ‘[w]hile independence for Kosovo is the only realistic option, Kosovo’s capacity to tackle the challenges of minority protection, democratic development, economic recovery and social reconciliation on its own is still limited. Kosovo’s political and legal institutions must be further developed, with international assistance and under international supervision’, ibid., para. 11. Moreover, Ahtisaari envisaged that ‘the supervisory role of the international community would come to an end only when Kosovo has implemented the measures set forth in the Settlement proposal’, ibid., para. 13. 849 Warbrick, supra note 723, p. 678. 850 Ibid., pp. 678-679. 851 See S/PV.5821, 16 January 2008, available at . 852 Warbrick, supra note 723, p. 679. 845

128

arguments against Kosovo’s act. A full discussion of all the arguments that have been put forward would exceed the scope of this thesis, therefore the following section will only focus on a few specific pros and cons. The main question whether international law grants a right of unilateral secession, which lies at the heart of the discussions on Kosovo, is dealt with in the broader context of this thesis. First of all, it is submitted here that, under the circumstances, Kosovo did have a right of unilateral secession based on the right of selfdetermination and for remedial purposes. The recent history of Kosovo evidences that the right of internal self-determination of the Kosovars has been denied and that they have been subjected to gross violations of human rights, including systematic discrimination, ethnic cleansing, and genocide. In addition, Kosovo did participate in a negotiation process that took almost ten years. Only after it was clear that all negotiations were exhausted, did Kosovo resort to the remedy of unilateral secession. Therefore, Kosovo’s declaration of independence can be considered lawful under international law.853 The principal argument that has been invoked against the legality of Kosovo’s unilateral act, is Security Council Resolution 1244, which has been discussed previously.854 However, Tomuschat has made an observation that considerably weakens this argument.855 He first notices that Resolution 1244 does not mention self-determination.856 But according to Tomuschat, given the fact that the ethnic Albanians ‘met all the criteria listed in’ the ‘safeguard clause’ of the Friendly Relations Declaration, ‘a case could have been made for acknowledging a right of self-determination to the benefit of the Kosovars’.857 Tomuscat considers it ‘obvious’ why the Security Council did not mention this more clearly in Resolution 1244, because ‘to state that a State has forfeited its right to national territory inhabited by an ethnic discrimination is a decision replete with delicate a precedent might also turn out to be harmful 858 Council’.

control a given part of its group suffering massive consequences. To set such to certain members of the

Nevertheless, he concludes that 853 Cf. the Final Report of NATO, ‘The Kosovo Crisis in an International Law Perspective: SelfDetermination, Territorial Integrity and the NATO Intervention’, prepared by Dajena Kumbaro, 16 June 2001, pp. 39-49, available at . On the same grounds, the Report concludes that ‘the Kosovo Albanians should be entitled to decide the status of Kosovo through the expression of their free and genuine will’. Ibid., pp. 48-49. 854 S/Res/1244, supra note 827, preamble. 855 C. Tomuschat, ‘Yugoslavia’s Damaged Sovereignty over the Province of Kosovo’, in: G. Kreijen et al (eds.), State, Sovereignty and International Governance, Oxford: Oxford University Press 2002, pp. 323-347. 856 Ibid., p. 341. 857 Ibid., p. 343. 858 Ibid., p. 344.

129

‘[i]mplicitly, […] the philosophy of forfeiture permeates resolution 1244, providing the only possible justification for the establishment of interim but 859 long-term UN rule over Kosovo.’

Thus, while the Security Council remained silent on a possible right of self-determination for the Kosovars and only reaffirmed the territorial integrity of the FRY, it did in fact undermine this territorial integrity by setting up an interim administration under international supervision. After having argued that Kosovo did have a right to unilateral secession under international law, a second issue that needs to be addressed is whether Kosovo is a State. Those arguing against Kosovo’s unilateral declaration would point at the Montevideo criteria for Statehood,860 according to which Kosovo is not a State, since the government is not able to exercise complete control over the territory without the assistance of KFOR.861 The continued international presence on the territory of Kosovo thus indicates that it is not a State (yet).862 However, it has been argued previously that there are two points of view as regards recognition of Statehood, namely the declaratory and the constitutive theory. It has also been argued that whereas recognition may not be entirely constitutive of Statehood, it may indeed have a ‘consolidating’ effect.863 The examples of Bangladesh and Croatia that were described support this view. In the same way, it can be argued that the early recognition of Kosovo by 56 UN member States up until now, besides indicating that many States consider Kosovo’s claim legitimate, may also serve to ‘consolidate’ the Statehood of Kosovo.864 As noted before, the fourth criterion for the attainment of Statehood, i.e. the capacity to enter into relations with other States, connects the declaratory with the constitutive theory of recognition. Realising that the four criteria supported by the declaratory theory should always be met, and that therefore, Kosovo cannot be considered a State, the author would still argue that if a majority of States were to recognise Kosovo, and would thus enter into diplomatic relations with it, it would be difficult even for Serbia to deny Kosovo’s existence as a State under international law.

859

Ibid. Convention on Rights and Duties of States, supra note 661. Warbrick, supra note 723, pp. 682, 689. 862 Ibid. 863 Dugard & Raič, supra note 576, p. 135. 864 Cf. Warbrick, supra note 723, p. 689, arguing that in the case of Kosovo ‘we are dealing with the creation of a State’, thus opting for the constitutive theory. 860 861

130

Conclusion The preceding paragraph has made it clear that there have not been many cases of successful unilateral secession, and that arguably there is not enough State practice to support the existence of a customary right of unilateral remedial secession based on the right of self-determination. Nevertheless, it can be argued that ‘negative’ State practice must also be taken into account, i.e. the practice of States as regards unilateral secessions that have been unsuccessful, as it serves to clarify the scope of the rule. If both negative and positive State practice is taken together, it becomes clear that while there is no absolute right of unilateral secession under international law, there are certain conditions under which unilateral secession is permitted. In this respect it is important to note that the recent example of Kosovo has shown that the majority of States that have recognised Kosovo, have made it clear that the case of Kosovo is ‘unique’ or ‘sui generis’ and that it should certainly not be used as a precedent by any other ethnic group with secessionist pretensions.865 However, while indeed each claim to external self-determination has to be judged on its merits, taking account of the special circumstances of the case it cannot be ignored that State practice does indicate a few special features that may give rise to a right of unilateral secession as a last resort to secure the right of self-determination of the people concerned. Another point that must be made is that since the Nicaragua case, there has been a lot of discussion on ‘modern’ customary international law.866 While traditional custom emphasises State practice, modern custom tends to emphasise opinio iuris.867 In the Nicaragua case, the ICJ did not consider it necessary to establish the existence of ‘extensive and virtually uniform’ State practice, because there was very strong opinio iuris in the international community concerning the non-use of force and non-intervention, expressed inter alia in the Friendly Relations Declaration.868 Based on the Court’s 865 Warbrick, supra note 723, p. 679. See e.g. the statement of United States Secretary of State Condoleeza Rice when announcing the US recognition of Kosovo, that ‘[t]he unusual combination of factors found in the Kosovo situation - including the context of Yugoslavia's breakup, the history of ethnic cleansing and crimes against civilians in Kosovo, and the extended period of UN administration - are not found elsewhere and therefore make Kosovo a special case. Kosovo cannot be seen as a precedent for any other situation in the world today’, available at . 866 Nicaragua case, supra note 110. See generally, A.E. Roberts, ‘Traditional and Modern Approaches to Customary International Law: a Reconciliation’, American Journal of International Law, Vol. 95, 2001. B. Simma & P. Alston, ‘ The Sources of Human Rights Law: Custom, Jus Cogens and General Principles’, Australian Yearbook of International Law, Vol. 12, 1988-1989. D.P. Fidler, ‘Challenging the Classical Concept of Custom: Perspectives on the Future of Customary International Law’, German Yearbook of International Law, Vol. 39, 1996. 867 Roberts, supra note 857, p. 758. 868 Ibid., paras. 186-188. According to the North Sea Continental Shelf Cases, ICJ Reports (1969), available at , para. 74, ‘State practice, including that of States whose interests are specially affected, should have been both extensive and virtually

131

pronouncements in this case, a number of authors have argued that if there is ‘a substantial manifestation of acceptance (consent or belief) by States that a customary rule exists’, this ‘may compensate for a relative lack of practice, and vice versa’.869 This is particularly the case in the field of human rights obligations and rules of a fundamental character.870 The author shares this point of view and argues that, despite the lack of extensive and virtually uniform State practice, there is strong opinio iuris in the international community to support the existence of a customary right of unilateral secession based on the right of self-determination, albeit this right is subject to very strict conditions and may only be used for remedial purposes. This opinio iuris is evidenced in particular by the numerous General Assembly resolutions and declarations of general international conferences on the right of self-determination.871 The following paragraph will examine the content and beneficiaries of the right of remedial secession, specifically focussing on the question under which circumstances a right of external self-determination in the form of secession may be invoked. 4.7

Beneficiaries and Criteria for Remedial Secession De Lege Lata

The first question that needs to be addressed is also the most difficult and crucial problem within the context of the right of selfdetermination: who are the holders of the right of unilateral secession? This is problematic, since there is no generally accepted definition of a ‘people’ under international law. The main reason why States have traditionally been unwilling or unable to agree on a definition of the holders of the right of self-determination, i.e. ‘the people’, is that uniform in the sense of the provision invoked; and should moreover have occurred in such a way as to show a general recognition that a rule of law or legal obligation is involved’. See also the Statement of Principles, supra note 110, pp. 41. 869 Statement of Principles, supra note 110, pp. 40-42. See also Cheng, supra note 128. F.L. Kirgis, ‘Custom on a Sliding Scale’, American Journal of International Law, Vol. 81, 1987, p. 146. G.M. Danilenko, Law-making in the International Community, Dordrecht: Nijhoff 1993, p. 107. O. Schachter, ‘Entangled Treaty and Custom’, in: Y. Dinstein et al (eds.), International Law at a Time of Perplexity. Essays in Honour of Shabtai Rosenne, Dordrecht: Nijhoff 1989, pp. 717-738. R.A. Müllerson, Ordering Anarchy: International Law in International Society, The Hague: Nijhoff 2000, p. 229. 870 Schachter, supra note 860. T. Meron, Human Rights and Humanitarian Norms as Customary International Law, Oxford: Clarendon 1989. L.L. Bruun, ‘Beyond the 1948 Convention – Emerging Principles of Genocide in Customary International Law’, Maryland Journal of International Law and Trade, Vol. 17, 1993, pp. 216-217. R.B. Lillich, ‘The Growing Importance of Customary International Human Rights Law’, Georgia Journal of International and Comparative Law’, Vol. 25, 1995. It is important to note that the right of self-determination is widely regarded as a fundamental rule of international law. 871 According to the ILA, ‘the same principles apply to the resolutions of international conferences of a universal character as apply to resolutions of the UN General Assembly’. Statement of Principles, supra note 110, pp. 65-66.

132

‘the recognition of groups inside the national territory as holders of a right of self-determination would automatically lead to a right of secession, since 872 self-determination includes a right to opt for independent statehood’.

Instead, many have argued that the right of self-determination only applied to ‘the whole people belonging to [a certain] territory’.873 However, under contemporary international law a strict territorial definition of the holders of the right of self-determination is no longer tenable. There have been many cases in which a group within a State has been recognised as holder of the right of self-determination.874 Moreover, the previous Chapter has shown that States also recognise the internal right to self-determination of groups within their territory. The Canadian Supreme Court has made an interesting point when it contended that ‘[i]t is clear that a people may include only a portion of the population of an existing State. […] To restrict the definition of the term to the population of existing states would render the granting of a right to self-determination largely duplicative, given the parallel emphasis within the majority of the source documents on the need to protect the territorial integrity of existing 875 states, and would frustrate its remedial purpose.’

It may not be possible to come up with a clear definition of ‘a people’, but given the current state of international law, and considering the ‘remedial purpose’ of the right of self-determination, it would be advisable for the international community to try again to agree on a minimum set of criteria, which would make it easier to take a consistent approach to self-determination claims in the future. In fact, a number of experts has already identified the following ‘inherent characteristics’ of a ‘people’: ‘1. a group of individual human beings who enjoy some or all of the following common features: (a) a common historical tradition; (b) racial or ethnic identity; (c) cultural homogeneity; (d) linguistic unity; 872

Tomuschat, supra note 846, p. 344. Principle V, paragraph 7, Friendly Relations Declaration, supra note 110. 874 See, e.g., the Palestinian people within the State of Israel that was identified by the International Court of Justice in the Wall Opinion, supra note 129. Indigenous Peoples have also been recognised as holders of the right of self-determination in the United Nations Declaration on the Rights of Indigenous Peoples of 13 September 2007. Peoples within the Soviet Union also claimed self-determination, which led to the secession of eleven republics from the Russian Federation. The same can be argued as regards the self-determination claims of the peoples within the four constituent republics of the SFRY, which resulted in the dissolution of Yugoslavia. 875 Reference re Secession of Quebec, supra note 345, pp. 495-496, (emphasis added). 873

133

(e) religious or ideological affinity; (f) territorial connection; (g) common economic life; 2. the group must be of a certain number which need not be large (e.g. the people of micro States) but which must be more than a mere association of individuals within a State; 3. the group as a whole must have the will to be identified as a people or the consciousness of being a people - allowing that groups or some members of such groups, though sharing the foregoing characteristics, may not have that will or consciousness; and possibly; 4. the group must have institutions or other means of expressing its 876 common characteristics and will for identity.’

A fifth and very important element that has been added to these criteria is that the group must form ‘a clear majority’877 on a ‘distinct’ territory.878 In practice, this latter criterion will work to protect other ‘peoples’ within the same territory from a secession which is against their will. The attempted secessions of Abkhazia and South Ossetia have made it clear that it can be very problematic if a certain people attempts to secede when it does not form a clear majority on the territory it wishes to ‘take’. Furthermore, it has been noted that the terms ‘people’ and ‘minority’, may sometimes ‘overlap’.879 This can be illustrated with the dilemma of the Kosovo Albanians. On the one hand it can be argued that the Kosovo Albanians are distinct from Albanian Albanians and thus they are a people within Serbia, and as such entitled to the right of self-determination. On the other hand it can be argued that the Kosovar Albanians are not distinct from the Albanian Albanians, which would make them a ‘national’ or ‘ethnic’ minority within Serbia and as such not entitled to the right of selfdetermination. First of all, it must be noted that the term ‘minority’ suffers from the same lack of clarity as the term ‘peoples’. There is no generally accepted definition of what constitutes a minority.880 This considerably weakens the assumption that Kosovar Albanians are an ethnic minority within Serbia, and that minorities do not have the right to self-determination. Second, as stated before, minorities and peoples are not mutually exclusive terms.881 Thus it can be argued that Kosovo Albanians are both a minority and a people. According to 876 See the Final Report UNESCO supra note 503, pp. 7-8. Cf. Cristescu, supra note 117, para. 279. See also Raič, supra note 7, pp. 262-263. And Murswiek, supra note 593, p. 37. 877 Murswiek, supra note 593, p. 37. It is difficult to give an indication of what constitutes a clear majority. The present author would suggest that as the risk of creating a large minority in the newly established State must be brought to a minimum, a majority of at least 80% would be required. The Kosovo Albanians e.g. constitute 90% of the population of Kosovo. 878 Raič, supra note 7, p. 262. Murswiek, supra note 593, p. 37. 879 Murswiek, supra note 593, p. 37. Also Raič, supra note 7, p. 272. 880 Raič, supra note 7, p. 265. 881 Ibid., p. 269. Murswiek, supra note 593, p. 37.

134

Raič, the difference between an ethnic minority and a people is that national or ethnic minorities usually have a ‘kin State’.882 Nevertheless he also argues that if a minority has a ‘collective individuality’, an identity by which it can be distinguished from those living in the ‘kin State’, it can be considered a ‘minority-people’ and accordingly it has the right to self-determination.883 Considering that the characteristics of a people enumerated before apply to the Kosovo Albanians, and considering the fact that Kosovo Albanians do have an identity by which they can be distinguished from Albanian Albanians, it is submitted here that Kosovo Albanians are in fact a minority and a people at the same time and that therefore, they have the right of self-determination.884 After having identified the right’s holders, the second question is under which circumstances they may be entitled to exercise their right of unilateral secession. On the basis of the instruments, State practice and the writings of international lawyers that have been examined so far, the following criteria for a right of secession can be identified: (i) Gross and systematic violations of fundamental human rights and 885 persistent violation of the right of internal self-determination; (ii) Negotiations for a peaceful solution of the conflict within the State have 886 been exhausted.

It is important to note that before resorting to what Cassese has referred to as ‘the most radical form of external self-determination’, all local remedies for solving the conflict must be exhausted.887 Furthermore, Raič has pointed out that if the criteria mentioned previously are not met, and a certain people would nevertheless secede, this would be an ‘abuse of right’ and a ‘violation of the law of self-determination’, which consequently would make the secession unlawful.888 In this respect, it is important to notice that the cases of unilateral secession that occurred outside the colonial context have

882

Raič, supra note 7, p. 268. In the case of the Kosovo Albanians, this would be Albania. Ibid., pp. 268-269. See Van Walt van Praag, supra note 1, p. 12. 885 Dugard & Raič, supra note 576, p. 109. Cassese, supra note 13, pp. 119-120. Buchanan, supra note 584, pp. 353-355. Murswiek, supra note 593, pp. 25-27. Buchheit, supra note 8, pp. 94, 222. Cristescu, supra note 117, para. 173. Franck, supra note 580, p. 79. Hannum, supra note 179, p. 244. Kooijmans, supra note 9, pp. 157-168. Pavkovic & Radan, supra note 593, pp. 232-239. Raič, supra note 7, pp. 326, 328. Tomuschat, supra note 589, p. 42. 886 Dugard & Raič, supra note 576, p. 109. Cassese, supra note 13, pp. 119-120. Reference re Secession of Quebec, supra note 345, pp. 490, 503-505. State practice also indicates the necessity of exhausting local remedies before resorting to secession. 887 Cassese, supra note 13, p. 120. 888 Dugard & Raič, supra note 576, pp. 106, 109. 883 884

135

demonstrated that many seceding entities tried to legitimise their secession by holding referendums.889 This leads to the final point that must be made. If a State is created while not meeting the abovementioned criteria, or if its creation violated the right of self-determination, the international community will not recognise it as a State.890 This proposition is supported by State practice, examples including the failed secessions of Southern Rhodesia, Katanga, Chechnya, South Ossetia and Abkhazia.891 Since these attempted secessions did not express the will of the people concerned, the international community was unwilling to grant recognition. Therefore, Raič concludes that ‘the obligation of respect for the right of self-determination’ is now a ‘constitutive condition for statehood’.892 Along these lines, it can be argued that Russia’s recognition of Abkhazia and South Ossetia was illegal because these attempted secessions violated the right of self-determination of the peoples of Abkhazia and South Ossetia. Moreover, it was premature and in violation of the principle of non-intervention.893 4.8

Conclusion

To conclude this Chapter, it is necessary to make a few observations. In addition to the strong moral grounds to argue for the existence of a right of unilateral remedial secession, such as the need for a remedy to protect the fundamental right of self-determination and the argument Buchanan put forward, that individuals also have a moral right to self-defence,894 it seems that there is also a legal basis for such a right under international law. An inquiry into the UN Charter, the two International Human Rights Covenants and Protocol I, Additional to the Geneva Conventions of 1949 has shown that treaties containing a provision on the right of self-determination are actually silent on secession. Therefore, an examination of State practice and opinio iuris was necessary in order to see whether there may be a customary right of secession under international law. The ‘safeguard clause’ of the Friendly Relations Declaration,895 the Vienna Declaration,896 and the General Assembly Declaration on the Occasion of the Fiftieth 889

Cassese, supra note 13, p. 266. The Baltic States, most of the former Soviet Republics and Slovenia, Croatia and Macedonia all held referendums before seceding. Ibid., pp. 262-263, 266, 270. 890 Dugard & Raič, supra note 576, p. 109. See also Crawford, supra note 10, p. 131. 891 Dugard & Raič, supra note 576, p. 109. Also Crawford, supra note 10, pp. 128-131. And J.E.S. Fawcett, ‘Security Council Resolutions on Rhodesia’, British Yearbook of International Law, Vol. 41, 1965-1966, pp. 112-113. 892 Dugard & Raič, supra note 576, p. 109. 893 Cf. ibid. 894 Buchanan, supra note 584, p. 354. 895 Friendly Relations Declaration, Paragraph 7 of Principle V, supra note 110. 896 Vienna Declaration, Part I, Paragraph 2, supra note 348.

136

Anniversary of the UN,897 is frequently cited in support of a right of ‘remedial’ secession, and this Chapter has pointed out that the instruments containing the ‘safeguard clause’ express a strong opinio iuris that the territorial integrity of States is dependent on whether the internal right of self-determination is guaranteed. While it has been argued that the Friendly Relations Declaration was aimed at regulating the relations among States, and that therefore it does not provide a right of secession for groups within those States as such,898 an a contrario reading of the clause reveals that the clause ‘implicitly’ recognises a right of secession.899 A discriminatory and repressive government that violates basic human rights of a group within its territory, including the right of (internal) self-determination, ‘forfeits’ its right to territorial integrity, which allows other States to recognise or support the seceding entity without being accused of violating the sovereignty or territorial integrity of the State concerned with their otherwise unlawful intervention.900 There have also been a few judicial decisions to support the existence of opinio iuris on the existence of a right of remedial secession. The most recent case, Reference re Secession of Quebec in particular, provides some interesting insights. At this moment we are awaiting the Advisory Opinion of the International Court of Justice on the legality of Kosovo’s declaration of independence. It is to be expected that the opinion of the Court will shed more light on this subject. It has been pointed out previously that even though there is no ‘extensive and virtually uniform’ State practice to support a right of remedial secession, the concept of modern custom indicates that a ‘substantial manifestation’ of opinio iuris ‘that a customary rule exists may compensate for a relative lack of practice’.901 This Chapter has shown that there is substantial opinio iuris on remedial secession in the international community. In addition to the aforementioned instruments and judicial decisions, the reactions of States as regards the secessions of Croatia, Bangladesh and Kosovo also indicate opinio iuris on the lawfulness of secession for remedial purposes. The recent secession of Kosovo is illustrative. At this moment 56 States have recognised a State that has no effective control over its territory, and while the international community has not yet granted collective recognition, the larger part indirectly supports Kosovo’s action. The 897

GA Res. 50/6 of 24 October 1995, para. 1, supra note 601. Dugard & Raič, supra note 576, p. 103. 899 Ibid., pp. 103-104. 900 Tomuschat, supra note 846, p. 344. Also Dugard & Raič, supra note 576, pp. 103-104. 901 Statement of Principles, supra note 110, p. 40. See also Tomuschat, supra note 589, p. 42, stating that ‘[o]n the basis of […] deductive reasoning, remedial secession should be acknowledged as part and parcel of positive law, notwithstanding the fact that its empirical basis is fairly thin, but not totally lacking: […] the events leading to the establishment of Bangladesh and the events giving rise to Kosovo as an autonomous entity under international administration can both be classified as coming within the purview of remedial secession’. (emphasis added). 898

137

presence of KFOR and the EULEX mission in Kosovo are proof of this support. In light of these developments, two questions are relevant. The first question is “Does a State exist?”, despite the fact that it does not yet meet the requirement of effective control?902 The second question is “Should this State exist?”.903 In other words, does the international community consider Kosovo’s unilateral action legitimate? The analysis of the Kosovo case in this Chapter warrants more than a tentative ‘yes’. On the basis of the substantial opinio iuris on the legality of remedial secession, and limited but relevant State practice to support such a right, there can be no other conclusion than that the right of remedial secession is de lege lata. This right of unilateral secession is not an absolute right but meant to be an ‘emergency exit’ in case of gross violations of human rights including the right of (internal) selfdetermination.904

902

W.V. O’Brien and U.H. Goebel, ‘United States Recognition Policy Toward the New Nations’, in W.V. O’Brien (ed.), The New Nations in International Law and Diplomacy, London: Stevens & Sons 1965, p. 106: ‘The traditional question is, “Does a state exist?” (In the case of recognition of a new government, the question is, “Does it have effective control of the population and territory of the state?”) To [Sir Hersch] Lauterpacht, these conditions were substantially “definite and exhaustive.” However, as subjective criteria gained importance, the question became increasingly, “Should this state, which seems to enjoy a real existence in the material sense, exist as an international person?” The “should” could be couched in the context of the political, legal, or even moral norms. Thus the U.S. refused recognition for sixteen years to the [government of the] Soviet Union, despite its clear establishment as an independent entity by, at the latest, the early 1920’s.’ Quoted by Hansen, supra note 602, p. 163. 903 Ibid. 904 Kooijmans, supra note 9, p. 168.

138

5

Conclusion

‘I wish to state very clearly my view that the responsibility to protect norm is not, as some have suggested, a leap into wishful thinking.’905 5.1

Recapitulation and Conclusion

While the philosophical roots of the right to self-determination can be traced back to the Enlightenment, where it found inspiration in the ideas of representative government and popular sovereignty, it would not be until the end of the Cold War that the original meaning of selfdetermination would be reinvented. Even though Wilson and Lenin started advocating the right of self-determination throughout the first half of the twentieth century, it essentially remained a political principle until it was proclaimed in the Charter of the United Nations, when it became a principle of international law. Within ten years of the adoption of the Charter the General Assembly took up the task of putting an end to colonialism using selfdetermination as an instrument. Through the adoption of several anticolonialist resolutions the General Assembly progressively developed the principle of self-determination by linking it with decolonisation. As a result of this, self-determination became almost ‘synonymous’ with decolonisation, and many colonial peoples managed to shake off the colonial yoke and became independent. Despite the fact that many have argued that the right of selfdetermination is exhausted once a colonial people have acquired independence, it cannot be denied that the end of the Cold War and the subsequent developments in Europe in the early nineties set the stage for all kinds of new developments in international law, including a renewed emphasis on the internal aspect of self-determination. As this thesis has pointed out, the right of self-determination is not confined to colonial situations, but is an ‘ongoing’ right with universal application. As the International Court of Justice pointed out, the essence of the right of self-determination is ‘the need to pay regard to the freely expressed will of peoples’.906 The inclusion of selfdetermination as a human right in two International Human Rights Covenants removes any doubt as regards its universality, given the fact that both Covenants are widely ratified.907 It is also beyond doubt that outside the colonial context there has been a preference for the internal dimension of self-determination, according to which all

905

L. Arbour, ‘The responsibility to protect as a duty of care in international law and practice’, Review of International Studies, Vol. 34, 2008, p. 447. 906 Western Sahara, supra note 129, para. 59. 907 See supra, note 99.

139

peoples have the right to ‘participate in the expression of the political will within the State’.908 Nevertheless, in non-colonial situations the right of external selfdetermination is not altogether excluded. Even though conventional law on self-determination is silent on secession, this thesis has made it clear that there is a right of unilateral secession based on customary international law, despite the fact that State practice is limited. According to the theory of modern custom, ‘a substantive manifestation of’ opinio iuris ‘may compensate for a relative lack of practice’.909 The author has argued that there is strong opinio iuris within the international community in support of a right of unilateral secession, albeit that this right is subject to very strict conditions and may only be invoked as a last resort. A breach of the internal right of self-determination, as stated in the central question of this thesis, is not enough to allow for a right of unilateral secession under international law. Peoples are entitled to resort to the ‘self-help remedy’ of unilateral secession only when they are persistently excluded from political participation, suffer from gross violations of fundamental human rights and have exhausted every local remedy available to find a peaceful solution to the conflict. In other words, remedial secession may be used as an ‘emergency exit’ only. In order to reduce the use of this ‘emergency exit’ and to prevent the denial of self-determination claims from escalating into violent conflicts, the following section will provide a few practical recommendations to enhance the enforcement of self-determination. 5.2

Enhancing the Enforcement of Self-Determination

As a human right occupying a fundamental position under international law, the right of self-determination suffers from a serious lack of effective enforcement mechanisms. While the Special Committee of 24 on Decolonization is responsible for the implementation of the Declaration on decolonisation, thus protecting the right of self-determination of colonial peoples, the right to selfdetermination of peoples outside the colonial context seems to have been forgotten. For this reason, and for the moral and legal reasons that have been set out in the previous Chapter, it has been submitted in this thesis that peoples are entitled to the ‘self-help remedy’ of unilateral secession.910 Traditionally, States have obviously been very reluctant to acknowledge such a right, out of fear that it would undermine the State system of international law they so carefully built. This is why 908

Expert opinion by Franck, Higgins, Pellet, Shaw and Tomuschat, supra note 5, p. 278. Statement of Principles, supra note 110, p. 40. 910 Buchheit, supra note 8, p. 222. 909

140

they have emphasised the principle of the territorial integrity of States, at the expense of the right of self-determination. However, this thesis has made it clear that ‘[t]he principle of territorial integrity must not serve as a shield for tyrants, dictators, or totalitarian rulers; it must not become a screen behind which human deprivations are sought to be justified, condoned, and 911 perpetuated’.

Only a few years ago, ‘the responsibility to protect’ was put forward at the 2005 World Summit,912 according to which the State is primarily responsible for protecting its people against ‘abusive behaviour’.913 Only if the State is ‘unwilling or unable’ to do this will the international community be ‘called upon to step in and help, or compel and […] even coerce States to put in place the requisite web of protection’.914 The idea of the responsibility to protect was developed after NATO’s humanitarian intervention in Kosovo in 1999, which has been extensively debated in the legal literature. In fact, Kosovo actually illustrates perfectly that remedial secession and humanitarian intervention have a great deal in common.915 While both remain controversial subjects in international law, they also find support within a substantial part of the international community. States have always feared an outbreak of secessionist claims once a right of remedial secession would be recognised, which is exactly why this thesis has argued that the right of remedial secession may only be used as an emergency exit, depending on the fulfilment of a set of strict criteria.916 Many States that have recognised Kosovo have already emphasised that this was a unique situation, which may not be seen as a precedent. This also explains why a significant number of States have recognised Kosovo, while refusing to recognise Abkhazia. It is important to emphasise that every self-determination claim must be judged on its own merits.

911

L.C. Chen, ‘Self-Determination and World Public Order’, Notre Dame Law Review, Vol. 66, 1991, p. 1297. 912 UN Doc. A/RES/60/1, 24 October 2005, available at . See also the Report of the International Commission on Intervention and State Sovereignty, ‘The Responsibility to Protect’, December 2001, available at . 913 Arbour, supra note 896, p. 448. See para. 138 of the 2005 World Summit Outcome, stating that ‘[e]ach individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means. We accept that responsibility and will act in accordance with it. The international community should, as appropriate, encourage and help States to exercise this responsibility and support the United Nations in establishing an early warning capability’. 914 Arbour, supra note 896, p. 448. 915 Tomuschat, supra note 589, p. 41-42. 916 See Frankel, supra note 599, p. 548.

141

If every claim is to be judged by an independent international institution, the risk of abusing this right is also diminished. Buchanan has already pointed out that there is no direct need for another international body, since the Committee of 24 on Decolonization could very well broaden its task and start considering self-determination claims outside the colonial context.917 It is very important to ‘establish an early warning capability’918 to prevent separatist claims from escalating into a civil war. As Müllerson aptly noted, once a people have broken away, bringing them back to the ‘motherland’ will be like ‘trying to push toothpaste back into the tube’.919 Therefore, it may be a very good idea to create a right of petition for these groups.920 The Committee of 24 should be empowered to conduct investigations and issue recommendations on the validity of these claims.921 In this respect it is important to stress once again that secession is a remedy of last resort, which implies that it is certainly not always the best or even the only means of solving a self-determination conflict.922 Therefore, the investigating Committee must first try to consider whether there are other possibilities to achieve internal self-determination, e.g. greater autonomy, for the group seeking international recognition for its claim.923 After the Committee has issued a report on the situation, the General Assembly and the Security Council must adopt resolutions to enforce the Committee’s recommendations.924 This approach is warranted by the responsibility to protect, to which the international community is committed. The International Court of Justice may also be a suitable organ to deal with self-determination claims. However, since only States have standing before the Court, the only way the Court may be entrusted with the task of considering self-determination claims is by means of an Advisory Opinion, which would require the support of the General Assembly. Without doubt, the Human Rights Committee would be the most suitable body to protect the right of self-determination of peoples outside the colonial context. It has been noted that in the past the Committee has been unwilling to consider claims under Article 1 of the ICCPR. The Committee has been rightly criticized for taking this position and it is submitted here that it is based on a wrong 917

Buchanan, supra note 584, p. 359. See para. 138 of the 2005 World Summit Outcome, supra note 902. 919 R. Müllerson, ‘Precedents in the Mountains: On the Parallels and Uniqueness of the Cases of Kosovo, South Ossetia and Abkhazia’, Chinese Journal of International Law, Vol. 8, 2009, p. 24. 920 Frankel, supra note 599, p. 546. 921 Ibid. 922 Ibid., p. 553. 923 Ibid. 924 Ibid., pp. 560-561.

918

142

interpretation of the Optional Protocol (OP). According to Article 2 of the OP, ‘individuals who claim that any of their rights enumerated in the Covenant have been violated and who have exhausted all available domestic remedies may submit a written communication to the Committee for consideration’.925

How is it possible that this provision could mean anything other than that individuals have a right to claim that their government has violated their right of self-determination, even though this is a ‘collective right’? Therefore, the present author argues that the Human Rights Committee should change its view on this subject and take a more active stance towards the protection of the right of selfdetermination. Lastly, it is suggested here that the international community should also strive to develop a common position on recognition, for example by adopting a General Assembly Resolution on this issue. While it may not be possible to force States to recognise an entity that meets the criteria for remedial secession (as have been identified in this thesis), the international community must be able to agree on a set of ‘guidelines on recognition’ in the same way the EC was able to agree on a number of criteria for recognition.926 A common approach to recognition, based on respect for human rights, including the right of self-determination, will not only enhance the protection of this right but will also depoliticise recognition, thereby making it less arbitrary and more just

925 926

(Emphasis added). ‘Guidelines on Recognition’, supra note 276.

143

144

Appendix I Declaration on the Granting of Independence to Colonial Countries and Peoples Adopted by General Assembly Resolution 1514 (XV) of 14 December 1960 The General Assembly, Mindful of the determination proclaimed by the peoples of the world in the Charter of the United Nations to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small and to promote social progress and better standards of life in larger freedom, Conscious of the need for the creation of conditions of stability and well-being and peaceful and friendly relations based on respect for the principles of equal rights and self-determination of all peoples, and of universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language or religion, Recognizing the passionate yearning for freedom in all dependent peoples and the decisive role of such peoples in the attainment of their independence, Aware of the increasing conflicts resulting from the denial of or impediments in the way of the freedom of such peoples, which constitute a serious threat to world peace, Considering the important role of the United Nations in assisting the movement for independence in Trust and Non- Self- Governing Territories, Recognizing that the peoples of the world ardently desire the end of colonialism in all its manifestations, Convinced that the continued existence of colonialism prevents the development of international economic co-operation, impedes the social, cultural and economic development of dependent peoples and militates against the United Nations ideal of universal peace, Affirming that peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations

145

arising out of international economic co-operation, based upon the principle of mutual benefit, and international law, Believing that the process of liberation is irresistible and irreversible and that, in order to avoid serious crises, an end must be put to colonialism and all practices of segregation and discrimination associated therewith, Welcoming the emergence in recent years of a large number of dependent territories into freedom and independence, and recognizing the increasingly powerful trends towards freedom in such territories which have not yet attained independence, Convinced that all peoples have an inalienable right to complete freedom, the exercise of their sovereignty and the integrity of their national territory, Solemnly proclaims the necessity of bringing to a speedy and unconditional end colonialism in all its forms and manifestations; And to this end Declares that: 1. The subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, is contrary to the Charter of the United Nations and is an impediment to the promotion of world peace and co-operation. 2. All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. 3. Inadequacy of political, economic, social or educational preparedness should never serve as a pretext for delaying independence. 4. All armed action or repressive measures of all kinds directed against dependent peoples shall cease in order to enable them to exercise peacefully and freely their right to complete independence, and the integrity of their national territory shall be respected. 5. Immediate steps shall be taken, in Trust and Non-Self-Governing Territories or all other territories which have not yet attained independence, to transfer all powers to the peoples of those territories, without any conditions or reservations, in accordance with their freely expressed will and desire, without any distinction as to

146

race, creed or colour, in order to enable them to enjoy complete independence and freedom. 6. Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations. 7. All States shall observe faithfully and strictly the provisions of the Charter of the United Nations, the Universal Declaration of Human Rights and the present Declaration on the basis of equality, noninterference in the internal affairs of all States, and respect for the sovereign rights of all peoples and their territorial integrity.

147

Appendix II Principles which should guide Members in determining whether or not an obligation exists to transmit the information called for in article 73 e of the Charter of the United Nations, General Assembly Resolution 1541 (XV), (extracts) Principle I The authors of the Charter of the United Nations had in mind that Chapter XI should be applicable to territories which were then known to be of the colonial type. An obligation exists to transmit information under Article 73 e of the Charter in respect of such territories whose peoples have not yet attained a full measure of self-government. Principle II Chapter XI of the Charter embodies the concept of Non-SelfGoverning Territories in a dynamic state of evolution and progress towards a "full measure of self-government". As soon as a territory and its peoples attain a full measure of self-government, the obligation ceases. Until this comes about, the obligation to transmit information under Article 73 e continues. Principle III The obligation to transmit information under Article 73 e of the Charter constitutes an international obligation and should be carried out with due regard to the fulfilment of international law. Principle IV Prima facie there is an obligation to transmit information in respect of a territory which is geographically separate and is distinct ethnically and/or culturally from the country admin-istering it. Principle V Once it has been established that such a prima facie case of geographical and ethnical or cultural distinctness of a territory exists, other elements may then be brought into consideration. These additional elements may be, inter alia, of an administrative, political, juridical, economic or historical nature. If they affect the relationship between the metropolitan Slate and the territory concerned in a manner which arbitrarily places the latter in a position or status of subordination, they support the presumption that there is an obligation to transmit information under Article 73 e of the Charter. Principle VI A Non-Self-Governing Territory can be said to have reached a full measure of self-government by:

148

(a) Emergence as a sovereign independent State; (b) Free association with an independent State; or (c) Integration with an independent State. Principle VII (a) Free association should be the result of a free and voluntary choice by the peoples of the territory concerned expressed through informed and democratic processes. It should be one which respects the individuality and the cultural charac-teristics of the territory and its peoples, and retains for the peoples of the territory which is associated with an independent State the freedom to modify the status of that territory through the expression of their will by democratic means and through constitutional processes. (b) The associated territory should have the right to determine its internal constitution without outside interference, in accordance with due constitutional processes and the freely expressed wishes of the people. This does not preclude con-sultations as appropriate or necessary under the terms of the free association agreed upon. Principle VIII Integration with an independent State should be on the basis of complete equality between the peoples of the erstwhile Non-SelfGoverning Territory and those of the independent country with which it is integrated. The peoples of both territories should have equal status and rights of citizenship and equal guarantees of fundamental rights and freedoms without any distinction or discrimination; both should have equal rights and opportunities for representation and effective participation at all levels in the executive, legislative and judicial organs of government. Principle IX Integration should have come about in the following circumstances : (a) The integrating territory should have attained an advanced stage of self-government with free political institutions, so that its peoples would have the capacity to make a responsible choice through informed and democratic processes; (6) The integration should be the result of the freely ex-pressed wishes of the territory's peoples acting with full knowl-edge of the change in their status, their wishes having been expressed through informed and democratic processes, im-partially conducted and based on universal adult suffrage. The United Nations could, when it deems it necessary, supervise these processes. Principle X The transmission of information in respect of Non-Self-Governing Territories under Article 73 e of the Charter is subject to such

149

limitation as security and constitutional considerations may require. This means that the extent of the information may be limited in certain circumstances, but the limitation in Article 73 e cannot relieve a Member State of the obligations of Chapter XI. The "limitation" can relate only to the quantum of information of economic, social and educa-tional nature to be transmitted. Principle XI The only constitutional considerations to which Article 73 e of the Charter refers are those arising from constitutional relations of the territory with the Administering Member. They refer to a situation in which the constitution of the territory gives it self-government in economic, social and educational matters through freely elected institutions. Nevertheless, the responsibility for transmitting information under Article 73 e continues, unless these constitutional relations preclude the Government or parliament of the Administering Member from receiving statistical and other information of a technical nature relating to economic, social and educational conditions in the territory. Principle XII Security considerations have not been invoked in the past. Only in very exceptional circumstances can information on economic, social and educational conditions have any security aspect. In other circumstances, therefore, there should be no necessity to limit the transmission of Information on security grounds.

150

Appendix III Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, General Assembly Resolution 2625 (XXV), (extracts) The principle of equal rights and self-determination of peoples (1) By virtue of the principle of equal rights and self-determination of peoples enshrined in the Charter of the United Nations, all peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development, and every State has the duty to respect this right in accordance with the provisions of the Charter. (2) Every State has the duty to promote, through joint and separate action, realization of the principle of equal rights and selfdetermination of peoples, in accordance with the provisions of the Charter, and to render assistance to the United Nations in carrying out the responsibilities entrusted to it by the Charter regarding the implementation of the principle, in order: (a) To promote friendly relations and co-operation among States; and (b) To bring a speedy end to colonialism, having due regard to the freely expressed will of the peoples concerned; and bearing in mind that subjection of peoples to alien subjugation, domination and exploitation constitutes a violation of the principle, as well as a denial of fundamental human rights, and is contrary to the Charter. (3) Every State has the duty to promote through joint and separate action universal respect for and observance of human rights and fundamental freedoms in accordance with the Charter. (4) The establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a people constitute modes of implementing the right of selfdetermination by that people. (5) Every State has the duty to refrain from any forcible action which deprives peoples referred to above in the elaboration of the present principle of their right to self-determination and freedom and independence. In their actions against, and resistance to, such forcible action in pursuit of the exercise of their right to selfdetermination, such peoples are entitled to seek and to receive

151

support in accordance with the purposes and principles of the Charter. (6) The territory of a colony or other Non-Self-Governing Territory has, under the Charter, a status separate and distinct from the territory of the State administering it; and such separate and distinct status under the Charter shall exist until the people of the colony or Non-Self-Governing Territory have exercised their right of selfdetermination in accordance with the Charter, and particularly its purposes and principles. (7) Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour. (8) Every State shall refrain from any action aimed at the partial or total disruption of the national unity and territorial integrity of any other State or country.

152

Appendix IV General Comment No. 12: The right to self-determination of peoples (Article 1) 1. In accordance with the purposes and principles of the Charter of the United Nations, article 1 of the International Covenant on Civil and Political Rights recognizes that all peoples have the right of selfdetermination. The right of self-determination is of particular importance because its realization is an essential condition for the effective guarantee and observance of individual human rights and for the promotion and strengthening of those rights. It is for that reason that States set forth the right of self-determination in a provision of positive law in both Covenants and placed this provision as article 1 apart from and before all of the other rights in the two Covenants. 2. Article 1 enshrines an inalienable right of all peoples as described in its paragraphs 1 and 2. By virtue of that right they freely "determine their political status and freely pursue their economic, social and cultural development". The article imposes on all States parties corresponding obligations. This right and the corresponding obligations concerning its implementation are interrelated with other provisions of the Covenant and rules of international law. 3. Although the reporting obligations of all States parties include article 1, only some reports give detailed explanations regarding each of its paragraphs. The Committee has noted that many of them completely ignore article 1, provide inadequate information in regard to it or confine themselves to a reference to election laws. The Committee considers it highly desirable that States parties' reports should contain information on each paragraph of article 1. 4. With regard to paragraph 1 of article 1, States parties should describe the constitutional and political processes which in practice allow the exercise of this right. 5. Paragraph 2 affirms a particular aspect of the economic content of the right of self-determination, namely the right of peoples, for their own ends, freely to "dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic cooperation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence". This right entails corresponding duties for all States and the international community. States should indicate any factors or difficulties which prevent the free disposal of their natural wealth and resources contrary to the provisions of this paragraph and

153

to what extent that affects the enjoyment of other rights set forth in the Covenant. 6. Paragraph 3, in the Committee's opinion, is particularly important in that it imposes specific obligations on States parties, not only in relation to their own peoples but vis-à-vis all peoples which have not been able to exercise or have been deprived of the possibility of exercising their right to self-determination. The general nature of this paragraph is confirmed by its drafting history. It stipulates that "The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of selfdetermination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations". The obligations exist irrespective of whether a people entitled to self-determination depends on a State party to the Covenant or not. It follows that all States parties to the Covenant should take positive action to facilitate realization of and respect for the right of peoples to selfdetermination. Such positive action must be consistent with the States' obligations under the Charter of the United Nations and under international law: in particular, States must refrain from interfering in the internal affairs of other States and thereby adversely affecting the exercise of the right to self-determination. The reports should contain information on the performance of these obligations and the measures taken to that end. 7. In connection with article 1 of the Covenant, the Committee refers to other international instruments concerning the right of all peoples to self-determination, in particular the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, adopted by the General Assembly on 24 October 1970 (General Assembly resolution 2625 (XXV)). 8. The Committee considers that history has proved that the realization of and respect for the right of self-determination of peoples contributes to the establishment of friendly relations and cooperation between States and to strengthening international peace and understanding.

154

Appendix V Conference on Security and Co-operation in Europe Helsinki Final Act 1975 (extract) VIII. Equal rights and self-determination of peoples The participating States will respect the equal rights of peoples and their right to self-determination, acting at all times in conformity with the purposes and principles of the Charter of the United Nations and with the relevant norms of international law, including those relating to territorial integrity of States. By virtue of the principle of equal rights and self- determination of peoples, all peoples always have the right, in full freedom, to determine, when and as they wish, their internal and external political status, without external interference, and to pursue as they wish their political, economic, social and cultural development. The participating States reaffirm the universal significance of respect for and effective exercise of equal rights and self- determination of peoples for the development of friendly relations among themselves as among all States; they also recall the importance of the elimination of any form of violation of this principle.

155

156

Select Bibliography Treaties Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) Statute of the International Court of Justice (adopted 26 June 1945, entered into force 24 October 1945), 33 UNTS 993 Geneva Convention (III) relative to the Treatment of Prisoners of War, 12 August 1949. International Convention on the Elimination of All Forms of Racial Discrimination (adopted 21 December 1965, entered into force 4 January 1969), GA Res. 2106 (XX), 660 UNTS 195 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976), GA Res. 2200A (XXI), 999 UNTS 171 Optional Protocol to the International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976), GA Res. 2200A (XXI), 999 UNTS 302 International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976), GA Res. 2200A (XXI), 993 UNTS 3 Vienna Convention on the Law of Treaties, (adopted 23 May 1969, entered into force 27 January 1980), 1155 UNTS 331 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977. Vienna Convention on Succession of States in respect of Treaties, 23 August 1978, entered into force on 6 November 1996. African Charter on Human and Peoples’ Rights (adopted 26 June 1981, entered into force 21 October 1986), 21 ILM 59 (1982)

157

The Unification Treaty between the FRG and the GDR, Berlin, 31 August 1990. Treaty on the Final Settlement with respect to Germany, Moscow, 12 September 1990. Treaty establishing the Commonwealth of Independent States (CIS), Minsk, 8 December 1991. Protocol to the Agreement establishing the Commonwealth Independent States, Alma-Ata, 21 December 1991.

of

Official Documents UN Security Council Security Council Resolution 169, 24 November 1961. The Congo Question. Security Council Resolution 213, 20 September 1965. Admission of new Members to the UN: Singapore. Security Council Resolution 269, 12 August 1969. The situation in Namibia. Security Council Resolution 276, 30 January 1970. The situation in Namibia. Security Council Resolution 384, 22 December 1975. East Timor. Security Council Resolution 389, 22 April 1976. East Timor. Security Council Resolution 541, 18 Nov. 1983. Cyprus. Security Council Resolution 724, 15 December 1991. Socialist Federal Republic of Yugoslavia. Security Council Resolution 815, 30 March 1993. Croatia Security Council Resolution 828, 26 May 1993. New member: Eritrea. Security Council Resolution 1023, 22 Nov. 1995. On Basic Agreement on the Region of Eastern Slavonia, Baranja and Western Sirmium between the Government of Croatia and the local Serb representatives, signed on 12 Nov. 1995.

158

Security Council Resolution 1244, 10 June 1999. On the situation relating Kosovo. Security Council Resolution 1251, 29 June 1999. On the situation in Cyprus. Security Council Resolution 1808, 15 April 2008. The situation in Georgia. Security Council Resolution 1813, 30 April 2008. The situation concerning Western Sahara. Security Council Resolution 1847, 12 December 2008. The situation in Cyprus. UN General Assembly General Assembly Resolution 441 (V), 2 December 1950. The Ewe Problem. General Assembly Resolution 1314 (XIII), 12 December 1958. Recommendations concerning international respect for the rights of peoples and nations to self-determination. General Assembly Resolution 1514 (XV), 14 December 1960. Declaration on the Granting of Independence to Colonial Countries and Peoples. General Assembly Resolution 1541 (XV), 15 December 1960. Principles which should guide Members in determining whether or not an obligation exists to transmit the information called for under Article 73e of the Charter. General Assembly Resolution 1654 (XVI), 27 November 1961. The Situation with regard to the implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples. General Assembly Resolution 1723 (XVI), 20 December 1961. Question of Tibet. General Assembly Resolution 1803 (XVII), 14 December 1962. Permanent sovereignty over natural resources. General Assembly Resolution 2010 (XX), 21 September 1965. Admission of Singapore to Membership in the United Nations.

159

General Assembly Resolution 2105 (XX), 20 December 1965. Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples. General Assembly Resolution 2145 (XXV), 27 October 1966. Question of South West Africa. General Assembly Resolution 2396 (XXIII), 2 December 1968. The Policies of Apartheid of the Government of South Africa. General Assembly Resolution 2621 (XXV), 12 October 1970. Programme of Action for the Full Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples. General Assembly Resolution 2625 (XXV), 24 October 1970. Declaration of Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations. General Assembly Resolution 2672C (XXV), 8 December 1970. United Nations Relief and Works Agency for Palestine Refugees in the Near East. General Assembly Resolution 3070 (XXVIII), 30 November 1973. Importance of the Universal Realization of the Right of Peoples to Self-Determination and of the Speedy Granting of Independence to Colonial Countries and Peoples for the Effective Guarantee and Observance of Human Rights. General Assembly Resolution 3103 (XXVIII), 12 December 1973. Basic Principles of the Legal Status of the Combatants Struggling Against Colonial and Alien Domination and Racist Regimes. General Assembly Resolution 3203 (XXIX), 17 Sept. 1974. Admission of the People’s Republic of Bangladesh to Membership in the United Nations. General Assembly Resolution 3237 (XXIX), 22 November 1974. Observer Status for the Palestine Liberation Organization. General Assembly Resolution 3314 (XXIX), 14 December 1974. Definition of Aggression. General Assembly Question of Timor.

160

Resolution

3485(XXX),

12

December

1975.

General Assembly Resolution 31/53, 1 December 1976. Question of East Timor. General Assembly Resolution 32/34, 28 November 1977. Question of East Timor. General Assembly Resolution 33/39, 13 December 1978. Question of East Timor. General Assembly Resolution 34/40, 21 November 1979. Question of East Timor. General Assembly Resolution 35/27, 11 November 1980. Question of East Timor. General Assembly Resolution 36/10, 28 October 1981. Universal realization of the right of peoples to self-determination. General Assembly Resolution 36/50, 24 November 1981. Question of East Timor. General Assembly Resolution 37/30, 23 November 1982. Question of East Timor. General Assembly Resolution 37/42, 3 December 1982. Universal realization of the right of peoples to self-determination. General Assembly Resolution 38/16, 22 November 1983. Universal realization of the right of peoples to self-determination. General Assembly Resolution 39/18, 25 November 1984. Universal realization of the right of peoples to self-determination. General Assembly Resolution 40/24, 29 November 1985. Universal realization of the right of peoples to self-determination. General Assembly Resolution 41/100, 4 December 1986. Universal realization of the right of peoples to self-determination. General Assembly Resolution 42/94, 7 December 1987. Universal realization of the right of peoples to self-determination. General Assembly Resolution 43/105, 8 December 1988. Universal realization of the right of peoples to self-determination.

161

General Assembly Resolution 43/160, 9 December 1988. Observer status of national liberation movements recognized by the Organization of African Unity and/or the League of Arab States. General Assembly Resolution 43/177, 15 December 1988. Question of Palestine. General Assembly Resolution 44/80, 8 December 1989. Universal realization of the right of peoples to self-determination. General Assembly Resolution 46/237, 22 May 1992. Admission of the Republic of Bosnia and Herzegovina to membership in the United Nations. General Assembly Resolution 46/238, 22 May 1992. Admission of the Republic of Croatia to membership in the United Nations. General Assembly Resolution 47/230, 28 May 1993. Admission of Eritrea to membership in the United Nations. General Assembly Resolution 48/18, 15 November 1993. Complete withdrawal of foreign military forces from the territories of the Baltic States. General Assembly Resolution 48/121, 20 December 1993. World Conference on Human Rights. General Assembly Resolution 49/43, 9 December 1994. The situation in the occupied territories of Croatia. General Assembly Resolution 50/49, 24 October 1995. Declaration on the Occasion of the Fiftieth Anniversary of the United Nations. General Assembly Resolution 52/250, 7 July 1998. Participation of Palestine in the work of the UN. General Assembly Resolution 54/155, 29 Feb. 2000. Universal realization of the right of peoples to self-determination. General Assembly Resolution 55/85, 4 Dec. 2000. realization of the right of peoples to self-determination.

Universal

General Assembly Resolution 56/141, 19 Dec. 2001. Universal realization of the right of peoples to self-determination. General Assembly Resolution 57/197, 18 Dec. 2002. Universal realization of the right of peoples to self-determination.

162

General Assembly Resolution 58/161, 22 Dec. 2003. Universal realization of the right of peoples to self-determination. General Assembly Resolution 59/180, 20 Dec. 2004. Universal realization of the right of peoples to self-determination. General Assembly Resolution 60/1, 24 October 2005. 2005 World Summit Outcome. General Assembly Resolution 60/145, 16 Dec. 2005. Universal realization of the right of peoples to self-determination. General Assembly Resolution 61/150, 19 Dec. 2006. Universal realization of the right of peoples to self-determination. General Assembly Resolution 61/295, 13 September 2007. United Nations Declaration on the Rights of Indigenous Peoples. General Assembly Resolution 62/144, 18 Dec. 2007. Universal realization of the right of peoples to self-determination. General Assembly Resolution 62/146, 18 December 2007. The right of the Palestinian people to self-determination. General Assembly Resolution 63/3, 8 October 2008. Request for an advisory opinion of the International Court of Justice on whether the unilateral declaration of independence of Kosovo is in accordance with international law. General Assembly Resolution 63/163, 18 Dec. 2008. Universal realization of the right of peoples to self-determination. International Instruments Helsinki Final Act adopted by the Conference on Security and Cooperation in Europe (CSCE) in 1975. Charter of Paris for a New Europe adopted by the CSCE in 1990. Vienna Declaration and Programme of Action of 1993. Travaux préparatoires UN Charter Final Report of the Sixth Committee, San Francisco 1945, UNCIO, doc. 343, I/1/16, Vol. 6 296 (1945).

163

Doc. 2 G/29, UNCIO, vol. III. Amendments Proposed by the Governments of the United States, the United Kingdom, the Soviet Union, and China. Microfilmed minutes (unpublished) of the debates of the First Committee of the First Commission of the San Francisco Conference, 14-15 May and 1 and 11 June, 1945, Library of the Palais des Nations, Geneva. UNCIO, vol. VI, 455 and 714 ff. Report of the Syrian Rapporteur to the drafting Commission. Travaux préparatoires of the ICCPR UN Doc. A/C.3/SR.668. Comment made by the Chairman of the Working Party of the Third Committee when he presented the draft to the Third Committee. UN Doc. A/C.3/SR.446. (Belgium). UN Doc. A/3077. Report of the Third Committee. UN Doc. A/C3/SR.642. UN Doc. A/C3/SR.643. (Belgium). UN Doc. A/C.3/SR.657. (Yugoslavia). 25 GAOR Supp. No.18. UN Doc. A/C.6/SR.1182 and Corr.1. (Portugal, Spain). UN Doc. A/PV.1860. (representative of the ‘African Group’). UN Doc. A/C.3/SR.309, 9 Nov. 1950. (Saudi Arabia, Afghanistan, Soviet Union). UN Doc. A/C.3/SR.310, 10 Nov. 1950. (Belgium, Poland). UN Doc. A/C.3/SR.311, 10 Nov. 1950. (Mexico). UN Doc. A/C.3/SR.312, 13 Nov. 1950. (Ethiopia). UN Doc. A/C.3/SR.362, 8 Dec. 1951. (Afghanistan).

164

UN Doc. A/C.3/SR.364, 10 Dec. 1951. (United States). UN Doc. E/CN.4/SR.254 (1952). UN Doc. A/C.3/SR.399, 23 Jan. 1952. (Iran, Ethiopia). UN Doc. A/C.3/SR.399, 23 Jan. 1952. (Ireland). UN Doc. A/C.3/SR.402, 24 Jan. 1952. (Yugoslavia). UN Doc. A/C.3/SR.644, 26 Oct. 1955. (Denmark). UN Doc. A/C.3/SR.647, 28 Oct. 1955. (Greece). UN Doc. A/C.3/SR.647, 28 Oct. 1955. (Yugoslavia). UN Doc. A/C.3/SR.649, 1 Nov. 1955. (Lebanon). UN Doc. A/C.3/SR.650, 2 Nov. 1955. (Ecuador). UN Doc. A/C.3/SR.671, 1955. (the Netherlands). UN Doc. A/C.3/SR.699, 3 Dec. 1956. (New Zealand, Lebanon). Human Rights Committee Human Rights Committee, General Comment 12, Art. 1, 21st sess., 1984. Human Rights Committee, General Comment 23, Art. 27, 50th sess., 1994. Human Rights Committee, General Comment 24, Issues relating to reservations made upon ratification or accession to the Covenant or the Optional Protocols thereto, or in relation to declarations under article 41 of the Covenant, 52nd sess., 1994. Human Rights Committee, General Comment 25, Art. 25, 57th sess., 1996. State Reports under Article 40 ICCPR CCPR C/95/Add. 2, 1994 (Ukraine). CCPR/C/83/Add.1, 1995 (Peru).

165

CCPR/C/64/Add.3, 1996 (Colombia). CCPR/C/100/Add.1, 1996 (Georgia). CCPR/C/103/Add. 5, 1997 (Canada). CCPR/C/92/Add. 2, 1998 (Armenia). CCPR/C/COL/2002/5, 2002, (Colombia). CCPR/C/BEL/2003/4, 2003, (Belgium). CCPR/C/FIN/2003/5, 2003, (Finland). CCPR/C/USA/3, 2005, (United States). CCPR/C/GEO/3, 2006, (Georgia). CCPR/C/SMR/2, 2007, (San Marino). CCPR/C/BWA/1, 2007, (Botswana). CCPR/C/GBR/6, 2007, (United Kingdom). CCPR/C/NIC/3, 2007, (Nicaragua). CCPR/C/DNK/5, 2007, (Denmark). CCPR/C/RWA/3, 2007, (Rwanda). CCPR/C/AZE/3, 2007, (Azerbaijan). CCPR/C/MDA/2, 2007, (Republic of Moldova). CCPR/C/ESP/5, 2008, (Spain). CCPR/C/RUS/6, 2008, (Russian Federation). CCPR/C/ARG/4, 2008, (Argentina). CCPR/C/TCD/1, 2008, (Chad). CCPR/C/HRV/2, 2008, (Croatia).

166

Consideration of State Reports under Article 40 ICCPR UN Doc. A/39/40, 20 Sept. 1984, (Gambia). UN Doc. A/45/40, 4 Oct. 1990, (Zaire). UN Doc. A/46/40, 10 Oct. 1991, (Canada). UN Doc. A/47/40, 9 Oct. 1992, (Iraq). UN Doc. A/49/40, 21 Sept. 1994, (Azerbaijan). Concluding Observations of the Human Rights Committee CCPR/C/79/Add.81. 1997 (India). CCPR/C/79/Add.105, 1999 (Canada). CCPR/C/79/Add.112, 1999 (Norway). CCPR/C/79/Add.118, 2000 (Congo). CCPR/CO/74/SWE, 2002 (Sweden). CCPR/CO/82/FIN, 2004 (Finland). CCPR/C/BRA/CO/2, 2005 (Brazil). CCPR/C/CAN/CO/5, 2005 (Canada). CCPR/C/CAN/CO/5, 2006 (Canada). CCPR/C/NOR/CO/5, 2006 (Norway). CCPR/C/USA/CO/3/Rev.1, 2006 (United States of America). CCPR/C/CHL/CO/5, 2007 (Chile). UN Doc. CCPR/C/2/Rev.4, 24 Aug. 1994. Reservation to Article 1 ICCPR (India). Communications UN Doc. A/45/40, Ominayak and the Lubicon Lake Band v. Canada, Communication No. 167/1984, 26 March 1990.

167

African Commission on Human and Peoples Rights O.A.U. Doc. C.M./1149. Report of O.A.U. Secretary-General on Draft African Charter on Human and Peoples’ Rights. Guidelines of the African Commission on Human and Peoples’ Rights for National Periodic Reports, Human Rights Law Journal, Vol. 11, 1990. African Commission on Human and Peoples’ Rights, Resolution on Nigeria, 16th sess., 25 Oct.-3 Nov. 1994, Banjul, The Gambia. African Commission on Human and Peoples’ Rights, Resolution on the Gambia, 16th sess., 25 Oct.-3 Nov. 1994, Banjul, The Gambia. First and Second Periodic State Report of Senegal, 1992, The African Commission on Human and Peoples’ Rights, Examination of State Reports, 12th session, Oct. 1992: Gambia, Zimbabwe and Senegal, App. II. African Commission on Human and Peoples’ Rights, Examination of State Reports, 12th session, Oct. 1992, (Gambia). African Commission on Human and Peoples’ Rights, Communication No. 75/92, Katangese Peoples’ Congress v. Zaire, Decision taken at its 16th Session, Banjul, The Gambia, 1994. Travaux préparatoires of the Friendly Relations Declaration UN Doc. A/AC.125/L32, 12 Apr. 1966, (United States). UN Doc. A/AC.125/L44, 19 July 1967, (United Kingdom). UN Doc. A/AC.125/SR.68, 4 Dec. 1967, (Ghana). UN Doc. A/AC.125/SR.69, 4 Dec. 1967, (Canada). UN Doc. A/AC.125/SR.69, 4 Dec. 1967, (Yugoslavia, France, Kenya). UN Doc. A/AC.125/SR.70, 4 Dec. 1967, (Australia, Cameroon). UN Doc. A/AC.125/SR.91, 21 Oct. 1968, (Guatemala). UN Doc. A/AC.125/SR.92, 21 Oct. 1968, (United States). UN Doc. A/AC.125/SR.93, 21 Oct. 1968, (Chili).

168

UN Doc. A/AC.125/SR.101, 5 Nov. 1969, (the Netherlands). UN Doc. A/AC.125/SR.104, 5 Nov. 1969, (Czechoslovakia). UN Doc. A/AC.125/SR.105, 5 Nov. 1969, (United Kingdom, Romania). UN Doc. A/AC.125/SR.106, 5 Nov. 1969, (Soviet Union, France). UN Doc. A/AC.125/SR.107, 5 Nov. 1969, (Cameroon, Kenya, the Netherlands). Travaux préparatoires of the UN Declaration on the Rights of Indigenous Peoples UN Doc. E/CN.4/Sub.2/1986/7/Add.4, Martinez Cobo, Study on the Problem of Discrimination against Indigenous Populations, Vol. 5. UN Doc. E/CN.4/Sub.2/1993/26/Add.1, UN Sub-Commission on the Prevention and Protection of Minorities, Discrimination against Indigenous Peoples. Explanatory note concerning the draft declaration on the rights of indigenous peoples. UN Doc. E/CN.4/Sub.2/1993/29, Report of the Working Group on Indigenous Populations on its 11th Session. UN Doc. E/CN.4/Sub.2/1994/2, Technical Review of the United Nations Draft Declaration on the Rights of Indigenous Peoples: Note by the Secretariat. UN Doc. E/CN.4/Sub.2/AC.4/1995/3, Note by the ChairpersonRapporteur of the Working Group on Indigenous Populations, Ms. Erica-Irene Daes, on criteria which might be applied when considering the concept of indigenous peoples. E/CN.4/1995/WG.15/4, Consideration of a Draft United Nations Declaration on the Rights of Indigenous Peoples: Information Received from Non-Governmental and Indigenous Organizations. UN Doc. E/CN.4/Sub.2/AC.4/1996/2, 10 June 1996. Commission on Human Rights, Sub-Commission on the Prevention of Discrimination and Protection of Minorities, Working Group on Indigenous Populations. UN Doc. E/CN.4/1996/84, Report of the Working Group Established in Accordance with Commission on Human Rights Resolution 1995/32.

169

UN Doc. E/CN.4/1997/102, Report of the Working Group Established in Accordance with Commission on Human Rights Resolution 1995/32. UN Doc. E/CN.4/2000/84, Report of the Working Group Established in Accordance with Commission on Human Rights Resolution 1995/32. UN Doc. E/CN.4/2001/85, Report of the Working Group Established in Accordance with Commission on Human Rights Resolution 1995/32. Annex II, Proposals by Indigenous Representatives, Explanatory Note on the Use of the Term Indigenous ‘Peoples’. Resolution 2002/72, 25 April 2002, Commission on Human Rights (Human Rights Council). Promotion of a democratic and equitable international order. Chechnya UN Doc. S/PV/3007, 12 September 1991. Provisional Verbatim Record of the 3007th Meeting, held at Headquarters, New York, on Thursday, 12 September 1991: Security Council. UN Doc. E/CN.4/1997/10, 20 March 1997. Report of the SecretaryGeneral on ‘The situation of human rights in the Republic of Chechnya of the Russian Federation’. UN Doc. E/CN.4/RES/2000/58, 25 April 2000, Resolution of the Commission on Human Rights on the ‘Situation in the Republic of Chechnya of the Russian Federation. UN Doc. E/CN.4/2001/36, 20 February 2001, Report of the High Commissioner for Human Rights on the Situation in the Republic of Chechnya of the Russian Federation. Kosovo UN Doc. S/2008/458, 15 July 2008, Statement of Secretary-General Ban Ki-moon in the Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo. UN Doc. S/PRST/2008/44, 26 November 2008. Statement by the President of the Security Council. UN Doc. S/2007/168, 26 March 2007, Letter dated 26 March 2007 from the Secretary-General addressed to the President of the Security

170

Council, presenting the Report of the Special Envoy of the SecretaryGeneral on Kosovo’s future status. UN Doc. S/PV.5821, 16 January 2008. Security Council, 63rd year: 5821st meeting, Wednesday, 16 January 2008, New York. Conference on Security and Cooperation in Europe CSCE/SP/VR.1. Statement of France at the CSCE Paris Summit, 1990. Vienna Declaration, CSCE Parliamentary Assembly, 8 July 1994. Miscellaneous UN Doc. E/CN.4/L.610 (1962). Statement of the Office of Legal Affairs of the United Nations Secretariat. UN Doc. E/CN.4/Sub.2/404/Rev.1, 1981, para. 39. ‘The Right to SelfDetermination: Historical and Current Development on the Basis of United Nations Instruments’, study prepared by A. Cristescu, Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities. UN GAOR, 43rd sess., Third Committee, A/C.3/43/SR.4, 10 Oct. 1988, Summary Record of the 4th Meeting: 3rd Committee, held on Monday, 10 October 1988, New York, General Assembly, 43rd Session. UN Doc. SHS-89/CONF.602/7, UNESCO, International Meeting of Experts on Further Study of the Concept of the Rights of Peoples, Final Report and Recommendations, 22 February 1990. A/45/PV.18 (provisional record). Statement of the President of the General Assembly on behalf of the General Assembly on 3 October 1990 in which he welcomed a united Germany. UN GAOR, 47th sess., Third Committee, A/C.3/47/SR.3, 5 Oct. 1992, Summary Record of the 3rd Meeting: 3rd Committee, held on Monday, 5 October 1992, New York, General Assembly, 47th Session. Committee on the Elimination of Racial Discrimination, General Recommendation No. 21, 48th sess., 1996. Council of Europe, Parliamentary Assembly Resolution 233, 22 April 1997 (Abkhazia).

171

UN Doc. S/PV/5969, 28 August 2008, Security Council, 63rd year: 5969th meeting, Thursday, 28 August 2008, New York. UN Doc. S/PV/6061, 6 January 2009, Security Council, 64th year: 6061st meeting, Tuesday, 6 January 2009, New York.

Cases International Court of Justice Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide Advisory Opinion, ICJ Reports 1951. Monetary Gold Removed from Rome in 1943 (Italy v. France, United Kingdom of Great Britain and Northern Ireland and United States of America), ICJ Reports 1954. North Sea Continental Shelf Cases, ICJ Reports (1969). Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Second Phase (Merits), ICJ Reports 1970. Advisory Opinion on Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276, ICJ Reports 1971 Advisory Opinion on Western Sahara, ICJ Reports 1975 Frontier dispute (Burkina Faso/Republic of Mali), ICJ Reports 1986. Military and Paramilitary Activity in and against Nicaragua (Nicaragua v. United States of America), ICJ Reports 1986. Case Concerning East Timor (Portugal v. Australia), ICJ Reports 1995. Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, ICJ Reports 1996. Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ Reports 2004. International Criminal Tribunal for Yugoslavia Prosecutor v. Tadic, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Appeals Chamber, 2 October 1995.

172

Prosecutor v. Delalic et al., Case No. IT-96-21-A, Appeals Judgment, 20 February 2001. European Court of Human Rights Case of Loizidou v. Turkey, European Court of Human Rights, 18 December 1996. Case of Soering v. the United Kingdom, European Court of Human Rights, 7 July 1989. Isayeva, Yusupova and Bazayeva v. Russia, European Court of Human Rights, 24 February 2005. Isayeva v. Russia, European Court of Human Rights, 24 February 2005. Khashiyev and Akayeva v. Russia, European Court of Human Rights, 24 February 2005. National Courts The (First) Russian Constitutional Court, Tatarstan Case (1994) The (Second) Russian Constitutional Court, Chechnya Case (1995) The African Commission on Human and Peoples Rights, Katangese Peoples’ Congress v Zaïre (1995) Supreme Court of Canada, Reference re Secession of Quebec (1998) Arbitration Opinions 1-3 of the Badinter Arbitration Committee, established by the Peace Conference on Yugoslavia, European Journal of International Law, Vol. 3, No. 1, 1992. Opinions 4-10 of the Badinter Arbitration Committee, established by the Peace Conference on Yugoslavia, European Journal of International Law, Vol. 4, No. 1, 1993. Opinions 11-15 of the Badinter Arbitration Committee, established by the Peace Conference on Yugoslavia, International Legal Materials, Vol. 32, 1993, pp. 1587-1598.

173

Others Report of the International Committee of Jurists Entrusted by the Council of the League of Nations with the Task of Giving an Advisory Opinion upon the Legal Aspect of the Åland Island Question, League of Nations Official Journal, Special Supplement No. 3, 1920. League of Nations, Report presented to the Council of the League by the Commission of Rapporteurs, LN Council Doc. B7/21/68/106, 1921.

Literature •

•

•

• •

• •

• •

•

• •

174

Addo, M.K., ‘Political Self-Determination Within the Context of the African Charter on Human and Peoples’ Rights’, Journal of African Law, Vol. 32, No. 2, 1988. Alfredsson, G., ‘The Right of Self-Determination and Indigenous Peoples’, in: C. Tomuschat (ed.), Modern Law of SelfDetermination, Dordrecht: Martinus Nijhoff Publishers 1993. Anaya, S.J., ‘Self-Determination as a Collective Right under Contemporary International Law’, in: P. Aikio & M. Scheinin (eds.), Operationalizing the Right of Indigenous Peoples to SelfDetermination, Turku: Åbo Akademi University 2000. Arangio-Ruiz, G., ‘Human Rights and Non-Intervention in the Helsinki Final Act’, Human Rights, Vol. 157, 1977. Atrokhov, W.T., ‘The Khasavyurt Accords: Maintaining the Rule of Law and Legitimacy of Democracy in the Russian Federation Amidst the Chechen Crisis’, Cornell International Law Journal, Vol. 32, 1999. Beran, B., The Consent Theory of Political Obligation, London: Croom Helm 1987. Bertrand, J., ‘Indonesia’s quasi-federalist approach: Accommodation amid strong integrationist tendencies’, International Journal of Constitutional Law, Vol. 5, 2007. Blum, Y.Z., ‘Reflections on the Changing Concept of SelfDetermination’, Israel Law Review, Vol. 10, 1975. Bossuyt, M.J., Guide to the ‘Travaux Préparatoires’ of the International Covenant on Civil and Political Rights, Dordrecht: Martinus Nijhoff Publishers 1987. Brölman, C.M. & Zieck, M.Y.A., ‘Some Remarks on the Draft Declaration on the Rights of Indigenous Peoples’, Leiden Journal of International Law, Vol. 8, 1995. Brownlie, I., Principles of Public International Law, 4th Edition, Oxford: Clarendon Press 1990. Brownlie, I., ‘The Rights of Peoples in Modern International Law’, in: J. Crawford (ed.), The Rights of Peoples, 1988.

•

•

• • •

• •

•

•

•

• • •

•

•

• •

Bruun, L.L., ‘Beyond the 1948 Convention – Emerging Principles of Genocide in Customary International Law’, Maryland Journal of International Law and Trade, Vol. 17, 1993. Buchanan, A., Justice, Legitimacy, and Self-Determination. Moral Foundations for International Law, Oxford: Oxford University Press 2004. Buchheit, L.C., Secession. The Legitimacy of Self-Determination, New Haven and London: Yale University Press 1978. Buergenthal, T., ‘CSCE Human Dimension: The Birth of a System’, AEL, Vol. I, Book 2, 1990. Cassese, A., ‘Political Self-Determination - Old Concepts and New Developments’, in: A. Cassese (ed.), UN Law/Fundamental Rights, Two Topics in International Law, Sijthoff & Noordhoff, 1979. Cassese, A., Self-determination of peoples: a legal reappraisal, Cambridge: Cambridge University Press 1995. Cassese, A., ‘The Helsinki Declaration and Self-Determination’, in: T. Buergenthal (ed.), Human Rights, International Law and the Helsinki Accord, New York: Allanheld 1977. Cassese, A., ‘The International Court of Justice and the right of peoples to self-determination’, in: V. Lowe V. & M. Fitzmaurice (eds.), Fifty years of the International Court of Justice. Essays in honour of Sir Robert Jennings, Cambridge: Cambridge University Press 1996, pp. 351-363. Cassese, A., ‘The Self-Determination of Peoples’, in: L. Henkin (ed.), The International Bill of Rights: The Covenant on Civil and Political Rights, New York: Colombia University Press 1981. Castellino, J., ‘David Raič. Statehood & the Law of SelfDetermination’, European Journal of International Law, Vol. 16, 2005. Charney, J.I., ‘Self-determination: Chechnya, Kosovo and East Timor’, Vanderbilt Journal of Transnational Law, Vol. 34, 2001. Chen, L.C., ‘Self-Determination and World Public Order’, Notre Dame Law Review, Vol. 66, 1991. Cheng, B., ‘United Nations Resolutions on Outer Space: “Instant” International Customary Law’, Indian Journal of International Law, Vol. 5, 1965. Crawford, J.R., ‘Book Review of Antonio Cassese, SelfDetermination of Peoples: A Legal Reappraisal’, American Journal of International Law, Vol. 90, 1996. Crawford, J.R., ‘State Practice and International Law in Relation to Secession, The British Yearbook of International Law, Vol. 69, 1998. Crawford, J.R., The creation of states in international law, Oxford: Clarendon Press 2006. Crawford, J.R., ‘The General Assembly, the International Court and self-determination’, in: V. Lowe & M. Fitzmaurice (eds.), Fifty

175

• • •

• • •

• •

• •

•

• •

•

• •

176

years of the International Court of Justice. Essays in honour of Sir Robert Jennings, Cambridge: Cambridge University Press 1996. Czaplinski, W., ‘Current Developments. The Reunification of Germany’, American Journal of International Law, Vol. 86, 1992. Danilenko, G.M. Law-making in the International Community, Dordrecht: Nijhoff 1993. Doehring, K., ‘Self-Determination’, in: B. Simma (ed.), The Charter of the United Nations: A Commentary, Oxford: Oxford University Press 1994. Donnelly, J., Universal Human Rights in Theory and Practice, Ithaca (NY): Cornell University Press 1989. Driessen, B., A Concept of Nation in International Law, The Hague: TMC Asser Instituut 1992. Sugar, J. & Raič, D., ‘The role of recognition in the law and practice of secession’, in: M.G. Kohen (ed.), Secession. International Law Perspectives, Cambridge: Cambridge University Press 2006. Eide, A., ‘Chechnya: In Search of Constructive Accommodation’, Leiden Journal of International Law, Vol. 14, 2001. Eide, A., ‘The National Society, Peoples and Ethno-Nations: Semantic Confusions and Legal Consequences’, Nordic Journal of International Law, Vol. 64, 1995. Errico, S., ‘The Draft UN Declaration on the Rights of Indigenous Peoples: An Overview’, Human Rights Law Review, Vol. 7, 2007. Errico, S., ‘The UN Declaration on the Rights of Indigenous Peoples is Adopted: An Overview’, Human Rights Law Review, Vol. 7, 2007. Falk, R. ’Self-Determination Under International Law: The Coherence of Doctrine Versus the Incoherence of Experience’, in: W. Danspeckgruber (ed.), The Self-Determination of Peoples. Community, Nation and State in an Interdependent World, London: Lynne Rienner Publishers Inc. 2002. Fawcett, J.E.S., ‘Security Council Resolutions on Rhodesia’, British Yearbook of International Law, Vol. 41, 1965-1966. Fidler, D.P., ‘Challenging the Classical Concept of Custom: Perspectives on the Future of Customary International Law’, German Yearbook of International Law, Vol. 39, 1996. Foster, C.E., ‘Articulating Self-determination in the Draft Declaration on the Rights of Indigenous Peoples’, European Journal of International Law, Vol. 12, No. 1, 2001. Fox, G.H. & Roth, B.R., (eds.), Democratic Governance and International Law, Cambridge: Cambridge University Press 2000. Franck, T.M., ‘Postmodern Tribalism and the Right to Secession’, in: C.M. Brölmann et al. (eds.), Peoples and Minorities in International Law, Dordrecht: Nijhoff 1993.

• • •

•

•

•

• •

•

•

• • • •

• •

•

Franck, T.M., ‘The Emerging Right to Democratic Governance’, American Journal of International Law, Vol. 86 1992. Frankel, L.M., ‘International Law of Secession: New Rules for a New Era’, Houston Journal of International Law, Vol. 14, 1992. Gill, T.D., (ed.), Rosenne’s The World Court. What It is and how It works, Leiden: Martinus Nijhoff Publishers 6th Complete Revised Edition 2003. Gross Espiell, H., ‘Self-Determination and Jus Cogens’, in: A. Cassese (ed.), UN Law/Fundamental Rights: Two Topics in International Law, Alphen aan den Rijn: Sijthoff & Noordhoff 1979. Haggenmacher, P., ‘La doctrine des deux éléments du droit coutumier dans la pratique de la Cour internationale’, Revue Générale de Droit International Public, Vol. 90, 1986. Hannum, H., Autonomy, Sovereignty, and Self-Determination. The Accommodation of Conflicting Rights, Philadelphia: University of Pennsylvania Press 1990. Hannum, H. & Babbitt, E.F. (eds.), Negotiating SelfDetermination, Oxford: Lexington Books 2006. Hannum, H., ‘Re-thinking Self-Determination’, in: R. McCorquodale (ed.), Self-Determination in International Law, Aldershot: Dartmouth Publishing Company Limited 2000. Hannum, H., ‘Self-Determination, Yugoslavia, and Europe: Old Wine in New Bottles?’, Transnational Law & Contemporary Problems, Vol. 3, 1993. Hannum, H., ‘The Right of Self-Determination in the Twenty-First Century’, in: R.P. Claude and B.H. Weston (eds.), Human Rights in the World Community. Issues and Action, Philadelphia: University of Pennsylvania Press 2006. Hansen, N.G., Modern Territorial Statehood, Unpublished PhD Thesis Leiden University, 11 November 2008. Hart, H.L.A., The Concept of Law, Oxford: Clarendon Press 1994. Higgins, R., ‘International Law and the Avoidance, Containment and Resolution of Disputes’, Hague Recueil, 1991 V. Higgins, R., ‘Postmodern Tribalism and the Right to Secession. Comments by R. Higgins’, in: C.M. Brölmann et al. (eds.), Peoples and Minorities in International Law, Dordrecht: Nijhoff 1993. Higgins, R., Problems and Process: International Law and How We Use it, Oxford: Clarendon Press 1994. Higgins, R., The Development of International Law Through the Political Organs of the United Nations, London: Oxford University Press 1969. Hillebrink, S., The Right to Self-Determination and Post-Colonial Governance: the Case of the Netherlands Antilles and Aruba, The Hague: T.M.C. Asser Press 2008.

177

•

• • •

•

•

• • •

•

• •

• •

•

•

178

Hilpold, P., ‘Self-Determination in the 21st Century – Modern Perspectives for an Old Concept’, Israel Yearbook on Human Rights, Vol. 36 2006, pp. 247-288. Jennings, I., The Approach to Self-Government, Cambridge: Cambridge University Press 1956. Kirgis, F.L., ‘Custom on a Sliding Scale’, American Journal of International Law, Vol. 81, 1987. Kiwanuka, R.N., ‘The Meaning of “People” in the African Charter on Human and Peoples’ Rights’, The American Journal of International Law, Vol. 82 (1988), pp. 80-101. Klabbers, J., & Lefeber, R., ‘Africa: Lost Between SelfDetermination and Uti Possidetis’, in: C. Brölman et al. (eds.), Peoples and Minorities in International Law, Dordrecht: Martinus Nijhoff Publishers 1993. Klabbers, J., ‘The Right to be Taken Seriously: Self-Determination in International Law’, Human Rights Quarterly, 28 (2006), pp. 186-206. Knop, K., Diversity and self-determination in international law, New York: Cambridge University Press 2002. Kooijmans, P.H., ‘Tolerance, Sovereignty and Self-Determination’, Netherlands International Law Review, 1996. Kooijmans, P.H., ‘Zelfbeschikkingsrecht. Naar een Nieuwe Interpretatie?’, in: N. Sybesma-Knol and J. van Bellingen (eds.), Naar een nieuwe interpretatie van het Recht op Zelfbeschikking, Brussel: VUB Press 1995. Koskenniemi, M., ‘National Self-Determination Today: Problems of Legal Theory and Practice’, International and Comparative Law Quarterly, Vol. 43 April 1994, pp. 241-269. Kramer, M., ‘The Perils of Counterinsurgency. Russia’s War in Chechnya’, International Security, Vol. 29, Issue 3, 2004/2005. Lau, H., ‘Rethinking the Persistent Objector Doctrine in International Human Rights Law’, Chicago Journal of International Law, Vol. 6, 2005-2006. Lauterpacht, H., Recognition in International Law, Cambridge: Cambridge University Press 1963. Lillich, R.B., ‘The Growing Importance of Customary International Human Rights Law’, Georgia Journal of International and Comparative Law’, Vol. 25, 1995. Mandowen, W., ‘West-Papua and the Right to Self-determination. A Challenge to Human Rights’, in: Th. Rathgeber (ed.), Economic, Social and Cultural Rights in West-Papua, Germany: FoedusVerlag 2005. Marks, S., ‘Nightmare and Noble Dream: The 1993 World Conference on Human Rights’, Cambridge Law Journal, Vol. 53, 1994.

•

•

• • •

• •

• •

•

•

•

• •

•

•

McCorquodale, R., ‘Self-Determination: A Human Rights Approach’, International and Comparative Law Quarterly, Vol. 43 October 1994. McGoldrick, D., The Human Rights Committee. Its Role in the Development of the International Covenant on Civil and Political Rights, Oxford: Oxford University Press 1996. Meron, T., Human Rights and Humanitarian Norms as Customary International Law, Oxford: Clarendon 1989. Müllerson, R.A., Ordering Anarchy: International Law in International Society, The Hague: Nijhoff 2000. Müllerson, R.A., ‘Precedents in the Mountains: On the Parallels and Uniqueness of the Cases of Kosovo, South Ossetia and Abkhazia’, Chinese Journal of International Law, Vol. 8, 2009. Murray, R., The African Commission on Human and Peoples Rights and International Law, Oxford: Hart Publishing 2000. Murswiek, D., ‘The Issue of a Right of Secession – Reconsidered’, in: C. Tomuschat (ed.), Modern law of self-determination, Dordrecht: Nijhoff 1993. Musgrave, T.D., Self-Determination and National Minorities, New York: Oxford University Press 1997. Nanda, V.P., ‘Self-Determination in International Law. The Tragic Tale of Two Cities – Islamabad (West Pakistan) and Dacca (East Pakistan)’, American Journal of International Law, Vol. 66, 1972. Norman, W., ‘The Ethics of Secession as the Regulation of Secessionist Politics’, in: M. Moore (ed.), National SelfDetermination and Secession, Oxford: Oxford University Press 1998. O’Brien, W.V. and Goebel, U.H., ‘United States Recognition Policy Toward the New Nations’, in W.V. O’Brien (ed.), The New Nations in International Law and Diplomacy, London: Stevens & Sons 1965. Ofuatey-Kodjoe, W., ‘Self-Determination’, in: O. Schachter & C.C. Joyner (eds.), United Nations Legal Order. Volume 1, Cambridge: Cambridge University Press 1995. Oppenheim, L.F.L., International Law: A Treatise, Vol. I, Peace, London: Longmans, Green and Co., (1st ed.), 1905. Ouguergouz, F., La Charte Africaine des Droits de l’Homme et des Peuples. Historique, portée juridique et contribution à la protection des droits de l’homme en Afrique, Paris: Presses Universitaires de France 1993. Panico, C., Conflicts in the Caucasus: Russia's war in Chechnya, Conflict Studies No. 281, London: Research Institute for the Study of Conflict and Terrorism 1995. Pavkovic, A. & Radan, P., Creating New States. Theory and Practice of Secession, Aldershot: Ashgate 2007.

179

•

•

•

•

• • •

•

• • •

• • •

•

•

•

180

Pilloud, C., et al (eds.), Commentary on the additional protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, Geneva: International Committee of the Red Cross, Dordrecht: Martinus Nijhoff Publishers 1987. Pomerance, M., Self-Determination in Law and Practice. The New Doctrine in the United Nations, The Hague: Martinus Nijhoff Publishers 1982. Pomerance, M., ‘The United States and Self-Determination: Perspectives on the Wilsonian Conception’, American Journal of International Law, Vol. 70, 1976. Pomerance, M., ‘The Badinter Commission: The Use and Misuse of the International Court of Justice’s Jurisprudence’, Michigan Journal of International Law, Vol. 20, 1998. Primoratz, I. & Pavković, A. (eds.), Identity, Self-Determination and Secession, Aldershot: Ashgate Publishing Limited 2006. Quane, H., ‘A right to Self-Determination for the Kosovo Albanians?’, Leiden Journal of International Law, Vol. 13, 2000. Quane, H., ‘The United Nations and the Evolving Right to SelfDetermination’, International and Comparative Law Quarterly, Vol. 47 July 1998. Radan, P. ‘Post-Secession International Borders: A Critical Analysis of the Opinions of the Badinter Arbitration Commission’, Melbourne University Law Review, Vol. 24, 2000. Radan, P., The Break-up of Yugoslavia and International Law, London: Routledge 2000. Raič, D., Statehood and the Law of Self-Determination, The Hague: Kluwer Law International 2002. Roberts, A.E., ‘Traditional and Modern Approaches to Customary International Law: a Reconciliation’, American Journal of International Law, Vol. 95, 2001. Rosas, A., ‘Internal Self-Determination’, in: C. Tomuschat (ed.), Modern law of self-determination, Dordrecht: Nijhoff 1993. Russell, R.B., A History of the United Nations Charter, Washington: Brookings Institution 1958. Salmon, J., ‘Internal Aspects of the Right to Self-Determination: Towards a Democratic Legitimacy Principle?’, in: C. Tomuschat (ed.), Modern law of self-determination, Dordrecht: Nijhoff 1993. Salo, J., ‘Self-Determination: An Overview of History and Present State with Emphasis on the CSCE Process’, Finnish Yearbook of International Law, Vol, 2, 1991. Schachter, O., ‘Entangled Treaty and Custom’, in: Y. Dinstein et al (eds.), International Law at a Time of Perplexity. Essays in Honour of Shabtai Rosenne, Dordrecht: Nijhoff 1989. Shaw, M.N., International Law, Cambridge: Cambridge University Press 2003.

•

•

•

•

• • •

•

•

• •

•

•

•

•

Simma, B., & Alston, P., ‘ The Sources of Human Rights Law: Custom, Jus Cogens and General Principles’, Australian Yearbook of International Law, Vol. 12, 1988-1989. Simpson, G.J., ‘The Diffusion of Sovereignty: Self-Determination in the Post-Colonial Age’, Stanford Journal of International Law, Vol. 32 1996, pp. 255-286. Simpson, G.J., The Right of Secession in International Law: A New Theory of Legitimacy, Unpublished PhD Thesis University of British Columbia 1989, available at the National Library of Canada (Canadian Theses Service). Smis, S., A Western Approach to the International Law of SelfDetermination: Theory and Practice, Unpublished PhD Thesis, Brussels: Vrije Universiteit Brussel 2001. Soanes, C. & Stevenson, A., Concise Oxford English Dictionary, 11th edition (revised), Oxford: Oxford University Press 2006. Stoel, M. van der, ‘The Heart of the Matter. The Human Dimension of the OSCE’, Helsinki Monitor, Vol. 7, 1996. Summers, J., Peoples and International Law. How Nationalism and Self-Determination Shape a Contemporary Law of Nations, Leiden: Martinus Nijhoff Publishers 2007. Summers, J., ‘The Status of Self-determination in International Law: A Question of Legal Significance or Political Importance?’, Finnish Yearbook of International Law, Vol. 14, 2003. Sybesma-Knol, N. & Van Bellingen, J. (eds.), Naar een nieuwe interpretatie van het Recht op Zelfbeschikking?, Brussel: VUBPRESS 1995. Temperley, H.W.V., A History of the Peace Conference of Paris, Vol. I and IV, London: Oxford University Press 1920 and 1921. Timmermann, W., ‘Self-Determination Beyond the Decolonization Context: The Case for a Right of Suppressed Peoples to Secession’, in: Prof. K. Koufa (ed.), Multiculturalism and International Law, Thessaloniki: Sakkoulas Publications 2007. Thornberry, P., ‘Self-Determination, Minorities, Human Rights: A Review of International Instruments’, International and Comparative Law Quarterly, Vol. 38, October 1989. Thornberry, P., ‘The Democratic or Internal Aspect of SelfDetermination With Some Remarks on Federalism’, in: C. Tomuschat (ed.), Modern Law of Self-Determination, Dordrecht: Martinus Nijhoff Publishers 1993. Tomuschat, C., ‘Democratic Pluralism: The Right to Political Opposition’, in: A. Rosas and J. Helgesen (eds.), The Strength of Diversity: Human Rights and Pluralist Democracy, Dordrecht: Nijhoff 1992. Tomuschat, C., ‘Secession and Self-Determination’, in: M.G. Kohen (ed.), Secession. International Law Perspectives, Cambridge: Cambridge University Press 2006.

181

•

•

• •

• • •

• •

•

• •

Tomuschat, C., ‘Self-Determination in a Post-Colonial World’, in: C. Tomuschat (ed.), Modern Law of Self-Determination, Dordrecht: Nijhoff 1993. Tomuschat, C., ‘Yugoslavia’s Damaged Sovereignty over the Province of Kosovo’, in: G. Kreijen et al (eds.), State, Sovereignty and International Governance, Oxford: Oxford University Press 2002. Tunkin, G.I., Theory of International Law, Cambridge MA: Harvard University Press 1974. Walt van Praag, M.C. van, ‘The Position of UNPO in the International Legal Order’, in: C. Brölmann et al (eds.), Peoples and Minorities in International Law, Dordrecht: Martinus Nijhoff Publishers 1993. Warbrick, C., ‘Kosovo: The Declaration of Independence’, International and Comparative Law Quarterly, Vol. 57, July 2008. Warbrick, C., ‘Recognition of States’, International and Comparative Law Quarterly, Vol. 41, 1992. Weller, M., ‘The International Response to the Dissolution of the Socialist Federal Republic of Yugoslavia’, American Journal of International Law, Vol. 86, 1992. Werner, W.G., ‘Self-Determination and Civil War’, Journal of Conflict and Security Law, Vol. 6 No. 2, 2001. Wheathley, S., ‘Democracy in International Law: A European Perspective’, International and Comparative Law Quarterly, Vol. 51, 2002. Wouters, J., Meester, B. de & Ryngaert, C., ‘Democracy and International Law’, Netherlands Yearbook of International Law, Vol. 34, 2003. Zimmermann, W., Origins of a Catastrophe, New York: Times Books, rev. ed. 1999. Zollner, A.C., ‘International Representation of Peoples and Minorities’, in: C. Brölmann et al (eds.), Peoples and Minorities in International Law, Dordrecht: Martinus Nijhoff Publishers 1993.

Websites http://www.achpr.org http://www.aei.org http://www.assembly-kosova.org http://avalon.law.yale.edu http://www.cancilleria.gob.ni http://www.ceps.be http://www.echr.coe.int http://www.ena.lu http://www.eulex-kosovo.eu

182

http://www.freedomhouse.org http://www.ft.com http://geneva.usmission.gov http://www.globalsecurity.org http://www.iciss.ca http://www.icj-cij.org http://www.icrc.org http://www.ila-hq.org http://www.kosovothanksyou.com http://www.keshilliministrave.al http://www.kremlin.ru http://www.nato.int http://news.bbc.co.uk http://www.nytimes.com http://www.ohchr.org https://openaccess.leidenuniv.nl http://www.osce.org http://www.state.gov http://www.un.org http://www.unpo.org http://treaties.un.org http://www.whitehouse.gov

Miscellaneous Agreement Between the Republic of Indonesia and the Kingdom of the Netherlands Concerning West New Guinea (West Irian), Signed at the Headquarters of the United Nations, New York, on 15 August 1962 (The New York Agreement). Aron, L., ‘Chechnya. New Dimensions of the Old Crisis’, American Enterprise Institute for Public Policy Research, February 1, 2003. An Agenda for Peace. Preventive diplomacy, peacemaking and peacekeeping. Report of the Secretary-General pursuant to the statement adopted by the Summit Meeting of the Security Council on 31 January 1992, 17 June 1992. Blandy, C., ‘Chechen Status – Wide Differences Remain’, Conflict Studies Research Centre, 27 January 1998. Blue Book ‘Permanent Missions to the United Nations No. 298’, March 2008 (updated 14 October 2008).

183

Boutros-Ghali, B., ‘An Agenda for Democratization’, Supplement to the Reports A/50/332 and A/51/512 on Democratization, 17 December 1996. Chivers, C.J., ‘Slain Exile Detailed Cruelty of the Ruler of Chechnya’, The New York Times, January 31, 2009. Declaration on ‘Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union’ (16 December 1991), European Journal of International Law, Vol. 4, 1993. Declaration on Yugoslavia, Extraordinary EPC Ministerial Meeting, Brussels, 16 December 1991, European Journal of International Law, Vol. 4, 1993. Expert opinion prepared in 1992 by T.M. Franck, R. Higgins, A. Pellet, M.N. Shaw and C. Tomuschat, ‘The Territorial Integrity of Québec in the Event of the Attainment of Sovereignty, in: A. Bayefski (ed.), Self-determination in International Law: Quebec and Lessons Learned, The Hague: Kluwer Law International 2000. Final Report of NATO, ‘The Kosovo Crisis in an International Law Perspective: Self-Determination, Territorial Integrity and the NATO Intervention’, prepared by Dajena Kumbaro, 16 June 2001. Lansing, R., ‘Self-Determination’, Saturday Evening Post, 9 April 1921. Nanda, V.P., ‘What Does Self-Determination Mean in the Post Cold War Era?’, Work paper published by the World Jurist Association for the Eighteenth Biennial Conference on the Law of the World in Doha, Qatar, September 21-26, 1997. OSCE Handbook. The Organization for Security and Co-operation in Europe, Vienna 2007. Popescu, N., ‘Europe’s Unrecognized Neighbours. The EU in Abkhazia and South Ossetia’, Centre for European Policy Studies, Working Document No. 260/March 2007. Report by Thomas M. Franck: “Opinion Directed at Question 2 of the Reference”, in: A. Bayefski, Self-determination in International Law: Quebec and Lessons Learned, The Hague: Kluwer Law International 2000. Report of the International Commission on Intervention and State Sovereignty, ‘The Responsibility to Protect’, December 2001.

184

Report of the Robert F. Kennedy Memorial; The Papua Report, March 2004. Report of the Special Committee on the Situation with regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples for 2008. Statement of Principles Applicable to the Formation of General Customary International Law by the Committee on Formation of Customary (General) International Law of the International Law Association, London Conference 2000. Statement of the Representative of the United Kingdom to the Third Committee of the General Assembly, 12 October 1984, British Yearbook of International Law, Vol. 55, 1984. Walt van Praag, M. C. van & Seroo, O. (eds.), ‘The Implementation of the Right to Self-Determination as a Contribution to Conflict Prevention. Report of the International Conference of Experts held in Barcelona from 21 to 27 November 1998, organized by the UNESCO Division of Human Rights Democracy and Peace and the UNESCO Centre of Catalonia’, Centre UNESCO de Catalunya, 1999. Worst of the Worst. The World’s Most Repressive Societies 2009, Freedom House.

185