Russia's Recognition of the Independence of Abkhazia and South Ossetia

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