Kitabı oku: «Russia's Recognition of the Independence of Abkhazia and South Ossetia»

ibidem-Press, Stuttgart

List of Acronyms

AKP Justice and Development Party (Turkey)

AR Autonomous Republic

ASSR Autonomous Soviet Socialist Republic

BTC Baku-Tbilisi-Ceyhan oil pipeline

CENTO The Central Treaty Organisation

CFE Treaty on Conventional Armed Forces in Europe

CIS Commonwealth of Independent States

CoE Council of Europe

CPSU Communist Party of the Soviet Union

CSCE Conference on Security and Cooperation in Europe

CST Collective Security Treaty

DRG Democratic Republic of Georgia

EAPC Euro-Atlantic Partnership Council

EC European Communities

ECHR European Court of Human Rights

EU European Union

FLN National Liberation Front of Algeria

FRG Federal Republic of Germany

GA General Assembly

GDP Gross Domestic Product

GDR German Democratic Republic

GPRA Provisional Government of Algerian Republic

GSSR Georgian Soviet Socialist Republic

GU(U)AM Georgia, Ukraine, (Uzbekistan), Azerbaijan, Moldova

ICJ International Court of Justice

IIFFMCG The Independent International Fact-Finding Mission on the Conflict in Georgia

JCC Joint Control Commission

KGB Committee of State Security of the Soviet Union

KLA Kosovo Liberation Army

MAP Membership Action Plan

MFA Ministry of Foreign Affairs

NATO Northern Atlantic Treaty Organisation

NKR Nagorno Karabakh Republic

OAU Organisation for African Unity

OSCE Organisation for Security and Cooperation in Europe

PACE Parliamentary Assembly of the Council of Europe

PD Prisoner’s Dilemma

PISG Provisional Institution of Self-Government in Kosovo

PPP Pakistan People’s Party

PRC People’s Republic of China

RF Russian Federation

RSFSR Russian Soviet Federal Socialist Republic

RSK Republic of Srpska Krajina

SC Supreme Council

SEATO South East Asian Treaty Organisation

SFRY Socialist Federal Republic of Yugoslavia

SSR Soviet Socialist Republic

TMR Transnistrian Moldovan Republic

TRNC Turkish Republic of Northern Cyprus

UK United Kingdom of Great Britain and Northern Ireland

UN United Nations

UNFICYP UN Peacekeeping Force in Cyprus

UNMIK United Nations Interim Administration Mission in Kosovo

UNOMIG United Nations Observer Mission to Georgia

UNSC United Nations Security Council

UNSG United Nations Secretary-General

UNSIMIC United Nations Settlement Implementation Mission in Cyprus

UNTAET United Nations Transitional Administration in East Timor

USA United States of America

USD United States Dollar

USSR Union of Soviet Socialist Republics

WW World War

Contents

List of Acronyms

Foreword

1. Introduction

2. Self-Determination, Secession and Recognition in International Law

2.1. Introduction

2.2. The Principle of Self-Determination in International Law

2.2.1. Sources of International Law

2.2.2. Historical Background

2.2.3. Self-determination in International Law

2.2.4. Court Decisions

2.2.5. Historical Title vs. Self-Determination

2.2.6. International Practice

2.2.7. Conclusion

2.3. Secession in International Law

2.3.1. What is Secession?

2.3.2. Secession in International Law

2.3.3. Remedial Secession

2.3.4. Secession in Violation of International Law

2.3.5. Court Opinions

2.3.6. International Practice

2.3.7. Conclusion

2.4. Recognition in International Law

2.4.1. What is Recognition?

2.4.2. Evolution of Recognition

2.4.3. Theories of Recognition

2.4.4. Criteria of Statehood

2.4.5. Criteria for Recognition

2.4.6. Modalities and Forms of Recognition and Non-Recognition

2.5. Conclusion

3. The Soviet and Russian Practice of Recognition of New States after 1945

3.1. Introduction

3.2. Recognition of States Emerging out of Colonial Rule

3.3. Recognition of States Outside of the Colonial Context

3.3.1. Group 1—Recognition of Israel and Bangladesh

3.3.2. Group 2—Recognition of Eritrea, East Timor, South Sudan

3.3.3. Group 3—Non-Recognition of Northern Cyprus, Karabakh, Transnistria, Kosovo

3.4. Conclusion

4. Russian Recognition of Abkhazia and South Ossetia

4.1. Introduction

4.2. History of Conflicts and Peace Processes in Abkhazia and South Ossetia

4.2.1. The Status of Abkhazia and South Ossetia Within Georgia in the Soviet Era

4.2.2. The Outbreak of Conflicts and Subsequent Peace Process

4.3. Georgian-Russian Relations in 1991-2008

4.4. Georgia-Russia War

4.5. Reasons for Russia’s Recognition of Abkhazia and South Ossetia

4.6. Theoretical Framework

4.7. Conclusion

5. Conclusion

Bibliography

Foreword

Russia’s diplomatic recognition of Georgia’s secessionist territories of Abkhazia and South Ossetia at the end of August 2008 was a momentous event. It breached Russia’s (and the USSR’s) longstanding embrace of the international legal principles of sovereignty and territorial integrity, which was reaffirmed in the founding documents of the Commonwealth of Independent States. It also jeopardised Europe’s post-World War II territorial settlement based on those principles. In these respects, it appeared to present a fundamental challenge to the European and international legal and political order.

It was also a curious event. In justifying their actions in legal terms, Russian spokespersons cited the right of defence against aggression, the right to national self-determination, and the responsibility to protect, the right to protect Russian citizens outside the country, and to protect Russian peacekeepers stationed in South Ossetia. This scattershot (spaghetti on the wall) approach suggested a certain amount of confusion and “grasping at straws” in the Russian legal approach.

Ambiguity prevailed also in Russian political reasoning for the decision. Was it a response to the April 2008 NATO Bucharest Declaration and the prospect of eventual Georgian membership in the alliance, given Russia’s claim to a zone of “privileged interest” in the former Soviet space? Was it payback for NATO intervention in Kosovo and the subsequent recognition of that territory by many Western states? Was it an opportunity to demonstrate Russia’s return to great power status? Was it a manifestation of Putin’s antipathy towards colour revolutions and concern over possible demonstration effects in Russia itself? Or was it a manifestation of personal animus, given that Putin and Saakashvili despised each other?

When viewed comparatively, one notes that recognition has not been repeated in other similar situations in, for example, Transnistria, Nagorno-Karabakh, and eastern Ukraine. Why just Georgia?

Russian experts themselves had no clear understanding of the reasons for recognition, as I discovered in long conversations in Moscow in 2009.

This book constitutes an able and well-informed effort to sort out the confusion. It begins with a careful unpicking of relevant international law on self-determination, secession, and recognition. It continues through a close examination of the historical and political background to the conflicts in Abkhazia. Finally, it turns to Russia, discussing Soviet/Russian historical behaviour on recognition, establishing the deviant quality of the recognition decisions regarding Georgia’s breakaway territories. The analysis then turns to the evolution of Georgian-Russian relations, and the war and recognition. This leads to an illuminating discussion of Russian reasons for recognition.

In short, Dr. Samkharadze’s book is a worthy addition to the literature on these events and their broader implications. It is well worth reading in the academic and policy analysis communities.

Prof. Neil MacFarlane

1. Introduction

The principle of territorial integrity of a state is an established, fundamental, sacrosanct principle of international law and a baseline for international relations. This principle however, was neglected twice in the short, six-month period running from February to August 2008 by four out of five permanent members of the United Nations Security Council. On the one hand, the USA, the UK and France recognised Kosovo’s secession from Serbia and on the other hand, Russia recognised Abkhazia and South Ossetia’s secession from Georgia. The recognition of new entities without the consent of the parent state and the subsequent erosion of the territorial integrity principle has turned into one of the most pressing topics of international relations. It is an important bone of contention in current Russia-West discourse too. The recognition of tiny entities in the South Caucasus resonated as far as Latin America and Oceania, thus outgrowing the Georgia-Russian context and becoming a global issue.

The Russian Federation has been the most important stakeholder in all negotiations on protracted and frozen conflicts on the former Soviet territory, as the latter represents a zone of “privileged interests” for Russia. Hence, it is logical that Russia assumed the role of mediator in these conflicts in the early 1990s and was the only country to provide peacekeeping forces in Georgia, emphasising the significance this region bears for Russian national interests. Despite Russian covert and overt financial or political support to Georgia’s breakaway entities and despite those entities’ appeals to have their statehood recognised by the mighty northern neighbour, for almost two decades the Russian Federation adhered to the principle of territorial integrity and ruled out recognition of the independence of Georgia’s rebel provinces. The principle of inviolability of Soviet administrative borders was enshrined in the Charter establishing the Commonwealth of Independent States, which was created in order to keep the former Soviet states together after the fall of the Soviet Union. The charter explicitly stated that “member states of the CIS will build their relations on the basis of the inviolability of state borders, the recognition of existing borders and the rejection of unlawful territorial annexations; the territorial integrity of states and the rejection of any actions directed towards breaking up alien territory”.1

Up until August 2008 Russia always supported UN Security Council resolutions reaffirming the territorial integrity of Georgia2. A sudden, unprecedented and, for many, an unexpected discontinuation of this policy occurred in the aftermath of the 2008 Georgia-Russia war. On August 26, 2008, the Russian Federation officially recognised Abkhazia and South Ossetia as independent states3 calling on the rest of the world to follow suit and adapt to the new realities in the Caucasus. The fact that Moscow did not recognise other breakaway entities on the former Soviet territory—Transnistria and Karabakh—and most importantly Kosovo, which had been recognised by several dozen nations by that time makes the Georgian case even more peculiar. Being a permanent member of the UN Security Council and Contact Group on Kosovo, Russia has unequivocally supported the territorial integrity of Serbia and opposed granting independence to Kosovo.

The Russian Federation’s recognition of Abkhazian and South Ossetian independence had a tremendous impact on peace and stability in the region and the future aspirations of Georgia and the whole South Caucasus region. This decision completely changed the system of state relations in the former Soviet space. Since August 26, 2008 none of the states emerging from the ex-USSR could be sure of the inviolability of their territorial integrity. This assumption was shortly confirmed after the Russian annexation of Crimea in 2014. Recognition of Abkhazia and South Ossetia was condemned by the EU and the United States, and strained Russia’s relations with the West. This act had an overall adverse impact on Russia’s international image and relations and risked a new cold war4. Negotiations on the framework Russia-EU agreement were halted. The NATO-Russia Council was suspended. The United States Senate termed the presence of Russian troops in Abkhazia and South Ossetia an occupation of sovereign Georgian territory.5 This statement was echoed by the NATO Parliamentary Assembly6 and European Parliament Resolution.7 Although more than a decade has passed, the topic is still high on the agenda of not only the Georgian government but at Russia-EU, Russia-NATO and Russia-US summits.

Recognition of the independence of the two Georgian provinces eroded the territorial integrity principle and brought systemic change to the post-1945 order. It is undoubtedly a significant act both in international law and international relations. Furthermore, it is the most negative blow that any outside state has inflicted on Georgia in the course of the last 90 years. This act of recognition also raised numerous questions, which have paramount importance not only for the relations between Russia and Georgia, but for the state-of-play in the whole former Soviet space: Why did Russia apply a different policy of recognition to the Georgian breakaway territories from its mainstream policy? Is Russia’s recognition act the Kremlin’s “homemade response” to the Kosovo recognition? Did eventual NATO membership signalled to Georgia influence the Russian decision? How compliant was the Russian decision with the norms of international law? What does it imply regionally for the former Soviet republics?

This book, however focuses on two main questions:

 Is Russian recognition of Georgia’s breakaway entities a deviation from its traditional recognition policy and compliant with international law?

 Why did Russia extend recognition to Georgia’s breakaway entities whereas it continues to conduct a non-recognition policy towards other secessionist entities?

In order to provide a comprehensive analysis of the topic I have divided my research into three major chapters. In chapter two, I explore the history of the development of norms of self-determination, secession and recognition in international law and their relevance and significance to international relations. Further, I review the existing sources of international law and provide examples of applications of these norms from international practice.

In chapter three, I look at the evolution of Soviet and Russian perspectives and policies on recognition of new states in the post WW-II period. I chose this period, because the contemporary world order was set with the establishment of the United Nations after 1945. For the purpose of analysis I have divided the cases into three sub-groups: states that were not recognised by the parent-state before their recognition by the USSR/RF; states that were recognised by Moscow after recognition by the parent state; and de-facto secessionist entities that have declared independence but were not recognised by the USSR/RF. I focus on the application of a particular norm by USSR/RF across similar cases to find out how consistent the Kremlin was in its recognition policy and to answer whether recognition of Abkhazia and South Ossetia represents an exception in general Soviet/Russian policy of non-recognition of secessionist entities. This part prepared an empirical basis to positively answer the first research question whether the recognition of Georgia’s breakaway entities is a deviation from the traditional mainstream policy of recognition by Russia.

In chapter four, I concentrate on the Abkhazia and South Ossetian cases. Here too, I offer a comprehensive picture of factors influencing the course of the conflicts. The chapter begins with a historical description of the conflicts in South Ossetia and Abkhazia, their evolution and ensuing conflict resolution formats. Then, I turn to an analysis of general Georgian-Russian relations after the fall of the Soviet Union up to the August war of 2008. The third part of the chapter is dedicated to the August War, its results and theoretical framework. I apply a standard example of Game Theory, the Prisoner’s Dilemma, which deals with strategic rationality to evaluate the Russian decision to extend recognition to Abkhazia and South Ossetia.

In the concluding part of the chapter, I trace the process of recognition and conclude that recognition of Abkhazia and South Ossetia was caused by a combination of three factors. These factors were:

1 recognition of Kosovo by the West in disregard of the Russian position

2 prevention of Georgia’s membership to NATO and

3 the necessity of the legalization of Russian troops in Abkhazia and South Ossetia after the war.

In my book I use extensively the term recognition. For the purposes of this research the recognition of a state under international law is a declaration of intent by one state to acknowledge another entity as a state within the meaning of international law. Recognition constitutes a unilateral declaration of intent. It is entirely at the discretion of any state to decide to recognize another as a subject of international law.

In this book I also use the term South Ossetia to denominate the territory in the administrative boundaries of the former South Ossetian Autonomous District within Georgia, although such an entity does not exist according to the Georgian constitution and the territory is referred to as Tskhinvali Region.

1 Устав Содружества Независимых Государств, 22.01.1993, available at: http://cis.minsk.by/reestr/ru/index.html#reestr/view/text?doc=187

2 S/Res. 876 (1993); S/Res. 896, (1994); S/Res.993 (1995); S/Res. 1065, (1996); S/Res. 1124 (1997); S/Res.1150 (1998); S/Res. 1287 (2000); S/Res 1494 (2003); S/Res. 1554 (2004); S/Res.1615 (2005); S/Res.1716 (2006); S/Res.1781 (2007); S/Res. 1808 (2008)

3 Указ Президента Российской Федерации от 26 августа 2008 г. N 1260 http://www.rg.ru/2008/08/29/abhaziya-dok.html Указ Президента Российской Федерации от 26 августа 2008 г. N 1261 http://www.rg.ru/2008/08/29/osetiya-dok.html

4 On August 26, 2008 President Medvedev said in relation to recognition of Abkhazia and South Ossetia that “Russia is not afraid of anything including the prospect of a new cold war”. UK Foreign Secretary Milliband declared on August 27, 2008 that “Russian President has a great responsibility not to start a new cold war”.

5 US Senate Resolution 175, 112th Congress, May 10, 2011, available at: https://www.congress.gov/bill/112th-congress/senate-resolution/175

6 NATO PA Resolution 382, 16 November, 2010, available at: http://www.nato-pa.int/default.asp?SHORTCUT=2245

7 European Parliament resolution of 17 November 2011 containing the European Parliament’s recommendations to the Council, the Commission and the EEAS on the negotiations of the EU-Georgia Association Agreement (2011/2133(INI)), available at: http://www.europarl.europa.eu/sides/getDoc.do?type=TA&language=EN&reference=P7-TA-2011-0514

2. Self-Determination, Secession and Recognition in International Law
2.1. Introduction

My aim is to analyse the recognition policy of the Russian Federation and apply it to the secessionist entities of Abkhazia and South Ossetia. The conduct of analysis however, would be impossible without exploring what international law says about recognition. As recognition of a state is connected with the emergence of a new state and secession is one of the modes of state creation, it is essential to know if and how international law regulates secession. Secession, in its turn, is always justified by appealing to the right of self-determination of peoples. As a result, we have a triangle of these notions which are closely linked to each other.

The objects of our interest—the Russian Federation, Abkhazia and South Ossetia have all referred to international law in their act of recognition and proclamations of independence respectively. Abkhazia and South Ossetia appealed to the right to self-determination to justify their claim for independence without the consent of the Georgian authorities—i.e. secession. The Russian Federation too appealed to the principles of international law when it extended recognition to Georgia’s autonomous provinces.1 Therefore, it is indispensable to research how these three norms are positioned in international law and to explore the history of their development into their current state. As the objective of international law is to regulate relations between states and international law should be enforced by states, this chapter looks also at the state practice of reacting to self-determination, secession and recognition claims. Furthermore, the linkage between self-determination, secession and recognition in international law is assessed.

The chapter is divided into three subchapters each having a similar structure. The subchapters describe the historic evolution of self-determination, secession and recognition, their place in treaty and customary law, respective court judgments, as well as relevant cases from international practice.

The chapter is constructed according to the logic and sequence of state creation and thus at first self-determination is reviewed, then secession and finally recognition.

2.2. The Principle of Self-Determination in International Law
2.2.1. Sources of International Law

International law is an important element of the topic of this research therefore I will briefly dwell on the major characteristics of international law. US Foreign Relations Law very well describes what international law is about. International law consists of rules and principles of general application dealing with the conduct of states and of international organizations and with their relations inter se, as well as with some of their relations with persons, whether natural or juridical.2 States have evolved two principal methods for creating legally binding rules: treaties and custom.3 Treaties are legal acts binding on the contracting parties. Custom is “evidence of general practice accepted as law”4 (opinio juris) and this practice is required by social, economic or political exigencies (opinio necessitatis).5 The main feature of a custom is that it is not a deliberate law-making process, but rather the intent of states to bring about legal standards of behaviour.6 Customary international law results from the general and consistent practice of states and it is followed by them from a sense of legal obligation. International agreements create law for the states parties thereto and may lead to the creation of customary international law when such agreements are intended for adherence by states generally and are in fact widely accepted. General principles, common to the major legal systems, even if not incorporated or reflected in customary law or international agreement, may be invoked as supplementary rules of international law where appropriate.7

International law in contrast to municipal law did not have a hierarchy of sources of law and of legal rules produced from these sources. Understandably, states did not want to limit their sovereignty in concluding international treaties and there was no supranational body which would decide on the legality of a treaty or custom. This changed in the 1960s with the introduction of peremptory norms. States decided that certain norms governing relations between states should be given higher rank than ordinary rules deriving from treaties and custom.8 Although the hierarchy between the law-making processes was not established, a cluster of general rules have been upgraded to special status. Peremptory norms were defined in the Vienna Convention on the Law of Treaties of 1969, which was drafted to codify and further develop international law:

“A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character”.9

The existence of peremptory norms depends ultimately on the consent of on the one hand influential and on the other hand an absolute majority of states. “It is difficult for a state, whether or not it is a Great Power to oppose the formation of a peremptory norm: numerous political, diplomatic, or psychological factors dissuade states from assuming a hostile attitude towards emerging values which most other states consider fundamental”.10 There are however limitations to its provisions. The states that are not part of the Vienna Convention (currently 113 states are members) may not request the annulment of a treaty that violates peremptory norms. To invoke the norm a state should have acceded to the Convention and be a part of the multilateral treaty that it wishes to contest. These limitations are somewhat mitigated by the development of customary rules on peremptory norms, which also hinder states from concluding derogatory treaties. So, the main objective of the creation of peremptory norms was the idea that states may not derogate from a certain cluster of legal principles and to ensure that the treaties and customary law which are contrary to them are null and void.11

2.2.2. Historical Background

The origin of the principle of self-determination can be traced back to the second half of the 18th century. The United States declaration of independence in 1776 and the French Revolution of 1789 challenged the notion that the fate of the people and the territories that these people populated could be decided solely by the will of the monarch. The establishment of republics in these two states meant that governments should derive their legitimacy from the people and thus should be responsible to the people. This echoed John Locke’s then century-old assertion that political sovereignty lies in the people.12 The initial meaning of self-determination was that of enjoying a popular sovereignty and representative government and it was anchored this way in western European/American understanding. The first use of this principle in order to acquire lands based on the will of the people could be attributed to the French, who annexed Alsace, Avignon, Belgium and the Palatinate in the early years of the revolution after plebiscites were held and the regions and people voted for unification with France.13

The development of nationalism in the 19th century resulted in further development of the principle of self-determination, albeit in a different form. It brought the national awakening of smaller nations which were parts of multi-ethnic empires such as those of the German, Austro-Hungarian, Russian and Ottoman Empires. As these empires conducted assimilating and nationalist policies, the people distinct from the titular nation started to demand greater self-rule or even independence. Thus, the principle of self-determination acquired an “ethnic” character. Since, geographically, all these multi-ethnic empires were located in Central and Eastern Europe, self-determination in this part of Europe gained a somewhat different meaning than in the Western part of the continent. In this context, self-determination became a driving force for autonomy for ethnically different regions or ultimately their independence.

So, by the outbreak of the World War I, western Europeans saw self-determination as a notion for people to freely choose their representative government, whereas in central and eastern Europe self-determination was seen as a tool for achieving ethnic or national self-government. It was at this point in history when self-determination was pushed onto the international agenda largely thanks to two influential figures—Lenin and Wilson.

Socialist movements in Europe were the first ardent supporters of the principle of self-determination. As early as 1896 the Fourth Congress of the Socialist International in London—which included representatives of social-democratic and labour parties from all over Europe -adopted the following resolution. It read:

“This Congress declares that it stands for the full right of all nations to self-determination and expresses its sympathy for the workers of every country now suffering under the yoke of military, national or other absolutism. This Congress calls upon the workers of all these countries to join the ranks of the class-conscious workers of the whole world in order jointly to fight for the defeat of international capitalism and for the achievement of the aims of international Social-Democracy.”14

Russian Social-Democrats saw self-determination of nations as a temporary measure in the run-up to a global proletarian revolution. Its importance is highlighted in the works of Lenin and Stalin in the 1910s. Lenin argued that the goal of socialism is not only the destruction of the division of mankind into small states and national distinctions, not only the rapprochement of nations, but their merger.15 “ Mankind can achieve the annihilation of classes only after a transitional period of dictatorship of the oppressed class. Similarly, the inevitable unification of all nations could only happen only after a transitional period of complete liberation of all oppressed nations, i.e. freedom of secession”.16 Therefore, the proletariat of the oppressing state should fight for the liberation of colonies and the oppressed nations and for the right of self-determination. Otherwise, the international character of the proletariat would remain an empty word. Lenin gave an explicit definition of what he meant under self-determination by saying that it is the exclusive right of political independence from the oppressing state.17 Stalin, proposed several modes under which nations could develop—a nation has the right to autonomy, to establish federal arrangements with other nations and to secede completely. Stalin also argued that only the nations themselves have the right to determine their own fate and no one else has the right to interfere forcefully in the life of a nation, destroy its schools and other facilities, break its morals and traditions, oppress the language and cut its rights.18 Stalin echoed Lenin in outlining why self-determination of nations is essential for socialism. “By fighting for self-determination of nations, social-democracy aims at terminating the policy of oppression of nations, making oppression impossible and thus undermine the rise of a nation, numb it, minimize it. This is how the policy of the proletariat differs from the policy of bourgeoisie which tries to continue and encourage the national movement”.19 Stalin later argued that when the right moment came the Communist party policy tied self-determination of nations to the fate of the socialist revolution.20 The Bolsheviks started to carry out this policy after the revolution, when several constituent parts of the Russian Empire such as Poland, Finland, the Baltic and Caucasus states were allowed independence, although this could not be attributed to the self-determination policy only, but also to the relative weakness of the revolutionary state. Later, most of them were brought back into the communist empire in the form of autonomies.

The principle of self-determination received instrumental support also from the other side of the Atlantic Ocean. US President Wilson unlike the Bolsheviks pursued completely different goals. Wilson’s self-determination was rooted in the western European understanding of the principle. Wilson declared that the United States entered the war “to fight for liberty, the self-government and the undictated development of all peoples”.21 After the US entry into the war, the President started to plan for the post-war settlement and self-determination played an important role in his peace plan. In his address to the US Congress in January 1918, which came to be known as the famous fourteen points, Wilson inter alia stated:

“A free, open-minded, and absolutely impartial adjustment of all colonial claims, based upon a strict observance of the principle that in determining all such questions of sovereignty the interests of the populations concerned must have equal weight with the equitable claims of the government whose title is to be determined”.22

Thus, the interests of the population were put on an equal footing with the interests of the government. Furthermore, nations, part of the Austro-Hungarian and Ottoman Empires were promised the right of autonomous development and Poland independent statehood. The fourteen points were followed by another Wilson address to the Congress a month later, in which he pointed at the indispensability of self-determination. “Peoples may now be dominated and governed only by their own consent. Self-determination is not a mere phrase. It is an imperative principle of actions which statesmen will henceforth ignore at their peril”.23 This address also included four main principles on which peace should be established, out of which three dealt with territorial self-determination. He upheld the notion of popular sovereignty by saying that “peoples and provinces are not to be bartered about from sovereignty to sovereignty as if they were mere chattels and pawns in a game”24 and that “every territorial settlement involved in this war must be made in the interest and for the benefit of the populations concerned, and not as a part of any mere adjustment or compromise of claims amongst rival states”.25 The fourth principle read that “well-defined national aspirations shall be accorded the utmost satisfaction”.26 Clearly, in the course of war, Wilson’s understanding of self-determination changed and embraced also a nationality notion of the principle. By the time of the Peace Conference, Wilson had accepted that all nationalities were entitled to self-determination.27 It must be noted that when championing the self-determination clause Wilson looked at the situation a bit naively, not even aware of the number of nationalities that would long for legitimization of the principle.28 He also failed to consider that nations could be divided by territory.

Wilson’s wish to include a self-determination clause into the Covenant of the League of Nations never materialized. It found strong opposition not only from other Great Powers but from his own compatriots. His Secretary of State Lansing feared that it would be the basis for impossible demands and create troubles in many lands.29 Thus, the article on self-determination was redrafted many times and then all references to self-determination were deleted altogether, leaving the way for respect of territorial integrity of the League of Nations’ members.30

Contrary to Wilson’s vision, the principle of self-determination did not feature in peace treaties concluded after WW I either. Here, the victorious powers redistributed territories without paying attention to the will of the people concerned. With a few exceptions (e.g. Silesia), no plebiscites or referenda were held to determine the popular wish for rearrangement of territories.31 They did not even insist that the new states which emerged out of the defeated empires upheld the principle of representative government. The only field related to self-determination which was included in international treaties was that of minority protection.32 A detailed analysis of the state of affairs is provided in the Aaland Islands case, where two expert commissions addressed the question of self-determination and possible secession of Aalanders from Finland in 1920-21. The first Commission of Rapporteurs stressed that:

“Although the principle of self-determination of peoples plays an important part in modern political thought, especially since the Great War, it must be pointed out that there is no mention of it in the Covenant of the League of Nations. The recognition of this principle in a certain number of international treaties cannot be considered as sufficient to put it upon the same footing as a positive rule of the Law of Nations”.33

This emphasis demonstrated that self-determination failed to be a legal principle and remained for the time being only a political one.

Even though much hope was vested in self-determination and it was met with great fanfare when declared by Wilson, it never made it to the text of the international legal body created after WW I. A weak Bolshevik government struggling for its own recognition also could not contribute to the development of self-determination into a legal principle. As for application, self-determination was used to dismember the defeated states at the peace conference, but the victorious powers, wary of its possible dangers for territorial integrity did not have any interest in anchoring this right in the Covenant.

2.2.3. Self-determination in International Law

The second attempt at elevating self-determination to an international legal norm proved to be successful. Again, it was at the negotiations on the post-war settlement, this time WW II and the process of elaboration of the United Nations Charter, during which this norm was put on the agenda again. Politically strengthened, the Soviet Union this time insisted on the proclamation of the right to self-determination at the United Nations Conference on International Organisation held in San Francisco in 1945.34 The Soviets proposed to add the principle of self-determination of people as the basis for friendly relations among nations in Article 1 of the UN Charter.35 This proposal was initially supported by several non-western states and later also by the western states. However, there was fierce opposition to the Soviet proposal to include self-determination as a tool for “speedy achievement of full state independence” fearing that it would cause dismemberment of states and encouragement of secession.36 This fear was shared by colonial as well as non-colonial powers.37 The Soviet explanation of the aim of self-determination given by Foreign Minister Molotov reconfirmed the Bolshevik policy of freedom for all dependent nations. “We must first of all see to it that dependent countries are enabled as soon as possible to take the path of national independence”—he said.38

As a result of negotiations self-determination was inserted in Article 1 and Article 55 of the UN Charter. Article 1 set out the purposes of the UN. The second paragraph says that one of the purposes 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”39. Article 55 is about economic and social cooperation and reads as follows:

“With a view to the creation of conditions of stability and well-being necessary for peaceful and friendly relations among the nations, based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote higher standards of living, full employment, and conditions of economic and social progress and development, solutions of international, economic, social, health and related problems, and international cultural, educational cooperation and universal respect for the observance of human rights and fundamental freedoms for all without distinction of race, sex, language, or religion”.40

Ironically, self-determination is not mentioned in chapters XI, XII and XIII, which deal with non-self-governing and trust territories to which the self-determination should have applied in the first place. Although the Soviet Union proposed to include reference to self-determination in the above chapters, the UK and France opposed and agreed only to implicit formulation, which says that the objectives of the trusteeship are in accordance with the purposes of the UN Charter.41

It is visible from the text that the Charter fails to define what is meant under the term of self-determination of peoples and how can it be invoked. Self-determination is mentioned explicitly in articles which are of general purpose and do not cover self-determination issues as such. It is not mentioned in chapters, where exactly this right could have been invoked. Both times it is mentioned in the context of developing friendly relations among nations and in conjunction with the principle of equal rights. The UN Charter is a good demonstration of the careful approach taken by western states back then in regard to the explicit proclamation of the right. Both the UK and France were major colonial powers and they feared that the explicit formulation of the right to self-determination in the relevant chapters would lead to destabilization in the colonies and trust territories and would encourage the independence movements. On the other hand, the USSR supported wholeheartedly the full implementation of the principle in order to be seen as the liberator of the oppressed world and undermine the political stability of the western states. For the Soviet leadership implementation of this principle did not mean exercise of this right by its own constituent union republics42, although the Soviet constitution of 1936 recognised the right of union republics to secede from the USSR. Similarly, the constitution of the Russian Federation of 1993 recognises the right of self-determination, but excludes exercise of this right outside of the Federation.

Notwithstanding the lack of clarity on how, by whom and when the right to self-determination could be invoked within the Charter, its inclusion in the UN Charter was still an important milestone for acknowledging self-determination as a legal principle and its further evolution.

Another international legal treaty in which self-determination featured was the International Human Rights Covenants. The USSR tried to include self-determination in the 1948 Universal Declaration on Human Rights, but this proposal was rejected.43 Nevertheless, when it was decided to draft two covenants one for civil and political rights and the other for social, economic and cultural rights, the Soviet Union again proposed to include self-determination in both covenants. Despite the usual opposition from the colonial powers it received support from the Socialist camp, as well as Asian, Latin American and African countries. Thus, the General Assembly voted for inclusion of self-determination in the covenants.44

Articles 1 of the Covenant of Civil and Political Rights and the Covenant of Economic, Social and Cultural Rights were formulated in a similar way:

“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 of the United Nations”.45

The two covenants on human rights were adopted by the UN General Assembly in 1966 and entered into force 10 years later when a minimum of 35 states acceded to the Covenants. Presently, they have almost universal character with only a couple of dozen states still not part of it. Although the Covenants further strengthened the position of self-determination as a legal principle, it raised a few questions. A number of countries supported a restricted interpretation of self-determination. India, for example, stated that self-determination in these articles apply only to the people under foreign domination and not sovereign or independent states.46 However, analysis of the language of the article 1 shows that this clause is not restricted to colonial peoples, by saying that all peoples have the right to freely determine their political status and choose its own form of development. The Soviet interpretation of the term people was very broad. According to leading Soviet legal scholar of the time Starushenko:

“The subject of the right of self-determination is people, nations and ethnic groups, peoples composed of different national groups that live in a defined territory, have historical, cultural, language and religious commonalities or are united for the objective that they want to achieve with the help of self-determination”.47

The language of the Covenants also suggests that this right is permanent. Another important clause is that of free disposal of natural wealth and resources—or economic self-determination. And finally, the article gave the clear right to dependent nations to self-determination.

This treaty law however was not sufficient as it did not explicitly regulate self-determination. Therefore, the majority of states opted for the development of general standards that could be enshrined in general assembly resolutions that would gradually turn into legally binding norms—customary law.48 In this way the opposition of the western countries could also be overcome. The most important GA resolutions which regulate self-determination were adopted in the period when the decolonization process reached its height.

On December 14, 1960 the General Assembly adopted Resolution 1514 (XV) “The declaration of the granting of Independence to Colonial Countries and Peoples”. This resolution is the most important document connecting self-determination with decolonization. The resolution was initiated again by the Soviet Union and presented by a group of 43 Asian and African nations. Out of 89 countries, 80 countries voted in favour, 9 (the USA, the UK, France, Australia, Belgium Portugal, Spain, South Africa, the Dominican Republic) abstained and not a single country voted against.49 The resolution explicitly stated that the final goal of self-determination for colonial peoples was independence.

“subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights…..(A)ll 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…. (I)mmediate 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 race, creed and colour, in order to enable them to enjoy complete independence and freedom”.50

Resolution 1514 included an important safeguard clause. Paragraph 6 stated that “Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations”.51 This clause was intended to safeguard the territorial integrity of newly emerged states and avoid further dismemberment of former colonial territories. It represented materialization of the principle of uti possidetis juris, which originated from the 19th century, when the Spanish Crown lost effective control over its territories in Latin America. Uti possidetis juris was designed to protect from external force the sovereignty and territorial integrity of entities that attained de-facto independence. The principle meant that the de-facto states agreed to the external boundaries that they inherited from the colonial entities. This principle gradually developed into a general principle of law and as the ICJ stated in the case Concerning the Frontier Dispute between Burkina-Faso and Mali:

“[uti possidetis juris] 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 power”.52

Nevertheless, uti possidetis juris had not been applied consistently as the examples of Ruanda-Urundi, the northern Cameroons, Island of Mayotte and Gilbert and Ellice Islands have demonstrated. In each of these cases the territorial integrity of the former colonial entities was not preserved and the territories either were partitioned (Ruanda-Urundi, Gilbert and Ellice Islands), or were incorporated into another state (Northern Cameroons into Nigeria), or remained with the colonial power (Mayotte with France). It must be emphasized however that the decisions on the entities’ status were taken by the populations themselves. This would not have caused problems had the Comoros Islands agreed to the Mayotte separation. Mayotte case raised the issue whether the will of the whole population of the colonial entity was decisive for the status or part of the population could also be consulted. In other words, it raised the question of partition of the word “self” into several meanings in self-determination. No wonder that this ambiguity was used by the Russian top diplomats when justifying the annexation of Crimea and referring to the Mayotte referendum as a precedent in international practice.53 They, however, ignored the fact that the splitting of Mayotte from Comoros occurred at the time of decolonization and not 23 years afterwards.

Resolution 1514 was followed the next day with Resolution 1541 (XV) on “Principles which should guide the 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”. The resolution inter alia gave two other options for the full-measure of self-government except independence—Free Association with an independent state or integration with an independent state. In both cases, the decision should have been made through “the responsible choice of the people under informed and democratic processes”.54

Several GA resolutions in the 1960s were adopted with the aim of assisting colonial countries in their quest for self-determination and also discouraging states from hindering the self-determination of the colonial entities. Resolution 2105 granted “the legitimacy of the struggle by the peoples under colonial rule to exercise their right to self-determination”55, Resolution 2131 stated that the right of self-determination should be exercised “without any foreign pressure”56, Resolution 2160 declared any forcible action depriving people under foreign domination of their right to self-determination and independence illegal.57 These resolutions were put forward by the Communist states or the third world countries, but opposed by the western states. Therefore, the resolutions represented the views of the USSR and its satellites as well as the developing world.58

Resolution 2625 (XXV) of 24 October 1970—“The Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations” was however a consensual one. The western nations participated in the elaboration of the resolution and pressed to widen the scope of the self-determination principle. The resolution dealt with self-determination extensively. It stated that “…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. Every State has the duty to promote, through joint and separate action, realization of the principle of equal rights and self-determination of peoples, in accordance with the provisions of the Charter”. The resolution declared that people under foreign occupation had the right to self-determination “bearing in mind that the 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” and once again confirmed the modes of self-determination—“establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a people constitute modes of implementing the right of self-determination by that people”, it prohibited the use of force by the states against the self-determination of peoples and entitled self-determination movements to seek outside support in case of the forceful deprivation of this right: “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 self-determination, such peoples are entitled to seek and to receive support in accordance with the purposes and principles of the Charter”. Furthermore, the resolution provided important clauses for the territorial integrity of the state and at the same time linked self-determination with representative government “nothing in the foregoing paragraphs shall 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 as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour”. “The territorial integrity and political independence of the State are inviolable”.

This resolution is the most comprehensive document that deals with self-determination and it unites almost all provisions stipulated in the earlier resolutions. Therefore, it is regarded as the reference document for the right of self-determination. Unfortunately, the text of the resolution in regard to self-determination is ambiguous. On the one hand, as a general principle it entitles all people to self-determination, without naming the means and end result. On the other hand, it explicitly grants the right to people of trust and non-self-governing territories, people under foreign occupation and people under racial discrimination and names the ultimate goal of self-determination—independence.

On a general level, a similar line of difference could be drawn between the provisions of treaty law and customary law. Treaty law only provides for self-determination of the whole people of each contracting state, whereas customary law grants this right also to all people but explicitly to people under colonial rule, foreign occupation and racial discrimination. Furthermore, customary law provides the denied groups with license to achieve self-determination through the use of force, whereas treaty law does not specify any means for enforcement of the right.59

It is clear that the right to self-determination of the “colonial” group of “people” is exercised whenever one of the three abovementioned modes are attained, but it remains vague what self-determination means for the “universal” group of “people”.

A bit of clarity on this is provided in the Conference of Security and Cooperation in Europe (CSCE) Helsinki final act of August 1975. By the time of adopting this act, Europe represented a part of the world where people of trust and non-self-governing territories, people under foreign occupation and people under racial discrimination were completely absent. Principle 8 of the CSCE Act, which was signed by 35 European states plus the US and Canada envisages:

“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 relevant norms of the international law, including those related to the territorial integrity of States.

By virtue of the principle of equal rights and self-determination of peoples, all peoples always have the right, in 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 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 elimination of any form of violation of this principle”.60

The principle clearly states that self-determination ends where the territorial integrity of a state is concerned. Therefore, the right to self-determination in this document could be interpreted as the continuous right to elect in full freedom the form of government as it wishes. This right should be understood as a right to internal self-determination, i.e. to choose freely and without discrimination the form of government of a state within a sovereign state and this right is given to the people as a whole and not part of the people. The principle also entitles the right to self-determination free of outside (external) interference. The right to self-determination given here is clearly one which should not disrupt the territorial integrity of a state, but could decide on the change of its status or unification or incorporation into another state. This interpretation becomes all the more eligible if we look at the author of the initiative to include this principle into the Final Act—the Federal Republic of Germany. “It is the political aim of the FRG to help create a state of peace in Europe in which the German nation can regain its unity in free-determination”—said the FRG chancellor Schmidt in an address to CSCE in Helsinki.61 The phrase was borrowed from a “letter on German unity” which the FRG government attached to the intra-German treaty of 1973.62 It is noteworthy that the right to self-determination is not bestowed upon national minorities residing in the CSCE member states. The principle VII which deals inter alia with the rights of national minorities does not mention the right to self-determination at all. The Helsinki provisions were once again confirmed in the Charter of Paris for a New Europe adopted by CSCE Heads of States and Governments in 1990 in which they

“reaffirmed the equal rights of peoples and their right to self-determination in conformity with the Charter of the United Nations and with relevant norms of the international law, including those related to the territorial integrity of States”.63

Analysis of treaty law and UN GA resolutions as well as CSCE declarations has demonstrated that self-determination gradually turned from a political principle into a legal norm. Furthermore, there are several factors pointing at the peremptory character of the norm making it jus cogens -a fundamental, overriding principle of international law, from which no derogation is ever permitted. The overwhelming majority of states ratified the International Human Rights Covenants, General Assembly resolutions 1514 and 2625 have been adopted almost unanimously and governments in Europe as well as the African, Asian and Latin American regions accept the right of peoples to self-determination. Self-determination could also be seen as a peremptory norm in the prism of a larger principle of respect for fundamental human rights which itself is jus cogens.

In order to operationalise the norm in international law it is essential to explore the judgments and opinions of the International Court of Justice which dealt with the cases involving the right to self-determination. This will shed more light on the interpretation of this complex norm.

2.2.4. Court Decisions

Several cases have been heard by the International Court of Justice concerning the issue of self-determination. The first two cases on Namibia and Western Sahara dealt with the colonial context. The ICJ advisory opinion delivered in 1971 on the Case on Legal Consequences for States of the Continued Presence of South Africa in Namibia notwithstanding Security Council Resolution 276 was the first opinion in which self-determination was mentioned. Namibia was put under South Africa’s mandate by the League of Nations. South Africa argued that after the dissolution of the League of Nations the mandate had lapsed, and there was no requirement to put Namibia under trusteeship according to the UN charter. Therefore, South Africa felt entitled to annex Namibia. The ICJ inter alia opined that the development of international law in regard to non-self-governing territories, as enshrined in the Charter of the UN, made the principle of self-determination applicable to all of them64 and “the last fifty years, … have brought important developments. These developments leave little doubt that the ultimate objective of the sacred trust was the self-determination and independence of the peoples concerned.” Therefore, due to the fact that self-determination never occurred in Namibia, annexation by South Africa was illegal.65

The second advisory opinion entailing self-determination was given by the ICJ in 1975 on the case concerning Western Sahara. The Court made references to the UN Charter and UN GA resolution 1514, 1541 and 2625 as well as ICJ opinion on Namibia to assert that self-determination has become an explicit right in international law for colonial peoples and underpinned the importance of the freely expressed wish of the people in the process of self-determination.66

The issue was again raised in Portugal’s appeal to the ICJ to adjudicate on the legality of Australia’s conclusion of an agreement with Indonesia on the delimitation of the maritime border in the East Timor segment. In 1975 East Timor, a non-self-governing territory administered by Portugal, was annexed by Indonesia in violation of self-determination. The ICJ stated that

“the right of peoples to self-determination, 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”.67

To summarize all three opinions, the Court declares that self-determination has become an integral part of international law. It exists for all colonial people before the attainment of independence or other two modes of self-government based on the free expression of the will of people. Self-determination has an erga omnes character and is not limited to single cases. However, there is one caveat that should be taken into account: Namibia, Western Sahara and East Timor were all either trust or non-self-governing territories, the right of whose people to self-determination was explicitly granted anyway.

There is only one advisory opinion so far (except Kosovo which will be dealt with in the following chapter) which indirectly deals with self-determination in sovereign, independent states. The ICJ judgment on Military and Paramilitary Activities in and against Nicaragua was delivered in 1986. The Court found that the US breached international law by violating the sovereignty of Nicaragua, using force against Nicaragua and intervening in the internal affairs of Nicaragua.68 The Court defined the content of the principle of non-intervention in the following way:

“A prohibited intervention must … 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”.69

Free choice of a political, economic, social and cultural system is how self-determination is defined in the International Human Rights Covenants and the UN GA 1514 as described above. Therefore, it could be inferred from the ICJ judgment that self-determination is applicable also to people of sovereign states—as Nicaragua clearly did not represent a colony in 1986. Critics may argue that this paragraph could also be interpreted in a different way and the Court did not mean self-determination under the free choice of the system quoted in the text. Nevertheless, the exact choice and sequence of the words as describing self-determination in other UN documents could not have happened accidentally and clearly it represents a reference to the right to self-determination. This opinion underlines the right of people of sovereign countries to external self-determination, i.e. freedom to choose its own form of government without outside interference.

The abovementioned Western Sahara case is also interesting because two sovereign nations, Morocco and Mauritania, claimed that Western Saharan territory belonged to them before Spanish colonisation and should be returned to them. There have been other cases in which the historical title to a territory competed with the principle of self-determination in determining the status of an entity. Next, we will look at some cases and international reactions to them.

2.2.5. Historical Title vs. Self-Determination

There have been several occasions on which a historical title to a territory challenged the self-determination principle and the outcomes as well as the stance of the UN have been different. In the case of Western Sahara the court found that “there were no legal ties of such a nature as might affect the application of….. the principle of self-determination through the free and genuine expression of the will of the peoples”.70 Therefore, Western Sahara had the right to self-determination. Similarly, Indonesia and Guatemala argued that East Timor and Belize had been part of their territory in the pre-colonial era and therefore they had right to incorporate them after the termination of colonial status. In both cases the UN General Assembly decided in favour of self-determination of the non-self-governing entities and demanded the independence of both territories.71

In the case of Gibraltar and the Falkland Islands the UN General Assembly decided differently. Here, the historical title of respectively Spain and Argentina were prioritized over the self-determination rights. The arguments of Spain and Argentina in both cases were that paragraph 6 of Resolution 1514—“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” overrides paragraph 2 that all peoples have right to self-determination. Resolution 2353 declared the referendum held in Gibraltar contravening its earlier resolutions and called on UK and Spain to end the colonial situation.72 None of the resolutions adopted on the Falkland Islands mentioned the self-determination rights of the Falklanders, rather they called for the negotiation of the dispute over sovereignty between the UK and Argentina.73 The UK, as the administering authority on the other hand, argued that the status of the territories should be based on the will of the people, which is clearly against unification with Spain and Argentina. Despite these resolutions both Gibraltar and the Falkland Islands remain under UK jurisdiction based on referenda conducted in both entities in 2002 and 2013 respectively.74

India got away with the invasion and annexation of Goa, Damao and Din in 1961 arguing that these Portuguese colonies belonged to Indian rulers in the past and were now liberated. The population of Goa was never consulted in a referendum on their status. The United Nations Security Council Resolution calling on the withdrawal of Indian forces was vetoed by the Soviet Union.75 Subsequently, the UN did not take any action on the matter. The population of another Portuguese colony. Macau, also did not get a chance to vote on its status, due to the fact that China appealed to the UN to delete the territory from a list of colonies and used the historic title in negotiations with Portugal to decide on Macau’s status in bilateral talks. A similar process occurred with retrocession of Hong Kong from the UK. The population of the Dutch colony West Irian did not exercise its right to self-determination fully either, because the Indonesian authorities who claimed the territory and then were temporarily administering it from 1963 to 1969 did not provide for the free expression of will and put pressure on the population to support integration into Indonesia as an indirect “act of free choice” in 1969.76

Russia inter alia used historical title and illegality of the territory’s transfer to the Ukrainian Soviet Socialist Republic in 1954, for the annexation of Crimea in 2014.77The Crimean case however is even more complicated since Russia claims a historical title and self-determination of part of the population in a sovereign state simultaneously. This time, the UN General Assembly adopted a resolution calling on states not to recognize “any change in the status of Crimea, or the Black Sea port city of Sevastopol, and to refrain from actions or dealings that might be interpreted as such.”78

All the aforementioned examples except Crimea concern the colonial context. Even in the colonial context, self-determination was not always given an upper hand vis-à-vis a historical title as the Gibraltar and Falkland Islands’ cases show. On the other hand, it could be argued that due to the fact that the UN has not raised the issue on the status of these entities since the 1980s and the fact that after holding referenda both Gibraltar and the Falklands Islands remain part of the UK, the international community regarded this as a mode of self-determination and thereby implicitly agreed that in these territories, the right of self-determination tops historical title when deciding over the status of a non-self-governing territory. Unfortunately, this conclusion is drawn only based on state practice and the political constellation of the period when the decision was taken. The relationship between historical title and self-determination in international law is not settled and needs clear regulation. A closer look at the state practice is needed also to shed light on another aspect of self-determination which is not clearly regulated—that of self-determination outside the colonial context. Next, I turn to analysis of state practice in the application of self-determination in sovereign states.

2.2.6. International Practice

When we exclude the colonial ingredient from self-determination only the notion of popular sovereignty is left. There have been only two cases when the UN sanctioned regimes that prevented equal participation of people in the government. Both of those regimes were racially discriminating against the black majority populations in South Africa and Southern Rhodesia. Starting from 1960 the United Nations regularly condemned South Africa’s apartheid regime, embargoed it and declared null the constitution of South Africa.79 In the case of Southern Rhodesia, the UN Security Council “condemned the unilateral declaration of independence made by a racist minority in Southern Rhodesia”80 and “called upon all states not to recognize this illegal racist minority regime and to refrain from rendering any assistance to this illegal regime”81. Certainly, deprivation of self-determination to South Rhodesian people, as well as racial discrimination against the black population were the reasons for non-recognition of its independence, since Southern Rhodesia was qualified as a non-self-governing territory and was entitled to independence. Its independence was recognized only after the UK regained constitutional authority and let it gain its independence in 1980 under the new name of Zimbabwe.82

What about the self-determination of distinct ethnic or religious groups in sovereign states, which is a particularly complex problem faced by numerous countries all over the globe? As we have seen international law does not mention the right of ethnic or religious minorities to self-determination. Internal self-determination of ethnic minorities could be achieved through various levels of autonomous arrangements within the sovereign state, with full access to participation in the government. External self-determination in this context is equal to secession. States have been reluctant to recognize that secession derives from the right to self-determination. Before 2008, there was only one case when secession was recognized by the international community—Bangladesh. In all other cases, in which the seceding entity had established a de-facto state, the international community opposed it. That territorial integrity of a sovereign state is immune to claims of self-determination by ethnic groups—was the view unanimously shared by western, socialist and third world states. Both treaty law and customary law clearly state the inviolability of borders of sovereign states and their territorial integrity. Therefore, self-determination in independent states is limited only to its internal character, unless there are grave violations of the human rights of a particular racial or ethnic group.

2.2.7. Conclusion

The principle of self-determination has passed a long way of evolution from a political idea into a legal norm. Today it is a principle strongly anchored in international law having the status of a peremptory norm. Self-determination applies to all people, albeit with substantial differences. Peoples of different units of self-determination have different rights. Peoples of trust and non-self-governing territories under chapter XI, XII of the UN Charter and people whose entities are under foreign occupation, people who are racially discriminated against as well as people who are forcibly denied a representative government have the right to choose their own political future by expressing their will in a referendum without external interference and on the basis of equality. Self-determination in these cases could either result in the independence of the entity, its free association with another state or integration with another state based on equality of the people—external self-determination. Where self-determination concerns a sovereign state, self-determination is exercised by the rule against intervention in the domestic affairs of the state and in the free choice by its population of the form and composition of the government of the state. Customary law provides that the right to self-determination may not be partitioned and belongs to the whole population. Thus, right to self-determination is not granted to ethnic or religious minorities of a state exclusively, but rather together with the majority of the population. Therefore, the right to self-determination rules out any action that might disrupt the territorial integrity of a state. So, external self-determination, the right of peoples of trust and non-self-governing territories as well as of countries under foreign domination and racial discrimination expires once they form an independent state and then only the internal self-determination right applies. Thus, self-determination is not always equal to secession and there is no intrinsic attachment of self-determination to independence and sovereignty. Nevertheless, self-determination clauses in treaty law are formulated too widely, which enables states to use formulations according to their political needs and interests. The problem is further aggravated by a lack of a commonly agreed definition of what “people” is. Demands for application of self-determination outside the colonial context in the recent past has also highlighted the importance of a clear and explicit formulation of what self-determination entitles to the people of sovereign independent states in order to declare whether the right to self-determination entitles them to secession or not. Otherwise it creates exactly the situation which was feared by US Secretary of State Lansing and many western statesmen in the beginning of the 20th century that “without a definite unit which is practical, application of this principle is dangerous to peace and stability. The phrase is simply loaded with dynamite”.83

To return to my research topic, it becomes clear that even though Abkhazia and South Ossetia exercised internal self-determination within the Georgian state through the autonomous status awarded to these entities, they still opted for external self-determination—secession. Therefore, in the next chapter I will explore secession, which is exactly the explosive element of the above “dynamite”.

2.3. Secession in International Law
2.3.1. What is Secession?

International practice shows that there are several modes of creation of new states in international law, such as devolution, division, dissolution, unification, original acquisition and secession.84 The latter is a very relevant mode, because both Abkhazia and South Ossetia are qualified as seceding entities and therefore it is worth exploring how secession is treated in international law and what has international practice been to date in dealing with secessionist entities.

There is no single definition of secession and legal scholars interpret secession differently. The definition by the Americas’ and European legal conferences on self-determination and secession asserts that “the issue of secession arises whenever a significant proportion of the population of a given territory, being part of a State, expresses the wish by word or by deed to become a sovereign State in itself or to join and become part of another State”.85 Unfortunately, this definition does not specify what “significant proportion of the population” means. John Dugard’s formulation adds an important element to this—the absence of consent of the parent state: “unilateral withdrawal of part of an existing state from that state without the consent of the government of that state”.86 This definition is very close to Marcelo Kohen’s one which defines secession “as the creation of a new independent entity through the separation of part of the territory and population of an existing state, without the consent of the latter. Yet, secession can also take the form of separation of part of the territory of a State in order to be incorporated as part of another State, without the consent of the former”.87 James Crawford adds use or threat of force notion and defines it “as the creation of state by the use or threat of force without the consent of the former sovereign”.88 The Supreme Court of Canada definition is “secession is the effort of a group or section of a state to withdraw itself from the political and constitutional authority of that state, with a view to achieving statehood for a new territorial unit on the international plane. … What is claimed by the right to secede unilaterally is the right to effectuate secession without prior negotiations with the other provinces and the federal government”.89 Thus, four out of five definitions cited here underline that secession occurs when the parent state does not agree to the change of the status of that territory. Another important element is that the act of secession should be unilateral. Here I come up with my own operational definition which in my opinion captures all necessary characteristics of secession: “Secession is the unilateral separation of a certain territory and population living on that territory from the existing state, without the consent of the latter, with the aim of forming an independent state or joining another state, when the parent state continues to exist”. The instrumental factor here is the lack of approval by the parent state of letting the seceding entity into independence or joining another state. That is why secession is very controversial in international law and as it would be demonstrated below there have been only a handful of successful cases of secession. It is necessary to differentiate between secession and other types of creation or extinction of states: 1) secession vs. separation: the former is a violent process without agreement, while the second is an agreed and/or peaceful one; (e.g. Serbia-Montenegro, Eritrea,) 2) secession vs. dissolution: in the first case the parent state continues to exist while in the second it ceases to exist, (e.g. USSR, Czechoslovakia) 3) secession vs. devolution: in the first, the consent of the metropolitan state is absent and it is a unilateral process, while in the latter the parent state gives consent and the process is gradual and consensual (e.g. South Sudan, British dominions) and lastly 4) secession vs. annexation, when the separating entity does not become a new state, but is integrated within an existing State (e.g. Texas, Crimea).

2.3.2. Secession in International Law

It is common sense that international law neither prohibits nor authorizes secession, because the existing law does not deal with this notion. As Kohen and Tomuschat argue, states approached use of the term secession very carefully and minimized its use in law.90 Therefore, we do not find norms giving right to secession and subsequent independence to any kind of group in treaty law. What we do find is the principle of territorial integrity of states, which prohibits states from using force against or intervening in the affairs of other states. Consequently, it prohibits other states from violating the territorial integrity of a state, but does not say explicitly about prohibiting minorities residing in that state from seceding.91 This could be explained by the fact that secession is considered as a domestic act and therefore should fall under national law. Nevertheless, the Supreme Court of Canada states that “international law is a relevant standard by which the legality of a purported act of secession may be measured”.92 The UN Committee overseeing the Convention for the Elimination of Racial Discrimination (CERD) considers still that international law does not recognize a people’s right to unilateral secession.93 Thus, the conflict between secessionists and governmental authorities would still be regulated by the traditional law of internal armed conflicts, and generally treated as a “domestic affair”, in light of fundamental human rights prescriptions.94

This is true, but for one special group of peoples, namely of states born in the process of decolonization. The declaration on the granting of independence to colonial countries and peoples of UN General Assembly Resolution 1514 (XV) explicitly stated that trust and other non-self-governing territories have the right to external self-determination and should become independent.

Thus, the creation of states for the first time was transformed into a legal matter through an international norm of self-determination95 and people who fell under the category of alien subjugation, domination and exploitation could establish new independent states according to international law. Several dozen states in Africa and the Pacific, which were created in the 1960s, 1970s and 1980s, owe their legitimate existence to this particular norm. Nevertheless, this norm is limited to the decolonization context and is vague on whether self-determination outside decolonization implies secession. Interestingly, the new states started to safeguard their newly earned sovereignty and territorial integrity right after independence.

This practice is common to all regions of the world. Most secessionist conflicts were expected to take place in Africa, because borders were drawn so that certain ethnicities found themselves living in different countries. The Organization of African Unity (OAU) adopted the Cairo Declaration in July 1964, whereby all member States solemnly pledged themselves to respect the frontiers existing on their achievement of national independence96, and discouraging attempts of secession. This was further reinforced by the International Court of Justice judgment on the frontier dispute between Burkina Faso and Mali, in which the court upheld the uti possidetis juris principle of inviolability of borders achieved at independence.97

In Europe the Helsinki Act of the Conference for Security and Cooperation in Europe also gave the territorial integrity principle an upper hand by upholding the right of self-determination “in conformity with relevant norms of international law, including those relating to territorial integrity of States”.98 Similarly, the 1993 Charter of the Commonwealth of Independent States strengthened the border inviolability clause by explicitly stating that “member states of the CIS will build their relations on the basis of ….. the inalienable rights of peoples to self-determination and the right to determine their fate without outside interference; the inviolability of state borders, the recognition of existing borders and the rejection of unlawful territorial annexations; the territorial integrity of states and the rejection of any actions directed towards breaking up alien territory”.99

One of the norms to which the CSCE final act referred to originates from UN GA Resolution 2625 (XXV)—the Declaration on principles of international law concerning Friendly Relations and Cooperation Among States. Among others, it draws a clear line between self-determination and the principle of territorial integrity of the states and provided that the right of self-determination shall not be

“construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent states 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 belonging to the territory without distinction as to race, creed and colour. 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”.100

This declaration is very important in terms of upholding the territorial integrity principle, the right to self-determination and the illegality of changing territories by the use of force. However, this declaration is also important in a way that it could be seen as limiting the territorial integrity principle to cases when the government represents the whole people. It opens up a question on what happens when the government is not representing the whole people belonging to a territory. The formulation of “distinction” was expanded in the 1990s in two UN documents—the Declaration of the UN World Conference on Human Rights and the GA Declaration on the Occasion of the Fiftieth Anniversary of the UN by replacing the original distinction of race, creed and colour with “distinction of any kind”.101 Here is where the inferred right of “remedial secession”—a term which is widely used by now in legal literature steps in.

2.3.3. Remedial Secession

Remedial secession is a term coined by legal scholar, Lee Buchheit. It became very popular in legal literature in the last thirty years. Buchheit suggests that secession could be approached in two ways. In the first case, secession should be seen as an instrument for freeing the oppressed community from a state which inflicts massive and grave violations of human rights in a discriminatory way. “Remedial secession envisions a scheme by which…. international law recognizes a continuum of remedies ranging from protection of individual rights, to minority rights and ending with secession as the ultimate remedy”.102 Here the argument is based on moral grounds that the state which oppresses its minorities loses the right to govern over those minorities—an argument taken by both Russia and the West in recognizing Abkhazian and South Ossetian and Kosovar independence respectively. Buchheit also talks about the second approach, which he calls “the parochial model of secession” and is not accepted in international law. This approach implies that no matter how well distinct communities are represented in the government, they still have the right “to be governed by those like oneself. It is unconcerned with the relative merits of the alien rule, because the mere fact of alien domination is the basis for complaint”.103 This argument is based on the political right of freedom of association. Buchheit is echoed by another scholar, Allen Buchanan, who distinguishes between two types of theories supporting the right of secession. “Remedial Right Only Theories assert that a group has the general right to secede if and only if it has suffered certain injustices, for which secession is an appropriate remedy”.104 The second type of theory is a primary right theory, which asserts that a certain group can have the right to secede in the absence of any injustice.105 This theory rests on the political right of self-determination. Most scholars argue that in case a large group of distinct identities are denied basic rights to representation, are suffering grave violations of their civil and human rights and the state is abusing its sovereign power, this group would have a qualified right to secession. Moreover, these violations should have occurred in tandem in order to give rise to the right of secession. Some even add that the likelihood for a possible peaceful solution within the existing state structure should not exist either.106 To summarise the two theories, “the first argues that a group attains the moral right to self-determination when it has suffered certain kinds of threats or grievances, including “historical grievances”, such as previous invasion or annexation, as well as threats to its cultural preservation, threats of genocide and finally “discriminatory redistribution”. The other type of answer argues….. that self-determination is a “basic right, rooted in liberal democratic theory, available to any group the majority of whose members desire it. Threats and grievances are unnecessary to establish a claim”107. The political and legal theories however are not equally reflected in international law. Whereas, the basic right of self-determination in international law is attributed only to colonial entities, the peoples outside the colonial context are implied to have the right to self-determination only within the state boundary. The so-called remedial right could be inferred in cases of gross violation of human rights as an ultima ratio. The mainstream opinion is that inherent conflict between the self-determination of peoples and territorial integrity continues to be resolved in favour of state sovereignty—in line with the then UN Secretary-General U Thant’s famous stance towards Biafra’s secession in 1970:

“As far as the question of secession of a particular section of a state is concerned, the United Nations attitude is unequivocal. As an international organization, the United Nations has never accepted and does not accept and I do not believe will ever accept the principle of secession of a part of its member states”.108

As conventional wisdom has it, international law neither prohibits nor authorizes secession. So, on what provisions of international law are the legal scholars basing themselves when pointing at the existence of this “remedial” right?

According to Tancredi, this approach takes its origin from the advisory opinion given by the second Commission of Rapporteurs in the case of the Aaland Islands, which sought secession from Finland and re-union with Sweden.109 The first Commission of Rapporteurs in July 1920 rejected the application of the principle of self-determination to the Aalanders because of the absence of “[recognition] of the right of national groups as such to separate themselves from the state, which they form part of by the simple expression of a wish”.110 The second Commission in April 1921 proposed a strengthening of autonomy and guaranteeing the use of Swedish language on the islands, upheld Finnish sovereignty over the islands, and further stated that

“the separation of a minority from the state of which it forms a part and its incorporation into another state may only be considered as an altogether exceptional solution, a last resort when the state lacks either the will or the power to enact just and effective guarantees”.111

The report also stated that should Finland fail to grant autonomy to the Aaland Islands, their right of secession would be recognized.112 Here, for the first time a State was instructed to guarantee minority rights or otherwise “remedial” secession right could be granted to the secessionists.

The discussion on remedial secession right was taken further by the abovementioned UN GA Resolution 2625 on Friendly Relations Among States and particularly by the penultimate sentence of paragraph 7—“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”. The Supreme Court of Canada in its reference on Quebec secession inferred a right to secession from that declaration concluding that:

“A right to external self-determination arises in only the most extreme of cases, and, even then, under carefully defined circumstances…. 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 complete blockage may potentially give rise to a right of secession”.113

However, the Court adds that “it remains unclear whether this … proposition actually reflects an established international law standard”.114 Many other scholars also state that the resolution infers such a right. Cassese, asserts that secession is legitimate if "the central authorities of a sovereign State persistently refuse to grant participatory rights to a religious or racial group, grossly and systematically trample upon their fundamental rights, and deny the possibility of reaching a peaceful settlement within the framework of the State structure”.115 Buchheit echoes this by saying that the “innovation of the declaration rests in its implicit acceptance of limitations upon the deference to be accorded to the territorial integrity of States—limitations arising from the States’ duty to provide a democratic government and protection for basic human rights”.116 Raic comes to a similar conclusion:

“Within the framework of the qualified secession doctrine, there is general agreement on the constitutive parameters for the right of unilateral secession, which may be summarized as follows: a) there must be a people, which though numerical minority in relation to the rest of the population of the parent state, forms a majority within an identifiable part of the territory of that state. b) the people in question must have suffered grievous wrongs at the hand of the parent state from which it wishes to secede consisting of either i) a serious violation or denial of the right of self-determination of the people concerned and/or ii) serious and widespread violations of fundamental human rights of that people and c) there must be no (further) realistic and effective remedies for the peaceful settlement of the conflict”.117

Undoubtedly, drafters of the UN GA resolution were aware that the self-determination principle could be ultimately interpreted as a qualified right to secession, hence during the debates it was stated that “an essential element of the principle should be the duty of States to accord to peoples within their jurisdiction the right to determine their political status and to pursue their social, economic and cultural development without discrimination as to race, creed or colour. It is not intended that the inclusion of such an element should encourage or condone secessionist or irredentist movements”.118

Even though the empirical evidence of remedial secession right being granted is very scarce, there is still a broad consensus in legal literature that this right could be granted, when members of a community suffer structural discrimination and all methods including international efforts to stop discrimination have failed. Consequently, the sovereignty of the states over its whole territory might be questioned, when their governments commit grave violations of fundamental human rights and prevent people from exercising their universal right of internal self-determination. Hence, the territorial integrity principle of a state is not as sacrosanct anymore, however, given the presumption in favour of territorial integrity, the threshold is high.119 On the other hand, international law, as it stands now, recognizes neither a general nor remedial right to secede. On the contrary, as we will see below, the practice predominantly supports self-determination inside the existing state and even when grave violations of minorities’ rights do occur, the international community tends to settle the conflict in the framework of broad autonomy instead of secession. Nevertheless, a lack of a clearly formulated clause on remedial secession in international law, allows states to interpret the concept freely and according to their political interests.

2.3.4. Secession in Violation of International Law

As we have seen, in certain extreme cases the quest for secession could become legitimate. Again, in the absence of a concrete legal clause prohibiting secession, I will analyse in which circumstances secession is deemed illegal.

According to Tancredi, international law sets out a normative due process through which secession could happen. Even though international law does not deal with the substance of state creation, it is possible to isolate a different normative profile which deals with the procedure.120 Three rules should be jointly applied in order for secession not to contradict international law.

Firstly, secession should take place without the direct or indirect military support of foreign states, since secessionist conflict is considered an intra-state affair, and thus use of force and military intervention are prohibited by peremptory norms as well as respect of territorial integrity.121 UN GA Resolution 2131 Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty explicitly states that:

“No State has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State. …….. Also, no State shall organize, assist, foment, Finance, incite or tolerate subversive, terrorist or armed activities directed towards the violent overthrow of the regime of another State, or interfere in civil strife in another State”.

The intervention could only be justified on the basis of protection of fundamental human rights under the notion of “responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity”,122 but in no way should be directed against unity or the territorial integrity of a State. To put the concept of responsibility to protect into practice seven criteria must be met: just cause threshold, right intention, last resort, proportionate means, reasonable prospects, right authority (UNSC) and a clear and unambiguous mandate at all times.123

Secondly, there is an increasing tendency that secession should be founded on the results of referenda or a plebiscite, in which the majority of the population expresses the wish for secession. This has become an important factor especially after the Badinter Commission requested Bosnia and Hercegovina to hold a referendum before recognizing its independence.124 Since then a number of secessionist entities: Transnistria, Kosovo, Chechnya, Karabakh, Abkhazia, South Ossetia, South Sudan, Eritrea, Crimea, Scotland, Catalonia have all held referenda on independence.

Thirdly, the seceding entity must respect uti possidetis juris principle, meaning that the former administrative border of the entity at the time of the creation of a new state should remain intact. The abovementioned ICJ ruling on Burkina-Faso and Mali stated that this “is a general principle which is logically connected with the phenomenon of obtaining independence, wherever it occurs”.125

Whenever one of these aspects is absent, the secession and subsequent creation of state is regarded as illegitimate. In such cases, the international community is called on not to recognize the secessionist entity as a state. There are quite a high number of cases when the international community did not extend recognition to such entities—Manchukuo, Southern Rhodesia, South Africa Bantustans, Northern Cyprus, etc. There is a debate in literature whether non-recognition of illegitimate secession hinders the statehood and legal personality of a de-facto entity. It should be stressed that in this case we talk about the entities that have effective control over a certain part of a territory, its population and government—entities fulfilling the Montevideo criteria (see next chapter). On the one hand, it is argued that the entity formed in violation of the norms of non-use of force, aggression and self-determination may not be considered as a state for international law purposes. Therefore, the lawfulness of state creation should be considered as another requirement of statehood. On the other hand, it is argued that a State is a mere fact and the law cannot cancel its existence, since neither the UN GA nor UN SC is vested with the power to eliminate the factual existence of an entity by a resolution.126

As for the legal personality, here it distinguishes between the legal capacity of the entity, and the entity’s capacity to perform valid acts. Such an entity still has a legal capacity, because in some way it remains an addressee of international norms even though it is not recognized and it is obliged to observe peremptory norms. Existing practice increasingly shows that in UN Security Council resolutions on Abkhazia, Karabakh, in OSCE resolutions on South Ossetia, Transnistria the de-facto entities are called upon to refrain from use of force and protect fundamental human rights on the territory under their effective control. The ICJ in its advisory opinion on Namibia stated that “physical control of a territory, and not sovereignty or legitimacy of title, is the basis of state liability for acts affecting other states”.127 The European Court of Human Rights in its 2001 judgment on the case Cyprus vs. Turkey stated that de-facto authority in Northern Cyprus is exercised by the organs of the Turkish Republic of Northern Cyprus, which has been recognized only by Turkey so far.128

As for the capacity to perform valid acts, the aim of non-recognition is certainly to deprive such an entity of this capacity. Any legal act that is enacted by the de-facto entity is void and illegal only if other international subjects do not recognize such an effect on their behaviour. If we look at the decision of the Russian Prime Minister in May 2008 on establishing direct relations with Abkhazia and South Ossetia, even without official recognition of these entities, it becomes clear that legal acts enacted by those entities have validity in regards to the Russian Federation. The same could be said about Armenia-Karabakh, Transnistria-the Russian Federation, Crimea-the Russian Federation and other non-recognition cases. According to practice, acts of the illegitimate entities are generally recognized by third States in the following situations: 1) for humanitarian reasons (for example tsunami case in Tamil Eelam); 2) With regard to arrangements of a private and domestic nature (Turkish vessels trading with Abkhazia); and 3) Routine administration issues such as registrations of births, marriages and deaths and car license plates (Usage of these certificates has been common in all secessionist conflicts in the former Soviet space, crossing of Russian, Ukrainian and Armenian border with documents issued by the de-facto entities was commonplace in Abkhazia, Transnistria and Karabakh respectively). This approach is based on the assumption that isolation of the illegitimate entity should not occur at the expense of people living on its territory.

Even though to date international law has been designed in a way to support the states in preserving territorial integrity and the United Nations as a major international organization is a fervent supporter of this principle, it becomes clear that there are some gaps in international law that could be used by illegitimate entities to establish states. True, as the practice shows such states would not be recognized and they would have very limited legal personality, but the fact is that their factual existence could not be denied. Therefore, these illegitimate secessionist entities do play a role in international relations and are addressees of norms of international law. To this end, we may conclude that there is no effective remedy in international law to stop the de-facto entity from becoming a state, if it fulfils the criteria of territory, population and government, other than non-recognition, which does not influence the factual existence of a state, but limits its international legal capacity to act.

2.3.5. Court Opinions

In October 2008, the United Nations General Assembly put a question to the International Court of Justice: “Is the unilateral declaration of independence by the Provisional Institutions of Self-Government (PISG) of Kosovo in accordance with international law?”129 The procedure was initiated by Serbia, which was confident that the ICJ would rule in its favour. The ICJ delivered its opinion on July 22, 2010. By ten votes to four it is of the opinion that the declaration of independence of Kosovo did not violate international law.130 Paragraph 122 stated that “the adoption of the declaration of independence of 17 February 2008 did not violate general international law, Security Council Resolution 1244 or the Constitutional Framework. …Consequently the adoption of that declaration did not violate any applicable rule of international law”.131 In paragraphs 79-84 the Court examined in detail whether the declaration of independence is in accordance with general international law. It concludes that:

“during the eighteenth, nineteenth and early twentieth centuries, there were numerous instances of declarations of independence, often strenuously opposed by the State, from which independence was being declared, sometimes, a declaration resulted in the creation of a new state, at others it did not. In no case, however, does the practice of states as a whole suggest that the act of promulgating the declaration was regarded as contrary to international law. On the contrary, State practice during this period points clearly to the conclusion that international law contained no prohibition of declarations of independence. During the second half of the twentieth century, the international law of self-determination developed in such a way as to create a right to independence for the peoples of non-self-governing territories and peoples subject to alien subjugation, domination and exploitation. A great many new States have come into existence as a result of the exercise of this right. There were, however, also instances of declarations of independence outside this context. The practice of States in these latter cases does not point to the emergence in international law of a new rule prohibiting the making of a declaration of independence in such cases”.132

As for the principle of territorial integrity, the Court notes that it is “an important part of the legal order, enshrined in the Charter of the UN”, but “the scope of the principle of territorial integrity is confined to the sphere of relations between States”.133 The court further observes that the Security Council has condemned in particular declarations of independence such as Rhodesia, Northern Cyprus and Republika Srpska and “the illegality attached to the declarations of independence, stemmed not from the unilateral character of these declarations as such, but from the fact that they were, or would have been, connected with the unlawful use of force or other egregious violations of norms of general international law, in particular those of the peremptory character”.134 The Court noted that in the context of Kosovo, the UN SC has never taken such a position. “The exceptional character of the resolutions enumerated above appears to the Court to confirm that no general prohibition against unilateral declarations of independence may be inferred from the practice of the Security Council”.135 The Court declined to comment on whether part of the population of an existing state has a right to separate from that state, or whether international law provides for a right of “remedial secession”, but noted that radically different views were expressed during the discussions. The dissenting and separate opinions of judges have expressed different reasons for disagreement. As most of the passages relate to procedural issues, jurisdiction and the lex specialis—related to interpretation of Resolution 1244, the UNMIK mandate as well as interpretation of what represents PISG, I would concentrate on the references made to general international law. Judge Koroma concluded that “the unilateral declaration of Kosovo independence violated the principle of respect for the sovereignty and territorial integrity of States, which entails an obligation to respect the definition, delineation and territorial integrity of an existing state”.136 He also made a reference to the Supreme Court of Canada finding that “international law does not specifically grant component parts of sovereign states the legal right to secede unilaterally from their parent state”137 and concluded that the ICJ should have made clear that the applicable law in this case contains explicit and implicit rules against the unilateral declaration of independence. Judge Simma bemoaned that “this request deserved a more comprehensive answer, which could have included a deeper analysis of whether the principle of self-determination or any other rule (perhaps expressly mentioning remedial secession) permits or even warrants independence (via secession) of certain people/territories”.138 According to him, “the Court denied itself the possibility to enquire into the precise status under international law of the declaration of independence”.139 His position is supported by Judge Sepulveda-Amor and Judge Yusuf, who stated that the Court could have elucidated a number of important legal issues such as the powers of the UN SC in relation to territorial integrity, “remedial secession” and state recognition and thus prevented the misuse of the post-colonial right of self-determination by groups promoting ethnic and tribal divisions within the existing states.140

The International Court of Justice chose a very narrow interpretation of Kosovo’s declaration of independence and did not shed light on this very complex question. Clearly, Serbian hopes were not met with this Opinion, but it could not be regarded as a victory for the secessionist cause either. The fact that this particular declaration of independence does not contradict international law does not mean that there exists a positive right to secede from an existing state. The Supreme Court of Canada reference to Quebec Secession made a broader interpretation of this point.

After two failed referenda (although the second one was defeated by a margin of less than 1%) in Quebec, organized during the rule of Parti Quebecois in 1976 and 1995 on the secession of Quebec from Canada, the Federal Government submitted a reference to the Supreme Court of Canada concerning questions on unilateral secession. The first question concerned whether Quebec could effect secession under domestic Canadian law. The second question on international law is quoted in full—“Does International law give the National Assembly, legislature or government of Quebec the right to effect the secession of Quebec from Canada unilaterally? In this regard, is there a right to self-determination under international law that would give the National Assembly, legislature or government of Quebec the right to effect the secession of Quebec from Canada unilaterally?”141 The third question concerned the precedence in case of conflict between domestic and international law.

Regarding the second question, which is important for our analysis, the Court finds that “international law contains neither a right of unilateral secession nor the explicit denial of such a right, although such a denial is, to some extent, implicit in the exceptional circumstances required for secession to be permitted under the right of a people to self-determination”.142 The Court then examines the self-determination norm in international law and states that although much of the Quebec population certainly shares many of the characteristics of a people, it is not necessary to decide the "people" issue because, whatever may be the correct determination of this issue in the context of Quebec, a right to secession only arises under the principle of self-determination of people at international law where "a people" is governed as part of a colonial empire, is subject to alien subjugation, domination or exploitation and possibly denied any meaningful exercise of its right to self-determination within the state of which it forms a part. In other circumstances, peoples are expected to achieve self-determination within the framework of their existing state.143

“A state whose government represents the whole of the people or peoples resident within its territory, on a basis of equality and without discrimination, and respects the principles of self-determination in its internal arrangements, is entitled to maintain its territorial integrity under international law and to have that territorial integrity recognized by other states”.144

The Court further opined that Quebec does not meet the threshold of a colonial people or an oppressed people, nor can it be suggested that Quebecers have been denied meaningful access to government to pursue their political, economic, cultural and social development. In the circumstances, the "National Assembly, the legislature or the government of Quebec" do not enjoy a right at international law to effect the secession of Quebec from Canada unilaterally.145

The Court also addressed the argument of effectivity in international law by stating that “although there is no right, under the Constitution or at international law, to unilateral secession, the possibility of an unconstitutional declaration of secession leading to a de facto secession is not ruled out. The ultimate success of such secession would be dependent on recognition by the international community, which is likely to consider the legality and legitimacy of secession having regard to, amongst other facts, the conduct of Quebec and Canada, in determining whether to grant or withhold recognition.146 However, the Court concluded that even if granted, such recognition would not provide any retroactive justification for the act of secession, either under the Constitution of Canada or at international law.147

Drawing from the fact that international law does not provide a clear answer on legality of secession, it is necessary to turn to state practice and look at how states have reacted to secession attempts worldwide and how many secessionist entities (outside the colonial context) have finally arrived at independence and have become fully-fledged members of the international community and full legal persons.

2.3.6. International Practice

International legitimacy in the pre-1815 period still focused on the notion of state rights in customary international law, which given that most states were hereditary monarchies implied dynastic rights.148 Legitimism was the prevalent theory of sovereignty during the age of the monarchy. The first challenge to this was certainly the independence of the United States, but after the Congress of Vienna cases of recognition of secessionist entities multiplied. If in 1816 the international system had just 25 members, a century later, it was still less than fifty, whereas during the last 100 years almost 150 states entered the system and nearly two-thirds of the states entered the system after demanding independence.149 International practice demonstrates that secession was treated differently in the period between the Vienna Congress and the WW II and post-1945 world. Therefore, I would divide this subchapter according to historical periods.

Secession in 1815-1945

The first major outburst of secession movements took place in Spanish colonies of Latin America. By the end of the 18th century, Spanish colonies were divided into viceroyalties, which were governed by the legitimate representative of the Spanish King and smaller units called “general captaincies”. In total there were 4 viceroyalties and 4 general captaincies covering the whole area from Texas to Patagonia, excluding the Portuguese colony—Brazil.150 Starting with 1810, a wave of independence declarations swept the continent over a decade. The proclamation of independence of the United Provinces of New Granada in 1810 was followed by the establishment of the first Venezuelan republic in 1811. Spain re-conquered the latter a year later and New Granada in 1816, rendering the first secession attempt ineffective. New Granada and Venezuela again gave birth to the Republic of Colombia in 1819. In 1821 Panama declared independence and decided to join Colombia, a move which was emulated one year later by Ecuador. A similar development took place in the Viceroyalty of the Rio de la Plata and the General Captaincy of Guatemala. Rio de la Plata was transformed into the independent United Provinces of Rio de la Plata, out of which four independent republics were born: Argentina, Uruguay, Paraguay and Bolivia and the General Captaincy of Guatemala after a brief spell with Mexico declared independence in the form of the Central America Federation comprising five states: Costa Rica, Nicaragua, Honduras, El Salvador and Guatemala. Mexico itself was born out of the viceroyalty of New Spain after eleven years of war for independence 1810-1821 and finally the viceroyalty of Peru and the General Captaincy of Chile formed the new independent republics of Chile and Peru in 1818 and 1821 respectively. In 1822 the United States under President Monroe recognized Mexico, Colombia and Rio de la Plata, Great Britain extended recognition in 1825. In response to Spanish protests over recognition, the British Foreign Secretary George Canning stated:

“To continue to call that a possession of Spain, in which all Spanish occupation and power had been actually extinguished and effaced, could render no practical service to the Mother Country—but it would have the risked the peace of the world. For all political communities are responsible to other political communities for their conduct:—that is, they are bound to perform the ordinary international duties and to afford redress for any violation of the rights of others by their citizens or subjects. …No other choice remained for Great Britain, or for any other country having intercourse with the Spanish American Provinces, but to recognize, in due time, their political existence as States”.151

This description of recognition was the equivalent of modern de-jure recognition and it followed that parent state recognition was not a precondition for successful secession if effective independence is achieved.152 Great Britain was the sole European power that recognized Spanish colonies as independent in the 1820s. Austria, Russia, France and Prussia all protested against the recognition and blamed Great Britain for disregarding sovereign rights. Spain recognized the independence of former colonies after the death of King Ferdinand in 1836, however several European states inter alia France and Prussia recognized the Latin American republics prior to that.153

Brazilian independence did not stir up relations between the European powers, because metropolitan recognition was extended relatively quickly by Lisbon (not least due to the preservation of the royal family ruling) and recognition by European powers followed thereafter. The United States however recognized prior to Portugal’s consent, justifying it as in cases of Spanish colonies with the simple existence of the fact of “the Government of Brazil, exercising all the essential authorities”.154

The vast majority of new entities maintained the administrative borders they had under viceroyalties and general captaincies, thereby accepting uti possidetis juris as a general principle. Certainly, the United Provinces of Rio de La Plata, Colombia, the Central American Federation and Mexico disintegrated and gave birth to a dozen independent republics by the mid-19th century, but none of those cases could qualify as secession, since the process proceeded with the consent of the federal government and therefore they would qualify as dissolution and separation, rather than secession, with the exception of Texas and Panama.

At the time of creation of Mexico in 1821, Texas was part of it and the United States had recognized the sovereignty of Spain over Texas in exchange for the occupation of Florida. In 1821 the first thirty Anglo-Saxon families led by Moses Austin settled in Texas. Four years later, the United States government offered to purchase Texas but were rebuked by the Mexican authorities. In 1830 the Mexican government restricted Anglo-American immigration to Texas and ordered the unification of Texas with Coahuila in order to improve control over the area. The Texans rebelled and took advantage of the chaos in the central Mexican government in the hope of support from the United States. The expedition sent by the central authorities to crush the insurgency failed and Texas declared independence on May 2, 1836. In spite of the wish of Texan leader Houston to annex Texas to the United States, the US Congress turned this offer down and instead recognized the new republic. France and Britain followed suit and even tried to persuade Mexico to recognize Texas but failed. Mexico never recognized Texan independence until the defeat in the war against the United States in 1848. By that time, Texas was already a 28th state of the United States, without the consent of the former sovereign.

The United States contributed greatly also to another secession case in Latin America, namely that of Panama. Panama as mentioned above declared independence in 1821 and joined the Republic of Colombia. Although, the Republic of Colombia was dismembered in 1829-1831, Panama stayed in the union. In 1903 the United States and Colombia signed a treaty on the indefinite concession of an area in Panama to construct a channel for free navigation between the oceans. However, the Colombian congress objected to the treaty. Discontented with the Colombian decision, the people of Panama started a separatist rebellion with US support and in November 1903 Panama declared independence. The US immediately recognized Panama and signed the Hay-Bunau-Varilla Treaty on ceding the territory for the construction of the canal and paying 10 million USD to the Panama government.155 Only in 1921, when the canal had already been operational for 7 years, did the US and Colombia sign the Thomson-Urrutia Treaty whereby Colombia recognized the independence of Panama and received 25 million USD in exchange.156

Meanwhile, the 19th century saw the birth of several new states in Europe too. In the west, Belgium was a new state, which effectively broke away from the United Kingdom of the Netherlands after a revolt in the summer of 1830 and after King William’s failure to address the grievances of Belgians. The provisional government declared independence and ousted Dutch soldiers from most of the Belgian territory. King William appealed to the great powers who were guarantors of the 1814-15 treaty incorporating Belgium to the United Kingdom of the Netherlands. The Great Powers, faced with de-facto secession and wary of shattering the balance of power in Europe, convened in London. None of the powers except Russia was eager to fight for the legitimist cause. Foreign Secretary of Great Britain Lord Palmerston declared that “any attempt to again join those countries together under any modification of union, would probably be as repugnant to the wishes of the Dutch, as it would be to the wishes of Belgians, and to any attempt to re-establish such a union by force, Her Majesty’s government could never consent”.157 France and Austria also agreed and finally Russia acquiesced seeing a lack of enthusiasm. The powers drafted the treaty of separation, which granted independence to Belgium. Dutch protests did not yield any results and the Netherlands signed a treaty in 1839.

In the south, Greece emerged as another new state, which was the first state to attain de-facto independence on Ottoman territory. The Greek revolt and subsequent declaration of independence in 1822 caught the great powers in confusion. Although sympathetic to Greek independence, they saw the struggle potentially harming their own constitution. As early as 1823, Great Britain recognized the equality of Greek and Ottoman belligerents.158 The failure of the Sultan to suppress the insurgency for five years, the atrocities committed by Turkish soldiers and the aggravation of instability in the Mediterranean led Great Britain, Russia and France to conclude the Treaty of London in 1827 and demand from Porte an end to hostilities and an armistice on the condition of Greek autonomy. Although the Ottomans rejected the treaty initially, their subsequent defeats on the battlefield in the war with Russia forced them to yield to pressure from the three powers and accept not only autonomy, but eventually, the full independence of Greece in 1830. Austria, Prussia and the US recognized Greece in 1833 and other European states shortly followed suit.

Five decades later, three new states namely Romania, Serbia and Montenegro emerged out of the Ottoman Empire. In the 1870s the mass mobilization in the Balkans against Ottoman rule ignited new conflicts. The initial spark came from Bosnia and Hercegovina, where a local insurrection started in 1875.159 Austria-Hungary, Russia and Germany advised the Sultan to introduce political and economic reforms. The Sultan agreed, but the rebels declared they did not trust the Porte and violence gradually spread and embraced other parts of Ottoman Europe. Serbs and Montenegrins also joined the fight against the Ottomans. At the end of October 1876, when the death toll increased dramatically, Russia issued an ultimatum to Porte demanding cessation of the fighting. The ultimatum did achieve an armistice with Serbia, but the Porte refused to carry out necessary reforms to ease the lot of Slavic Christians. Russia had a strong resolve to take arms in case of Turkish objections and was supported by Austria-Hungary in this endeavour. Great Britain however, observed with fear the growing Russian influence in the European parts of the Ottoman Empire as destabilizing the balance of power.160 Russian aims were supported by the declaration of war on the Ottomans in May 1877 and the subsequent declaration of independence by the Bucharest government. In December, Romania and Montenegro, which did not sign the armistice, were joined by Serbia. Faced with the occupation of Constantinople by Russian forces, the Porte asked for an armistice and in March 1878 the San Stefano agreement recognized the independence of Romania, Montenegro and Serbia. The Porte also approved Bulgarian and Bosnian autonomy.161 Although discontent with Russian unilateralism, the Great Powers revised the San Stefano Treaty at the Congress of Berlin in the same year, but the decision on recognition of the independence of Romania, Serbia and Montenegro from the Ottoman Empire remained in force.162