Escaping the Self-Determination Trap

Escaping the Self-determination Trap

Escaping the Self-determination Trap By

Marc Weller

LEIDEN • BOSTON 2008

Library of Congress Cataloging-in-Publication Data A C.I.P. Catalogue record for this book is available from the Library of Congress.

ISBN:

978 90 04 17488 7

© Copyright 2008 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Hotei Publishing, IDC Publishers, Martinus Nijhoff Publishers and VSP. http://www.brill.nl All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Brill provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. Printed by Cambridge University Press

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To Antje and Pop, for their patience, love and dedication.

Table of Contents Preface

9

Acknowledgements

11

I.

Introduction

13

II.

A Concept with Multiple Meanings

23

III.

The Classical Right to Self-determination

30

IV.

Constitutional Self-determination

46

V.

Remedial Self-determination

59

VI.

Effective Entities

70

VII. Trading Self-determination for Autonomy or Enhanced Self-governance

78

VIII. Regionalisation, Federalisation, or Union with Confirmation of Territorial Unity

91

IX. Deferring a Substantive Settlement while Agreeing to a Settlement Mechanism

113

X.

119

Balancing Self-determination Claims

XI. Conditional Self-determination

123

XII. Agreeing on Self-determination but Deferring Implementation

126

XIII. Establishing a De Facto State through an International Process

136

XIV. Supervised Independence

139

XV. Conclusion: New Approaches to Self-determination Settlements

144

7

Escaping the Self-determination Trap Annex I:

Levels of Legal Privileges of Entities

158

Annex II: Settlements and Steps towards Settlement

160

Bibliography

171

8

Preface There is new movement in the discussion about self-determination and statehood. The contested declaration of independence by Kosovo will soon be subjected to review by the International Court of Justice. Russia’s recognition of the purported independence of Abkhasia and South Ossetia has caused additional controversy. These developments may well put an end to the attempt by governments to keep in place the highly restricted doctrine of selfdetermination that has only been made available in the colonial context. This monograph argues that classical self-determination, narrowly conceived in the colonial context, cannot contribute to the resolution of the presently ongoing self-determination conflicts around the word. The reason is simple: there are no colonies of significance left. However, if international law does not address the actual causes of armed contestation about the identity of states, it is likely to remain irrelevant in this area. As illustrated by the crisis involving Kosovo, groups struggling for statehood are unlikely to be impressed by the argument that their immediate concerns cannot be addressed by the international legal order, due to larger considerations of stability in the international system. The organised international community resisted statehood in that instance for exactly 20 years, from the point of the unilateral modification of Kosovo’s status within the then Socialist Federal Republic of Yugoslavia (SFRY) in 1988 to the declaration of independence in February 2008. In the end, however, statehood nevertheless resulted. In the meantime, the local population had undergone tremendous suffering. Moreover, the North Atlantic Treaty Organisation (NATO) found itself involved in its first major armed conflict – a conflict fought in Europe itself. This demonstrated that the application of traditional doctrines and concepts does not in fact generate the peace and stability it is meant to secure. The most recent developments concerning statehood have 9

Escaping the Self-determination Trap already led to a revival of discussions about alternative concepts, such as remedial self-determination. While this debate will undoubtedly contribute to the development of the law in this area, this study also points to a less visible, but perhaps at least equally as important, development. This concerns the actual practice of addressing self-determination disputes that has arisen over the past decade or two. Since the conclusion of the Cold War, a significant number of previously irresolvable self-determination conflicts have been terminated through agreement. Some of these expressly apply the concept of self-determination outside of the colonial context. Others challenge previous insistence on the application of the uti possidetis doctrine in the identification of the unit to be addressed. Still other types of agreement seek to trade a claim to independence for enhanced governance within existing states. The following chapters review this practice, among other developments, and consider its impact on the previously mono-dimensional view of self-determination.

10

Acknowledgements This short monograph is the result of long-standing support granted to its author by the Carnegie Corporation of New York, and should be regarded as a further step in the work generated under this helpful framework. Earlier activities have included significant collective works undertaken by a global team of experts in the field from various disciplines.1 Some of the issues addressed in this monograph have been considered by the author elsewhere.2 However, the study brings two aspects of this work together for the first time: the analysis of classical self-determination discourse as fundamentally disenfranchising for populations seeking enfranchisement through it, and the study of novel approaches to the settlement of selfdetermination conflicts that break away from that restrictive paradigm. Moreover, an initial treatment of the issue of remedial self-determination has been attempted – an issue which will need to be developed further in light of advancing practice. This work has benefited from the assistance of a number of individuals. Ms Katherine Nobbs offered, as always, unwavering support for the project and supervised the publications process. Ms Lindy Melman and Ms Bea Timmer were kind enough to support the publication of this monograph with their usual enthusiasm. 1

2

M. Weller, ed., The Rights of Minorities, Oxford: Oxford University Press (2005); M. Weller and S. Wolff, eds., Autonomy, Self-governance and Conflict Regulation, London: Routledge (2005); M. Weller, ed., Universal Minority Rights, Oxford: Oxford University Press (2007); M. Weller and B. Metzger, Settling Self-determination Disputes, Dordrecht: Martinus Nijhoff (2008); M. Weller and S. Wolff, eds., Institutions for the Management of Ethno-political Conflict in Central and Eastern Europe, Strasbourg: Council of Europe Press (2008); M. Weller, ed., Asymmetric Autonomy as a Tool of Ethno-political Conflict Settlement, Philadelphia: University of Pennsylvania Press (2009). M. Weller, “The Self-determination Trap”, 4 Ethnopolitics (2005), 1–42; id., “Why the Legal Rules on Self-determination Do Not Resolve Self-determination Disputes”, in Weller and Metzger, Settling Self-determination Conflicts, supra n. 1, 17–47; id., “Settling Selfdetermination Conflicts: Recent Developments”, 20 European Journal of International Law 1 (forthcoming).

11

Escaping the Self-determination Trap Production was very patiently and efficiently supervised by Ms Ellen Matthews of Cambridge University Press. Assistance in collecting the relevant materials was provided by Ms Janina Dill, Ms Kristine Gasparyan, Mr Stephen Fox, and Mr William McKinney. Mr Ian Ralby joined the team at a late stage, but made up for it by rendering invaluable assistance in finalising the script under great pressure of time during the final weeks.

12

I.

Introduction

Self-determination kills. Self-determination conflicts are among the most persistent and destructive forms of warfare. Given the structural inequality between an armed self-determination movement and the opposing central government, the ‘national liberation movement’ will often resort to irregular methods of warfare, possibly including terrorist tactics. Governments tend to respond with disproportionate force to challenges of this kind. A spiral of violence may develop leading to profound destabilisation of societies placed at risk of disintegration, as seen in Sri Lanka or Sudan. And, due to the doctrine of non-intervention, international actors are traditionally hesitant to involve themselves in attempts to bring about a settlement of the conflict. At present, there are about 26 ongoing armed self-determination conflicts.3 Some are simmering at a lower level of irregular or terrorist violence, while others take the form of more regular internal armed conflict, with secessionist groups maintaining control over significant swathes of territory to the exclusion of the central government. In addition to these active conflicts, it is estimated that there are another 55 or so campaigns for selfdetermination that might turn violent if left unaddressed, with another 15 conflicts considered provisionally settled but at risk of re-ignition.4 The powerful force of nationalism or ethnic entrepreneurship alone does not explain the explosive nature of self-determination claims. At the structural level, the very doctrine of selfdetermination contributes to the fact that, traditionally, few existing or new conflicts were addressed. Instead, such conflicts have often seemed beyond resolution. For the doctrine of self-determination 3

4

D. Quinn, “Self-determination Movements and their Outcomes”, in J.J. Hewitt, J. Wilkenfeld and T.R. Gurr, Peace and Conflict 2008, Boulder: Paradigm Publishers (2007), 33. Ibid., 35, 38.

13

Escaping the Self-determination Trap has traditionally been seen as an all-or-nothing proposition. True, self-determination has numerous layers of meaning, which include a right to democratic participation for individuals, certain human rights entitlements for minorities and additional benefits for indigenous peoples. But at the sharp end, where opposed unilateral secession is concerned, the doctrine in its simplicity has exacerbated conflict, rather than helping to resolve it.5 International legal rules are made by governments. Governments have an interest in perpetuating the legitimising myth of statehood based on an exercise of the free will of the constituents of the state – their own legitimacy depends on it. It is therefore accepted that self-determination “is one of the essential principles of contemporary international law”.6 But while embracing the rhetoric of free will and self-constituting states, governments have simultaneously ensured that the legal right to self-determination is strictly rationed and cannot ever be invoked against the state they themselves represent. As was famously expressed in a United Nations (UN) report on the subject of selfdetermination:7 The principle of equal rights and self-determination … does not grant an unlimited right of secession to populations living in the territory of an independent sovereign state … The right of secession unquestionably exists, however, in a special, but very important case: that of peoples, territories and entities subjugated in violation of international law. In such cases, the peoples have the right to regain their freedom and constitute themselves and independent sovereign states.

Of course, in this context it is important to note one crucial distinction. This concerns secession by right in contrast to secession in fact. 5

6 7

For an in-depth discussion of this problem cf. Weller, “The Self-determination Trap”, supra n. 2. Eastern Timor case, 1995 ICJ 102. A. Cristescu, “The Right to Self-determination, Historical and Current Development on the Basis of United Nations Instruments”, E/Cn.4/sub.2/404/Rev.1, 1981, para. 173.

14

Introduction There is a well-established rule of international law protecting the territorial integrity and unity of states. For instance, even UN Security Council Resolution 1514 (XV), which first enshrined the principle of self-determination as classically understood, determined that:8 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.

Governments may at times wish to claim that this obligation is not only directed at other states, but also constrains the acts of those within existing states, seeking secession. However, it is generally understood that “the existence or disappearance of the state is a matter of fact”.9 Therefore, it is perfectly possible for a new state to come into being through secession, even if it does not enjoy a positive right to self-determination. Effective statehood generated in this way does not offend the rule of territorial unity. As Professor Crawford argues persuasively:10 In particular, the reason why seceding groups are not bound by the international law rule of territorial integrity is not that international in any sense favours secession. It is simply that such groups are not subjects of international law at all, in the way that states are, even if they benefit from certain minimum rules of human rights and humanitarian law. … [T]hus international law, both in principle and as evidenced in state practice, favours the territorial integrity of the predecessor state. It does so, not in the sense of offering any ultimate guarantee against separation or dissolution, but in the sense that for significant and often very substantial periods of time, it allows the central government to seek to preserve the territorial integrity of the state. …

The difference therefore is that an entity that can invoke the right to self-determination can secede, and it is legally privileged during that Para. 6. Opinion No. 1 of the Badinter Arbitration Commission, para. 1 (c), 31 International Legal Materials (ILM) (1992), 1497ff. 10 J. Crawford, “The Right of Self-determination in International Law: Its Development and Future”, in P. Alston (ed.) Peoples’ Rights, Oxford: Oxford University Press (2001), 50. 8 9

15

Escaping the Self-determination Trap process. Hence, a colony enjoys legal personality before it gains independence, it must not be repressed during its attempt to administer the act of self-determination, it may resist repression, etc. On the other hand, an entity that obtains independence merely through effectiveness will remain exposed to possible forcible reincorporation by the central state until its status is resolved through agreement between the parties or by way of widespread recognition. Given the powerful nature of this privilege, self-determination in the sense of secession has only been applied to classical colonial entities and closely analogous cases.11 For instance, while Chechnya might want to argue that it was forcibly occupied by a metropolitan power during the age of imperialism for the purpose of economic exploitation (a layman’s working definition of colonialism), it nevertheless did not qualify for colonial self-determination. Unsurprisingly, the Russian Federation, and many other states faced with an equivalent claim, made sure that the doctrine of selfdetermination was framed to apply only in the classical and narrowly defined circumstances of salt-water colonialism that practically no longer exist.12 Even in relation to such traditional colonies, the right to selfdetermination can only be exercised within the boundaries established by the colonial power – in that way it does not overcome the effects of colonialism, but the self-determination entity itself is defined by it.13 Furthermore, the right is of singular application. As soon as a colony has gained independence, it will itself start defending its own territorial integrity with utmost vigour. There is no secession from secession.14 And when armed self11

12

13

14

This includes cases of armed occupation, racist regimes (formerly South Africa) and alien domination (Palestine), in addition to instances of secondary colonialism (Western Sahara, formerly East Timor). See, e.g., J. Crawford, The Creation of States in International Law, Oxford: Oxford University Press (2nd ed., 2007). E.g., OAU Resolution AGH/Res.16.1 (1964); Case Concerning Frontier Dispute (Burkina Faso-Mali), 1986 ICJ 554; Badinter Opinion No. 2, International Legal Materials 31 (1992) 1497ff. Badinter Opinion No. 3, id., 1499ff.

16

Introduction determination conflicts erupt outside the colonial context, there emerges a legal inequality with significant practical consequences. Colonial self-determination movements are entitled to establish national liberation movements, and the international system is twisted in their favour to help them overcome the last vestiges of colonialism.15 Thus, other rebel movements hiding in the deserts and jungles of the world will also inevitably lay claim to the title of ‘national liberation’. However, in their case, the self-determination privilege does not apply. Instead, the international system is structured in a way that actually assists the central state in ensuring their defeat. However just their cause, groups fighting on behalf of suppressed and tortured peoples outside of the colonial context are classified as secessionist rebels and, potentially, terrorists. Hence, they can be engaged with minimum international legal restraint, under the very legal order of the state from which they seek to escape. This view was already expressed during the League of Nations period, even before the right of self-determination was firmly recognised in international law. As an international Committee of Jurists held in relation to the attempt of the Aaland Islands, almost entirely inhabited by Swedish-speakers, to separate from Finland:16 Positive International law does not recognize the right of national groups, as such, to separate themselves from the State of which they form part by simple expression of a wish, any more than it recognizes the right of other States to claim such as separation. Generally speaking, the grant or refusal of the right to a portion of its population of determining its own political fate by plebiscite or by some other method, is, exclusively, an attribute of 15

16

Genuinely colonial self-determination entities enjoy legal personality even before administering the act of self-determination. They have a right to territorial unity, to be free from the use of force and repressive measures, they may ‘struggle’ through the means of a national liberation movement and arguably receive international support in that struggle. They can also unilaterally bring into application the law of international armed conflict, instead of the much more limited law of internal armed conflict that covers domestic conflicts (cf. Weller, “The Self-determination Trap”, supra n. 2). Report of the International Committee of Jurists Entrusted by the Council of the League of Nations with the Task of Giving an Advisory Opinioni upon the Legal Aspects of the Aaland Islands Question, LNOJ, Sp. Suppl. No. 3, October 1920.

17

Escaping the Self-determination Trap the sovereignty of every State which is definitively constituted. ... Any other soluton would ... involve the risk of creating difficulties and a lack of stability which would not only be contrary to the very idea embodies in the term ‘State’, but would also endanger the interests of the international community.

It is interesting, therefore, that a balancing between the interests of the population concerned and the need to maintain international stability and peace was undertaken even then. This approach has persisted to this day, as evidenced by an important decision of the Canadian Supreme Court:17 [I]nternational law places great importance on the territorial integrity of national states and, by and large, leaves the relation of a new state to be determined by the domestic law of the existing state of which the seceding entity presently forms a part. Where, as here, unilateral secession would be incompatible with the domestic constitution, international law is likely to accept that conclusion.

The attempt to address the fate of those seeking to escape from the domestic jurisdiction of a state solely through that jurisdiction is of course not very promising. The traditional abdication of international law in such instances will tend to remove the option of constructive action at the international level to help manage the identity crisis of the state under threat. As Hurst Hannum notes:18 Nevertheless, the continued refusal of the international community to apply self-determination norms when they conflict with the statist norm of territorial integrity only underscores to sub-state groups the perceived irrelevance of international law to the problems faced by minorities and indigenous peoples throughout the world.

This irrelevance, generated through the exclusive application of self-determination in the sense of possible secession in the colonial context, applies in at least three sets of circumstances: 17

18

Reference Re Secession of Quebec, 2 SCR. (1998) 217. Text available at http:// www.intstudies.cam.ac.uk/centre/cps/documents_canada_quebec.html, accessed 3 November 2008. H. Hannum, Autonomy, Sovereignty and Self-determination: The Accommodation of Conflicting Rights, Philadelphia: University of Pennsylvania Press (1990), 473.

18

Introduction • Cases arising outside of the colonial context (for example, Chechnya, Corsica, the Basque country, Kosovo, etc). These are cases where the concept of self-determination in the sense of secession does not apply at all, given the lack of a colonial nexus. • Challenges to the territorial definition of former colonial entities (for example, Bougainville, Sri Lanka, the Philippines, Burma, India in relation to tribal peoples). These are cases where a former colony exercised the right to self-determination, but ethnic movements emerging within the newly independent state seek separation. • Challenges to the implementation of colonial self-determination (for example, Eritrea, Somaliland, Kashmir, perhaps Southern Sudan, and the Comoros and Mayotte). These are cases where it is argued that the doctrine of uti possidetis was wrongly applied at the point of decolonisation, or that an entity was wrongfully incorporated into the newly independent state. In fact, while decolonisation has been applied in 72 cases of nonself-governing territories and 11 trust territories since 1945, this figure is nearly matched by the number of 78 major violent selfdetermination conflicts that have arisen out of the colonial context. Overall, the all-or-nothing game of self-determination has helped to sustain conflicts, rather than resolve them. Self-styled selfdetermination movements see no alternative to armed struggle or to the use of terrorist strategies to achieve their aims. Central governments see little alternative to violent repression. Generally, self-determination conflicts will therefore terminate only once the government has won a decisive victory against the secessionist entity, as was the case for instance in relation to Katanga and Biafra in 1963 and 1969 respectively.19 Other conflicts may persist for decades – it is estimated that the 26 presently ongoing self19

An exceptional case is Bangladesh, where independence was obtained, albeit as a consequence of an armed intervention by India.

19

Escaping the Self-determination Trap determination conflicts have already lasted for an average of 27 years each. 20 Of course, there is a third way between victory and protracted fighting. This is the option of achieving a settlement. However, during the Cold War years, only a handful of the numerous ongoing self-determination conflicts were settled. Most either ended in a decisive victory for the government or led to a protracted stalemate that was detrimental to both sides. With the end of the Cold War, this situation changed. A new climate set in, presenting an opportunity to reassess the concepts of state sovereignty and self-determination, while, simultaneously, new challenges to the traditional doctrine of territorial unity emerged. First, there was a profusion of new self-determination conflicts triggered by the unfreezing of Cold War blocs. These risked causing regional destabilisation, especially in Europe. Hence, settlements were imposed in relation to some of them, in particular the former Yugoslavia. Second, long-running conflicts in other regions were finally starved of assistance from their former Cold War supporters. A settlement suddenly became an attractive option to both sides, especially as a continuation of the conflict damaged the economic interests of both the central government and secessionist regions.21 This climate of ‘a new beginning’ also affected other protracted conflicts, such as Northern Ireland. The parties used this momentum to escape a mutually damaging stalemate through settlement. Hence, since the end of the Cold War in around 1988, at least 32 self-determination settlements have been achieved.22 These exhibit innovative attempts of addressing 20

21

22

M.G. Marshall and T.R. Gurr, Peace and Conflict 2005, Centre for International Development and Conflict Management, Maryland: University of Maryland (2005), 27. For instance, the wish to exploit the resources of South Sudan significantly contributed to the conclusion of the Machakos Protocol of 20 July 2002 and subsequent instruments. All texts available in full at http://www.intstudies.cam.ac.uk/centre/ cps/documents_sudan.html, accessed 3 November 2008. For all self-determination agreements and related documents listed below, see the Cambridge-Carnegie document archive at http://www.intstudies.cam.ac.uk/centre/ cps/documents.html, accessed 3 November 2008.

20

Introduction the self-determination dimension underlying the conflict. There are another 10 draft settlements that have either not yet been adopted, or have been rejected by the one or other party for the moment, with a strong likelihood of resurrection of the agreement.23 The draft settlements also shed light on these new approaches to the settlement of self-determination conflicts that are being tried out at present. This new climate was summarised by the then UN SecretaryGeneral in his influential Agenda for Peace document:24 The time of absolute and exclusive sovereignty, however, has passed; its theory was never matched by reality. It is the task of leaders of States today to understand this and to find a balance between the needs of good internal governance and the requirements of an ever more interdependent world. Commerce, communications and environmental matters transcend administrative borders; but inside those borders is where individuals carry out the first order of their economic, political and social lives. The United Nations has not closed its door.

While this message sounded like an acknowledgement that a new approach to self-determination might be forthcoming, the Secretary-General continued:25 Yet if every ethnic, religious or linguistic group claimed statehood, there would be no limit to fragmentation, and peace, security and economic well-being for all would become ever more difficult to achieve. … One requirement for solutions to these problems lies in commitment to human rights with a special sensitivity to those of minorities, whether ethnic, religious, social or linguistic.

The attempt to address the concerns of ethnic communities through human rights, and minority rights provisions represented only a modest progression in thinking on the subject. Indeed, as 23

24

25

These include further tribes in Burma and India, settlements for Corsica, Cyprus, Kosovo, Abkhasia, South Ossetia, Transdniestria, Nagorno-Karabakh, Western Sudan (Darfur), Sri Lanka and Thailand. One might also include the settlement plan for Western Sahara, although this is the last remaining major outstanding case of colonial self-determination, alongside the special case of Palestine. UN Secretary-General, An Agenda for Peace, UN doc. A/47/277, 17 June 1992, para. 17f. Ibid.

21

Escaping the Self-determination Trap will be noted in sections VII and VIII of this study, this has been supplemented by increasing emphasis on presenting minority groups with autonomy solutions, or attempts to glue states back together after violent secessionist or ethnic conflict by using purportedly indissoluble federations or confederations. However, what has gone unnoticed thus far is that the spectrum of settlement opportunities now also quite clearly extends to self-determination in the sense of secession outside of the colonial context. This monograph will first illuminate the restrictive nature of the doctrine of self-determination. It will then turn to relatively new concepts, such as constitutional self-determination and remedial secession. Finally, the remainder of the book will be devoted to the analysis of recent settlement practice in the area, addressing the question of whether this profusion of settlements has helped to overcome the damaging consequences of the restrictive doctrine of self-determination for the international system.

22

II.

A Concept with Multiple Meanings

This monograph addresses self-determination as the right of all peoples freely to determine their political, economic and social status – the formulation used in virtually all relevant UN documents addressing the issue. However, this definition is broad and can be taken to encompass various interconnected concepts. Often, and controversially, self-determination tends to be divided into an ‘internal’ and an ‘external’ dimension. External selfdetermination will normally be taken to include the right to secession. Internal self-determination concerns the choice of a system of governance and the administration of the functions of governance according to the will of the governed. This division is controversial in its implication that self-determination is not a continuous right that applies equally in all circumstances concerning the identity of the state or its governance. A. The Right to Self-determination in International Law The following are examples of the different layers of meaning of self-determination in a legal sense. Self-determination as an individual right. Self-determination is not only a right exercised by peoples or groups. It is also a human right of individuals. Hence, individuals are entitled to participate in the political, economic or cultural system of their state.26 In that sense, the individual right to self-determination might be regarded as coextensive with the right to some form of democratic governance.27 26 27

E.g., Article 25 of the UN Covenant on the Civil and Political Rights. Somewhat sceptical is J. Crawford, “Democracy in International Law”, 64 British Yearbook of International Law (BYIL) (1993) 113; more optimistic is T. Franck, “The Emerging Right to Democratic Governance”, 86 American Journal of International Law (AJIL) (1992) 46; for more detail, see G. Fox and B. Roth, eds., Democratic Governance and International Law, Cambridge: Cambridge University Press (2000). More recent practice, while far from consistent, has tended to strengthen the extent of international involvement in internal governance issues; see M. Weller, The Defence of Democracy in International Law, Oxford: Oxford University Press (forthcoming).

23

Escaping the Self-determination Trap However, for a long time this ‘right’ was reduced to an underlying political doctrine that was not actionable. It is only now, albeit somewhat hesitantly, that it is surfacing as a firm legal entitlement. Self-determination as a right pertaining to members of groups, and perhaps to groups themselves. Self-determination is also a right that can be invoked by members of certain groups, such as national, religious, ethnic or linguistic minorities. In this sense, self-determination is congruent with minority rights.28 Minority rights protect the existence of national, religious, linguistic or ethnic groups, facilitate the development of their identity and ensure that they can fully and effectively participate in all aspects of public life within the state. While it was previously argued that minority rights could only be held individually by members of minorities, it was clear that they could be exercised in community with others. Recognition of group identity as an object of legal protection may also be emerging, although this remains controversial. This would include entitlements to cultural autonomy. Some also argue that there may be an entitlement to territorial autonomy in cases where national minorities constitute a local majority, but this is not yet accepted in general practice. Self-determination and indigenous peoples. In addition to their cultural identity, indigenous populations tend to claim a historic and particularly strong bond with territories they have occupied since time immemorial. Indigenous rights, therefore, not only seek to enhance the maintenance of the cultural identities of indigenous peoples but may also extend to land rights and to political or territorial autonomies. While the technical term ‘people’ is applied to indigenous populations in the International Labour Organisation (ILO) Convention 169, that document immediately clarifies that it does not imply a people’s right to self-determination in the sense of international law (i.e. secession). Similar restrictions 28

See Weller, Universal Minority Rights, supra n. 1.

24

A Concept with Multiple Meanings are evident in the recently adopted UN Declaration on the Rights of Indigenous Peoples.29 Article 3 declares that: Indigenous 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.

However, Article 4 focuses on the right to autonomy as the principal means of implementing self-determination in this context. Moreover, Article 46 emphasises that nothing contained in the declaration should be taken to authorise or encourage action against the territorial unity of states. Self-determination in cases of limited territorial change. Where a significant tranche of territory is moved from one sovereign to another, the population of that territory may be entitled to express and subsequently exercise its preferences through a plebiscite. As opposed to the self-determination of peoples, this entitlement does not extend to free determination of the international legal status of the territory – for instance, the right to opt for independence or association with a third state. Instead, it is limited to an endorsement or rejection of the change proposed by the government concerned. However, this doctrine is displaced in certain circumstances, for instance in cases of territorial change anticipated in historical arrangements (Hong Kong). At times, it may be contested whether the inhabitants of the territory in question are a ‘people’ entitled to self-determination of peoples, or merely a ‘population’ attached to a territory and thus entitled only to a plebiscite. For instance, the population of Gibraltar might argue that it is a people entitled to full self-determination, while Spain and the United Kingdom (UK) adopt a more limited view of self-determination that may apply subject to the provisions of the Treaty of Utrecht of 1713. Should the UK ever withdraw from the territory, the treaty provides Spain with a right of first refusal. 29

UN Declaration on the Rights of Indigenous Peoples, General Assembly Resolution 61/295 of 13 September 2007, A/RES/61/295.

25

Escaping the Self-determination Trap Self-determination of peoples in the sense of secession. Self-determination of peoples implies a unilateral right to initiate a change in the status of a territory through an act of will of the population of that entire territory. In this way, self-determination of peoples differs from the right of a population to co-determine the future of a portion of territory through a plebiscite, noted above. This latter kind of ‘selfdetermination’ is ancillary to a decision on the part of states to effect a transfer of territory. A population rejects or ratifies the decision of the states involved. Self-determination of peoples, on the other hand, is an original right that is vested in ‘a people’ merely by virtue of the fact that the technical label ‘people’ attaches to a specific population and territory. Whether the state involved favours any sort of territorial change is inconsequential; the exercise of the will of the ‘people’ so nominated is itself decisive. Manifestly, the doctrine of self-determination has different legal consequences in these various contexts. Within the confines of this discussion, the principal focus must lie on self-determination as an entitlement of ‘peoples’ freely to determine the international legal status of a territory. Traditionally, there are three options: independence, association or integration with another state.30 B. The Issue of State Consent Virtually all inhabitable portions of the globe are subject to the territorial authority of one state or another. Nearly all human beings also find themselves within the jurisdiction of at least one state. Hence, if people wish to form a new state, this can only occur at the expense of an existing one, both in terms of human and territorial resources. This can occur either with the consent of the central government concerned or, more likely, in opposition to it. In 30

UN General Assembly Resolution 1541 (XV), 15 December 1960. Text available at http://daccessdds.un.org/doc/RESOLUTION/GEN/NR0/153/15/IMG/NR0153 15.pdf ?OpenElement, accessed 3 November 2008.

26

A Concept with Multiple Meanings the former case, it is of course not necessary to rely on a right to self-determination. Divorce by agreement has occurred in a few instances (e.g., Malaysia/Singapore, Czechoslovakia). Where consent from the central government is lacking, the international system will tend to deny legal personality to those seeking separation. This may appear illogical, given the contested relevance to any self-determination dispute of ‘sovereign’ acts by the central government in relation to the entity seeking secession, such as the granting of consent. However, the legal system protects the claims of governments and will normally only offer status if the government concerned is content that this be done. Changes of status by consent occur in a number of instances. These include: • Instances where one state joins another. For instance, when the new German federal states of the former German Democratic Republic joined the Federal Republic of Germany, the Treaty on the Final Settlement with Respect to Germany noted expressly that the “German people, freely exercising their right of selfdetermination, have expressed their will to bring about the unity of Germany as a state”.31 The legal personality of the German Democratic Republic was extinguished at that point, while that of the Federal Republic of Germany persisted. There can also be state unions, where a new composite state is formed, with both constituent entities relinquishing their international legal personality. • Instances of dissolution of composite states. The division of Czechoslovakia into the Czech and Slovak republics serves as an example here. Czechoslovakia disappeared as a sovereign entity by the mutual consent of its two component parts, each of which 31

Treaty on the Final Settlement with Respect to Germany, 12 September 1990. Text available at http://usa.usembassy.de/etexts/2plusfour8994e.htm, accessed 3 November 2008.

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Escaping the Self-determination Trap emerged as a new state. As there was no agreement on succession among the republics that emerged from the dissolution of the SFRY, Serbia’s claim to be its universal successor, continuing its legal personality, was rejected and all republics were treated as new states. In contrast, what turned out to be the temporary Constitutional Charter of the State Union of Serbia and Montenegro provided for the continuation of the legal personality of the overall state (by then merely the Federal Republic of Yugoslavia) by Serbia, should Montenegro opt to leave, as it eventually did. Similarly, when the Soviet Union dissolved, all its successor states agreed that the Russian Federation would continue the legal personality of the former Union. • Instances of secession. In such cases, it is clear that only one element of a composite state splits off, without putting into question the legal personality of the state. An example is furnished by the secession by agreement of Eritrea from Ethiopia. While Eritrea emerged as a new state, Ethiopia continued the legal personality of the former joint state. The manifestation of an act of will by the population is necessary even where a government agrees to the separation of certain territories. Hence, the agreement on the possible secession of Eritrea required a referendum to be held after an interim period to confirm that this change in status was indeed in accordance with popular will. Again, however, there is a crucial difference with cases of opposed secession. In the case of Eritrea, the exercise of the will of the population had been approved by the central government, which accepted that a referendum could be held and that its results would be respected. An international legal entitlement to selfdetermination was not necessarily the trigger for this process at the outset. Instead, the exercise of self-determination flowed from a previous, voluntary decision of the newly established central Ethiopian government that consisted of the victorious former rebel 28

A Concept with Multiple Meanings movements. Subsequently, Ethiopia included in its constitution a provision permitting in advance the secession of its remaining constituent units – a case of constitutional self-determination that will be considered later. First, however, it will be necessary to consider the application of classical, colonial self-determination in some greater detail.

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III.

The Classical Right to Self-determination

“It is for the people to determine the destiny of the territory and not the territory the destiny of the people”.32 This renowned definition of the right to self-determination, expressed by Judge Dillard in his Individual Opinion in the 1975 Western Sahara case, demonstrates the dangers of well-intentioned judicial activism, for there has rarely been a judicial pronouncement more dangerously mistaken than this one. Judge Dillard proposes, seemingly very sensibly, that people must triumph over the accidents of geography and of historically established territorial divisions. People act according to their free will and must therefore be able to shape their destiny through collective decisions. Since 1945, this view has been the legitimising lynchpin of the international system. The legitimacy of its most basic building block, the ‘sovereign’ state, is derived from the assumption that the state is nothing more than a machine to form and implement the aggregated common will of its people. Accordingly, the state itself is supposed to have been created by an act of will of its citizens. If the creation of the state is the product of an act of will, then a further collective decision should also suffice to undo it. Moreover, human beings do not surrender their free will by deciding to join, or to form, a collectivity. Hence, one would presume that groups within an existing state must also be able to assert their will by deciding to leave an existing state and form a new sovereign unit. Such a decision would be made manifest by an expression of will of the population concerned, for instance through a referendum. While this appears logical, the reality is of course very different, as Asbjorn Eide puts it:33 32 33

Western Sahara, 1975 ICJ 12, 122. Asbjorn Eide, “Possible Ways and Means of Facilitating the Peaceful and Constructive Solution of Problems Involving Minorities”, UN doc., E/CN.4/Sub.2/1993/34, 10 August 1993, para 55.

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The Classical Right to Self-determination Under the theory of the social contract, States and legitimate governments were, rather idealistically, portrayed as having emerged as the product of voluntary agreement among free human beings in order to solve common problems, such freedoms being retained as were compatible with the functioning of the people. Reality is quite different. States have emerged and their borders have been set by a multitude of factors, including conquest, colonialism and feudal struggles. Even in the few cases where States have emerged as a consequence of joint, free action by a selfselected group of human beings, the present borders invariably also contain some groups who had no choice but who were forced into submission and who now live within those borders.

As noted above, the international system has ‘balanced’ the competing aims of accommodating the ideology of free will against the purported aim of maintaining stability, order and peace. Accordingly, the international system has developed in such a way that it can, on the one hand, draw legitimacy from a doctrine of popular will. The political principle, and legal rule, of selfdetermination is the most potent expression of this concept. However, on the other hand, those who operate the system have ensured that the very doctrine of self-determination that purports to enfranchise people actually serves to disenfranchise them, in the interests of maintaining peace and stability. Rather than offering citizens a choice, the doctrine of self-determination has instead been constructed so as to limit or deny choice. Generally, in fact, self-determination is a rule that empowers those who oppose choice, even by violent means, where the territorial definition of the state is concerned. This is justified with reference to the need to privilege the aim of maintaining stability, order and peace over competing values, including the aim of allowing populations freedom of choice. Accordingly, self-determination disenfranchises populations. This process of disenfranchisement has traditionally proceeded in five steps. First, self-determination is intrinsically linked with, and deployed to justify, the disenfranchising doctrine of territorial unity. Second, there is the issue of the definition of the object of 31

Escaping the Self-determination Trap protection of the right to self-determination – that is, the definition of the types of ‘people’ entitled to exercise this right. Third, there is the scope of application of the right to self-determination. Thus, even if a ‘people’ is designated a right holder, does this right trump previously existing territorial definitions, or is it exercised within those confines? Then there is the issue of the singularity of implementation of the right – is it a continuous process, or is it a singular event? Finally, there is the problem of the modalities of achieving the point of self-determination. A. Self-determination as an Exceptional Right The right to opposed unilateral secession stands in obvious tension with the claim to territorial integrity and unity of existing states. Governments have enshrined the doctrine of territorial unity in countless international declarations and other instruments, often tied to, or twinned with, declarations concerning selfdetermination.34 The first element of disenfranchisement lies in the very existence of a right to self-determination. While this right purports to enfranchise populations wishing to exercise their will, in fact it does the opposite. In generating what is an exceptional entitlement to secession, self-determination appears to confirm that secession is not otherwise available in circumstances where the central government refuses to consent to a separation. This strengthens the view that secession not covered by the exceptional right to (colonial) self-determination amounts to an internationally unlawful act. This, for example, was the view taken by the rump Yugoslavia in relation to Croatia, Slovenia, Bosnia and Herzegovina, and Macedonia. The consequence of this – mistaken – view would be 34

Most notably, of course, General Assembly resolutions 1414 (XIV), 5 December 1959; and 2625 (XXV), 24 October 1970. Full text available at http://daccessdds.un.org/ doc/RESOLUTION/GEN/NR0/142/37/IMG/NR014237.pdf ?OpenElement and http://daccessdds.un.org/doc/RESOLUTION/GEN/NR0/348/90/IMG/NR0348 90.pdf ?OpenElement respectively, accessed 3 November 2008.

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The Classical Right to Self-determination that an entity that achieves secession under such circumstances was unlawful. Unlawful entities are well known in international law. These are entities that have come into being in violation of essential rules of the international community as a whole, such as the prohibition of the use of force by states (Northern Cyprus), the right to selfdetermination (Southern Rhodesia after its Unilateral Declaration of Independence by the white minority government), the prohibition of apartheid (the so-called Banthustans), or the prohibition of genocide and ethnic cleansing (the Republika Srpska and Herzeg Bosna). Such entities may display the objective criteria of statehood, namely, territory, population and government. However, this will not trigger the statehood that would ordinarily result. Instead, these entities are non-states and all states may be under an obligation to refrain from recognising them as states or from assisting them in maintaining their illegal status. As noted in the previous section, practice shows that opposed unilateral secession that does not involve the unlawful use of external force – or genocide, apartheid, etc. – is not in itself internationally unlawful. Hence, an entity that manages to secede and to maintain itself effectively can over time obtain statehood, and have this fact confirmed through international recognition, even if the central government objects. However, in its attempts to obtain statehood, the entity is not legally privileged – it enjoys no right as a legal subject in and of itself. In a situation of this kind, the central government will continue to claim an entitlement to incorporate the seceding entity, through force if necessary, relying – wrongly – on the doctrine of territorial unity. In such circumstances, governments invoke the rhetoric of unlawful secession, which does not in fact exist in cases of secession that do not offend jus cogens rules. However, in the absence of external recognition, it is difficult to identify the point in time when an entity has achieved sufficient effectiveness to consolidate statehood outside of the colonial 33

Escaping the Self-determination Trap context. After all, the central government (or former central government) can argue that the entity is not effective, and will never be effective, as it only exists so long as it is not being forcibly reincorporated. Such an act could occur at any moment chosen by the central government. One might say that Somaliland is presently in such a state of legal uncertainty, despite the fact that the territory has now administered itself as a de facto independent state for some 17 years. As noted above, Biafra and Katanga are examples of entities that were forcibly re-incorporated, without much international opposition. Chechnya was also subject to armed reincorporation, despite assurances to the contrary made by Moscow over a series of peace settlements in 1996/7. The granting of the right to self-determination as an apparent exception to the rule of territorial unity therefore appears to indirectly confirm the existence of such a rule. Why would it be necessary to invoke a positive entitlement to self-determination, if there was no broad prohibition of secession that otherwise applied? Of course, the answer lies in the distinction between privileged and unprivileged secession noted above. However, the first disenfranchising element of self-determination is rooted in the suggestion that secession is only possible in the narrowly conceived circumstances where the doctrine applies. B. The Definition of the Entity The classical right of colonial self-determination is now a core part of international law and enjoys a status that is legally superior to other international norms that do not enjoy this elevated position (jus cogens). However, it is applied only to colonial and non-selfgoverning territories of which practically none remain. This is the second disenfranchising aspect of the doctrine of selfdetermination: it is established as an exception to the doctrine of territorial unity (above), but the exception is framed so narrowly that it does not apply to many or any situations of struggle for independence outside of the colonial context. 34

The Classical Right to Self-determination There is no formal definition of what constitutes a colonial territory.35 In procedural terms, those territories still listed as nonself-governing territories by the UN General Assembly are covered. In substantive terms, the doctrine only encompasses those territories one would intuitively recognise as such. These are territories that were forcibly acquired by a racially distinct metropolitan power, divided by an ocean during the time of imperialism, and subjected to a colonial regime for the purposes of economic exploitation. This long list of qualifications indicates the lengths to which governments have gone to ensure that selfdetermination cannot ever be invoked against them. Colonial self-determination only consolidated into a firm legal rule in the early 1960s, when the remaining colonial powers resisting decolonisation were international pariahs. These were principally Portugal and Spain, both in the grip of dictatorships. Analogous situations to which the rule of colonial self-determination was also applied (Palestine and South Africa) were similarly unique. Hence, it was safe for the rest of the world’s governments to consecrate the doctrine of self-determination as a firm legal rule, provided it could only be applied to these ‘others’. In relation to them, selfdetermination was framed as a very aggressive doctrine in order to help address the historic injustice that was, by then, clearly recognised in these special cases. Of course, many populations in other circumstances claim to be disenfranchised or suppressed. They will argue that they too have been subjected to colonialism. However, they are excluded from application of the concept. For example, Chechnya argued that it was forcibly incorporated into Russia during the period of imperialism and colonially exploited. Nevertheless, its claims to colonial self-determination were simply brushed aside on the international stage. Some politicians in Kosovo were tempted to make a similar argument in relation to Serbia. Again, this 35

Within the UN framework there exists a technical identification of ‘non-self-governing territories’. However, this definition is of little utility in new contexts.

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Escaping the Self-determination Trap would not have been successful, and Kosovo opted instead for an argument based on constitutional self-determination. As already noted, in addition to genuine colonies, it is accepted that peoples living under alien occupation (Palestine) and under racist regimes (formerly South Africa) are entitled to the right of self-determination. The same applies to ‘secondary’ colonies. These are entities that were entitled to colonial self-determination in the first place. However, when they were at the very point of administering the act of self-determination, they were forcibly incorporated into another state. East Timor and Western Sahara are the two principal examples of this phenomenon. The 1999 referendum in East Timor, and the territory’s subsequent independence from Indonesia, is an example of the implementation of colonial self-determination in the classical sense, albeit somewhat delayed. C. Scope of Application While self-determination is an activist right intended to overcome the evils of colonialism, it is in fact administered in a way that is consistent with the territorial designs and administrative practices imposed by the colonisers. This is the third level of disenfranchisement of the doctrine of self-determination. For the definition of the entity that is entitled to exercise the right of selfdetermination is in itself a product of colonial administration. Hence, self-determination does not aim to restore ethnic or tribal links among populations that were artificially divided by the colonisers. Instead, the ‘people’ entitled to self-determination are those who happen to live within the colonial boundaries drawn by the colonial powers. Accordingly, in relation to Western Sahara the International Court of Justice confirmed that links may have existed between that territory and Morocco before colonialism. Morocco argued that the people of Western Sahara had previously owed allegiance 36

The Classical Right to Self-determination to its leadership, and that this relationship had been artificially disrupted by the imposition of Spanish colonial rule in territory. Now that colonialism was being dismantled, the previous status should be restored and Western Sahara should fall to Morocco once more. This view was rejected by the Court. While it confirmed that there may have been some pre-existing legal links between the two territories, the very act of colonialism is constitutive of a new legal status for the colonial entity. Colonialism generates the selfdetermination entity and therefore defines the state that may ensue. That entity holds original rights that displace legal ties that might have existed previously. Most strikingly, this was also affirmed in relation to the island of Timor. Once Portugal withdrew from East Timor, Indonesia claimed that the island should be re-unified and the Eastern part would naturally merge with the Western section. However, the separate colonial administration of the East by Portugal, as opposed to Dutch administration in the West, had rendered it a separate self-determination entity. Indonesia’s occupation of the island was therefore internationally opposed as an act undertaken in violation of the right to self-determination. As noted above, eventually Indonesia consented to the holding of a referendum on genuine self-determination. That referendum was strongly in favour of independence, which was subsequently implemented with the assistance of an international peacekeeping/enforcement mission. The aim of decolonisation is therefore not the restoration of the situation that existed prior to colonialism. Instead, the facts are merely re-shaped in accordance with the reality of colonial administration. Thus, it is the territorial shape of that administration that defines the self-determination entity, not the will of the people. Herein lies the third element of disenfranchisement. Contrary to the dictum of Judge Dillard, quoted at the outset, the ‘free will’ of populations can only apply within boundaries that have been colonially defined. For instance, 37

Escaping the Self-determination Trap different ethnic groups within a colonial territory would not be entitled to form separate states, or perhaps to associate in part with neighbouring ethnic kin-states. Instead, the entire territory, as defined by the colonial masters, must exercise the right to selfdetermination a single, undivided entity. While some might regard this practice of retaining ‘artificial’ colonial boundaries as reprehensible, it was accepted by African states upon independence. Moreover, it has since been fiercely defended by them. This principle of ‘uti possidetis’ has been described by the International Court of Justice as follows:36 21. … The fact that the new African States have respected the administrative boundaries and frontiers established by the colonial powers must be seen not as a mere practice contributing to the gradual emergence of a principle of customary international law, limited in its impact to the African continent as it had previously been to Spanish America, but as the application in Africa of a rule of general scope. … 23. … The essence of the principle lies in its primary aim of securing respect for the territorial boundaries that moment when independence is achieved. … 24. … There is no doubt that the obligation to respect pre-existing international frontiers in the event of a State succession derives from a general rule of international law, whether or not the rule is expressed in the formula uti possidetis. Hence, the numerous solemn affirmations of the intangibility of the frontiers existing at the time of the independence of African States, whether made by senior African statesmen or by organs of the Organization of African Unity itself, are evidently declaratory rather than constitutive: they recognize and confirm an existing principle, and do not seek to consecrate a new principle or the extension to Africa of a rule previously applied only in another continent. 25. However, it may be wondered how the time-hallowed principle has been able to withstand the new approaches to international law as expressed in Africa, where the successive attainment of independence and the emergence of new States have been accompanied by a certain questioning of traditional international law. At first sight this principle conflicts outright with another one, the right of peoples to self36

Case concerning the Frontier Dispute (Burkina Faso/Republic of Mali), Merits, 1986 ICJ 564.

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The Classical Right to Self-determination determination. In fact, however, the maintenance of the territorial status quo in Africa is often seen as the wisest course, to preserve what has been achieved by peoples who have struggled for their independence, and to avoid a disruption which would deprive the continent of the gains achieved by much sacrifice. The essential requirement of stability in order to survive, to develop and gradually to consolidate their independence in all fields, have induced African States judiciously to consent to the respecting of colonial frontiers, and to take account of it in the interpretation of the principle of self-determination of peoples.

Subsequently, this doctrine was endorsed by the Badinter Commission appointed by the European Community to advise on international legal issues in the context of the dissolution of Yugoslavia. According to this perhaps controversial view, the doctrine of uti possidetis applies as a universal principle in all regions of the world, including outside of the colonial context. One might argue, however, that there is nothing inherent or logically necessary about the uti possidetis doctrine. Instead, it is a rule of convenience. It represents, once again, a balance between competing aims. Stability of newly independent states and boundaries was privileged over the aim of reconstituting states according to ethnic and historical arrangements that existed prior to the advent of colonialism. It is not yet known whether this balancing act was ultimately successful. Challenges to uti possidetis persist, for instance in relation to Kosovo and Bosnia and Herzegovina. It also remains to be seen whether the principle survives a possible revival of self-determination claims in Africa. D. Self-determination as a Singularity The fourth layer of disenfranchisement relates to the fact that colonial self-determination is an ‘act’ which occurs only once, and not an ongoing process. Of course, self-determination continues to occur in its internal sense, according to the doctrine of democratic governance. However, in its external sense, it is a unique opportunity. Hence, once a colonial territory has exercised the 39

Escaping the Self-determination Trap option of independence or integration (the exception being, theoretically, association37), the right to external self-determination will have expired. Self-determination is not available to distinct ethnic entities within the self-determination unit that may feel that they too should have had the option of secession from secession. The doctrines of territorial unity and uti possidetis protect the territorial identity of the self-determination entity before, during and after the act of self-determination. The present dispute involving the Comores and Mayotte may serve as an example of the former. France held a separate referendum in Mayotte. That referendum favoured continued integration with France, while the Comores opted for independence. Drawing on the doctrine of uti possidetis, the UN General Assembly objected to the division of the ‘territory’ (in fact, separate islands) while self-determination was ongoing. The insistence on self-determination as a singularity is handsomely demonstrated by the following extract from a submission to the United Nations by Sri Lanka:38 2. It is the position of the Government of Sri Lanka that the words “the right to self-determination” … apply only to people under alien and foreign domination and these words do not apply to sovereign independent states or to a section of a people or nation. It is well recognized in international law that the principle of self-determination cannot be construed as authorizing any action which would dismember or impair totally or in part the territorial integrity or political unity of sovereign and independent States. This article of the Covenant cannot therefore be interpreted to connote the recognition of the dismemberment and fragmentation on ethnic and religious grounds. Such an interpretation would clearly be contrary, inter alia, to General 37

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An exception to this rule would relate to a self-determination entity that decides to associate, but not integrate, with another state, rather than opting for independence. Through association, the self-determination status of the entity is retained, or one might say it is transformed into a case of constitutional self-determination. However, there is very little practice of this kind. International Covenant on Civil and Political Rights, Third periodic reports of states parties due in 1991, Addendum, Report Submitted by Sri Lanka, 18 July 1994, CCPR/C/70/Add.6, 27 September 1994.

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The Classical Right to Self-determination Assembly Resolution 2526 (XXV) on the Declaration of Principles of International Law and incompatible with the purposes and principles of the Charter.

In the context of the dissolution of Yugoslavia, the Badinter Commission ruled that the constituent republics of the SFRY might turn into states in accordance with a new doctrine of constitutional self-determination. However, entities within the republics, for instance the mainly ethnic Serb inhabited Krajina region, could not make a similar claim. It was held that there would be no secession from secession, evidencing the view that selfdetermination, including constitutional self-determination which was at issue, is not an open-ended, ongoing process in the context of secession. Confirming the doctrines of territorial integrity and uti possidetis, the Badinter Commission proposed that other entities might only claim territorial autonomy within the new state boundaries. It will be convenient to return to this issue when considering the new practice of constitutional self-determination. Before doing so, however, it is necessary to consider the fifth step in the chain of disenfranchisement that lurks within the doctrine of self-determination. E. Modalities of Reaching the Point of Self-determination We have already noted that self-determination exceptionally enfranchises colonial peoples struggling for the right to opt for a new status within colonial boundaries in one unique decision. All other cases are excluded and therefore subject to the negative, disenfranchising element of the doctrine of self-determination. This disenfranchisement consists of the very different treatment accorded by the international system to classical colonial cases of self-determination in contrast to the vast majority of selfdetermination conflicts that remain outside the application of the right. Those entities that qualify as classical self-determination entities are legally entitled to mount a struggle in favour of selfdetermination. If the colonial state resists and represses the 41

Escaping the Self-determination Trap uprising, there is a right to wage armed resistance. While this struggle takes the form of a de facto civil war, legally the national liberation movement representing the self-determination entity is entitled to turn it into an international conflict in terms of international humanitarian law. That is to say, national liberation fighters are to enjoy the same rights extended to combatants in international armed conflicts, including prisoner of war status. Moreover, and controversially, the self-determination entity is entitled to receive military support from abroad. This would probably not include the direct support of foreign armed forces, but would include the basing of national liberation fighters in neighbouring territories, and training, equipping and supplying them there. The government, on the other hand, is not entitled to receive international support. In short, the system has been arranged to ensure that the national liberation struggle will ultimately be a success. Given the ‘corrective’ nature of the doctrine of self-determination in relation to the evil of colonialism, this should not be controversial. However, it is important not to confuse national liberation warfare with an open licence to engage in acts of terrorism or other grave violations. Such atrocities are never permissible, even in the cause of an internationally lawful struggle of anti-colonial liberation. By contrast, in cases outside the colonial context, the system is rigged to ensure that the state prevails. However unjustly a selfstyled ‘national liberation movement’ may feel itself to have been treated historically, its struggle is classified legally as a purely internal domestic rebellion. The central state can use its military or police power to repress and defeat such a movement. No external assistance may be given to those struggling against the central government. Instead, the government is traditionally entitled to receive as much military support and assistance as it deems necessary to crush the rebellion, probably including the involvement of (invited) foreign forces. The rebels themselves are not elevated, by humanitarian law, to the status of combatants 42

The Classical Right to Self-determination enjoying the full protection of the law of international armed conflict. The government claims the right to consider them traitors and bandits under the domestic law of the state. Instead of being treated as prisoners of war, they can be criminally convicted and shot. Their only hope lies in the minimal protection of the law of internal armed conflict, if the rebellion has taken on a significant territorial scope, and of general human rights. The fifth element of disenfranchisement therefore relates to the imbalance between the status of the state and those struggling for independence outside of the colonial context. Unless another state is willing to break the rules and intervene (as occurred when India invaded East Pakistan in an operation that led to the establishment of the state of Bangladesh), self-determination struggles could classically only result in a crushing defeat for the rebellion (Biafra) or an eternal stalemate. The imbalance in status relates not simply to the fact that the government can treat those struggling for purported liberation as criminals in its domestic law. Those engaged in the struggle are disenfranchised twice in this instance – domestically, where their status is determined by their opponents, and internationally. As already noted, at the international level the doctrine of nonintervention ensures that even those secessionist groups that control large slices of the territory and population of a state cannot attract international support or recognition, or significant international entitlements that would flow from some sort of international legal personality. An outside government that offers support to a secessionist movement is guilty of an act of unlawful intervention. Previously, external agencies have even been cautious about political initiatives aimed at settling a self-determination conflict, lest this be considered illegitimate interference. Accordingly, the government seeking to oppose secession has classically also been largely immune from diplomatic pressure or even external sanctions in relation to its attitude. The doctrine of non-intervention has provided a cover for the 43

Escaping the Self-determination Trap quite brutal use of force against secessionist entities, often at the expense of very significant civilian suffering. While other governments may on occasion have feebly requested at least the cessation of systematic and grave human rights abuses (most recently in relation to Chechnya), they have traditionally felt unable to insist that violence cannot be used as a means of settling selfdetermination conflicts. Thus, as force is considered an acceptable option, or even the regularly anticipated response, governments threatened with secession have generally done their utmost to achieve a military defeat of the insurgency. Negotiations on a settlement were not foreseen in the international script and international pressure for a negotiated settlement would have been deemed intervention. Hence, it was victory for the state and crushing defeat for those that claimed an entitlement to selfdetermination, or, where a decisive result could not be achieved, a prolonged, mutually destructive stalemate. This has changed only recently in two types of situations. In the first instance, the stalemate was no longer deemed acceptable domestically (Northern Ireland, Sudan, perhaps Sri Lanka). In the second instance, the humanitarian suffering that resulted from the fighting, or the instability brought to neighbouring regions, was invoked to justify actual external armed intervention. As a result of such intervention, which may have been initially focused on humanitarian concerns, those intervening found themselves bound to address the underlying self-determination conflict. In Bosnia and Herzegovina, they became committed to the continued territorial integrity of that state, while initially accepting the reality of its internal division. In relation to Kosovo, an internationalised status settlement was negotiated, although it ultimately failed to gain UN Security Council endorsement. In relation to Northern Iraq, a solution had to be found to the Kurdish issue. The presumption that force is the appropriate remedy to secessionist aspirations was recently called into question with the dissolution of the SFRY. However, as we shall see, that incident did 44

The Classical Right to Self-determination not establish a general prohibition of the use of force as the principal discourse in such instances. Instead, it drew attention to a new aspect of the right to self-determination that had not been acted upon previously. This was the doctrine of constitutional self-determination.

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IV.

Constitutional Self-determination

The crucial difference between colonial and constitutional selfdetermination lies in the fact that in case of the former, the right to secession is based directly in international law. In the latter, the claim to self-determination is derived from a constitutional arrangement that establishes a separate legal personality for component parts of the overall state. The constitution of a state is taken to be a manifestation of the sovereign will of the state population. International law now appears to take note of these features of domestic constitutional law and gives effect to them. However, it is not constitutive of the claim to constitutional selfdetermination, which remains based in domestic law. It is possible to distinguish three different types of constitutional self-determination: • express self-determination status, • effective dissolution of a federal-type state, and • implied self-determination status. It will be convenient to consider each of these in turn. A. Express Self-determination Status A few constitutions will determine that certain nominated constituent entities enjoy a right to external self-determination. This is by no means an entirely novel phenomenon. For instance, the 1947 Constitution of the Union of Burma, provided:39 201. Save as otherwise expressly provided in this Constitution or in any Act of Parliament made under section 199, every State shall have the right to secede from the Union in accordance with the conditions hereinafter prescribed. 39

The Constitution of the Federal Republic of the Union of Burma, 24 September 1947. Full text available at http://burmalibrary.org/docs3/CONSTTTN.47, accessed 3 November 2008.

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Constitutional Self-determination 202. The right of secession shall not be exercised within ten years from the date on which this Constitution comes into operation. 203. (1) Any State wishing to exercise the right of secession shall have a resolution to that effect passed by its State Council. No such resolution shall be deemed to have been passed unless not less than two-thirds of the total number of members of the State Council concerned have voted in its favour. (2) The Head of the State concerned shall notify the President of any such resolution passed by the Council and shall send him a copy of such resolution certified by the Chairman of the Council by which it was passed. 204. The President shall thereupon order a plebiscite to be taken for the purpose of ascertaining the will of the people of the State concerned.

Indeed, it appeared that only two of the constituent states would in fact be entitled to this right, and even in relation to them the provision remained unimplemented when separation was actually sought. A more modern case is furnished by the new Ethiopian constitution that was adopted after internal opposition forces finally displaced the central government. Article 39 (5) of the new Constitution of 8 December 1994 declares with the greatest clarity, that “Every Nation, Nationality and People in Ethiopia has an unconditional right to self-determination, including the right to secession”.40 Paragraph 5 adds an unusual definition: A ‘Nation, Nationality or People’ for the purpose of this Constitution, is a group of people who have or share a large measure of a common culture or similar customs, mutual intelligibility of language, belief in a common or related identities, a common psychological make-up, and who inhabit an identifiable, predominantly contiguous territory.

Another example is furnished by the Constitution of the Principality of Liechtenstein. Article 4(2) permits each municipality to “remove itself from the state-community”.41 In both instances, 40

41

Constitution of the Federal Democratic Republic of Ethiopia, 8 December 1994. Full text available at http://www.worldlii.org/et/legis/const/2000/, accessed 3 November 2008. Author’s translation.

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Escaping the Self-determination Trap the constitutions provide for a certain process that must be gone through before secession. An interesting sub-species of express constitutional selfdetermination is conditional self-determination. For instance, the Law on the Special Legal Status of Gagauzia describes that autonomous territorial unit within Moldova as an “integral part of the Republic” (Article 1(1)).42 Nevertheless: In case of a change of the status of the Republic of Moldova as an independent state, the people of Gagauzia shall have the right to external self-determination (Article 1(4)).

The change that is being contemplated is a possible division of Moldova, with its larger segment potentially joining Romania. The identity of this conditional constitutional self-determination unit is also defined in an unusual way. Localities in which (ethnic) Gagauzes constitute less than 50 percent of the population may be included in the autonomous territorial unit “on the basis of the freely expressed will of a majority of the electorate revealed during a local referendum” (Article 5(2)). Accordingly, this would be one of the more recent examples where the will of the people does, after all, triumph over previous administrative/territorial arrangements. This is an interesting departure from the classical colonial selfdetermination practice.43 Ordinarily, constitutional self-determination will assign a right to secession only to federal-type territorial units, such as constituent republics, that are clearly defined in terms of territory. The classical example is furnished in the constitution of the former Union of Soviet Socialist Republics (USSR). In accordance with Leninist 42

43

The Law on the Special Legal Status of Gagauzia, 23 December 1994, at http://www.intstudies.cam.ac.uk/centre/cps/documents_moldova_law.html, accessed 3 November 2008. In the Philippines autonomy settlement, the autonomous unit is also constituted through a plebiscite, although no external self-determination is provided for. Final Peace Agreement between the Government of the Republic of the Philippines and the Moro National Liberation Front of 2 September 1996, at http://www.intstudies. cam.ac.uk/centre/cps/documents_philippines_final.html, accessed 3 November 2008.

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Constitutional Self-determination doctrine, Article 70 of the Constitution of 7 October 1977 provided that the Union is “an integral, federal, multinational state formed on the principle of socialist federalism as a result of the free self-determination of nations and the voluntary association of equal Soviet Socialist Republics”. Article 72 simply added that “Each Union Republic shall retain the right freely to secede from the USSR”.44 Of course, it was probably not anticipated that any Union republic would ever dare to assert this constitutional right of selfdetermination. When, in 1989/90, the Baltic republics declared their intention to revive their full sovereignty and move towards full independence, this was strongly resisted by Moscow. The republics argued that they had been forcibly and unlawfully incorporated into the Union, and were thus not legally subject to its constitutional order. But even if they had been incorporated lawfully, the clear and unambiguous nature of Article 72 of the Constitution made it difficult to justify opposition to their wish to regain independence. In rather a strained argument, attention was drawn to Article 78 that required ratification by the USSR of changes in Union republic boundaries which these had agreed between themselves, and to provisions assigning competences in relation to the external boundaries of the federation to the centre.45 This interpretation would render the unilateral right of secession established in Article 72 meaningless, and a legal race developed on this issue between the Baltic republics and Moscow. The central Congress of People’s Deputies worked at high speed to prepare a ‘Law on Procedures for Resolving Questions Related to the Secession of Union Republics from the USSR’. That instrument, finally brought into effect on 3 April 1990, provided for a lengthy interim period of at least five 44

45

Constitution of the USSR, 7 October 1977. Text available at http://www.friendspartners.org/oldfriends/constitution/const-ussr1977.html, accessed 3 November 2008. Article 73(2) assigned to the USSR jurisdiction in relation to the determination of the state boundaries of the USSR and also approval of changes in the boundaries between Union republics.

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Escaping the Self-determination Trap years, and vested in the central People’s Congress the final decision giving effect to the will of the population of the republic concerned. However, the previous month, on 11 March, Lithuania had declared the renewal of its independence. This event triggered a somewhat ambiguous response, especially on the part of Western states. Many of these had never recognised de jure the incorporation of the Baltic republics into the Soviet Union, arguing that this had occurred as the result of unlawful use of force. Accordingly, it was difficult for them to insist on the doctrine of territorial unity. On the other hand, very few – other than heroic Iceland, which did recognise – were willing to act on principle when confronting this fact. The issue was resolved when the USSR dissolved entirely in the wake of an unsuccessful coup against President Mikhail Gorbachev. At that point, Western governments fell over themselves in extending rapid recognition.46 The case of the USSR therefore became one of outright dissolution of a federal state and the argument of express constitutional self-determination was not fully tested in this instance. However, while the SFRY also ultimately dissolved (see below), an argument was made in relation to the secession of Croatia and Slovenia that can be regarded as the point of discovery of the claim to constitutional self-determination in international relations. The 1974 SFRY Constitution provided that:47 The nations of Yugoslavia, proceeding from the right of every nation to self-determination, including the right to secession, on the basis of their will freely expressed in the common struggle of all nations and nationalities in the National Liberation War and Socialist Revolution, and in conformity with their historic aspirations, aware that further consolidation of their brotherhood and unity is in the common interest, have, together with the nationalities with which they live, united in a 46

47

Latvia and Estonia had adopted declarations concerning full independence in May and August 1990, respectively. Constitution of the SFRY 1974, Basic Principles, Section I. Text available in M. Weller, The Crisis in Kosovo 1989–1999, Cambridge: International Documents and Analysis, Vol. 1 (1999), 54–56.

50

Constitutional Self-determination federal republic of free and equal nations and nationalities and founded a socialist federal community of working people – the Socialist Federal Republic of Yugoslavia ...

This provision quite clearly assigned to all ‘nations’ contained in the federation the right to self-determination, including expressly the right of secession. Each of the federal republics was seen as the political expression of the constituent nations. Hence, the republics had been assigned an express right to self-determination and secession, which was put to the test in 1991. Under the Milosevic regime, Serbia had gained ascendancy within the Yugoslav federation during the second half of the 1990s. With the support of some other compliant republics, it was undoing the careful balancing act between the different republics that was reflected in the design of Tito’s 1974 Constitution. Kosovo, in particular, suffered the virtual unilateral abolition of its autonomy. Faced with this change in the balance of powers within the federation, Croatia and Slovenia attempted to protect their position by proposing a new federal constitution that would enhance their status. Negotiations conducted towards this end during 1990 and early 1991 were frustrated by Serbia. Croatia and Slovenia then unilaterally declared independence on 25/6 June 1991. The central government in Belgrade had been unwilling to settle, as compromise would have meant surrendering some of the very powers it had just captured. The republics – and Kosovo – would have no option but to comply. After all, the international system uniquely privileged the central government, permitting it to deploy the armed forces of the state if necessary, to defend the central value of territorial unity. Based on state practice over previous decades, it was clear that independence was not an option. While international actors tried very hard to dissuade Croatia and Slovenia from declaring independence, they rapidly acknowledged this fact once it occurred. When Belgrade proceeded to answer the declarations of independence of Slovenia and Croatia with the use of force, the international community, led by 51

Escaping the Self-determination Trap the European Union (EU), took a rather ambivalent step. While it failed to recognise the two entities until January 1992, it nevertheless adopted the following unprecedented view only a few weeks after the declarations of independence:48 The European Community and its member States are dismayed at the increasing violence in Croatia. They remind those responsible for the violence of their determination never to recognize changes of frontiers which have not been brought about by peaceful means and by agreement. ... The Community and its member States call on the Federal Presidency to put an immediate end to this illegal use of the forces on its command.

In short, while Belgrade continued to invoke the doctrine of territorial unity, the EU took the view that both entities were either already states, or were entitled to become states, and in possession of pre-state rights. These were the right to territorial integrity and unity, and the protection against the use of force by the central government. The EU then attempted unsuccessfully to negotiate an orderly secession. When this failed, it declared, through the medium of its Badinter arbitration/advisory commission, that the entire Yugoslav federation was in the process of dissolution. Obviously, this was not an agreed dissolution which would have been legally unproblematic. Instead, it would be an effective dissolution, still opposed from the centre. Nevertheless, the Badinter Commission held, and the EU governments accepted, that the individual republics that wished independence could obtain it unilaterally provided they complied with a number of requirements, including the holding of a free and fair referendum and the acceptance of minority rights guarantees. Of course, the thesis of a dissolution of the SFRY was somewhat daring. After all, the federation was only dissolving because Croatia and Slovenia had seceded in the first place. Hence, the argument of 48

European Political Cooperation (EPC), Declaration on Yugoslavia, 27 August 1991. Text available in C. Hill and K.E. Smith, European Foreign Policy, London: Routledge (2000), 363–364.

52

Constitutional Self-determination express constitutional self-determination of these two entities was deployed in addition. The Yugoslav episode also pointed to attempts by international actors to ensure that no wide-ranging precedent would ensue that might encourage secession elsewhere. Hence, express constitutional self-determination was framed in a very restrictive way. In relation to federal-type entities, there would be two conditions. First, the constitution would have to assign a right of self-determination to constituent units in a clear and unambiguous way. Second, only the constituent federal republics themselves would be entitled to selfdetermination. The line was drawn in relation to Kosovo. According to the SFRY Constitution, that territory enjoyed a dual status. On the one hand, it had full federal representation, along with the six constituent republics of the SFRY and Vojvodina. Hence, it was represented equally in the rotating collective federal presidency, it sent directly elected representatives into the federal parliament, and so on. Moreover, its substantive competences were similar to those of constituent republics proper, including even the right to maintain its own central bank. On the other hand, Kosovo was also a unit that was legally subordinate to Serbia – a constituent republic in its own right. Hence, in relation to the federation, Kosovo was a federal unit; in relation to Serbia, however, it was an autonomous province. Kosovo was subjected to the unilateral abolition of its federal status from 1987 onwards. It was submerged within Serbia, which launched a campaign of considerable repression against its majority ethnic Albanian population. Nevertheless, Kosovo claimed that its original status was distinguishable from that of constituent republics in name only. If they could leave, so should Kosovo. Kosovo’s declaration of independence, and its initially peaceful campaign for international acknowledgement, was internationally ignored. Once again, violence appeared to be the only effective tool for forcing international attention upon the situation. In the end, NATO felt constrained to mount a massive armed intervention on 53

Escaping the Self-determination Trap the European continent in order to address the Kosovo crisis when it finally spun out of control in 1999. However, the use of military force was justified principally on humanitarian grounds by NATO, which initially continued to support the territorial unity of the then rump Yugoslavia. Upon conclusion of hostilities, the United Nations gave similar assurances for the duration of the international governance mission for the territory, evidenced in Security Council Resolution 1244 (1999). Hence, it appeared initially that not all federal units within a federation providing for express self-determination status were entitled to self-determination. Express constitutional selfdetermination would generally apply only to the entities that were very specifically nominated in the constitution, such as full federal republics.49 However, in the wake of Kosovo’s eventual independence, this view had to be adjusted. Although the construction of the doctrine of express constitutional self-determination was limited at the point of its inception, it has been regarded with considerable scepticism by some governments. The Yugoslav precedent in particular had some impact on attempts to negotiate settlements in a number of other secessionist conflicts. The option of a federal-type solution has since proven unacceptable to some central governments. They presume that the granting of federal status to an entity in exchange for cessation of the conflict will inevitably be the first step to an invocation of constitutional self-determination and to eventual independence. To overcome this obstacle, some federal or even confederal settlements have been counter-balanced with ‘eternity’ clauses. Such clauses confirm that any right to self-determination that may previously have been held by the secessionist unity are expended in the agreement on a settlement. The federal union is thereby rendered 49

The open-ended assignment of external self-determination status in the cases of Liechtenstein and Ethiopia appear extraordinary at present.

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Constitutional Self-determination ‘indissoluble’. 50 This issue will be explored at greater length in subsequent sections of this monograph. B. Effective Dissolution As we have seen, some constitutions will confirm that the overall state is composed of former sovereign entities that retain at least the seeds of their original sovereignty. They may even confirm a right to self-determination, and sometimes refer expressly to secession pertaining to sub-state units. This was the case in relation to both the USSR and the SFRY. Nevertheless, the declarations concerning independence of the Baltic republics, and the secessions of Slovenia and Croatia, were opposed by the centre. In both cases, it was convenient for the international agencies addressing this issue to refer to the doctrine of effective dissolution, in addition to considering express constitutional self-determination. In relation to the USSR, effective dissolution was followed by a regularisation of the situation through the Alma Ata Declaration. This document clarified that the USSR had ceased to exist, confirmed statehood for all former Union republics, and nominated the Russian Federation as the universal successor to that state.51 In relation to the SFRY, dissolution was opposed from the centre for a considerable period of time. The dissolution thesis was initially offered by the Badinter Commission, which had found that the SFRY was in a ‘process of dissolution’ during the autumn of 1991. It concluded that that process had been completed at the end of the year, and recommended recognition of statehood for some constituent republics. The concept assumed that constituent units would gain full sovereignty, if the collective institutions of the federation were no longer functioning or representative of all federal units. 50

51

See for instance the Annan Plan on the Comprehensive Settlement of the Cyprus Problem of 31 March 2004. Full text available at http://www.intstudies.cam.ac.uk/ centre/cps/download/5Annan_Plan_31.3.2004_.pdf, accessed 3 November 2008. Alma Ata Declaration of 21 December 2001, 31 ILM (1992) 177.

55

Escaping the Self-determination Trap Of course, even according to the concept of effective dissolution, a sharp dividing line was drawn. The entitlement was restricted to full federal subjects only. Hence, the claim of Kosovo to statehood was initially rejected, as it was an entity exhibiting both federal and provincial attributes. Kosovo had argued that because it had previously enjoyed clear federal status, the disappearance of the federation should allow it to gain direct international legal personality. Chechnya made a similar argument. The USSR having dissolved, nothing should bar it from attaining statehood during that phase of dissolution. Whatever constitution the Russian Federation had given itself subsequently, when transforming itself into a state, should be irrelevant as Chechnya had already become fully independent, adopted its own constitution and claimed effective control over its territory and population. However, Chechnya had not been one of the full Union republics. Instead, the USSR Constitution recognised a federal status for it, but within Russia. Hence, the entity that could emerge and form a sovereign state was Russia and not, in turn, one of its constituent units. Chechnya’s claim that its legal identity was unconnected with that of the new Russian Federation was therefore rejected. Instead, Chechnya was considered part and parcel of the new Russian federal system and was born into that constitutional structure, even if it violently resisted such a result at the time. Of course, Chechnya was included as a full federal subject when Russia re-organised itself as the Russian Federation under its new 1993 Constitution. But this status was not one derived from original sovereignty of the individual federal entities that composed the federation. Instead, it derived from a limited grant of central authority, which left sovereignty vested in the overall federation. The 1993 Constitution provided:52 52

The Constitution of the Russian Federation, 12 December 1993. Official translation available at http://www.constitution.ru/en/10003000-01.htm, accessed 3 November 2008.

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Constitutional Self-determination We, the multinational people of the Russian Federation, united by a common fate on our land, establishing human rights and freedoms, civic peace and accord, preserving the historically established state unity, proceeding from the universally recognized principles of equality and selfdetermination of peoples, ... reviving the sovereign statehood of Russia, ... Article 3.1. The bearer of sovereignty and the only source of power in the Russian Federation shall be its multinational people. Article 4.1. The sovereignty of the Russian Federation shall cover the whole of its territory. Article 66.5. The status of a subject of the Russian Federation may be changed upon mutual agreement of the Russian Federation and the subject of the Russian Federation and according to the federal constitutional law.

In this case, it is the “multinational people of the Russian Federation” that are the “bearer of sovereignty” as a collective entity. Federal entities, such as Chechnya, are not assigned original sovereignty. Instead, sovereignty resides only in the centre. In stark contrast to its response to the Yugoslav crisis, the EU confirmed the territorial integrity of the Russian Federation, instead of endorsing the claimed rights of Chechnya, for example in the following Declaration of the EU presidency on behalf of the Union on 17 January 1995:53 The European Union would again urge strongly that there should be an immediate cessation of hostilities in order to facilitate the bringing of humanitarian aid to the population and allow negotiations to begin without delay. The European Union takes note in this connection of the proposal made by the Prime Minister of the Russian Federation. It calls for a peaceful settlement to the conflict which respects the territorial integrity of the Russian Federation.

When Russia forcibly re-incorporated Chechnya some years later, the international community condemned the excessive brutality of the venture and human rights abuses. But there was little or no support for the suggestion that Chechnya had a claim to 53

Declaration of the EU’s Presidency on the situation in Chechnya, Press Release, 17 January 1995, 4215/95.

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Escaping the Self-determination Trap independence, notwithstanding the ceasefire agreement of 1996 to which further reference will be made below. C. Implied Constitutional Self-determination Status It is also possible to envisage a form of implied constitutional selfdetermination status. This would occur where a distinct ‘nation’ or ‘people’ inhabit a clearly constitutionally defined territory. Where the central government consents to the holding of a referendum on the issue of secession, or where such provisions are made in the constitution in the absence of an express reference to selfdetermination, there is an expectation that such a referendum would be respected by the central authorities. An example is furnished with reference to Scotland. Even in the absence of a written UK constitution, it is nevertheless clear that referenda on independence can be called with the agreement and cooperation of the central authorities. Should the result favour independence, it is likely that the outcome would attract a significant degree of international legitimacy. This view was very strongly confirmed by the Canadian Supreme Court in a reference concerning the possible secession of Quebec. Despite that fact that there is no express constitutional self-determination status for Quebec in the Canadian Constitution, the Court found that “A clear majority vote in Quebec on a clear question in favour of secession would confer democratic legitimacy on the secession initiative which all of the other participants in Confederation would have to recognize”.54 However, the Court also confirmed that independence is not an automatic result. Instead, both sides would have to engage in good faith negotiations about implementation of the decision to secede.

54

Reference Re Secession of Quebec, supra n. 17.

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V.

Remedial Self-determination

The right to colonial self-determination accrues to a population by virtue of the unlawful maintenance of colonial governance over it. The right to constitutional self-determination pertains to a population on the basis of a limitation of consent when subscribing to the social contract upon which the state is based. A territorial unit preserves the right to secede in a constitutional compact, or such a right is generated through subsequent constitutional practice. Remedial self-determination is generated through the actions of the central government. Where a central government persistently and systematically represses a territorially organised, and perhaps also constitutionally recognised, segment of the population, a right of secession might be constituted. Similarly, it is argued that persistent and discriminatory exclusion from governance of a constitutionally relevant or recognised segment of the population gives rise to a right to remedial selfdetermination. It has to be admitted that the doctrine of remedial succession was opposed in scholarship until quite recently.55 However, the case of Kosovo, and perhaps also the apparent de facto tolerance of events in Georgia in August 2008, has accorded it greater credence. Moreover, these recent instances have led to a re-discovery of authority in favour of the doctrine. For instance, in the Aaland Islands case of the League of Nations era, the Commission of Rapporteurs found that:56 The separation of a minority from the State of which it forms a part and its incorporation in another State can only be considered as an altogether exceptional solution, a last resort when the State lacks either the will or the power to enact and apply just and effective guarantees.

55 56

Indeed, the author must confess to some scepticism in this respect in earlier writings. Report Presented to the Council of the League of Nations by the Commission of Rapporteurs, League of Nations Doc. B.7.21/68/106 (1921), at 28.

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Escaping the Self-determination Trap Failure to grant autonomy and human and minority rights provisions might therefore be constitutive of a right to selfdetermination. More recently, the African Commission on Human and Peoples’ Rights has ruled that:57 In the absence of concrete evidence of violations of human rights to the point that the territorial integrity of Zaire should be called to question and in the absence of evidence that the people of Katanga are denied the right to participate in Government as guaranteed by Article 13 (1) of the African Charter, the Commission holds the view that Katanga is obliged to exercise a variant of self-determination that is compatible with the sovereignty and territorial integrity of Zaire. … The quest for independence of Katanga therefore has no merit under the African Charter on Human and Peoples’ Rights.

This ruling seems to suggest that a population would not be bound to accept the restraint of territorial unity if it could not participate in the governance of the state. The Canadian Supreme Court, in the Quebec Reference, also accepted that remedial self-determination may exist in certain circumstances, namely “possibly where a ‘people’ is denied any meaningful exercise of its right to selfdetermination within the state of which it forms part”.58 The Chairman of the former UN Working Group on Minorities endorsed this view:59 Only if the representatives of the group concerned can prove, beyond reasonable doubt, that there is no prospect within the foreseeable future that the Government will become representative of the whole people, can it be entitled to demand and to receive support for a quest for independence. If it can be show that the majority is pursuing a policy of genocide against the group, this must be seen as very strong support for the claim to independence.

57

58 59

Katangese Peoples’ Congress vs. Zaire, African Comm. on Human and Peoples’ Rights, Comm. No. 75/92, 1995, para. 6. Reference Re Secession of Quebec, supra n. 17. Eide, “Possible Ways and Means of Facilitating the Peaceful and Constructive Solution of Problems Involving Minorities”, supra n. 33, para. 84.

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Remedial Self-determination In terms of international standards, the authoritative commentary on the UN Charter finds:60 It is therefore well arguable that discrimination against ethnic minorities could potentially give rise to a right of secession. … a right of secession could, however, nevertheless be recognized if the minority discriminated against is exposed to actions by the sovereign state power which consist in an evident and brutal violation of fundamental human rights, e.g. through killing or unlimited imprisonment without legal protection, through destroying family relations, through exploitation without any regard for the necessities of life, through special prohibitions against following religious professions or using one’s own language, and, lastly, through executing all these prohibitions with brutal methods and measures. Consequently, one could argue that the right of self-determination laid down in Art. 1 of the Covenants includes the right to resist such violations as a form of self-defence, and that secession, even through the use of force, might offer the only possible defensive relation to brutal oppression.

This view finds support in the important Friendly Relations Declaration of the UN General Assembly. While the UN declarations are considered soft law that is not directly binding, they have an important effect on the development of international law.61 The Friendly Relations Declaration, in particular, is seen as highly authoritative.62 That resolution appears to make the application of the doctrine of territorial integrity conditional on compliance with the principles of equal rights and selfdetermination of peoples by states which would be “thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour”.63 It seems, 60

61

62

63

K. Doehring, “Self-determination”, in B. Simma, ed., The Charter of the United Nations: A Commentary, Oxford: Oxford University Press (1995), 66. See, e.g., Case Concerning Military and Paramilitary Activities in and against Nicaragua, 1986 ICJ 14, Para. 203; and G. Arangio-Ruiz, The United Nations Declaration on Friendly Relations and the System of the Sources of International Law, Dordrecht: Brill (1979). E.g., M. Sahovic, ed., Principles of International Law Concerning Friendly Relations and Cooperation, Dobbs Ferry: Oceana Publications (1972). UN General Assembly Resolution 2625 (XXV), 24 October 1970. Text available at http://daccessdds.un.org/doc/RESOLUTION/GEN/NR0/348/90/IMG/NR0348 90.pdf ?OpenElement, accessed 3 November 2008.

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Escaping the Self-determination Trap however, that this wording was originally meant to be more restrictive than appears at first sight. One might argue that, according to the intent of the drafters, only colonial and analogous situations would qualify as those where the government does not represent the people as a whole, “without discrimination as to race, creed and colour”. This was indicated by reference to the use of self-determination “as described above” (i.e., colonial situations, alien occupation and racist regimes), and the insertion of the words “and thus possessed” of a representative government. Moreover, the generally negative phrasing of this provision confirms that it was meant to restrict the application of the principle thus enunciated, rather than expanding its application. Nevertheless, a leading commentator on the Declaration finds that the following conditions might warrant secession according to its terms:64 When 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.

The situation may have been clarified further in 1993, nearly a quarter of a century after the adoption of the Friendly Relations Declaration. Meeting in Vienna, the World Conference on Human Rights adopted rather different language when addressing the right to self-determination:65 In accordance with the 1970 Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations, this shall not be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political 64

65

A. Cassesse, Self-determination of Peoples, Cambridge: Cambridge University Press (1995), 119. Vienna World Conference on Human Rights Declaration and Programme of Action, 12 July 1993, A/CONF.157/23, I.2. Text available at http://www.unhchr.ch/ huridocda/huridoca.nsf/(Symbol)/A.CONF.157.23.En?OpenDocument, accessed 3 November 2008.

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Remedial Self-determination 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 of any kind.

In this version, the restrictive reference to “as defined above” was dropped. Moreover, the text now addresses “distinction of any kind”, rather than distinction as to “race, creed or colour”, broadening the scope of application further. At least until developments concerning Kosovo, state practice was undecided on the matter. For instance, the exclusion from governance of the ethnic Kurdish population of Northern Iraq over decades, along with its violent repression, which included the gassing of villages, has not resulted in support for its campaign for statehood. Instead, even after the military defeat of Saddam Hussein’s regime, the Kurdish representatives had to content themselves with a quasi-federal (regional) status within Iraq.66 Other repressed or excluded minorities have also not been accorded self-determination status by virtue of this exclusion or repression alone. On the other hand, the situation may differ in extreme cases, where the right of the central government to represent the population in question is irreparably damaged. It is noteworthy that five states overcame strong reluctance in Africa to recognise secession when they extended formal recognition to Biafra. That ethnically distinct federal unit within Nigeria had declared independence, but was brutally re-incorporated into Nigeria. Hence, it can be said that some states recognised Biafra in response to potentially genocidal action by the central authorities.67 Perhaps more convincingly, Bangladesh obtained very rapid recognition of its statehood after the defeat of East Pakistan’s armed forces at the hands of the intervening Indian military. 66 67

See below, section VIII. D.A. Ijalaye, “Was ‘Biafra’ at any Time a State in International Law?” 65 AJIL (1971) 55.

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Escaping the Self-determination Trap Ordinarily, one would have expected that the use of force by India would have made it very difficult for statehood to mature (as has been the case, for instance, in relation to the Turkish Republic of [Northern] Cyprus). Instead, the disenfranchisement of the population as a result of Pakistan’s interference with the electoral process, the brutality of the (Western) Pakistani forces and the fact that some 10 million refugees – a truly staggering number – consequently fled the country contributed to rapid recognition.68 Overall, scholarship has remained divided on this issue, although there is a clear trend towards the acceptance of remedial selfdetermination. While some argue that “a minority, which is systematically being denied its basic rights to existence, acquires a right of self-determination as a defence of last resort”69, an increasingly smaller number deny such a right70. It is however correct to observe that several advocates of this doctrine qualify their support, considering it a possible or potential avenue of argument.71 In view of this remaining hesitancy within scholarship, an observation by Peter Hilpold in relation to remedial secession is particularly useful:72 … there is no international norm prohibiting secession and therefore it is difficult to see an actual need for such a norm. Of course, it would provide legitimacy to such claims and render it easier for other States to intervene 68

69

70

71 72

See L.C. Buchheit, Secession, the Legitimacy of Self-determination, New Haven: Yale University Press (1978), 198. C. Tomuschat, “Protection of Minorities under Article 27 of the International Covenant on Civil and Political Rights”, in R. Bernhardt et al, Völkerrecht als Rechtsordnung, internationale Gerichtsbarkeit, Menschen: Festschrift für Hermann Mosler, Berlin: Springer Verlag (1983), 949, fn. 103; also id., “Self-determination in a Post-colonial World”, in id., ed., Modern Law of Self-determination, Dordrecht: Martinus Nijhoff (1993), 1, 9: “… if a State machinery turns itself into an apparatus of terror which persecutes specific groups of the population, those groups cannot be held obligated to remain loyally under the jurisdiction of that state”. This division is handily illustrated in the various contributions to M.G. Kohen, Secession, Cambridge: Cambridge University Press (2006), with four chapters supporting and four chapters opposing, including the editor himself, at ten. J. Summers, Peoples and International Law, Leiden: Brill (2007), 347. P. Hilpold, “Self-determination in the 21st Century – Modern Perspectives for an Old Concept”, 36 Israel Yearbook on Human Rights (IYHR) (2005) 247, 269.

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Remedial Self-determination in favour of the secessionists but still it would not make much sense to speak about a ‘right to secession’.

While the question of repression or exclusion being constitutive of a new, remedial self-determination status in the sense of secession is therefore not yet clearly settled, it is at least this legitimising effect that can already be clearly observed. This is particularly evident in relation to the Kosovo episode. In that instance, the UN Security Council initially insisted on the maintenance of the territorial integrity of Yugoslavia. However, acting under Chapter VII, the Council required at least the restoration of wide-ranging selfgovernance for Kosovo.73 The situation changed after the Belgrade government forcibly displaced approximately half of the ethnic Albanian majority population from Kosovo, internally displacing a large number of those who remained. Upon the conclusion of NATO hostilities, the UN Security Council removed from Belgrade any effective authority over Kosovo and, acting under Chapter VII, required the inauguration of a ‘final status’ process for Kosovo after a period of interim administration.74 The UN administration in Kosovo then launched the policy of ‘standards before status’, presenting Kosovo with the option of independence provided it complied with requirements of good governance.75 Negotiations about final status were conducted throughout 2006. The proposal for a settlement that was eventually presented by the UN Special Envoy Martti Ahtisaari was accepted by Kosovo but refused by Belgrade. That proposal was accompanied by a recommendation of the Special Envoy, endorsing independence. This recommendation was based on the recent history of the region: 76 73

74

75

76

UN Security Council resolutions 1160 (1998), 31 March 1998, S/RES/1160 (1998); and 1199 (1988) 23 September 1998, S/RES/1199 (1998). Texts available at http://www.un.org/peace/kosovo/98sc1160.htm and http://www.un.org/peace/ kosovo/98sc1199.htm respectively, accessed 3 November 2008. UN Security Council Resolution 1244 (1999), 10 June 1999, S/RES/1244 (1999). Text available at http://daccessdds.un.org/doc/UNDOC/GEN/N99/172/89/PDF/ N9917289.pdf ?OpenElement, accessed 3 November 2008. See M. Weller, “The Vienna Negotiations on the Final Status for Kosovo”, 84 International Affairs 4 (2008), 659. UN doc. S/2007/168, 26 March 2007, para 15.

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Escaping the Self-determination Trap In unanimously adopting resolution 1244 (1999), the Security Council responded to Milosevic’s actions in Kosovo by denying Serbia a role in its governance, placing Kosovo under temporary United administration and envisaging a political process designed to determine Kosovo’s future. The combination of these factors makes Kosovo-s [sic.] circumstances extraordinary.

In view of these extraordinary factors, the Special Envoy found that “autonomy of Kosovo within the borders of Serbia – however notional such autonomy may be – is simply not tenable”.77 Instead, independence would need to be granted, if necessary against the views of Serbia. The Security Council was ultimately unable to endorse this recommendation. However, Kosovo’s eventual declaration of independence after almost another year of attempting to generate a negotiated solution was greeted with understanding in the Council by a significant number of states, in part with reference to the history of Kosovo’s previous exclusion from political representation and the repression of its ethnic Albanian population. Costa Rica, for instance, noted that after very careful legal consideration of the issue, it had felt impelled to respond to the will of the people of Kosovo, “a people who find it impossible to live together with the Serb majority in the same country after the 1998 campaign of ethnic cleansing”.78 While Kosovo’s independence also met significant opposition in the Council, over 50 states have now recognised Kosovo. This figure is likely to rise further. It is also noteworthy that there have been very few statements to the effect that Kosovo’s independence is in some way unlawful. Outside of the principal protagonists, even states that are hesitant about independence have tended to refer to general implications for international relations, rather than identifying a breach of a legal rule as might have been the case otherwise. While it was noted above that opposed unilateral independence would not violate international law if no offence 77 78

Ibid., para 7. UN Security Council meeting 5829, 30 January 2008, UN doc. S/PV.5829, 17.

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Remedial Self-determination against jus cogens was involved, states have nevertheless traditionally advanced arguments of this kind. That was not generally the case in this instance. Hence, it is once again confirmed that statehood realised under these circumstances is not unlawful as such. Indeed, the background of repression and exclusion has made it, in the view of a large number of states, politically necessary and legally legitimate, if not desirable. It is also interesting to note that Russia has chosen to embrace the doctrine of remedial secession, despite its vulnerability in the matter in relation to Chechnya, and despite its initial rejection of this argument in relation to Kosovo. Within a period of only a few months, it deployed both lines of argument concerning remedial secession. Russia first relied on the doctrine of representation, even invoking the expansive but controversial interpretation of the Friendly Relations Declaration when justifying its recognition of Abkhasia and South Ossetia:79 …. Taking into account the appeals of South Ossetian and Abkhaz peoples, of the Parliaments and Presidents of both Republics, the opinion of the Russian people and both Chambers of the Federal Assembly, the President of the Russian Federation decided to recognize the independence of South Ossetia and Abkhazia and to conclude treaties of friendship, cooperation and mutual assistance with them. Making this decision, Russia was guided by the provisions of the Charter of the United Nations, the Helsinki Final Act and other fundamental international instruments, including the 1970 Declaration on Principles of International Law concerning Friendly Relations among States. It should be noted that in accordance with the Declaration, every State has the duty to refrain from any forcible action which deprives peoples of their right to self-determination and freedom and independence, to adhere in their activities to the principle of equal rights and self-determination of peoples, and to possess a government representing the whole people belonging to the territory. There is no doubt that Mikhail Saakashvili’s regime is far from meeting those high standards set by the international community. 79

Statement by the Ministry of Foreign Affairs of Russia, 26 August 2008. Doc. 1246-2608-2008.Text available at http://www.un.int/russia/new/MainRoot/docs/off_news/ 260808/newen1.htm, accessed 3 November 2008.

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Escaping the Self-determination Trap Of course, in that instance, it was principally Russia that had precluded the establishment of an agreement providing for the full inclusion of Abkhasia and South Ossetia within the Georgian political system. Georgia had offered detailed provisions on representation for both territories by way of wide-ranging autonomy.80 In view of Russia’s obstruction of an autonomy settlement, it was spurious to refer to the lack of representation of the two territories in the overall Georgian state. In fact, Russia also invoked the second branch of the argument concerning remedial secession, referring to purported attacks by the Georgian military against the civilian population:81 By the aggressive attack against South Ossetia on the night of 8 August 2008, which resulted in numerous human losses, including among the peacekeepers and other Russian citizens, and by the preparation of a similar action against Abkhazia, Mikhail Saakashvili has himself put paid to the territorial integrity of Georgia. Using repeatedly brutal military force against the peoples, whom, according to his words, he would like to see within his State, Mikhail Saakashvili left them no other choice but to ensure their security and the right to exist through self-determination as independent States.

This argument suggests that active mistreatment or repression of a population gives rise to a right to remedial secession, although it is again doubtful whether the facts of the particular case supported its invocation. The EU opposed Russia’s action in this instance. The states of the EU demanded “that a peaceful and lasting solution to the conflict in Georgia must be based on full respect for the principles of independence, sovereignty and territorial integrity recognised by international law, the Final Act of the Helsinki Conference on Security and Cooperation in European and United Nations Security Council resolutions. In this context, the Council deplores 80

81

See M. Weller and J. Wheatley, The War in Georgia: Power Politics and the Failure of Conflict Prevention, London: Hurst Publishers (forthcoming); see also the presentation below, in section VIII. See Statement by Russian MFA, supra n. 79.

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Remedial Self-determination any action that runs contrary to a solution based on these principles”.82 However, as will be noted below, the EU effectively started to take action that contributed to the stabilisation of the situation that had been forcibly created.83 In any event, the rejection of the Russian claims, muted though it was, did not address the existence or otherwise of the doctrine of remedial selfdetermination. Instead, it appeared to focus on the absence of facts in this instance that might warrant its application. It remains to be seen whether possible abuse of the doctrine of remedial secession will dampen international enthusiasm for its further development. The forthcoming advisory proceedings in the International Court of Justice concerning Kosovo will offer useful crystallisation of state practice in this respect. At a conceptual level, the doctrine certainly represents a logical extension of classical selfdetermination. That doctrine recognises that certain types of government, however effective, cannot claim to represent certain types of populations. As noted above, it is widely accepted that, in addition to colonialism, this includes alien occupation and racist regimes. Remedial self-determination concerns further cases where a population is excluded from political participation in the state or is severely mistreated, on grounds of its ethnic appurtenance.

82

83

Council of the European Union, Council Conclusions on Georgia, 2889th External Relations Council meeting, Brussels, 15/16 September 2008. See section XIII below.

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VI.

Effective Entities

Finally, it is necessary to refer briefly to cases where an entity cannot lay claim to any self-determination status, be it colonial, constitutional or remedial, but manages nevertheless to exhibit the criteria necessary for statehood (that is, territory, population and effective government). Most cases of successful secession or dissolution have occurred with the consent of the relevant central authorities (United Arab Republic, Mali Federation, Malaysia-Singapore, Czechoslovakia, Yemen, Eritrea) or in the colonial context. There are hardly any examples of unilateral opposed secession that have remained effective over the long term. As noted above, the case of Bangladesh appears to be truly exceptional given the special role played by India. In that case, elements of state practice did initially reject the result, as evidenced in the records of the UN General Assembly, but this position was not maintained over time. Moving on to contemporary practice, it is difficult to deny that Somaliland constitutes an effective entity. After well over a decade and a half of effective independence, it is tempting to argue that this entity should now enjoy at least pre-state rights. In other words, it should be protected by the doctrine of territorial integrity from forcible attempts at re-incorporation. However, that case is as yet unsettled and its status remains precarious until it is confirmed through an internationalised agreement or recognition. The hesitancy with which it has been addressed by the international community still confirms the cautious approach adopted in favour of the maintenance of the doctrine of territorial unity. Nevertheless, there is evidence of a gradual recognition of a distinct status of the people of Somaliland on the basis of prolonged separate and independent administration, and the first recognitions may soon be forthcoming. Similarly, the outcome of the Kosovo issue is also still open, although only to a limited extent. As it becomes clear that Kosovo 70

Effective Entities cannot be forced back into Serbia, the number of state recognitions is set to rise further. Moreover, it is necessary to recall that Kosovo achieved de facto independence, but it did not do so in a strictly unilateral setting comparable to that of Somaliland. Instead, its position ripened during international administration under the ‘standards before status’ process. While there was ultimately no acceptance of the Ahtisaari package by either Belgrade or the Security Council, independence nevertheless took place under the constraints imposed by that package, and is now internationally supported. Kosovo is therefore, on the one hand, an effective entity, but its situation is unique inasmuch as it was generated through an internationalised process. More generally, it is possible to analyse the situation of effective entities in two ways. The first is simply to point to the objective criteria of statehood. If an entity manages to exhibit a defined population and territory that is subjected to an effective government, and if the entity has also made manifest the will to be a state, then it is a state. That manifest will, exhibited in a declaration of independence or an independence constitution will need to be backed by an assessment of popular support through a referendum. Moreover, statehood must not be tainted by jus cogens violations. Recognition is generally only seen as declaratory, that is to say, it reflects a status that already exists, rather than creating it. However, with respect to effective entities, declaratory recognition by other states is particularly important. For, until an entity has attracted such recognition, it is difficult to confirm whether it is sufficiently effective as to merit statehood. Somaliland offers a convenient example. Until it manages to garner at least some recognitions, it will remain unable to actualise any of the rights to which it lays claim. Prolonged effectiveness, even in the absence of recognition, might also yield status in a second, slightly different category of cases. These are instances where a population makes manifest its desire to act together as an organised political community independent of others on a defined territory, but does not formally 71

Escaping the Self-determination Trap declare a separate state in relation to that territory. This manifestation of popular will through prolonged selfadministration, independent of any external power, must ultimately also be reflected in some form of legal status. For instance, most governments have recognised the People’s Republic of China (PRC) and its authority in relation to Taiwan. On the other hand, Taiwan claims continuity of its prior status, rather than separate statehood as Taiwan. Hence, in this case, the subjective criterion of a declared will of statehood has not been fulfilled, although there are occasional musings about whether a referendum should be held in anticipation of such an act. The question arises as to what the legal position of such an entity would be in the event that it was faced with the prospect of forcible incorporation. There would certainly be room for the argument that this would amount to violation of the right to selfdetermination of the Taiwanese population, even if the vast majority of governments accepts the PRC claim that the territory is de jure part of China. Such an application of the doctrine of selfdetermination would reflect the entity’s separate legal identity, developed in this instance over half a century of self-rule. However, it has to be admitted that this theory is as yet untested. A further complicated issue arises in the context of effective entities of uncertain status. This is the question of the effect of pronouncements by the UN Security Council. It is clear that the adoption of an unambiguous Chapter VII declaration, declaring invalid an entity’s claim to statehood, would determine that entity’s status in a definite and legally binding way. However, in several cases, the Council has acted less decisively. Numerous resolutions have been adopted that have confirmed the continued territorial integrity of various states under threat of secession. In fact, different categories of states can be distinguished here. The first relates to states that might face challenges to their territorial unity in future. For instance, in December 2007, the government of Iraq requested that the Security Council adopt a resolution which affirmed the “unity and territorial integrity of 72

Effective Entities Iraq” – a request with which the Council duly complied.84 These pronouncements are legally significant, as they confirm the preference of the Council, and the organised international community, for the doctrine of territorial unity. However, given their general nature, they would not preclude statehood on the part of a secessionist entity per se. As secession remains a matter of fact, the Council would need to take far more specific action to render such a step internationally unlawful. A second type of case concerns instances where a secessionist conflict is ongoing. For instance, when addressing the Darfur conflict, the Council routinely reaffirms its commitment to the unity, independence and territorial integrity of Sudan.85 During the 2001 crisis in Macedonia, the Council reaffirmed its commitment to the sovereignty and territorial integrity of that state and other states in the region, referring in that context to the Helsinki Final Act.86 This group of cases also includes Somalia – an instance where the secessionist entity of Somaliland already mentioned above has long been stabilised. Nevertheless, to this day, the Council routinely reaffirms its “respect for the sovereignty, territorial integrity, political independence and unity of Somalia”, without reference to the de facto situation that has now long characterised Somaliland.87 However, it would not be correct to 84

85

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Resolution 1790 (2007), 18 December 2007, containing the letter dated 7 December 2007 as Annex 1. Text available at http://www.iamb.info/pdf/unscr1790.pdf, accessed 3 November 2008. Resolution 1779 (2007), 28 September 2007. In fact, given the Council’s endorsement of the Comprehensive Peace Agreement of 2005, which provides for selfdetermination for Southern Sudan, this provision is particularly interesting. Full text available at http://daccessdds.un.org/doc/UNDOC/GEN/N07/521/58/PDF/ N0752158.pdf ?OpenElement, accessed 3 November 2008. Resolution 1345 (2001), 21 March 2001. Full text available at http://daccessdds. un.org/doc/UNDOC/GEN/N01/298/89/PDF/N0129889.pdf ?OpenElement, accessed 3 November 2008. Resolution 1831 (2008), 19 August 2008, Preamble. Full text available at http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3CF6E4FF96FF9%7D/Somalia%20S%20RES%201831.pdf, accessed 3 November 2008.

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Escaping the Self-determination Trap assume that such pronouncement would prejudice statehood for Somaliland de jure. A few months before Russia’s recognition of Abkhasia and South Ossetia, the Council:88 Reaffirm[ed] the commitment of all member states to the sovereignty, independence and territorial integrity of Georgia within its internationally recognized borders and support[ed] all efforts by the United Nations and the Group of Friends of the Secretary-General, which are guided by their determination to promote a settlement of the GeorgianAbkhaz conflict only by peaceful means and within the framework of the Security Council Resolutions;

Again, it is not clear that this pronouncement would, in itself, render Abkhasia a positive non-state, although it may point to certain factors relevant to its coming into being that may generate such a result. This also concerns external action in this case. Where the text addresses relations between states, this will reflect mandatory international legal requirements, such as the rules of non-intervention and the non-use of force. However, it does not appear that Council action of this kind legally addresses the entity claiming secession within the state. Council directives aimed at non-state actors are not unknown. For instance, the Council has addressed itself directly to the UNITA movement in Angola and even imposed sanctions in relation to it. No such intent is visible in the instances noted above, although a very strong policy preference is articulated in favour of territorial unity. However, as evidenced by the Council’s endorsement of selfdetermination settlements that offer the option of independence to secessionist units, this preference can be overturned.89 Third, there are resolutions that specifically oppose certain types of conduct. For instance, in relation to Abkhasia, the Council

88

89

Resolution 1808 (2008), 15 April 2008, substantive paragraph 1. Full text available at http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3CF6E4FF96FF9%7D/Georgia%20SRES1808.pdf, accessed 3 November 2008. See sections VIII to XIV below.

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Effective Entities expressed at an early stage its concern in relation to reports of ethnic cleansing and other serious violations of international humanitarian law, affirming the sovereignty and territorial integrity of the Republic of Georgia in the process.90 This would lend credence to the argument that Abkhasia’s actions involved a jus cogens violation that might have consequences for its status. The Armenian armed action in Azerbaijan, which resulted in declared statehood for Nagorno-Karabakh, was expressly condemned by the Council, although not under the mandatory terms of Chapter VII of the Charter. In that context, the Council reaffirmed both the sovereignty and the territorial integrity of Azerbaijan, but also the inviolability of international borders and the inadmissibility of the use of force for the acquisition of territory. Moreover, the Council demanded the “immediate, complete and unconditional withdrawal of the occupying forces”.91 These findings and demands were relevant to Nagorno-Karabakh’s campaign for statehood. While the Council did not formally declare it a ‘non-state’, it confirmed that the entity had come into being in violation of jus cogens rules. Hence, the inference was that it could not obtain statehood on that basis. In a fourth type of pronouncement, the Council might address a purported change of status directly. After the declaration of a ‘Federated Turkish State’ in Cyprus, the Council called on all states to respect the territorial integrity of Cyprus. It “regretted” the unilateral decision relating to status as “tending to compromise” negotiations on a mutually acceptable solution. It affirmed that the decision would not “prejudice” the final political settlement.92 This very cautious action, taken without reference to Chapter VII, was not in itself sufficient to render the change of status null and void. Instead, such an effect would be produced by the underlying jus

90

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Resolution 876 (1993), 19 October 1993. Full text available at http://www. unomig.org/data/file/344/19oct93.pdf, accessed 3 November 2008. Resolution 853 (1993), 29 July 1993. Full text available at http://www.un.int/ azerbaijan/documents/scresolutions/853.pdf, accessed 3 November 2008.

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Escaping the Self-determination Trap cogens rule on the non-use of force. In fact, in 1983, the Council addressed the purported declaration a Turkish Republic of Northern Cyprus. It:93 Deplores the declaration of the Turkish Cypriot authorities of the purported secession of part of the Republic of Cyprus; Considers the declaration referred to above as legally invalid and calls for its withdrawal. …

This text was addressed directly to the non-state authorities. It also expressed the Council’s views on the legal relevance of their action. Given its rather soft formulation, the resolution would probably not in itself be constitutive of a separate and independent ground for invalidation of the act. Instead, it can again be best explained as authoritative confirmation of the existing principles of general international law, in view of the jus cogens dimension of this case. Similarly, resolutions 216 (1965) and 217 (1965) of the Council on Southern Rhodesia were not adopted under Chapter VII of the Charter. However such an invocation might not be necessarily expected.94 Even in the post-Cold War environment, where Chapter VII action became easier to secure, the Council has made determinations of this kind with the evident intention of creating a binding effect, but without express reference to Chapter VII.95 In 1965, the Council condemned “the usurpation of power”, by Southern Rhodesia, regarding its declaration of independence as legally invalid.96 Moreover, the Council called upon all states not 92

93

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Resolution 367 (1975), 12 March 1975. Full text available at http://www.unomig. org/data/file/344/19oct93.pdf, accessed 3 November 2008. Resolution 541 (1983), 18 November 1983. Full text available http://www.un.int/ cyprus/scr550.htm, accessed 3 November 2008. See Legal Consequences for States of the Continued Presence of South Africa in Namibia, 1971 ICJ 16. Resolution 662 (1990), 9 August 1990: “Decides that annexation of Kuwait by Iraq under any form and whatever pretext has no legal validity, and is null and void”. Full text available at http://daccessdds.un.org/doc/RESOLUTION/GEN/NR0/575/ 12/IMG/NR057512.pdf ?OpenElement, 3 November 2008. Resolution 217 (1965), 20 November 1965, para 1. Full text available at http:// daccessdds.un.org/doc/RESOLUTION/GEN/NR0/222/88/IMG/NR022288.pdf ? OpenElement, accessed 3 November 2008.

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Effective Entities “to recognize this illegal authority and not to entertain any diplomatic relations with it”. Here, the effect of the Council pronouncement is constitutive of an obligation not to recognise, and disrupts any legal effects that might otherwise flow from the entity’s effective independence.97 In view of the fact that the doctrine of jus cogens was perhaps not fully formed at the time, this episode can be seen as having contributed significantly to the doctrine of ‘non-states’ in the international system, i.e., those entities that exhibit the objective criteria of statehood, but that cannot mature into states due to defects at the moment of their birth.98

97

98

It might be subject to argument whether at that time, a jus cogens effect would have existed in general international law in relation to this kind of issue. Instead, this episode strongly contributed to that very development. Crawford, The Creation of States in International Law, supra n. 12, 107.

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VII.

Trading Self-determination for Autonomy or Enhanced Self-governance

Territorial autonomy has been the classical means of settling selfdetermination disputes outside the colonial context. It denotes selfgovernance of a demographically distinct territorial unit within the state. The extent of autonomy granted will normally be established in the constitution and/or an autonomy statute. This statute will often be legally entrenched as a special or organic law, to ensure the permanence of the arrangement. While operating within the overall constitutional order of the state, autonomy implies original decision-making power in relation to devolved competences. In this respect autonomy differs from decentralisation, which allows local agencies some room to implement decisions taken at the centre. Autonomy provides competence to local actors to take such decisions themselves. Virtually all settlements of the Cold War era were autonomy settlements. Building on the early precedent of the Aaland Islands from the League of Nations era99, the South Tyrol settlement offers the best-known example from that period100. However, there are a number of others, including home rule for the Faroe Islands, established in 1948, and Greenland, established in 1979; special arrangements for the Brussels capital region and for certain other parts of Belgium; Madeira, and the Azores in relation to Portugal under the 1976 Constitution; the Spanish autonomies of the

99

100

Decision of the Council of the League of Nations on the Aaland Islands, 24 June 1921. Full text available http://www.kultur.aland.fi/kulturstiftelsen/traktater/ eng_fr/1921a_en.htm, accessed 3 November 2008. Italy has maintained that the arrangements for South Tyrol (the so-called ‘Package’ and the ‘Operational Calendar’) which led to the new Autonomy Statute of 1971–1972 are not formally the result of international agreement. However, it is fair to say that the arrangement has also been internationally entrenched, including through parallel decisions by the Italian and Austrian parliaments.

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Trading Self-determination for Autonomy or Self-governance Basque Country, Galicia, Catalonia, and Andalusia, adopted according to the 1978 post-Franco Constitution; and the devolution of Scotland and Wales of 1998.101 Since the outbreak of violent secessionism triggered by the Cold War transition, autonomy has been advocated once again as a possible solution. In the 1990s, a major initiative towards this end was launched through the UN General Assembly by the government of Liechtenstein.102 The theory was that secessionist entities would be able to accommodate their aims through selfgovernance without the need to disrupt the territorial integrity of existing states.103 Recent practice distinguishes two types of selfgovernance solutions. These are local or regional autonomy and federalisation. The latter, which will be considered in the next section, tends to be offered where the secessionist entity has established effective control over the relevant territory with no prospect of recapture by the centre, or where the entity can point to a federal status it enjoyed previously. It is of course widely accepted that autonomy can be a means of addressing the minority rights entitlements of such 101

102

103

See the handy survey by T. Benedikter, The Working Autonomies in Europe: Territorial Autonomy as a Means of Minority Protection and Conflict Solution in the European Experience. Full text available at http://www.gfbv.it/3dossier/eu-min/autonomy.html, accessed 3 November 2008. This initiative is detailed in W. Danspeckgruber and Sir A. Watts, eds., Self-determination and Self-administration: A Sourcebook, Boulder: Lynne Rienner (2000). See generally R. Bernhardt, “Federalism and Autonomy”, in Y. Dinstein (ed.), Models of Autonomy, New Brunswick: Transaction Press (1981), at 23–30; see also Y. Ghai (ed.), Autonomy and Ethnicity, Cambridge: Cambridge University Press (2000); Hannum, Autonomy, supra n. 18; R. Lapidoth, Autonomy: Flexible Solutions to Ethnic Conflicts, Washington: United States Institute of Peace Press (1997), at b27 and 57ff; J. Marko, Autonomie und Integration, Vienna, Cologne, Graz: Rechtsinstitute des Nationalitätenrechts im funktionalen Vergleich (1995), at 262ff; A. Reynolds (ed.), The Architecture of Democracy, Oxford: Oxford University Press (2001); M. Suksi (ed.), Autonomy: Applications and Implications, The Hague: Kluwer Law International (1998); H. Hannum (ed.), Documents on Autonomy and Minority Rights, Dordrecht: Martinus Nijhoff (1993); K. Gal, Minority Governance in Europe, Flensburg/Budapest: European Centre for Minority Issues/Local Government Initiative (2002); Weller and Wolff, Autonomy, supra n. 1.

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Escaping the Self-determination Trap communities.104 On the other hand, it remains contested whether territorially compact minorities have a positive right to selfgovernance through territorial autonomy.105 An exception exists in relation to indigenous peoples. As noted previously, according to ILO Convention 169, indigenous peoples enjoy significant entitlements of self-governance in relation to matters connected with their lands, beliefs, and economic and cultural development.106 The recognition of further self-determination entitlements has been the subject of protracted discussion at the UN.107 Ultimately, the UN General Assembly adopted the UN Declaration on the Rights of Indigenous Peoples. The Declaration confirms that: “Indigenous 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”.108 The declaration adds that:109 Indigenous Peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions.

104

105

106

107

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109

C. Palley, Possible Ways and Means to Facilitate the Peaceful and Constructive Resolution of Situations Involving Racial, National, Religious and Linguistic Minorities, UN Working Paper, E/CN.4/Sub.2/1989/49. Art. 27 ICCPR – the only legally binding provision on minorities in a general universal human rights instrument – does not address autonomy. However, GA Res. 47/135, the Declaration on the Rights of National, Ethnic, Religious and Linguistic Minorities, at least implies it in Art. 2.3: see the Commentary provided by the Chairman of the UN Working Group, Asbjorn Eide, E/CN,4.SUB.2/AC.5/2001/2, 2 April 2001, paras. 38ff. M. Weller, Towards a General Comment on Self-determination and Autonomy, UN Working Paper submitted to the Commission on Human Rights, Sub-commission on the Promotion and Protection of Human Rights, Working Group on Minorities, 11th Session, E/CN.4/Sub.2/AC.5/2005/WP.5. Art. 7 of ILO Convention 169 concerning Indigenous and Tribal Peoples in Independent Countries, adopted on 27 June 1989 by the General Conference of the International Labour Organisation at its 76th session. Indigenous Issues, Human Rights and Indigenous Issues, Report of the working group established in accordance with Commission on Human Rights resolution 1995/32 of 3 March 1995 on its 11th session, E/CN.4/2006/7922 March 2006. UN General Assembly Resolution 61/295, A/RES/61/295, para 3. Full text available at http://www.undemocracy.com/A-RES-61-295.pdf, accessed 23 October 2008. Ibid., Article 4.

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Trading Self-determination for Autonomy or Self-governance Devolution of powers of self-government can occur state-wide, establishing an entity which is not quite a federation, but which is nevertheless entirely composed of units of regional or local government endowed with significant and equal devolved competences. An example of such a design is the ‘cantons’ contained within the Bosniak-Croat Federation within the state of Bosnia and Herzegovina. More often, however, devolution takes place in relation only to certain parts of the territory, resulting in asymmetrical autonomy. That is to say, the overall state continues to administer itself under an essentially centralist state structure, offering a special status to one or more entities that enjoy autonomous or even federal-type competences. The devolution of Scotland and Wales may serve as an example. In some instances, a constitution provides the opportunity of devolution to all regions, offering the potential for an initially asymmetrical situation to gradually turn into a symmetrical one.110 Governments often remain hesitant when it comes to granting territorial autonomy. The loss of state control over important public functions in areas where minorities dominate is sometimes seen as a dangerous development which may ultimately lead to secession. The post-Cold War environment, however, has seen significant proliferation of autonomy arrangements that, previously, tended to be concentrated primarily in Western Europe. These include arrangements for the Tuareq in Northern Mali; the Kurds in Iraq; the Afar in Djibuti; the Omoros in Ethiopia; the Casamaçais in Senegal; the Cabindans in Angola; the Southerners in Chad; the Chittagong Hill Tribes and Bodos in India; the Moros in the Philippines; Aceh and West Papua in Indonesia; the Kachin, Karenni, Karens, Mons, and Wa in Burma/Myanmar; and the Miskito Indians in Western Nicaragua.111 110

111

Constitution of the Kingdom of Spain, 27 December1978, Art. 143. Reprinted in Constitutions of Europe: Texts Collected by the Council of Europe Venice Commission, Vol. 2, Strasbourg: Council of Europe Press (2004), 1696. Cf. the listing in Marshall and Gurr (2005), supra n. 20, Annex 11.2; and the agreements exhibited at the Cambridge-Carnegie document archive, supra n. 22.

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Escaping the Self-determination Trap As already noted, within Europe, Belgium, Denmark, Italy, Portugal, Spain, the UK and other states had already had positive experiences with self-governance arrangements during the Cold War period, and even before. Like subsequent settlements, these tended to balance autonomy with a legally entrenched commitment to territorial unity. For instance, the 1972 Autonomy Statute for South Tyrol grants autonomy and a “legal identity” to the region of Trentino-Alto Adige/South Tyrol, “within the political unity of the Italian Republic; one and indivisible …”.112 This is also illustrated by the example of Spain:113 The Constitution is based on the indissoluble unity of the Spanish Nation, the common and indivisible country of all Spaniards; it recognizes and guarantees the right to autonomy of the nationalities and regions of which it is composed, and solidarity amongst them all.

This provision referring to “indissoluble unity” may have appeared conservative when it was adopted in 1978. The initial autonomy statutes of entities such as the Basque country and Catalonia of 1979 were deferential to the Constitution, confirming that the “the powers of the Government of Catalonia emanate from the [Spanish] Constitution”, along with the autonomy statute and “the people”.114 At that stage, it was not made clear whether “the people” were the people of Spain or those of Catalonia. However, by 2006, a newly reformed statute confirmed that self-government is indeed also based on “the historical rights of the Catalan people….”.115 This strengthening of a possible self-determination claim of the “Catalan people” was balanced somewhat by a reference to the development of the “political” rather than legal personality of Catalonia, “within the framework of a State which

112 113 114

115

Reproduced in Hannum, Documents on Autonomy, supra n.103, at 462. Constitution of the Kingdom of Spain, supra n. 110, Art. 2. Art. 1 of Catalonia Autonomy Statute of 18 December 1979, reprinted in Constitutions of Europe, supra n. 110. Preamble to Organic Law 6/2006 on the Reform of the Statute of Autonomy of Catalonia, 19 July 2006, reprinted in Constitutions of Europe, supra n. 110.

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Trading Self-determination for Autonomy or Self-governance recognizes and respects the diversity of identities of the peoples of Spain”.116 Over the past two decades, further attempts have been made in Western Europe to deploy territorial autonomy, although less successfully. Autonomy or self-government was proposed in relation to Corsica and, in a very wide-ranging way, for Cyprus. In both cases the draft agreement failed to be accepted by the relevant populations, or segments thereof.117 In South-eastern Europe, autonomy was proposed as a means of settlement for minorities by the Carrington Conference on the former Yugoslavia – a proposal that was turned into a precondition for recognition by the states of the EU. However, while recognition occurred, the demand for autonomy was not complied with, for instance in relation to Croatia.118 The subsequent Rambouillet Agreement for Peace and Self-government in Kosovo also provided for wide-ranging self-government or autonomy, but it did not attract the support of Serbia. However, autonomy was negotiated successfully in Eastern Europe, in particular in relation to the Ukraine (Crimea) and Moldova (Gagauzia). Enhanced local self-government was also deployed as a substitute for formal autonomy in the Ohrid Framework Agreement addressing the Republic of Macedonia, adopted in the wake of the 2001 conflict with ethnic Albanian armed groups.119 Crimean autonomy within the Ukraine had a difficult birth, achieved with the assistance of the High Commissioner on 116 117

118

119

Ibid. Results for Corsica can be found at http://www.electionguide.org/results.php? ID=954. Results for Cyprus can be found at http://www.electionguide.org/ results.php?ID=213. Extraordinary EPC Ministerial Meeting, Declaration on Yugoslavia, Brussels, 16 December 1991. EPC Guidelines on Recognition of New States, and EPC Declaration on Yugoslavia, 16 December 1991, in Weller, The Crisis in Kosovo 19891999, supra n. 47, 80-1. Framework Agreement, 13 August 2001. Text available at http://www.intstudies.cam. ac.uk/centre/cps/documents_macedonia_frame.html, accessed 3 November 2008.

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Escaping the Self-determination Trap National Minorities of the Organisation for Security and Cooperation in Europe (OSCE). Russia had only transferred this predominantly ethnic Russian inhabited area to the Ukrainian Soviet Socialist Republic in 1954. In the context of the dissolution of the USSR, the area declared itself a republic, claiming a right of secession from the Ukraine.120 Ukraine overruled this declaration in its 1995 Law on the Status of Crimea and in its own 1996 Constitution.121 According to Article 134 of the latter, “the Autonomous Republic of Crimea is an inseparable constituent part of Ukraine and decides on the issues ascribed to its competence within the limits of authority determined by the Constitution of Ukraine”. In the meantime, the autonomous region gave itself a constitution, approved in 1998 by the Ukrainian parliament, which also determined that the Autonomous Republic was an “inalienable component part of the Ukraine”.122 When Moldova gained independence as a result of the dissolution of the USSR, unrest developed in the mainly Turkic populated area of Gagauzia. After OSCE mediation, Moldova adopted a Special Law on the Autonomous Territorial Unit of Gagauzia on 23 December 1994.123 The law defines Gagauzia as:124 an autonomous territorial unit with a special status as a form of selfdetermination of the Gagauzes, which constitutes an integral part of the Republic of Moldova. …

This model of autonomy settlement is particularly interesting, as it confirms on the one hand that Gagauzia is in fact a selfdetermination entity. However, it does so in a very specific way – emphasising that the parties have adopted autonomy as the most appropriate form of self-determination in this instance. In this way, 120

121

122 123 124

B. Bowring, “The Crimean Autonomy”, in Weller and Wolff, Autonomy, supra n. 1, at 75, 82. Law on the Status of Crimea, 17 March 1995. Ukrainian version available at http://zakon1.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=92%2F95%2D%E2%F0, accessed 3 November 2008. Unofficial translation in author’s possession. Cited in Bowring, “The Crimean Autonomy”, supra n. 120, at 89. The Law on the Special Legal Status of Gagauzia, supra n. 42. Ibid., Art. 1(1).

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Trading Self-determination for Autonomy or Self-governance Gagauzia did not have to surrender its claim to self-determination as a precondition of settlement, but instead has implemented that right through the settlement. Hence, its claim to self-determination was accepted, while it was simultaneously contextually reduced to autonomy exercised without prejudice to the territorial integrity of the overall state, save under certain specific conditions. The law also clarifies that the legal powers enjoyed by Gagauzia are devolved, rather than original, confirming that Gagauzia is to be governed on the basis of the national constitution and national laws. This is an important safeguard for the central government, in view of the logic of the Badinter Commission concerning constitutional self-determination. Even in instances where the concept of self-determination is not raised expressly, the central government will often seek to build provisions strengthening territorial unity into the agreement. For instance, Hong Kong was granted the right to “exercise a high degree of autonomy”. This commitment is balanced by a confirmation of the finding that “the Hong Kong Special Administrative Region is an inalienable part of the People’s Republic of China”.125 The West Papua settlement was enshrined in the Papua of Indonesia Act of Autonomy of 2001, the preamble to which confirms “that the integration of the nation must be maintained within the Unitary State of the Republic of Indonesia by respecting the equal and uniformed social and cultural life of the people of Papua through the formulation of a Special Autonomous region”.126 Article 1 of the agreement then confirms that the Irian Jaya (West Papua) Province is granted special autonomy “in the framework of the Unitary State of the Republic of Indonesia”. The Article continues: 125

126

Arts. 1 and 2 of the Basic Law on the Hong Kong Special Administrative Region of the People’s Republic of China, Decree No. 26, 4 April 1990, reprinted in Hannum, Documents on Autonomy, supra n. 103, at 233, 234. Papua of Indonesia Act of Autonomy, 22 October 2001, Preamble, para. d. Full text available at http://www.intstudies.cam.ac.uk/centre/cps/documents_ind_autonomy. html, accessed 3 November 2008.

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Escaping the Self-determination Trap Special Autonomy is a special authority acknowledged and granted to the Papua Province to regulate and manage the interests of the local people at its own initiative based on the aspiration and fundamental rights of the people of Papua;

This provision does not expressly assign a right of selfdetermination to the people of Papua, although it does at least refer to their “aspiration and fundamental rights”. In the more recent Memorandum of Understanding between the Government of the Republic of Indonesia and the Free Aceh Movement 2005, Aceh is granted very wide powers of selfadministration, covering all sectors of public policy other than foreign affairs, external defence, national security, monetary and fiscal matters, justice, and freedom of religion, which fall into the jurisdiction of the government of the Republic of Indonesia in conformity with the constitution.127 International agreements entered into by the government of Indonesia which relate to matters of special interest to Aceh are to be entered into in consultation with the legislature of Aceh. Moreover, decisions with regard to Aceh by the legislature of the Republic of Indonesia will also be taken in consultation with the legislature of Aceh, as will administrative measures undertaken by the government of Indonesia with regard to Aceh. This very wide-ranging grant of authority is, however, balanced once again by an express commitment to the “unitary state and constitution of the Republic of Indonesia”.128 Moreover, the general formulations expressed in the agreement have been used by the central government to take away some of what was granted, through the adoption of a far more restricted implementation law. The 1989 act establishing an autonomous (mainly Muslim) region of Mindanao also locates autonomy “within the framework 127

128

Memorandum of Understanding between the Government of the Republic of Indonesia and the Free Aceh Movement, 15 August 2005, Art. 1.1.2(a). Full text available at http://www.intstudies.cam.ac.uk/centre/cps/download/Acheh_MoU_ Agt2005.pdf, accessed 3 November 2008. Ibid., Preamble.

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Trading Self-determination for Autonomy or Self-governance of the Constitution and national sovereignty and the territorial integrity of the Republic of the Philippines…”.129 The settlement for Northern Mali similarly confirms the aim of balancing the “cultural, geographical and socio-economic diversity existing in the Republic of Mali” with a “solution which, at the same time, helps to consolidate national unity and integrity”.130 The settlement offers both local self-government and regional autonomy for the three northern regions. In a step approaching asymmetrical federation, the agreement goes on to provide:131 In order to respect the unity of the State and the Nation of Mali, and with the goal of encouraging the policy of development within an area of the national territory which shares very similar geographical, climatic, socioeconomic and cultural parameters, an inter-regional Assembly shall be created between the Regions of the North of Mali, for the benefit of the populations concerned and of the Republic of Mali as a whole.

The northern regions remain free to opt into the inter-regional assembly arrangement or not. The competences of the interregional assembly are, however, mainly limited to consultation and coordination among the autonomous regions of the north, and it is therefore appropriate to consider the settlement principally an autonomy settlement, rather than regionalisation or federacy. While other settlements emphasise greatly the guarantee of continued territorial unity and integrity, the Mali agreement also reflects the experience of certain autonomous entities in the past. After a constitutional settlement, these found themselves defenceless in the case of a unilateral dismantling of their autonomous powers by the central government (the best-known example relates to Kosovo’s position under the 1974 SFRY Constitution which was 129

130

131

Art. 1 of Act No. 6734, Providing for an Organic Act for the Autonomous Region in Muslim Mindanao, 1 August 1989, reproduced in Hannum, Documents on Autonomy, supra n. 103, at 430-431. Preamble to the National Pact Concluded between the Government of Mali and the Unified Movements and Fronts of Azawad giving Expression to the Special Status of Northern Mali, 11 April 1992. Full text available at http://www.intstudies.cam.ac.uk/ centre/cps/documents_mali_Tuaregs.html, accessed 3 November 2008. Ibid., at para. 18.

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Escaping the Self-determination Trap gradually diminished to the point of non-existence in the post 1988 period).132 Hence, the Mali settlement adds: 2. The content of the present Pact is a solemn commitment and the terms therein are irrevocable, agreed by the two parties and binding all Malians and their institutions. In this regard, the permanence of the statutory dispositions and the execution of the other terms are guaranteed by the State.

The trading of autonomy for a confirmation of permanent unity is evident even where more limited power is transferred without any sense of status for the people gaining autonomy. For instance, in the Autonomy Statute for the Regions of the Atlantic Coast of Nicaragua, autonomy for the indigenous population is balanced by a clear commitment to the permanent territorial unity of the state:133 The Communities of the Atlantic Coast are an indissoluble part of the indivisible State of Nicaragua, and their inhabitants enjoy all the Rights and Responsibilities which correspond to them as Nicaraguans, in accordance with the Political Constitution.

The concern of the central government is clearly evident when it doubly ensures that the communities are an ‘indissoluble part’ of an ‘indivisible state’. Another technique of avoiding granting a status which might make the central government nervous is to deny that the autonomy settlement actually provides autonomy, while still transferring autonomous powers. This was the case in the Ohrid Framework Agreement on Macedonia. There is certainly no talk of self-determination for the ethnic Albanian groups which launched an armed campaign in 2001. Instead, the agreement of 13 August 2001 confirms the territorial integrity of Macedonia, stating that “Macedonia’s sovereignty and territorial integrity, and the unitary character of the state are inviolable and must be preserved. There are no territorial solutions to ethnic 132 133

Weller, The Crisis in Kosovo, supra n. 47, at 59ff. Autonomy Statute for the Regions of the Atlantic Coast of Nicaragua, Law No.28, 7 September 1987, Art. 2. Full text available at http://www.intstudies.cam.ac.uk/ centre/cps/documents_nicaragua_aut.html, accessed 3 November 2008.

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Trading Self-determination for Autonomy or Self-governance issues.”134 Consistent with this aim of preserving the unitary character of the state, the Framework Agreement does not formally establish territorial autonomy for the land area bordering Kosovo and inhabited mainly by ethnic Albanians. Rather, the settlement disguises effective autonomy for these regions as enhanced local self-government.135 Where even autonomy in disguise appears too challenging, the concept of decentralisation may be applied after a period of violent strife. For instance, the settlement concerning the Afar of Djibouti explains the objectives of decentralisation as follows:136 1) Politique = participation des citoyens par le biais de leurs élus locaux à la gestion et la valorisation de leur collectivité. 2) Administratif = mise en place d’une Administration plus efficiente car plus proche de ses administrés. 3) Economique = promouvoir des pôles de développement économiques en dehors de la capitale et réduire les disparités régionales.

The agreement provides for the establishment of five regions and for decentralisation at the communal level. While decentralisation may facilitate the participation of citizens in local governance and may bring the administration closer to the people, as the agreement suggests, it nonetheless differs fundamentally from autonomy. As has already been noted, decentralisation facilitates the local implementation or execution of decisions which have been taken centrally. Autonomy and local self-government, on the other hand, generate space for the adoption of original decisions at the local or regional level, although within the overall framework of the constitutional order. While only decentralisation is formally foreseen in the Djibouti agreement, the establishment of a regional structure does suggest slightly more. In any event the law 134

135 136

Framework Agreement, 13 August 2001, Art. 1.2. Full text available at http://www.intstudies.cam.ac.uk/centre/cps/documents_macedonia_frame.html, accessed 3 November 2008. Ibid., Annex B(I). Accord de reforme et de concorde civile entre le Frud-armé et le gouvernement djiboutien, 12 May 2001. Text available at www.lesnouvelles.org/P10_magazine/12_depeche/12020_ LNAtxtaccordjib.html, accessed 3 November 2008.

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Escaping the Self-determination Trap implementing the agreement of course pays full respect to “le respect de l’unité nationale et de l’intégrité du Territoire”.137 Somewhat surprisingly, given its reputation for strongly regionally based governance in its provinces, the constitutional settlement for Afghanistan also appears to take the route of mild decentralisation. According to Article 137 of the Constitution of 26 January 2004, “while preserving the principle of centralism” the government is to “delegate certain authorities to local administration units for the purpose of expediting and promoting economic, social, and cultural affairs, and increasing the participation of people in the development of the nation”.138 The insistence on the maintenance of ‘centralism’ in this instance appears somewhat removed from reality. A final way of addressing ethnic movements is focused less on questions of constitutional architecture than on resource issues. In the settlement of the conflict between Senegal and the Mouvement des Forces Démocratiques de la Casamance (MFDC), there is recognition of the frustrations experienced by part of the population in the Casamance region. However, this is to be addressed through “un programme de développement spécifique à cette région naturelle”. Here, there is little suggestion that the popular movement of Casamance struggled on behalf of a people’s right to selfdetermination in the sense of secession. Instead, the people of a region seem to have joined forces to seek redress in relation to their exclusion from the economic opportunities of the state.139

137

138

139

Art. 1 of Loi No. 174/AN/02/4ème L portant Décentralisation et Statut des Régions. Full text available at http://www.elec.dj/Preambule.htm, accessed 3 November 2008. The Constitution of the Islamic Republic of Afghanistan, 26 January 2004. Full text available at http://president.gov.af/english/constitution.mpsx, accessed 3 November 2008. Preamble to the Accord General de Paix Entre le Gouvernement de la Républic du Sénégal et le Mouvement des Forces Démocratiques de la Casamance, 30 December 2004; cf. also Art. 3(b) promising a “vaste programme de rehabilitation et des reconstruction”. Full text available at http://www.kassoumay.com/casamance/paix-casamance.html, accessible 3 November 2008.

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VIII.

Regionalisation, Federalisation, or Union with Confirmation of Territorial Unity

Recent practice has offered a number of solutions going beyond autonomy. These range from loose confederations or state unions to full or asymmetrical federal solutions. It should be noted that some of these, however, have been subjected to possible dissolution through self-determination clauses. This includes the very complex structure of Sudan in the wake of its three settlements (South, East and projected settlement for the West) permitting the South to leave after six years; Bougainville, which enjoys an asymmetrical federal status for at least 10 years; the abortive 1996–1967 settlement of Chechnya; and the now defunct State Union of Serbia and Montenegro. These will be addressed separately below. While autonomy already raises governments’ concerns, federaltype solutions are even more difficult to achieve nowadays. As was noted above, autonomy is often traded for an express renunciation of self-determination and a confirmation of the permanent territorial unity of the state. Where a more elevated status, such as that of a federal republic or constituent unit of a confederation or state union is concerned, the stability of such an arrangement is even more difficult to assure.140 In fact, the recent recognition of the doctrine of constitutional self-determination has made this more complicated. The Badinter Commission attached to the EU peace process for the former Yugoslavia had found that:141 140

141

This problem was already addressed through the doctrine of perpetuity in the Articles of Confederation, 8 August 1778, Art. XIII: “[e]very State shall abide by the determination of the United States in Congress assembled, on all questions which by this confederation are submitted to them. And the Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State”. Full text available http://www.loc.gov/rr/program/bib/ ourdocs/articles.html, accessed 3 November 2008 Badinter Opinion No. 1, 31 ILM (1992),1494, para. 1(d).

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Escaping the Self-determination Trap [I]n the case of a federal-type state, which embraces communities that possess a degree of autonomy and, moreover, participate in the exercise of political power within the framework of institutions common to the Federation, the existence of the state implies that the federal organs represent the components of the Federation and wield effective power[.]

The Commission concluded that in the case of the Socialist Federal Republic of Yugoslavia the central institutions no longer functioned in the wake of the attempted secessions of Croatia and Slovenia. Hence, the state was found to be “in the process of dissolution”.142 The Canadian Supreme Court Reference concerning Quebec also appeared to suggest that a federal unit might be entitled to secede after having completed or exhausted negotiations with the central state. As the Court found:143 The continued existence and operation of the Canadian constitutional order could not be indifferent to a clear expression of a clear majority of Quebecers that they no longer wish to remain in Canada. The other provinces and the federal government would have no basis to deny the right of the government of Quebec to pursue secession, should a clear majority of the people of Quebec choose that goal, so long as in doing so, Quebec respects the rights of others.

Of course, this expansive reading of a right to constitutional selfdetermination may not be firmly established in international law as yet – general practice still appears to require an express confirmation of a right to secession in the constitution in order to generate a definite international legal entitlement to independence. Nevertheless, such pronouncements are prone to confirming the suspicion of governments contemplating a settlement that federalisation is the first step towards a legally privileged secession. Moreover, settlements such as those of Southern Sudan or Bougainville, which actually provide for loose federation as an interim step towards a referendum on independence, are bound to 142

143

Ibid., at para 3; on the Badinter opinions cf. A. Pellet, “The Opinions of the Badinter Arbitration Committee: A Second Breath for the Self-determination of Peoples”, European Journal of International Law (1992) 3(1): 178-185. Reference Re Secession of Quebec, supra n. 17, para. 151.

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Regionalisation, Federalisation, or Union with Confirmation strengthen this impression. This is all the more so as some settlements do not allocate sovereignty exclusively to the centre before devolving power to federal units. For, where sovereignty is expressly allocated to constituent units or shared by them and the centre, a stronger claim of constitutional self-determination may be made than in cases of federal authority devolved from the centre to constituent republics. The theory is that in such cases sovereign constituent units have transferred powers to the centre (rather than the other way around) and, accordingly, they may recapture their full sovereignty by seeking dissolution of the federal or confederal ties they have freely accepted. This would be in analogy to the notion of ‘association’ from the colonial context, where the associating entity retains the right of subsequent separation.144 The abortive Cyprus settlement of 2004 attempted to address this problem through the concept of “indissoluble partnership”. The Comprehensive Settlement of the Cyprus Problem of 24 March 2004 provided for “The United Cyprus Republic”, consisting of a federal government and two “constituent states”.145 The constituent states were to be of equal status. Within the limits of the constitution, they would “sovereignly” exercise all powers not vested by the constitution in the federal government, organising themselves freely under their own constitutions. On the other hand, the federal government would also “sovereignly” exercise the powers specified in the constitution. In this way, the question of whether original sovereignty lies with the centre or with each of the two constituent entities has been sidestepped. It lies with both the centre and the constituent states. Given this unusual construction, it was however found necessary expressly to confirm:146 The United Cyprus Republic is an independent state in the form of an indissoluble partnership, with a federal government and two equal constituent states, the Greek Cypriot State and the Turkish Cypriot State. 144 145

146

UN General Assembly Resolution 1541 (XV), supra n. 30, Principle VI The Comprehensive Settlement of the Cyprus Problem, supra n. 50, paras. 1(a) and (b). Ibid., at para 1(a).

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Escaping the Self-determination Trap Cyprus is a member of the United Nations and has a single international legal personality and sovereignty.

While this provision clearly confirms singular legal personality for Cyprus at the international level, it retains the theory of two sovereign entities when analysed from within. It is also interesting to note that the more usual word of state ‘union’ for this kind of construction was, in the end, replaced by the non-technical term “partnership”, avoiding the need to take a view on the precise legal nature of this arrangement. Cyprus is a somewhat special case, as the settlement proposal provided for only a very limited element of integration between the two constituent entities. Another proposed settlement providing for a loose association of two ‘sovereign’ entities has resulted from the Minsk Group negotiations process on Nagorno-Karabakh.147 This mainly ethnic Armenian inhabited territory of Azerbaijan was forcibly brought under Armenian control by 1992, the 20–25 percent ethnic Azeries having been largely displaced by then. A land corridor connecting the territory with Armenia and certain outlying regions has also been occupied since that date. A ceasefire was achieved in 1994.148 Since then, intensive efforts have been made within the framework of the OSCE and the so-called Minsk Group of states to achieve a settlement.149 While NagornoKarabakh considers itself an independent state, the UN Security Council has confirmed “the sovereignty and territorial integrity of the Azerbaijani Republic”, reminding the parties of “the inadmissibility of the use of force for the acquisition of territory”.150 147

148

149

150

See P. Carley, Nagorno-Karabakh: Searching for a Solution, Washington: United States Institute for Peace (1997). Bishkek Protocol, 5 May 1994; Ceasefire Agreement, Bishkek, 11 May 1994. Full texts available at http://www.c-r.org/our-work/accord/nagorny-karabakh/keytexts15.php, accessed 3 November 2008. The Group includes Armenia, Azerbaijan, Belarus, the Czech Republic, France, Germany, Italy, the Russian Federation, Sweden, Turkey, and the USA. Preamble to UN Security Council Resolution 853 (1993), 29 July 1993, S/RES/853 (1993). Full texts available at http://daccessdds.un.org/doc/UNDOC/GEN/N93/ 428/34/IMG/N9342834.pdf ?OpenElement, accessed 3 November 2008.

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Regionalisation, Federalisation, or Union with Confirmation In 1996, the OSCE called for a settlement respecting the territorial integrity of Azerbaijan, while offering:151 Legal status of Nagorno-Karabakh defined in an agreement based on self-determination which confers on Nagorno-Karabakh the highest degree of self-rule within Azerbaijan.

By 1998, the Minsk Group had reportedly proposed a ‘common state’ featuring ‘non-hierarchical relations’ between Azerbaijan and the enclave – a solution which was nearly agreed upon at high-level talks between the presidents of both states held at Key West, Florida, in March and April 2001.152 After that period, the governments appear to have distanced themselves somewhat from this confidential initiative, ultimately leaking the successive proposals to the outside instead. According to the leaked information, the initial draft settlements reportedly provided that “Nagornyi Karabakh is a state and territorial formation within the confines [‘v sostave’] of Azerbaijan”.153 There would have been a loose confederation within a “common state”, but providing for “the internationally recognised status of a Republic with its own constitution, armed forces, and power to veto any legislation passed by the authorities in Baku”. The “common state” would feature weak, perhaps only nominal, central institutions in the form of a “joint commission” from the two entities. The Nagorno-Karabakh Republic (NKR) would form its executive, legislative, and judicial branches as well as a “national guard” and police units. “The Azerbaijani army, 151

152

153

This declaration was supported by all states but Armenia at the Lisbon OSCE Summit. It was issued as part of the Lisbon Summit documents as the Statement of the OSCE Chairman-in-Office, OSCE 1996 Summit, Lisbon, 3 December 1996, Annex I. The actual texts of the proposals from 1998 onwards have apparently not been published. But see the excellent account in T. Huseynov, Mountainous Karabakh: Conflict Resolution through Power-sharing and Regional Integration. Text available at www.peacestudiesjournal.org.uk/docs/Mountainous%20Karabakh%20final%20versi on%20edited%203.pdf, accessed 3 November 2008. The account in this paragraph is taken from “OSCE Karabakh Peace Proposals Leaked”, Radio Free Europe/Radio Liberty Caucasus Report, Volume 4, Number 8, 23 February 2001. I owe this reference to Dr Jonathan Wheatley.

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Escaping the Self-determination Trap security and police forces shall not be allowed to enter the territory of Nagorno-Karabakh without the consent of the NagornoKarabakh authorities”, the proposal reportedly foresaw. Azerbaijani laws, regulations, and executive directives would have legal force in Nagorno-Karabakh only as long as they did not contradict the latter’s constitution and laws. Karabakh residents would travel abroad with specially marked Azerbaijani passports. Only the government in Stepanakert would be empowered to grant such passports and residence permits and to establish “direct relations” with foreign states in “economic, trade, scientific, cultural, sports and humanitarian fields”. This would also involve the right to have diplomatic missions abroad, which would nonetheless have to be affiliated with Azerbaijani embassies. This example, together with the proposed Cyprus settlement, shows how far international actors and agencies are willing to go in order to retain, nominally, the doctrine of territorial unity of states. In these two instances in particular, where effective control over Northern Cyprus and Nagorno-Karabakh respectively was obtained in conjunction with the use of foreign military forces, a settlement formally ratifying the disruption of the territorial unity of the state under attack would have been legally difficult. The doctrine of jus cogens, which uncontroversially includes the prohibition on the use of force, would inhibit such an approach. On the other hand, a peaceful and effective re-incorporation would not appear feasible. Hence, both settlements largely retain the de facto result obtained through the use of force, while de jure restoring the territorial unity of the state. A similar approach was taken in relation to Bosnia and Herzegovina, which had also suffered territorial division as a result of the use of external armed force and the gravest of violations of humanitarian obligations. Recognising the reality as it then was, the Bosnia Herzegovina settlement achieved at Dayton in 1995 also provided a settlement consisting of entities endowed with quasisovereign powers. In this instance, the disintegrative force of confederal status was meant to be flanked by complex power96

Regionalisation, Federalisation, or Union with Confirmation sharing. This would allow the entities fully to retain and develop their separate powers while sharing control over the limited competences of the central state. In fact, contrary to widespread expectation, the state has managed to grow together to some extent since then, although an attempt to formalise this achievement through integrative constitutional revisions failed early in 2006.154 The Dayton Accords on Bosnia and Herzegovina of 14 December 1995 confirm the statehood and continued legal personality of the state of Bosnia and Herzegovina. The state consists of the Republika Srpska and the Bosniak/Croat Federation. The latter, in turn, is composed of cantons which are either Bosniak or ethnic Croat dominated, and have aligned with one another accordingly. The powers of self-government of Republika Srpska and of the associations of Bosniak or Croat cantons respectively within the Bosniak/Croat Federation are very wide. The entities are entitled “to establish special parallel relationships with neighboring states”. However, the feared merger of Republika Srpska with Serbia and of the Croat cantons with Croatia is precluded by the agreement, which confirms the commitment of the parties to the sovereignty, territorial integrity, and political independence of Bosnia and Herzegovina.155 There is no further express guarantee of territorial unity, as a powerful NATO-led force was deployed to enforce the territorial solution which had been agreed. The enforced continuation of territorial unity is meant to be eased by consociationalist power-sharing techniques. Weak central authority is balanced with extensive human rights provisions, which are, however, not always effectively enforceable at the central level. 154 155

European Parliament, Outlook for Bosnia and Herzegovina, P6-TA-PROU (2006). The General Framework Agreement for Peace in Bosnia and Herzegovina, initialled in Dayton on 21 November 1995 and signed in Paris on 14 December 1995, Annex 4, Art. 3(2)(a). Full text available at http://www.intstudies.cam.ac.uk/centre/cps/ documents_bosnia_dayton.html, accessed 3 November 2008. See also the Preamble to UN Security Council Resolution 1031 (1995), 15 December 1995, S/RES/1031 (1995). Full text available at http://daccessdds.un.org/doc/UNDOC/GEN/N95/ 405/26/PDF/N9540526.pdf ?OpenElement, accessed 3 November 2008.

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Escaping the Self-determination Trap Very extensive consociational mechanisms of co-decision, disproportionate representation and veto provisions are not coupled with the necessary mechanism for effective dispute resolution. Instead, in practice, decision-making at the international level has had to take on this role. There is also provision for excessive executive representation in the government and in executive agencies at the central level, and separate agencies of governance at the entity, federal, and cantonal levels. At the outset, there were even separate armed forces of both entities.156 The combination of a confederal union composed of two entities, one of which is itself a federation and the other a highly centralist component republic, is certainly unusual, and can be explained only in light of the results of armed conflict when, in 1995, violence was finally arrested in Bosnia. However, asymmetrical federal or confederal settlements are by no means uncommon. As noted already, asymmetrical settlements of this kind generally occur where the secessionist entity has effectively escaped state control. Another very complex and highly asymmetrical settlement has emerged in relation to Sudan. The Machakos Protocol offers a quasi-confederal union between the North and South for an interim period of six years. While the South continues to be represented in the central institutions of the state, it governs itself virtually independently of the North. Other parts of the package that was to become the Sudan settlement offer rather special status to the capital region and to several component states on the front line between North and South.157 In addition to the Southern settlement, two further settlement documents have been generated. The first concerns Darfur. It is at present not fully accepted by all factions in Western Sudan, and its

156

157

For a detailed analysis see F. Bieber, “Power Sharing and International Intervention: Overcoming the Post-conflict Legacy in Bosnia and Herzegovina”, in Weller and Metzger, Settling Self-determination Conflicts, supra n. 1. Machakos Protocol, supra n. 21; cf. also Weller, “Self-governance in Interim Settlements: The Case of Sudan”, in Weller and Wolff, Autonomy, supra n. 1, at 158.

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Regionalisation, Federalisation, or Union with Confirmation status is therefore uncertain.158 According to the 2006 Darfur settlement, sovereignty is vested in the people (presumably of Sudan) and exercised by the state in accordance with the national constitution into which the settlement is to be incorporated.159 The state structure remains as before:160 44. The Republic of Sudan has a federal system of government in which power shall effectively be devolved. Pending a final decision on the status of Darfur in accordance with this Agreement, responsibility shall be distributed between the national and other levels of government in accordance with the provisions of the Constitution.

However, there is an option for the creation of a new layer of governance, at the regional level. An interim authority for the Darfur region is to be created. The authority will also ensure that:161 55. The permanent status of Darfur shall be decided through a referendum held simultaneously in the three states of Darfur. 57. In the referendum, the following options for the political administration of Darfur shall be presented (a) The creation of a Darfur Region composed of the three states (b) Retention of the status quo of the three States In either instance, the character of Darfur, as defined by historical and cultural tradition and ties shall be respected.

The settlement offers enhanced federal status to the three Western states, in particular in relation to wealth-sharing, development and transfer of federal resources. However, it is also possible for the West to transform itself into an asymmetric region within the federation to enjoy these benefits together by forming a unit of self-government. 158

159

160 161

In fact, the Sudan government and one main opposition movement have signed the document and claim that it is in force. However, the main opposition movements have refused to sign, and attempts are underway to launch a new set of negotiations, which may be based on part on the 2006 document. Darfur Peace Agreement, 5 May 2006, Art. 1(1). Full text available at http:// www.unmis.org/english/2006Docs/DPA_ABUJA-5-05-06-withSignatures.pdf, accessed 3 November 2008. Ibid. Ibid.

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Escaping the Self-determination Trap Eastern Sudan, on the other hand, has achieved a lesser status. Confirming in the preamble the “sovereignty, unity and territorial integrity of Sudan”, Article 1 of its settlement reiterates that:162 The Republic of the Sudan is a united, independent, and sovereign state. Sovereignty is vested in the people and shall be exercised by the State in accordance with the National Interim Constitution into which this Agreement shall be incorporated.

This is balanced by the confirmation that:163 A federal system of government, with an effective devolution of powers and a clear distribution of responsibilities between the centre and other levels of government, including local administration, is essential to ensure fair and equitable participation of the citizens of the Sudan in general and the people of Eastern Sudan in particular.

However, instead of gaining at least the option of forming their own regional unit:164 Exercising their rights as set out in the [Interim National Constitution], the three states of the Eastern Sudan shall set up an Eastern Sudan States’ Coordinating Council to enhance coordination and cooperation among them.

Instead of forming their own region going beyond coordination and cooperation, the Eastern States are in fact bound more closely into the overall state by the application of integrative powersharing techniques. Hence, the East gains weight in central decision-making, a fairer representation of Easterners in the federal executive and, crucially as always in this region, an element of wealth-sharing. Another example of a somewhat flexible federal geometry is furnished by the new Iraqi Constitution. According to Article 1:165 162 163 164 165

Ibid., Art. 1(1). Ibid., Art. 1(5). Ibid., Art. 5. Iraqi Constitution, adopted by referendum on 15 October 2005. Full text available at http://www.uniraq.org/documents/iraqi_constitution.pdf, accessed 3 November 2008.

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Regionalisation, Federalisation, or Union with Confirmation The Republic of Iraq is a single, federal, independent and fully sovereign state in which the system of government is republican, representative, parliamentary, and democratic, and this Constitution is a guarantor of the unity of Iraq.

The federal system is composed of a capital city area exercising decentralised powers, regions and governorates. The interesting aspect, again, relates to the regions. Regions can establish their own constitution and structures of regional authorities and can exercise all powers not exclusively assigned to the centre. In essence, they can constitute themselves into federal units only loosely bounded by the constitutional system. The Constitution expressly recognises the region of Kurdistan, along with its authorities as they exist upon the coming into force of the Constitution, as a “federal region”.166 However, other governorates have the right to turn themselves into further regions, if they so wish. This may be done by one single governorate or in conjunction with one or more others, following a referendum. Hence, the presently unipolar asymmetry in the Iraqi Constitution may, over time, be changed into a more complex asymmetry, or, ultimately, the state may transform itself into a full federation of regions (for instance, North, Centre, and South) under the existing constitution.167 Another example of a proposed complex asymmetry is Moldova. As we noted, after a period of armed unrest Gagauzia was granted asymmetrical autonomy in 1994. After violent conflict during the post-Soviet transition, Transdniestria established itself under the leadership of its ‘President’ Igor Smirnov as a quasi-state outside the control of the Moldovan government, with the informal support of a Russian-led ‘peace-keeping’ presence.168 There would be no possibility for the Moldovan government to change this situation even through the use of force. Accordingly, a very loose association between Moldova and Transdniestria might be 166 167 168

Ibid., Art. 117. Ibid., Arts. 118ff. See, generally, J. Mackinlay and P. Cross (eds), Regional Peacekeepers: The Paradox of Russian Peacekeeping, New York: UN University Press (2003).

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Escaping the Self-determination Trap expected. This would take account of the realities on the ground, without creating a precedent in favour of disrupting territorial unity. On 8 May 1997, the sides concluded a memorandum on the ‘normalisation of relations’ between the Republic of Moldova and Transdniestria on the basis of mediation by the Russian Federation, Ukraine and the OSCE. The preamble to the document is missing the traditional reference to territorial unity and integrity. Instead, there is merely a softer reference to the principles of the UN, OSCE and generally recognised norms of international law, and an invocation of the “unity of their spiritual and material resources”. In the agreement, the parties pledge to continue “the establishment between them of state-legal relations”.169 However, they defer from defining these relations, including the status of Transdniestria and the “division and delegation of competences”.170 Presumably, this is meant to refer to a loose state union or confederation. At the very end of the document, however, the parties do commit themselves to building “their relations in the framework of a common state within the borders of the Moldavian SSR as of January of the year 1990”.171 The absence of the usual, more direct commitment to the territorial unity and integrity of Moldova is balanced by a Joint Statement by the Presidents of the Russian Federation and the Ukraine, adopted in connection with the memorandum, in which both governments:172 169

170 171 172

Memorandum on the Bases for Normalisation of Relations Between the Republic of Moldova and Transdniestria, 8 May 1997, at para. 2. Full text available at http://www.intstudies.cam.ac.uk/centre/cps/documents_moldova_memo.html, accessed 3 November 2008. Ibid. Ibid., para. 11. Joint Statement of the Presidents of the Russian Federation and Ukraine in Connection with the Signing of the Memorandum on the Bases for Normalisation of Relations between the Republic of Moldova and Transdniestria, 8 May 1997. Full text available at http://www.osce.org/documents/mm/1997/05/456_en.pdf, 3 November 2008.

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Regionalisation, Federalisation, or Union with Confirmation Declare that the provisions of the Memorandum cannot contradict the generally accepted norms of international law, and also will not be interpreted or acted upon in contradiction with existing international agreements, decisions of the OSCE, the Joint Declaration of 19 January 1996 of the Presidents of the Russian Federation, Ukraine, and the Republic of Moldova, which recognize the sovereignty and territorial integrity of the Republic of Moldova.

In this way, the unwillingness of Transdniestria to commit itself altogether too expressly to the territorial unity of Moldova at this early stage of agreement, before its status had been formally settled, could be compensated for by a commitment to the continued territorial integrity of Moldova on the part of its principal sponsor (the Russian Federation) and the neighbouring state controlling its eastward boundary. In 2003, the Russian Federation presented a draft settlement, which provided for a “united, independent, democratic state based on federal principles within the borders of the Moldovan SSR of 1 January 1990”.173 Transdniestria was given significant and wide powers as a “subject of the federation” in a classical asymmetrical federal design.174 It was also proposed that:175 Subjects of the federation have the right to leave the federation in case a decision is taken to unite the federation with another state and (or) in connection with the federation’s full loss of sovereignty.

This proposal for conditionality of a right of secession finds its counterpart, and presumably inspiration, in a provision of the Gagauzia settlement. In the event of a change in the status of the Republic of Moldova as an independent state, the settlement assigns to the people of Gagauzia “the right of external self-

173

174 175

Draft Memorandum on the Basic Principles of the State Structure of a United State in Moldova, 17 November 2003, at para. 1. Full text available at http://www.intstudies. cam.ac.uk/centre/cps/documents_moldova_kozakmemo.html, accessed 3 November 2008. Ibid., at para. 3(3). Ibid., at para. 3(13).

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Escaping the Self-determination Trap determination”.176 It was feared, however, that the corresponding formulation in the Russian draft relating to a loss of sovereignty might be treated as an invitation to Transdniestria to create the conditions identified by the Badinter Commission on the former Yugoslavia indicating that the federation would no longer fully function, and then claim a right of secession on the basis of such action. The Russian proposal was much criticised due to its emphasis on wide powers for Transdniestria, the insistence of the Russian Federation to link a constitutional settlement to the permanent demilitarisation of Moldova and the lack of express protection of the continued territorial unity of the state.177 Hence, a year later, in 2004, the OSCE, the Russian Federation and Ukraine offered a joint and formal recommendation for a settlement to the parties, which was somewhat different. In relation to the two sides, the proposal recognises “their responsibility for the unification of the country”, and would establish a federal state. Within the federation, which enjoys exclusive subjectivity in international law, there would exist “special territorial federal units” or “federal subjects”.178 The proposal adds: National sovereignty is vested in the people of Moldova, who are the only source of state authority in the Federal State.

The proposal represents a significant backtracking from the far more open document of 1997. Clearly, Transdniestria was now 176

177

178

The Law on the Special Legal Status of Gagauzia (Gagauz Yeri), supra n. 42, Art. 1(4). Opinion on the Proposal to Amend the Constitution of the Republic of Moldova (introduction to the individual complaint to the Constitutional Court), adopted by the Venice Commission at its 61st Plenary Session, 3–4 December 2004, CDL-AD(2004)043. Full text available at http://www.venice.coe.int/docs/2004/CDL-AD(2004)043-e.asp, accessed 3 November 2008. Proposals and Recommendations of the Mediators from the OSCE, the Russian Federation, Ukraine with regards to the Transdniestrian Settlement, OSCE Document CIA.GAL/11/04, 13 February 2004. Full text available at http://www.europarl. europa.eu/meetdocs/2004_2009/documents/fd/dmd20050621_07/dmd20050621_ 07en.pdf, accessed 3 November 2008.

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Regionalisation, Federalisation, or Union with Confirmation offered an asymmetrical federal status firmly embedded in the overall constitutional order of Moldova. However, the Moldovan central authorities and the Moldovan parliament remained concerned about the consequences of federalisation even as foreseen in the joint proposal, and were also opposed to a general revision of the state constitution. Transdniestria, on the other hand, saw little advantage to be gained from settling, given the relatively comfortable status quo. Another year later, in 2005, Ukraine put forward its own settlement plan. Rather than a complete revision of the Constitution of Moldova which had been foreseen in the Russian initiative, Ukraine proposed that an asymmetrical constitutional settlement might be achieved within the present constitutional composition of Moldova while still granting Transdniestria “a special legal status as a constituent part of Moldova”.179 Upholding Moldova’s territorial integrity and sovereignty, the plan however also referred to “the people’s right to self-determination”.180 In particular, it sought to ensure that “the residents of Transdniestria shall have the right for self-determination solely if Moldova loses its sovereignty and independence”.181 The Moldovan parliament adopted a decision endorsing this plan in principle.182 However, in the meantime the position of the Russian Federation hardened once again, and Russia sought to return to the position of 1997. In a meeting between Igor Smirnov and the Russian government, both sides pledged “support for Trandniestrian people in 179

180 181 182

Ukrainian Plan for Settlement of the Trandniestrian Problem, 22 April 2005, para. I(2). Full text available at http://www.ceeol.com.aspx/getdocument.aspx?logid=5&id =ce95641d-5d23-4940-a445-439e42121b5d, accessed 3 November 2008. Ibid., para. II(2). Ibid., para. I(3). Decision on the Ukrainian Initiative Concerning the Settlement of the Transdniestrian Conflict and Measures for Democratisation and Demilitarisation of the Transdniestrian Zone, No. 117-XVI, 10 June 2005. Full text available at http:// www.ecmimoldova.org/fileadmin/ecmimoldova.org/docs/transd.official/Moldovan %20Declaration%20on%20Yushchenko%20Plan-10.06.05.pdf, accessed 3 November 2008.

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Escaping the Self-determination Trap upholding their inalienable rights”.183 The sides even signed a formal protocol on Russian–Transdniestrian cooperation, in which the Russian Federation expressed its readiness, “in case of developments inhibiting Transdniestrian rights laid down in the 8 May 1997 Memorandum on the Basis for Normalisation of Relations Between the Republic of Moldova and Transdniestria, to take practical steps to ensure implementation of provisions of the document”.184 Further negotiations have remained deadlocked since then. However, the events in Georgia of August 2008 have led the parties to renew their search for a settlement, and a revival of some of the previously discussed solutions is expected. The events in Georgia, of course, were preceded by their own protracted history of settlement attempts. Before the armed action of 2008, both South Ossetia and Abkhasia maintained themselves as quasi-independent states under the cover of Russian ‘peacekeeping’ forces. As opposed to Transdniestria, however, the territories border Russia directly. The UN Security Council had firmly committed itself to the maintenance of the territorial integrity and unity of Georgia.185 Indeed, as late as April 2008, the Council had restated that commitment in a resolution.186

183

184 185

186

Protocol on the results of the working meeting between Vice-Chairman of the RF Cabinet A.D. Zhukov and President of Transdniestria I.N. Smirnov, 23 May 2006. Full text available at www.intstudies.cam.ac.uk/centre/cps/documents_ protocol23May2006.html, accessed 3 November 2008. Ibid., para. 6. E.g., UN Security Council Resolution 876 (1993), 19 October 1993, S/RES/876 (1993), at para. 1; and 1752 (2007), 13 April 2007, S/RES/1752(1007), at para. 1, “[r]eaffirms the commitment of all Member States to the sovereignty, independence and territorial integrity of Georgia within its internationally recognized borders”. Full text available at http://www.unomig.org/data/file/945/071015_SRES_1781.pdf, accessed 3 November 2008. UN Security Council Resolution 1808 (2008), 15 April 2008, S/RES 1808 (2008), para. 1: “Reaffirms the commitment of all Member States to the sovereignty, independence and territorial integrity of Georgia within its internationally recognized borders …”. Full text available at http://daccessdds.un.org/doc/ UNDOC/GEN/N08/306/29/PDF/N0830629.pdf ?OpenElement, accessed 3 November 2008.

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Regionalisation, Federalisation, or Union with Confirmation In relation to South Ossetia an initial settlement memorandum was achieved in 1996. The settlement purports to be guided by the twin principles of “territorial integrity of states, and the right of nations for self-determination” when working further to “attain a full-scale political settlement”.187 However, such a settlement remained elusive. After much discussion about federalisation of Georgia, the Georgian government instead put forward a number of settlement plans based on asymmetrical autonomy designs.188 Again, the establishment of an entirely new constitutional order to achieve full federalisation proved too controversial for the Georgian authorities, as had the prospect of Badinter-based secession after the grant of federal or even confederal status. A settlement for Abkhasia, which had historically enjoyed a greater degree of self-government than South Ossetia, has also remained elusive. There was initial progress in UN-sponsored negotiations in Geneva189, which contemplated a looser association with Georgia, and competences for “joint action” even in relation to foreign policy, foreign economic ties, borders and customs.190 By 2002, the so-called ‘Boden’ proposal, providing for two sovereign entities (Abkhasia and Georgia) under the roof of the Georgian Constitution, coupled with safeguards for continued unity, was put

187

188

189

190

Memorandum on Measures to Provide Security and Strengthen Mutual Trust Between Sides in the Georgian-Ossetian Conflict, 17 April 1996, preamble, at para. 10. Full text available http://www.intstudies.cam.ac.uk/centre/cps/documents_ gum_memo.html, accessible 3 November 2008. “South Ossetia represents an autonomous entity within the territory of Georgia. … The authorities of Georgia provide the population of South Ossetia with broad rights of local self-government”: Section IV of the Initiative of the Georgian Government with Respect to the Peaceful Resolution of the Conflict in South Ossetia, March 2005. Full text available at http://smr.gov.ge/en/tskhinvali_region/policy/peace_plan, accessed 3 November 2008. Communiqué, S/1994/32, 13 January 1994; Memorandum of Understanding, S/26875, 1 December 1993. E.g., Declaration on Measures for a Political Settlement of the Georgian/Abkhaz Conflict, 4 April 1994, at para. 7. Full text available at http://daccessdds.un.org/ doc/UNDOC/GEN/N94/166/44/PDF/N9416644.pdf ?OpenElement, Annex 1, accessed 3 November 2008.

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Escaping the Self-determination Trap forward. This document gained the formal support of the UN Security Council, which reminded the parties that lack of progress in this area was “unacceptable” and that there had to be “the achievement of a comprehensive political settlement, which must include a settlement of the political status of Abkhasia within the state of Georgia”.191 Unhappily, the Abkhaz de facto Prime Minister, Anri Jergenia, rejected any suggestion that Abkhasia was “within the State of Georgia” and refused even to receive the proposal.192 After that, and up to the events of August 2008, there was little progress. In fact, the situation became more tense, with the occasional invocation of the spectre of possible incorporation of Abkhasia and South Ossetia into the Russian Federation if Kosovo gained independence – a prospect which led the Georgian President to declare at the UN General Assembly:193 any attempt – and many have been made – by Russian officials to create or suggest a nineteenth century-style solution involving deals and territorial swaps in exchange for agreement on Kosovo would not only be old fashioned but deeply immoral. I wish to remind all present that my country’s territories, just like yours, are not for sale or exchange. Any hint of a precedent for Abkhasia and South Ossetia would therefore be both inappropriate and reckless. The foundation of modern peace and security is Europe is based directly on the principle of respect for territorial integrity and sovereignty. Indeed, it is the cornerstone of contemporary international order.

In fact, in the wake of armed actions in South Ossetia in August 2008, Russia significantly increased its troop presence in that 191

192

193

UN Security Council Resolution 1393 (2002), 31 January 2002, S/RES/1393 (2002), preamble to and operative paras. 2 and 3. Full text available at http:// daccessdds.un.org/doc/UNDOC/GEN/N02/238/65/PDF/N0223865.pdf ?Open Element, accessed 3 November 2008. The Boden document has not been published but cf. B. Coppieters, “The Georgian-Abkhaz Conflict”, at 8ff. Full text available at www.ecmi.de/jemie/download/1-2004Chapter5.pdf, accessed 3 November 2008. I owe this reference to Dr Jonathan Wheatley. Report of the Secretary-General concerning the situation in Abkhasia, Georgia, S/2002/88, 18 January 2002, at para. 4. Declaration of the President of Georgia to the General Assembly, A/61/PV.16, 22 September 2006, at 3ff.

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Regionalisation, Federalisation, or Union with Confirmation territory and in Abkhasia, recognising the purported independence of both soon afterwards.194 Whatever Russia’s role in relation to Georgia, it achieved its own agreement with the former Autonomous Socialist Soviet Republic of Tatarstan. The entity, which was not a Union republic, had claimed sovereignty, “ensuring the right of Tatars, of the whole population of the Republic to self-determination” during the process of dissolution of the USSR.195 In 1992, it adopted a constitution declaring the Republic of Tatarstan a “sovereign democratic state” exercising “inalienable” sovereignty.196 Like Chechnya, it did not initially sign on to the 1993 Constitution of the Russian Federation. Unlike the USSR Constitution, which allocated sovereignty to the Union republics, Article 3(1) of the Russian Constitution states that “the bearer of sovereignty and the only source of power in the Russian Federation shall be its multinational people”. Article 4 underlines this statement, confirming that the sovereignty of the Federation extends throughout its entire territory. Article 5, which establishes the federal subjects, emphasises the integrity of the state and the “unity of the system of state authority”. The following year, in 1994, the Russian Federation and the ‘Republic of Tatarstan’ concluded a ‘Treaty’ on their mutual relations. The treaty proceeds from “the universally recognised right of peoples for self-determination, principles of equality, voluntariness and freedom of will”.197 The treaty takes “into 194

195

196

197

These developments are chronicled in the records of the UN Security Council, where the decree on recognition was dramatically read out by Russia’s Permanent Representative, at S/PV.5969, 28 August 2008, p. 6f. Declaration on the State Sovereignty of the Republic of Tatarstan, 30 August 1990. Full text available at http://www.tatar.ru/english/00002028.html, accessed 3 November 2008. Constitution of the Republic of Tatarstan, 6 November 1992, Art. 1. Full text available at http://www.tatar.ru/?DNSID=ecc25bbc24856e9f76fe17e347d497a5& node_id=1384, accessed 3 November 2008. Treaty on Demarcation of the Objects of Management and Mutual Delegation of Powers Between the Bodies of State Power of the Russian Federation and the Bodies of State Power of the Republic of Tatarstan, 15 February 1994, Preamble. Full text available at http://faolex.fao.org/docs/texts/rus32708.doc, accessed 3 November 2008.

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Escaping the Self-determination Trap consideration the fact that the Republic of Tatarstan as a state is united with the Russian Federation by the Constitution of the Russian Federation, the Constitution of the Republic of Tatarstan” and the Treaty.198 In this way, the instrument has the appearance of establishing a co-equal relationship between the Federation and the Republic, mentioning both constitutions and the treaty as the source of authority. Of course, in reality the Russian Federal Constitution in turn establishes its superiority over legal acts of a federal subject. The Treaty determines that the Republic of Tatarstan can adopt its own constitution and legislation, conferring significant competence on its “state bodies”.199 Both sides were even supposed to assign “plenipotentiary representatives” to one another, and Tatarstan can engage in international relations and become a member of international organisations. On the other hand, the treaty also “guarantees” “the maintenance of the territorial integrity” and the “unity of economic space”.200 In 1999, Tatarstan, proceeding from the “conventional right of peoples of selfdetermination”, gave itself a new constitution.201 In that document, it declared itself to be a democratic constitutional state “associated” with the Russian Federation. It still claimed sovereignty, although this now consisted merely of “full possession of state authority (legislative, executive and judicial) beyond the competence of the Russian Federation”.202 However, like other federal subjects during the process of recentralisation undertaken by President Vladimir Putin, Tatarstan came under increasing pressure to relinquish the quasi-sovereign powers it thought it had gained.203 By 2005, Tatarstan’s State Council approved a new draft

198 199 200 201 202 203

Ibid. Ibid., Art. II. Ibid., Preamble. Constitution of the Republic of Tatarstan, Preamble, supra n. 196. Ibid., Art. 1(1). This concerned in particular the abolition of directly elected regional governors in favour of central appointees: “The End of the Russian Federation?”, Radio Free Europe, Analysis, 23 September 2004.

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Regionalisation, Federalisation, or Union with Confirmation treaty which left out the terms ‘sovereign’ and offered a more modest arrangement.204 Chechnya, too, had concluded a treaty with the Russian Federation. Although the entity was offered constitutional selfdetermination in the agreements of 1996–1997, to be actualised by the end of 2001, it was forcibly re-incorporated into the Russian Federation. Article 1 of the new Chechen Constitution adopted through a controversial referendum in Chechnya claims that: 205 (1) The Chechen Republic (Nokhchiin Republic) is a democratic, social law-governed state with a Republican form of government. The sovereignty of the Chechen Republic is expressed in the possession of the full authority (legislative, executive and judicial) outside of the jurisdiction of the Russian Federation and outside the authority over objects of shared jurisdiction between the Russian Federation and the Chechen Republic, and is to be an inalienable part of the Chechen Republic.

The perhaps surprising affirmation of the inalienable sovereignty being vested in the Republic may be a result of the overall structure of the Russian Federation and the previous Soviet constitutional history. However, the Chechen Constitution confirms very clearly that “the territory of the Chechen Republic is one and indivisible and forms an inalienable part of the territory of the Russian Federation”.206 Naturally, federations which have gone through violent conflict will tend to be particularly concerned about territorial unity at the victorious conclusion of the conflict, even if there is no settlement. This is evident in the case of the Federal Republic of Nigeria, which had been subjected to significant secessionist strife in the past, and where the potential for secessionist violence is never far away. The Constitution confirms the state structure, consisting of 204

205

206

“Moscow, Kawan Agree to Share Power – Again”, Radio Free Europe, 3 November 2005. This agreement was, after an initial failure in Russia’s upper chamber, adopted on 11 July 2007. Constitution of the Chechen Republic, 27 March 2003. Unofficial translation available at http://www.intstudies.cam.ac.uk/centre/cps/documents_chechnya_ const2003.html, accessed 3 November 2008. Ibid.

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Escaping the Self-determination Trap 36 federal states and a federal capital territory, under the condition that “Nigeria is one indivisible and indissoluble sovereign state”.207 Precautions of this kind may also be considered necessary after a merger of two formerly sovereign states. Hence, the Constitution of the Yemen Republic confirms that the state is “an independent, sovereign, unitary, and indivisible state whose territorial integrity is inviolable”.208

207

208

Constitution of the Federal Republic of Nigeria, 29 May 1999, Art. 2(1). Full text available at http://www.nigeria-law.org/ConstitutionOfTheFederalRepublicOf Nigeria.htm, accessed 3 November 2008. Yemen Constitution, 16 May 1991, Art. 1. Full text available at http:// www.servat.unibe.ch/icl/ym00000_.html, accessed 3 November 2008.

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IX.

Deferring a Substantive Settlement while Agreeing to a Settlement Mechanism

When autonomy or federalisation is not acceptable to one side and secession is not on the cards for the other, the option of deferral of the issue comes to the fore. This allows both sides to retain their legal positions. In the meantime, they may enter into negotiations on a substantive settlement or establish an agreed interim phase of autonomous administration until final settlement negotiations can take place. For instance, under international pressure, Lithuania suspended the application of its declaration concerning independence to facilitate negotiations on an agreed divorce.209 Similarly, under the Brioni Agreement, Croatia and Slovenia were meant to suspend the application of their declarations of independence a few days after they had been made. This suspension for a period of three months was meant to “enable negotiations on the future of Yugoslavia”.210 The brief outline settlements for South Ossetia of 1996 and for Abkhasia of 1993–1994 were also meant to provide space for a more detailed settlement while freezing the situation on the ground through a ceasefire. However, the inability to constrain the parties to negotiate seriously after agreeing to suspend their positions has led in this instance, and in the case of Transdniestria, to the establishment of the term ‘frozen conflicts’ within the diplomatic vocabulary. Accordingly, this option bears the risk of enhancing the position of the party which benefits from the status quo. Indeed, as the latest events in Abkhasia and South Ossetia have shown, this may extend to an attempted consolidation of de facto independence over time. 209 210

Cf. B. Olcott, “The Soviet Dis(Union)”, 82 Foreign Policy (Spring 1991), at 127. Brioni Accord, reproduced in S. Trifunovska, Yugoslavia through Documents: From its Creation to its Dissolution, Dordrecht: Martinus Nijhoff (1994), at 311; in fact, the Brioni Accord is less specific, referring only to the absence of unilateral action, but has been taken by the participants to imply such a three-month delay, e.g., Decision of the SFRY Presidency, 12 July 1991, in ibid, at 316.

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Escaping the Self-determination Trap Nevertheless, deferment of the self-determination issue to another time and mechanism can be more than a formalised way of ignoring the problem. For, in agreeing to address the issue in the future lies a recognition that there is an issue to be addressed – this may include an acknowledgement that the case, at least potentially, may indeed be one of self-determination. In other words, this technique does not resolve the self-determination issue, but it recognises that there is an issue that needs resolving. For instance, the Brioni Agreement was adopted at a time when it was far from certain that the unilateral declarations of independence of Croatia and Slovenia would attract international support. However, it contained a reference to the right of peoples to self-determination, albeit balanced by a reference to “the relevant norms of international law, including those relating to territorial integrity of states”.211 Deferral of the issue was introduced into the Rambouillet settlement of 1999.212 Kosovo was willing to agree to an autonomy settlement only if it was clear that it would merely apply during an interim period. Following upon that period of three years, Kosovo insisted, there would need to be a referendum on independence.213 The agreement which resulted from talks conducted at Rambouillet and Paris confirmed “the commitment of the international community to the sovereignty and territorial integrity of the Federal Republic of Yugoslavia”.214 While the settlement was presented as an interim agreement, it was in fact virtually permanent, as its duration was not formally limited and changes 211 212

213 214

Listing of Principles, Brioni Accord, supra n. 210. Another view would be to classify this case as one of secession denied, given the strong references to the continued territorial integrity of the Federal Republic of Yugoslavia in both the Rambouillet Agreement and UN Security Council Resolution 1244 (1999). However, in view of the provisions invoked here, it was felt more appropriate to list the case under this heading. M. Weller, “The Rambouillet Conference”, 75 International Affairs (1999) 211. Preamble to the Interim Agreement for Peace and Self-government in Kosovo, 23 March 1999. Full text available at http://www.state.gov/www/regions/eur/ ksvo_rambouillet_text.html, accessed 3 November 2008.

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Deferring a Settlement while Agreeing to a Mechanism could be obtained only with the consent of both parties – a most unlikely condition given their diametrically opposed interests. On the other hand, in a crucial provision, it was stated that: 215 Three years after the entry into force of this Agreement, an international meeting shall be convened to determine a mechanism for a final settlement for Kosovo, on the basis of the will of the people, opinions of relevant authorities, each Party’s efforts regarding the implementation of this Agreement, and the Helsinki Final Act, and to undertake a comprehensive assessment of the implementation of this Agreement and to consider proposals by any Party for additional measures.216

This provision was of course not free of deliberate ambiguity. The reference to the Helsinki Final Act, which is generally taken to emphasise territorial unity over self-determination in the sense of secession, was regarded as strengthening the position of the Yugoslav government. The prospect of the final settlement, “on the basis of the will of the people”, was understood to imply the possibility of a change in the status of Kosovo on the basis of a referendum. This latter point was confirmed in a confidential sideletter issued to Kosovo by the US delegation.217 The conditionality element, based on performance by the parties of their obligations under the agreement, also seemed to support the view that a change in status could be contemplated, depending on the conduct of the parties. While there may be dispute about the substance of the provision in terms of a possible change of status for Kosovo, it consisted of course principally of a requirement of process. In mandatory terms, it provided that a meeting “shall” be convened three years after entry into force of the agreement. That meeting would be “international”, presumably led once more by the international Contact Group of states that had guided the Rambouillet process. However, rather than necessarily achieving a final settlement for 215 216 217

Ibid. Ibid., Chap. 8, Art. 1(3). On the drafting history and all other relevant materials cf. Weller (1999), supra n. 213, Chapter 8.

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Escaping the Self-determination Trap Kosovo, the meeting was only to determine the mechanism that would be applied in achieving such a settlement. Of course, the Rambouillet agreement remained unimplemented. Instead, a military confrontation ensued. When hostilities concluded, the UN Security Council adopted Resolution 1244 (1999), which also provides for a fairly complex approach to the underlying self-determination issue. Again, the resolution restates the commitments of UN member states to the sovereignty and territorial integrity of the Federal Republic of Yugoslavia. It also recalls its previous call for substantial autonomy and meaningful self-administration for Kosovo. This was to be achieved through an international interim transitional administration overseeing the development, “pending a final settlement”, of substantial autonomy and self-government and a transfer of authority to these agencies of self-government.218 The UN mandate, adopted under Chapter VII, also extended to “facilitating a political process designed to determine Kosovo’s future status, taking into account the Rambouillet accords”.219 Annex 1 to the Resolution consists of the G-8 statement concluded at Petersberg, Germany, on 6 May 1999, when attempts to bring the conflict to a close were on foot. That statement refers to: A political process towards the establishment of an interim political framework agreement providing for a substantial self-government for Kosovo, taking full account of the Rambouillet accords and the principles of sovereignty and territorial integrity of the Federal Republic of Yugoslavia and the other countries of the region, and the demilitarization of the KLA; …

Annex 2, which contains a list of conditions for the termination of hostilities which was accepted by the Federal Republic of Yugoslavia, restates this provision, adding that “[n]egotiations between the parties for a settlement should not delay or disrupt the establishment of democratic self-governing institutions”. 218 219

UN Security Council Resolution 1244 (1999), supra n. 74. At para. 11(a), also (c). Ibid., at para. 11(e).

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Deferring a Settlement while Agreeing to a Mechanism The meaning of these provisions is of course subject to dispute. The Federal Republic of Yugoslavia has pointed to the strong reference to territorial integrity and political independence. Instead of the more oblique invocation of the Helsinki Final Act in the provision of the Rambouillet agreement, this requirement now appears expressly to limit the remit of the ‘political process’ that was to occur. This limitation is no longer balanced by a reference to the ‘will of the people’. Still, there is a cross-reference to the Rambouillet accords, which shall be fully taken into account. Hence, it might be argued that the pledges contained therein, including the assessment of “the will of the people”, have been incorporated into the regime of Resolution 1244 (1999). A more careful reading of the provisions in the Resolution and its annexes, however, reveals a surprising result. The conditions established in the provisions cited above relate merely to the political process aiming to achieve an “interim political framework agreement”. That is to say, they are not focused on final status negotiations, but instead establish a limitation for an interim settlement in advance of a determination of final status (much like Rambouillet). Hence, the separate mandate for the facilitation of a political process designed to determine Kosovo’s future status established in paragraph 11(e) of Resolution 1244 (1999) was unrestricted by any condition bar the requirement “to take into account” the Rambouillet accords. As noted above, these are ambiguous, referring both to the Helsinki accords and also to the exercise of the will of the people, presumably through a referendum. In actual practice, the UN Mission in Kosovo (UNMIK) proceeded quite swiftly to establish an interim arrangement for selfgovernment. After having set up a Joint Interim Administrative Structure within six months of the termination of hostilities, a full constitutional framework document for provisional selfgovernment was promulgated on 15 May 2001. It contained no express reference to the continued territorial integrity of the Federal Republic of Yugoslavia. 117

Escaping the Self-determination Trap However, negotiations on final status commenced significantly later than after the three years envisaged at Chateau Rambouillet. The Vienna discussions began in 2005. A comprehensive settlement proposal emerged in March 2007.220 The proposal was accompanied by the recommendation of UN Special Envoy Martti Ahtisaari in favour of ‘supervised independence’ for Kosovo.221 However, it could not be endorsed by the UN Security Council, leading to a situation that will be addressed briefly below.

220

221

Comprehensive Proposal for Kosovo Status Settlement, Addendum to the Letter dated 27 March 2007 from the Secretary-General to the President of the Security Council. Full text available at http://www.unosek.org/docref/Comprehensive_proposalenglish.pdf, accessed 3 November 2008. Report of the Special Envoy of the UN Secretary-General on Kosovo’s Future Status, Annex to the Letter dated 26 March from the Secretary-General addressed to the President of the Security Council, S/2007/168, at 5. Full text available at http://www.unosek.org/docref/report-english.pdf, accessed 3 November 2008.

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X.

Balancing Self-determination Claims

The balancing of self-determination claims is an innovative way of overcoming the mutually exclusive positions of both sides in a selfdetermination conflict. Essentially, balancing allows both sides to claim that their view has prevailed, and that their legal position has been preserved in the settlement. This is the secret of the success of the Good Friday Agreement on Northern Ireland. The agreement starts by recognising the self-determination dimension and its application to the case of Ireland and Northern Ireland. Then the agreement addresses the thorny issue of identifying the selfdetermination entity – is it the island of Ireland as a whole, or is it the North? The parties:222 i. Recognize the legitimacy of whatever choice is freely exercised by a majority of the people of Northern Ireland with regard to its status, whether they prefer to continue to support the Union with Great Britain or a sovereign united Ireland; ii. Recognize that it is for the people of the island of Ireland alone, by agreement between the two parts respectively and without external impediment, to exercise their right of self-determination on the basis of consent, freely and concurrently given, North and South, to bring about a united Ireland, if that is their wish, accepting that this right must be achieved and exercised with and subject to the agreement and consent of a majority of the people of Northern Ireland;

The first paragraph appears to identify the North as the selfdetermination unit. Its decision alone appears to determine continued union or a merger with the Republic of Ireland. However, the second paragraph has been crafted to allow the opposing interpretation. The reference to the “people of the island of Ireland” as the body entitled to exercise “their right to selfdetermination” could be taken to imply that the island as a whole 222

Agreement Reached in the Multi-Party Negotiations (Good Friday Agreement), 10 April 1998, Art. 2(1). Full text available at http://www.nio.gov.uk/agreement.pdf, accessed 3 November 2008.

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Escaping the Self-determination Trap is the self-determination entity. Under this reading, it is one act of self-determination appertaining to one entity. The fact that it is administered through two referenda is merely a procedural issue, and not a substantive one affecting the definition of the entity. This sense is confirmed by paragraph (vi) of the same Article where the parties: [a]ffirm that if, in the future, the people of the island of Ireland exercise their right of self-determination on the basis set out in sections (i) and (ii) above to bring about a united Ireland, it will be a binding obligation on both Governments to introduce and support in their respective Parliaments legislation to give effect to that wish;

Once again, the focus seems to be on the people of the island of Ireland as the subject of the right. However, this is counterbalanced by another paragraph wherein the parties:223 [a]cknowledge that while a substantial section of the people in Northern Ireland share the legitimate wish of a majority of the people of the island of Ireland for a united Ireland, the present wish of a majority of the people of Northern Ireland, freely exercised and legitimate, is to maintain the Union and, accordingly, that Northern Ireland’s status as part of the United Kingdom reflects and relies upon that wish; and that it would be wrong to make any change in the status of Northern Ireland save with the consent of a majority of its people;

In accordance with this determination, the draft clauses included in the agreement for incorporation into British legislation provide: (1) It is hereby declared that Northern Ireland in its entirety remains part of the United Kingdom and shall not cease to be so without the consent of the majority of the people of Northern Ireland voting in a poll held for the purposes of this section in accordance with Schedule 1. (2) But if the wish expressed by a majority in such a poll is that Northern Ireland should cease to be part of the United Kingdom and form part of a united Ireland, the Secretary of State shall lay before Parliament such proposals to give effect to that wish as may be agreed between Her 223

Ibid., sub-para. (iii).

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Balancing Self-determination Claims Majesty’s Government in the United Kingdom and the Government of Ireland.

This clause could be seen formally to establish a constitutional right to self-determination. While previously the United Kingdom had indicated less formally that it would comply with the wish of the population of Northern Ireland to join the Republic of Ireland should this be made manifest in a referendum in the North, this has now been made express (subject to the doctrine of parliamentary sovereignty). However, one must note that this is not a right of selfdetermination in the full sense. Instead, it is a right to opt for a specific territorial change, moving sovereignty in relation to Northern Ireland from the United Kingdom to the Republic of Ireland. Other options, such as independence for Northern Ireland, are not available. In terms of process, Schedule 1, to which reference is made in the above provision, requires the United Kingdom Secretary of State to order the holding of a poll on joining the Republic of Ireland “if at any time it appears likely to him that a majority of those voting would express a wish that Northern Ireland should cease to be part of the United Kingdom and form part of a united Ireland”.224 Under this clause, the Secretary is required to hold a poll (“shall”), but this mandatory requirement comes into force only subject to the exercise of his or her appreciation of popular will – the very fact that can really be assessed only through the poll. No further poll is to be held for seven years after a referendum which has rejected a change in territorial status. This provision makes a change virtually impossible until a significant demographic shift has occurred, or until popular sentiment in the North has changed dramatically due to the experience of the new complex power-sharing arrangements introduced by the accord. That arrangement provides for multilayered governance from the local level to the level of Northern 224

Ibid., Sched. 1, paras 1 and 2.

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Escaping the Self-determination Trap Ireland, the level of UK authority, and joint Anglo-Irish mechanisms. A further technique of addressing self-determination disputes offers self-determination, but only if certain conditions are fulfilled. This mechanism is sometimes called conditional selfdetermination.

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XI.

Conditional Self-determination

Another technique of addressing the self-determination dimension is conditionality. There can be external and internal conditionality. An example of external conditionality is provided by the Gagauzia Autonomy Statute, to which reference has already been made above. The Statute confirms:225 In case of a change of the status of the Republic of Moldova as an independent state, the people of Gagauzia shall have the right of external self-determination.

That is to say, Gagauzia turns into a self-determination entity with the opportunity of lawful secession if an event out of its own control occurs – in this case a change in the status of Moldova. The circumstance contemplated was a merger of Moldova with neighbouring Romania. Some of the draft settlements for Transdniestria noted above would offer a similar provision for Modova’s Eastern part in that eventuality.226 In relation to Gagauzia, the identity of this conditional constitutional self-determination unit is defined in an unusual way too. Localities in which (ethnic) Gagauzes constitute less than 50 percent of the population may be included in the autonomous territorial unit “on the basis of the freely expressed will of a majority of the electorate revealed during a local referendum” (Article 5(2)). Accordingly, this would be one of the more recent examples where the will of the people does, after all, triumph over previous administrative/territorial arrangements. This is an interesting departure from the classical colonial self-determination practice, including the doctrine of uti possidetis. Internal conditionality, on the other hand, relates to the acceptance and effective implementation of certain requirements 225

226

Law on the Special Legal Status of Gagauzia (Gagauz Yeri), 23 December 1994, supra n. 42, Art. 1. See supra, text accompanying ns. 173, 177, 178 and 179.

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Escaping the Self-determination Trap of governance. The EU has pioneered this approach with its Conditions for Recognition of Eastern European States, and in particular the criteria for recognition of the former Yugoslav states.227 Similarly, the Rambouillet interim settlement for Kosovo would have provided for an assessment of its implementation before discussions about a mechanism for a final settlement commenced. Moreover, the UN policy of ‘standards before status’ sought to condition possible independence for Kosovo on the development of good governance within the territory, including in particular provision for minorities.228 Internal conditionality is particularly pronounced in the case of the Bougainville settlement. While the settlement promises that the national government will move constitutional amendments that will “guarantee a referendum on Bougainville’s future political status”229, there are significant conditions attached230: (a) The constitutional amendments will guarantee that the referendum will be held: • No earlier than 10 years, and, in any case, no later than 15 years after the election of the first autonomous Bougainville Government • when the conditions listed below have been met, • unless the autonomous Bougainville Government decides, after consultation with the National Government and in accordance with the Bougainville Constitution, that the referendum should not be held. (b) The conditions to be taken into account include: • weapons disposal, and • good governance.

227

228

229

230

EPC Guidelines on Recognition of New States, supra n. 119; Declaration on Yugoslavia, Extraordinary EPC Meeting, 16 December 1991, supra n. 119. G. Kallenbach, Westlicher Balkan – failed states oder zukünftige EU Mitgliedstaaten ? Die Zukunft des Kososvo (2005). Full text available at www.gisela-kallenbach.de/fileadmin/ dateien_redakteure/ap/051116_vort_zuk_kos.pdf, accessed 3 November 2008. Kokopo Agreement on Agreed Principles on Referendum, 26 January 2001, Art. 1. Full text available at http://www.c-r.org/our-work/accord/png-bougainville/keytexts33.php, accessed 3 November 2008. Ibid., Art. 4.

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Conditional Self-determination (c) The actual date of the referendum will be agreed after consultations by the autonomous Bougainville Government and the National Government.

The requirement of ‘good governance’ in particular appears to be a rather open criterion. In such circumstances, the question of assessment of the achievement of the agreed standards therefore becomes a crucial issue. In other cases, an interim period may be provided for with the aim of testing the desire for independence or of preparing for it. However, as opposed to conditional independence, the right to selfdetermination will result automatically upon expiry of the agreed period.

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XII.

Agreeing on Self-determination but Deferring Implementation

There are two types of cases in this category of deferred implementation. The first type includes cases where selfdetermination is granted or confirmed, but the central government and the secessionist leadership have different expectations as to the likely outcome of the act of self-determination. The entity may opt for continued integration with the state, or for independence. The interim period is therefore open – it is designed to offer space for campaigning for the one or other solution, or in some instances for continued unity, and for the preparation for the act of selfdetermination. A second type of deferment concerns situations where it is clear that, after an agreed period of standstill, selfdetermination and almost inevitably secession will occur. In this type of case, the standstill period can be devoted to planning for the post-referendum period. A. Open Interim Periods One proposal for interim governance has been put forward in relation to the long-running Western Sahara dispute. Like that of East Timor before it, the case of Western Sahara is rather special, given its context of unfulfilled colonial self-determination. In the peace plan for self-determination of the people of Western Sahara of 23 May 2003, it is clarified that the purpose of the plan is to achieve a political solution to the conflict in Western Sahara which provides for self-determination, as contemplated in paragraph 1 of Security Council Resolution 1429 (2002), of 30 July 2002. The plan then proposed:231 231

Peace Plan for Self-determination of the People of Western Sahara, Annex II of the Report of the Secretary General on the situation concerning Western Sahara, S/2003/565, at para. 1. Full text available at http://www.arso.org/S-2003-565e.pdf, accessed 3 November 2008.

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Agreeing on Self-determination but Deferring Implementation A referendum to determine the final status of Western Sahara shall be held no earlier than four and no later than five years after the effective date of the plan.

According to the final version of the plan, the population would be entitled to opt for continued integration, for independence or for a continuation of the interim autonomy settlement that was to apply over the period of four to five years. During the interim period, it was proposed that Western Sahara would be granted special, asymmetrical autonomy, covering most aspects of governance typically associated with a federal component state.232 However, despite its earlier commitment to a referendum offering the option of independence, Morocco objected to the plan, claiming that:233 Whereas the Council required the Personal Envoy to propose a political solution providing for self-determination, international practice clearly shows that democratic consultation concerning the status of a territory, as negotiated between the parties, is a valid means of allowing a population to achieve self-determination. This practice is based on General Assembly Resolution 1541 (XV) of December 15th, 1960 and on the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, annexed to General Assembly Resolution 2625 (XXV) of 24th October 1970, which states that the options of independence, association or integration, as well as ‘the emergence into any other political status freely determined by a people constitute modes of implementing the right of self-determination by that people’.

Morocco continued its argument by reminding the UN envoy that many disputes throughout the world, since the Aaland Island case in 1920, had been resolved by granting autonomous status within the existing state structure. Basing itself on this precedent outside the colonial context, Morocco claimed that negotiations remained the privileged means for the parties to adapt the settlement to their aims and to regional characteristics. These negotiations would favour the attainment of such self-determination as “would fall 232 233

Ibid., Section 8. Ibid., Annex III.

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Escaping the Self-determination Trap squarely within the democratic, decentralised nature of the Moroccan state as a whole”.234 Morocco’s earlier acceptance of the holding of a referendum was now claimed to relate to the endorsement of such a settlement.235 Accordingly, Morocco reverted to offering a decentralisation or autonomy solution, instead of offering the genuine act of colonial self-determination which was meant to be on offer after the expiry of the interim period of self-governance. Hence, the proposal remained unimplemented. A more successful example of an interim settlement leading to an act of self-determination is represented by the Machakos Protocol of 20 July 2002.236 That framework document, later supplemented by a more detailed settlement, was concluded by the government of Sudan and the Sudanese People’s Liberation Army/Movement. An envoy of the long-standing IGAD international mediation process (led then by Kenya’s President Daniel Arap Moi) witnessed its signature. The negotiations were also strongly supported by the US government which, since October 2001, had applied pressure to the parties. The preamble to the agreement at first appears to point to an attempt to integrate the country after prolonged conflict between the mainly Muslim North and the predominantly Christian South. Division is to be overcome by correcting historical injustices and inequalities in development between both regions and by establishing a framework for governance through which power and wealth are equitably shared and human rights guaranteed. Article 1(1) accordingly proclaims that the unity of the Sudan “is and shall be the priority of the parties and that it is possible to redress the grievances of the people of South Sudan and to meet their aspirations within such a framework”. However, this strongly integrative provision is immediately countered by Article 1(3), which states clearly and unambiguously: 234 235 236

Ibid. Ibid., at Annex II. Machakos Protocol, see supra n. 21.

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Agreeing on Self-determination but Deferring Implementation That the people of South Sudan have the right to self-determination, inter alia, through a referendum to determine their future status.

Article 1(10) concludes that the design and implementation of the peace agreement are to be performed so as “to make the unity of the Sudan an attractive option especially to the people of South Sudan”. The agreement then provides for a transition process to apply during an interim period lasting for six years. At the end of that period:237 There shall be an internationally monitored referendum, organized jointly by the GOS and the SPLM/A, for the people of South Sudan to: confirm the unity of the Sudan by voting to adopt the system of government established under the Peace Agreement; or to vote for secession.

There then follows an agreed text on the right of selfdetermination for the people of South Sudan. This provides for a mid-term review of the implementation of the peace agreement by the parties and international representatives with a view to improving the institutions and arrangements created under the agreement, and again to making the unity of Sudan attractive to the people of South Sudan. In terms of state structure, the protocol provides that the national Constitution of Sudan shall be the supreme law throughout Sudan. The Constitution is taken to be the source of all public authority, suggesting a devolved interim power-sharing arrangement. However, the Constitution is to be amended even before the transition period to take account of the elements to be agreed in the definitive settlement. This includes a provision which limits the authority of the national government to the exercise of such functions “as must necessarily be exercised by a sovereign state at national level”. There is also provision for the exemption of the South from legislation inspired by the Sharia. Instead, legislation of national application is to take account of the diversity of Sudan. 237

Machakos Protocol, supra n. 21, Art. 2(5).

129

Escaping the Self-determination Trap A whole bundle of additional settlements based on the Machakos Protocol were completed during 2004 and formally presented as a Comprehensive Peace Agreement on 9 January 2005. The two principal parties then rapidly drafted a new constitution for Sudan in 2005.238 The basic design of deferred secession balanced by a joint campaign in favour of continued unity was left untouched.239 The Bougainville Agreement of 30 August 2001 represents another innovative case of deferred possible secession.240 The agreement establishes a detailed autonomy/asymmetrical federal regime for Bougainville. Self-governance is to be exercised under a “home-grown Bougainville constitution with a right to assume increasing control over a wide range of powers, functions and personnel and resources”.241 The Agreement states one of its aims as being the promotion of the unity of Papua New Guinea and the maintenance of a mutually acceptable balance of interests between those of Bougainville and those of Papua New Guinea as a whole.242 Section C of the Agreement contains detailed principles on a referendum. No earlier than 10 and no later than 15 years after the election of the first autonomous Bougainville government, a referendum shall be held, unless the Bougainville government waives this entitlement. The referendum pledge is a conditional one, depending on the achievement of good governance and weapons disposal. A dispute settlement mechanism is to be established to address divergences relating to the referendum. A UN mission is to help stabilise the transition process. In terms of state structure, the Bougainville Constitution is the 238 239

240

241 242

M. Weller, “Self-governance in Interim Settlements”, supra n. 157, at 158ff. Comprehensive Peace Agreement, 9 January 2005. Full text available at http:// www.unmis.org/English/documents/cpa-en.pdf, accessed 3 November 2008. Bougainville Peace Agreement, 30 August 2001. Full text available at http:// www.unmis.org/English/documents/cpa-en.pdf, accessed 3 November 2008. Ibid., Art. 1. Ibid., at Section B.1(4).

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Agreeing on Self-determination but Deferring Implementation supreme law within the territory in relation to all matters which fall within its jurisdiction. Bougainville may change the Constitution, according to special procedures. The national government exercises competence over defence, foreign relations, transport and communication, and some other areas. The Bougainville authorities enjoy authority over all other matters provided they have been set out in a list of powers to be developed. Unlisted items remain initially with the national government, although there is a procedure to address claims to the exercise of authority in these areas by either entity. Listed powers will be transferred gradually to Bougainville. While a Bougainville court system is to be developed, the national Supreme Court remains the final court of appeal for Bougainville, including for constitutional matters. These cases are noteworthy inasmuch as the parties agree to selfdetermination, but also undertake an obligation to test the possibility of continued union during a period of federal or autonomous governance. In another type of case, it is difficult to deny that secession is foreseen at the outset. B. Acceptance of the Claim of Self-determination with Deferment of Implementation Deferment of the implementation of a claim to self-determination which has, in principle, been accepted is not to be confused with deferment of implementation of status after an act of selfdetermination. An example of deferment of status after the completion of the act of self-determination is furnished by East Timor. There, the central state concerned, Indonesia, denied that colonial self-determination was still applicable, the purported integration of the territory having taken place in accordance with the wishes of the population. Indonesia offered East Timor special autonomy. In an agreement with East Timor’s colonial power, Portugal, of 5 May 1999, it was decided that a referendum on the proposed special autonomy would decide the status issue. If the referendum were in favour of the autonomy, East Timor would 131

Escaping the Self-determination Trap indeed be recognised as being integrated with Indonesia. If it were against:243 the government of Indonesia shall take the constitutional steps necessary to terminate its links with East Timor thus restoring under Indonesian law the status East Timor held prior to 17 July 1976, and the Governments of Indonesia and Portugal and the Secretary-General shall agree on arrangements for a peaceful and orderly transfer of authority in East Timor to the United Nations. The Secretary-General shall, subject to the appropriate legislative mandate, initiate the procedure enabling East Timor to begin a process towards independence.

Hence, the decision on a referendum which was nominally about special autonomy, but effectively about independence, had already been taken in this arrangement. The referendum was in fact held only a few months after the agreement, on 30 August 1999. The deferment, or interim period, was created to implement the decision if the referendum went against special autonomy. Portugal in fact recognised independence only three years after the agreement had been concluded, when East Timor’s new constitution entered into force on 20 May 2002. A genuine deferment after a decision to grant secession took place in relations between Ethiopia and Eritrea. Eritrea had mounted a prolonged secessionist struggle. When a change in government occurred which brought into power the previous opposition forces, a Transitional Period Charter was adopted in 1991. The Charter confirmed, in Article 2, the right of nations, nationalities and peoples to self-determination. This included “the right to self-determination of independence, when the concerned nation/nationality and people is convinced that the above rights are denied, abridged or abrogated”. Eritrea exercised this option after completing a two-year standstill period. A referendum was 243

Agreement between the Republic of Indonesia and the Portuguese Republic on the Question of East Timor, 5 May 1999, Art. 6. Full text available at http:// www.intstudies.cam.ac.uk/centre/cps/documents_easttimor_agreement.html, accessed 3 November 2008.

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Agreeing on Self-determination but Deferring Implementation held on 13–25 April 1993, endorsing independence with a claimed majority of 99.83 percent.244 Another deferral occurred in the case of the Union of Serbia and Montenegro. In 2001–2002, the Montenegrin government was arguing in favour of leaving the Federal Republic of Yugoslavia. As one of the former republics of the Socialist Federal Republics of Yugoslavia, it was clear that Montenegro had the right to secession. However, significant international pressure was applied to delay any such action, fearing a destabilising effect in relation to the situations in Kosovo and Bosnia and Herzegovina. This resulted in the rather cryptic Accord on Principles in Relations between Serbia and Montenegro of 14 March 2002 on the future of “a common state”. It provided for a “sovereign identity” of both constituent republics. Accordingly, both states formed a very loose state union, with only limited functions exercised by the centre. The Constitutional Charter of the State Union of Serbia and Montenegro of 4 February 2003 provided in Article 60:245 Upon the expiry of a 3-year period, member states shall have the right to initiate the proceedings for the change in its state status or for breaking away from the state union of Serbia and Montenegro. The decision on breaking away from the state union of Serbia and Montenegro shall be taken following a referendum.

Montenegro actualised its entitlement upon expiry of the threeyear period. Although the EU imposed upon it an unusually high threshold of 55 percent of votes cast in favour of independence, that mark was narrowly passed in the referendum of 21 May 2006.246 244

245

246

African Elections Database, at http://africanelections.tripod.com/er.html, accessed 3 November 2008. Constitutional Charter of the State Union of Serbia and Montenegro, 4 February 2003. Full text available at http://www.mfa.gov.yu/Facts/const_scg.pdf, accessed 3 November 2008. USAID Serbia and Montenegro, “Montenegro Referendum: NDI and CDT Use Good Professional Judgment”. Available at http://serbia-montenegro.usaid.gov/ code/navigate.php?Id=372 , accessed 3 November 2008.

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Escaping the Self-determination Trap A final, if somewhat disheartening, example of the endorsement of self-determination with an agreement to defer implementation is furnished by the 1996–1997 agreement on Chechnya. In 1991, that entity had unilaterally declared independence from what was to become the Russian Federation. It had withstood a military assault from the Federation, impelling the central government to agree to a settlement. On 31 August 1996, General Alexander Lebed of the Russian Federation and Aslan Maskhadov representing Chechnya adopted a joint declaration in the presence of an OSCE representative. The declaration proceeded from “the universally recognized right of peoples to self-determination, the principles of equality, voluntary and free expression of will” and determined that the future relations of both entities should be determined in accordance with universally recognised principles and norms of international law by 31 December 2001.247 While currency, financial, and budgetary “interrelations” would be restored in the meantime, Chechnya would enjoy powers of legislation limited only by the observance of human and civil rights, the right of peoples of self-determination, the principles of equality among nationalities and inter-ethnic accord. On 12 May 1997, a formal Treaty on Principles of Interrelation between the Russian Federation and the Chechen Republic Ichkeria was concluded between Boris Yeltsin and Aslan Maskhadov.248 In the Treaty, both sides agreed again to develop their relations on the basis of generally recognised principles and norms of international law, thus confirming the international legal personality of Chechnya. Essentially, therefore, the Russian Federation had settled for statehood, although deferred until the end of 2001, i.e., for a period of four to five years. However, citing 247

248

Khasavyourt Joint Declaration and Principles for Mutual Relations, 31 August 1996. Full text available at http://www.incore.ulst.ac.uk/services/cds/agreements/pdf/ rus6.pdf, accessed 6 November 2008. Full text available at http://www.incore.ulst.ac.uk/services/cds/agreements/pdf/ rus2.pdf, accessed 3 November 2008.

134

Agreeing on Self-determination but Deferring Implementation the alleged involvement of Chechen groups in acts of terrorism, Moscow unilaterally abrogated this commitment and set about re-conquering the territory. International bodies or states did not significantly resist this action. Instead of defending the identity of Chechnya as a pre-state entity with international legal personality, governments and international organisations limited themselves to the demand for a cessation of human rights abuses and of an armed campaign which paid little regard to humanitarian law.249

249

Declaration of the EU Presidency on Behalf of the European Union Concerning Chechnya, 17 January 1995, Press Briefing, 4215/95.

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XIII.

Establishing a De Facto State through an International Process

Another option for a settlement avoids issues of the de jure status of the entity altogether. This can occur either informally (and perhaps not entirely by design, at least on the part of the international agencies involved) or somewhat more formally. A possible example for the former may be the emerging arrangements in relation to Abkhasia and South Ossetia. Those territories had been subjected to the occupation by significant numbers of Russian armed forces after Georgia had attempted to retake South Ossetia on 8 August 2008. In this situation, the EU obtained guarantees from Georgia not to use force again, or even deploy its forces, in both territories – areas that would nominally be considered its own territory. Instead, the EU agreed to deploy an observation force of around 200, in order to implement its ‘guarantee’ of this undertaking.250 Although the EU and others had voiced strong objections to the purported independence of the territory, they have nevertheless taken steps that will in effect stabilise the effective control of the local authorities, supported by Russian forces, for a prolonged period. While this undertaking was to be balanced by international talks, the substance of these remained contested. During the first round of discussions held in Geneva, Russia insisted on the presence of Abkhasia and South Ossetia as independent states. It refused discussions on status following its own recognition of both entities as states. Russia instead insisted that only topics agreed by all parties, including the governments of the two ‘states’, would be addressed.251 250

251

EU, Implementation of the Plan of 12 August 2008 and Reaffirmation of the Commitment of all the Parties to Implement in Full all of the provisions of the Medvedev-Sarkozy six-point plan of 12 August 2008, 8 September 2008. On file with the author. Ministry of Foreign Affairs of the Russian Federation, Implementation of the Plan of Russian President Dmitry Medvedev and French President Nicolas Sarkozy, 12 August 2008, Press Release 1321-8-092008, 8 September 2008.

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Establishing a De Facto State through an International Process This would of course not include their status. Hence, the talks on status do not appear likely to overturn the de facto situation on the ground. Instead, the EU has in a way guaranteed its persistence, including through the deployment of a monitoring force on Georgia’s side of the internal dividing line. A more complex example of creating an effective entity without pronouncing oneself on its status is furnished by the Ahtisaari negotiations on the future status of Kosovo. In March 2007, the UN Special Envoy who had led negotiations about Kosovo’s future status presented his Comprehensive Proposal for a Settlement. In contrast to the 1999 Rambouillet document on Kosovo and Security Council Resolution 1244 (1999) establishing the UN mandate for Kosovo, the proposal assiduously avoided references to the territorial integrity and unity of Serbia.252 However, it also stopped short of assigning independence to Kosovo. There was no reference to sovereignty. On the other hand, the document made it clear that Kosovo would have all the powers of governance which attach to statehood, covering the legislative, the executive, and the judicial branches. According to UNMIK Regulation No. 1, adopted pursuant to Security Council Resolution 1244 (1999), “[a]ll legislative and executive authority with respect to Kosovo, including the administration of the judiciary, is vested in UNMIK”. The proposed package provided that UNMIK’s mandate would expire and all legislative and executive authority vested in UNMIK would be transferred to the governing authorities of Kosovo. Hence, Kosovo would have gained full public powers consistent with state sovereignty. Belgrade, on the other hand, was not mentioned at all in this context. It retained no original or sovereign powers relating to Kosovo. All it would have been able to do was to offer voluntary cross-border cooperation. The package confirmed the aim of statehood in several other 252

Letter dated 26 March 2007 from the Secretary-General addressed to the President of the Security Council, S/2007/168/Add.1.

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Escaping the Self-determination Trap ways. It unambiguously assigned to Kosovo the capacity to enter into international relations, to conclude treaties and to become a member of international organisations. It specifically requested Kosovo to sign and ratify the European Convention on Human Rights – an act which can be performed only by a state. The package even insisted that Kosovo should assume control of its air space – another function typically exercised only by a fully sovereign state. Overall, therefore, the Ahtisaari proposal provided Kosovo with all the competences necessary for statehood, but left it to individual states or institutions to form a view as to the statehood of the entity. This was a result of the fact that it was known that the two parties, Serbia and Kosovo, would never be able to agree on status. Ahtisaari did, however, attach to his proposal a separate recommendation to the UN Security Council. That recommendation was in favour of ‘supervised’ independence, offering continued international involvement in the governance of Kosovo even after statehood.253 Despite the failure of the Ahtisaari process, this solution was nevertheless implemented by way of unilateral, but still supervised, independence.

253

Ibid., enclosing the Report of the Special Envoy of the Secretary-General on Kosovo’s Future Status, at 4.

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XIV.

Supervised Independence

Supervised independence would trade international recognition of statehood for a commitment by the newly independent entity to certain permanent or temporary limitations of its sovereignty or the exercise of its sovereignty. According to the Ahtisaari Comprehensive Proposal, it was foreseen that Kosovo would enshrine in its constitution a number of important provisions established in the proposal. These concerned human and minority rights, the protection of cultural heritage, provisions safeguarding the political participation of minorities and many other requirements. These guarantees were to be permanently assured. This in itself is not unusual. A number of states remove human rights from the danger of ill-advised constitutional change through ‘eternity’ provisions, including for instance Germany. Another requirement concerned the abandonment of any territorial claims in relation to neighbouring states, including the acceptance of the boundary with Macedonia which was agreed by Belgrade. While it was controversial whether Belgrade still had the power to address that issue at the time, this agreement was ratified by the UN Security Council and could not be easily reopened in any event. Finally, Kosovo was not to seek union with another state. It was not clear whether this requirement was really to be a permanent one according to the new constitution or whether it was supposed to be reflected in a binding Security Council decision, had a resolution been forthcoming. Provision was also made for continued international supervisory mechanisms. The proposed new institution of the International Civil Representative and the International Steering Group of governments and organisations overseeing the transition would have continued to enjoy certain prerogatives for a period yet to be agreed. Kosovo authorities would have needed to give effect to decisions of the relevant international bodies. However, the package emphasised repeatedly the principle that Kosovo’s 139

Escaping the Self-determination Trap authority to govern ‘its own affairs’ was to be full and complete, subject only to temporary review and supervision in relation to certain specific areas. Such an arrangement would not have been inconsistent with the assumption or preservation of full sovereignty, as international practice, for instance in relation to Bosnia and Herzegovina, has demonstrated. The failure of the Ahtisaari package to gain acceptance by Serbia, and by the UN Security Council, complicated the application of the scheme of supervised independence. In the end, Kosovo unilaterally declared independence on 17 February 2008. In its Declaration, the Kosovo Assembly noted that Kosovo “is a special case arising from Yugoslavia’s non-consensual breakup and is not a precedent for any other situation”. In substance:254 We, the democratically elected leaders of our people, hereby declare Kosovo to be an independent and sovereign state. This declaration reflects the will of our people and it is in full accordance with the recommendations of the UN Special Envoy Martti Ahtisaari and his Comprehensive Proposal of the Kosovo Status Settlement. We declare Kosovo to be a democratic, secular and multi-ethnic republic, guided by the principles of non-discrimination and equal protection under the law. We shall protect and promote the rights of all communities in Kosovo and creation the conditions necessary for their effective participation in political and decision-making process. … We hereby affirm, clearly, specifically, and irrevocably, that Kosovo shall be legally bound to comply with the provisions contained in this Declaration, including, especially the obligations for it under the Ahtisaari Plan. In all of these matters, we shall act consistent with principles of international law and resolutions of the Security Council of the United Nations, including resolution 1244 (1999). We declare publicly that all states are entitled to rely upon this declaration, and appeal to them to extend to us their support and friendship.

The Declaration had been adopted unanimously, by 109 votes, including those of virtually all non-Serb minorities. The ten 254

Kosovo Declaration of Independence, 17 February 2008, paras. 1, 2 and 12. Full text available at http://www.assembly-kosova.org/?krye=news&newsid=16358lang=en, accessed 3 November 2008.

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Supervised Independence representatives of the ethnic Serb community, and one Gorani associated with them, had boycotted the meeting of the 120member Assembly. The Declaration had been drafted in conjunction with, and checked by, key governments. It was phrased in such a way as to have important legal implications for Kosovo. Employing the international legal notion of a ‘unilateral declaration’, it created legal obligations erga omnes. These are obligations that all other states are entitled to rely on, and of which they can demand performance. In this sense, an attempt was made to replace the binding nature of a Chapter VII resolution of the Security Council imposing the limitations on Kosovo’s sovereignty foreseen in the Ahtisaari plan with a self-imposed limitation of sovereignty. In view of the fact that Kosovo had not yet adopted its new, Ahtisaari-compliant constitution at the time of the declaration of independence, this fact was of particular importance. Serbia’s parliament promptly adopted a decision purporting to annul this declaration.255 Serbia and the Russian Federation also immediately protested at the international level, demanding an urgent meeting of the Security Council which, for the first time in several months, would address the Kosovo issue in public.256 The meeting revealed a significant international split on the issue of independence in this instance, with Russia taking the lead in opposing this development along with Serbia.257 The SecretaryGeneral noted that the Declaration of Independence confirmed 255

256

257

Decision on the Annulment of the Illegitimate Acts of the Provisional Institutions of Self-government in Kosovo and Metohija on their Declaration of Unilateral Independence, undated. Text available at http://en.wikisource.org/wiki/Decision_ on_the_annulment_of_the_illegitimate_acts_of_the_provisional_institutions_of_selfgovernment_in_Kosovo_and_Metohija_on_their_declaration_of_unilateral_indepen dence, accessed 3 November 2008. Letter dated 17 February 2008 from the Permanent Representative of Serbia to the United Nations addressed to the President of the Security Council, S/2008/103, 17 February 2008; Letter dated 17 February 2008 from the Permanent Representative of the Russian Federation to the United Nations addressed to the President of the Security Council, S/2008/104, 17 February 2008. S/PV/5829, 18 February 2008.

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Escaping the Self-determination Trap Kosovo’s full acceptance of the obligations contained in the Comprehensive Settlement Proposal as well as continued adherence to Resolution 1244 (1999). There had also been a strong commitment by the Kosovo Prime Minister to the equal opportunities of all inhabitants and a pledge that there would be no ethnic discrimination. The Secretary-General also noted a Letter from the EU High Representative for Common Foreign and Security Policy, stating that the EU would deploy a rule of law mission within the framework provided by Resolution 1244 (1999) and an EU Special Representative for Kosovo. The SecretaryGeneral confirmed that, pending guidance from the Council, UNMIK would continue to exercise its mandate under Resolution 1244 (1999). The administration of supervised independence in this instance became politically fraught, given the reluctance of Russia to permit the transfer of authority from UNMIK to the new EU-led mission. In view of the risks of instability, and “pending guidance from the Security Council”, the Secretary General announced his intention to “adjust operation aspects of the international civil presence in Kosovo”.258 This would include an enhanced operational role for the EU in the area of rule of law, including, gradually, policing, justice and customs throughout Kosovo. The OSCE would remain in place, addressing the promotion of democratic values and the protection of the interests of communities. UNMIK would take on a role of monitoring and reporting, facilitating arrangements for Kosovo’s engagements in international agreements, facilitating Prishtina-Belgrade dialogue and certain functions discussed with Belgrade. These functions were outlined in a letter of the Secretary-General to the Serbian President Boris Tadic. In particular, Kosovo Police Service operations in ethnic Serbmajority areas would remain under the overall authority of the UN. There would be additional local and district courts generated within Serb-majority areas operating within the Kosovo court 258

Ibid., paras 13–16.

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Supervised Independence system under the applicable law and within the framework of Resolution 1244 (1999). A solution for the maintenance of a single customs area in Kosovo would be sought. There would be a joint committee on transportation and infrastructure including Serbia. NATO would continue to fulfill its existing security mandate, including with respect to boundaries, throughout Kosovo. Finally, the Serb Orthodox Church would remain under the direct authority of its religious seat in Belgrade, retaining the sole right to preserve and reconstruct its religious, historical and cultural sites in Kosovo. It would be afforded international protection.259 Kosovo was also informed of these steps, which would be of limited duration and without prejudice to the status of Kosovo.260 The Secretary-General noted that his proposal might “not fully satisfy all sides” but would at least be “the least objectionable course to all”.261 The Council did not adopt a resolution on this issue. Overall, it appeared to have been accepted by all that Resolution 1244 (1999) remained in place. Kosovo had somehow hedged its bets, indicating that it would act “in accordance with” the resolution, rather than accepting its continued validity de jure. It was also accepted by all sides that the UN civil presence would remain in place, providing a roof under which the new EULEX mission might operate. In practice, it seemed clear that most of UNMIK’s functions would devolve to the EU mission, with the UN retaining a role focused mainly on reporting and monitoring, and facilitating dialogue between Kosovo and Belgrade. While Russia appeared to maintain that this plan had not been approved, it seemed as if the UN Secretary-General had done enough to give himself the space to implement this design for administering supervised independence without a further Security Council resolution. 259

260

261

Letter dated 12 June 2008 from the Secretary-General to His Excellency Mr Boris Tadic, ibid., Annex 1. Letter dated 12 June 2008 from the Secretary-General to His Excellency Mr Fatmir Sejdiu, ibid., Annex II. “Plan to reconfigure UN presence in Kosovo ‘least objectionable option’”, UNMIK Press Release, 13 June 2008. Text available at http://www.unmikonline.org/archives/ news06_08full.htm#306, accessed 3 November 2008.

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XV.

Conclusion: New Approaches to Self-determination Settlements

The proliferation of attempted or actual self-determination settlements in recent years is impressive. This applies both to the more traditional autonomy arrangements and to more novel ways of grappling directly with the self-determination issue. Autonomy Autonomy arrangements were pioneered in Western Europe, starting with the Aaland Islands. This trend continued into the Cold War years, ranging from the South Tyrol agreement, through devolution in Spain and the United Kingdom, to special provision in Belgium, Denmark, and Portugal. Arguably, these settlements were successful in preventing the outbreak or intensification of ethnic conflict. Since then, however, attempts to establish autonomy in Western Europe have stalled somewhat. The settlement for Corsica failed to attract popular support from the relevant community. The Cyprus peace process also came to a standstill, although there is now hope of its re-ignition. Among the newer members of the European Union, territorial autonomy remains a highly sensitive issue and few autonomy arrangements have been adopted. Moving beyond the European Union, Croatia, while still under pressure due to its EU accession campaign, has not implemented the autonomy provisions which were once foreseen for mainly Serb inhabited areas over which it regained control. Instead, state-wide local self-government and decentralisation have been deployed. The Ohrid settlement imposed on Macedonia disguises autonomy as enhanced local self-government, and implementation has been rather hesitant throughout. Russia appears to be clawing back autonomy relating to Tatarstan. Moldova, too, is at present attempting to reshape its autonomy agreement with Gagauzia, 144

Conclusion seeking to make it more consistent with the state-wide system of local self-government. On the other hand, OSCE involvement did result in the establishment of Crimean autonomy within Ukraine – an arrangement that may now be severely tested by Russian assertiveness in the region. Concern about the possibly disintegrative power of autonomy is also evidenced by the fairly numerous autonomy settlements which have been achieved in regions outside Europe. Virtually all of them contain very strong references to continued territorial unity and integrity. Often, opting for autonomy is tied to an abandonment of claims to self-determination. Or, rather, one might say that these settlements can be taken as exercising the self-determination claim at the internal level. Once it has exercised this option, self-determination may no longer be regarded as a viable argument for the entity concerned, unless the arrangement is changed unilaterally by the central government. It remains to be seen whether such a restrictive approach is likely to be realistic. The exception remains Gagauzia, which is taken to have exercised self-determination when opting into the 1994 Autonomy Statute, but would gain external self-determination if the state of Moldova were to dissolve. The Transdniestria settlement that is now being considered for Moldova might contain a similar clause. Unions, Confederal and Federal Solutions While territorial autonomy agreements have been proliferating outside Western Europe, there is a distinct lack of appetite for federal solutions, confederations or state unions. Federal-type settlements have had to contend with the Badinter logic of constitutional selfdetermination. A wide reading of the Badinter opinions, and of the Quebec Supreme Court Reference, would suggest that any federation implies a right to self-determination of territorial entities that are no longer fully represented in and by the centre. Given the restrictive attitude exhibited among the organised international community, for 145

Escaping the Self-determination Trap instance, in relation to Somaliland, Northern Iraq, and, by some states, Kosovo, it is not clear that this view has found universal support as yet. The hesitancy concerning a move towards what is sometimes called ‘remedial self-determination’ may have been reinforced by Russia’s armed actions relating to Georgia. On the other hand, over time, the situation in Kosovo, Abkhasia and South Ossetia may well stabilise, leading to a retroactive re-interpretation of these episodes as instances of state practice in favour of remedial secession. The earlier case of Bangladesh might also be counted within this category. If federal-type devolution is difficult, additional complications arise where a federal or confederal system is based on the sovereignty of its constituent republics, rather than devolution from the centre. The same applies where a settlement refers expressly to a right to self-determination of the entity. In such cases one might argue, by analogy to association in the colonial context, that the entity concerned might retain an entitlement to constitutionallybased self-determination. Return to a Singularity? To counter the view that self-determination may still be exercised at a later stage, some of these settlements will attempt to tie the formerly secessionist entity perpetually into an ‘inviolable’, ‘indissoluble’, ‘inseparable’, ‘inalienable,’ or ‘indivisible’ union. Indeed, solutions of this kind are sometimes considered sufficiently unstable to warrant the deployment of external guarantee powers (Transdniestria, Cyprus, a NATO-led force in relation to Bosnia and Herzegovina). Such settlements will tend to come about where the secessionist entity has firmly established effective control over territory and population and there is no real prospect of a reversal of that situation, while the organised international community feels impelled to resist statehood. Such resistance may be mandated by jus cogens violations in the process of obtaining effectiveness for the entities concerned. 146

Conclusion It is noteworthy, however, that few central states have thus far accepted these designs. Several settlements establishing sovereign or semi-sovereign entities loosely tied into a federal or confederal system have failed to attract consent in the end. These include Cyprus, Transdniestria, and especially Nagorno-Karabakh and, formerly, Abkhasia and South Ossetia. The rather loose Dayton settlement had to be imposed upon the parties (especially the Bosniak central government) under some pressure. The 1996–1997 Chechnya settlement was brutally disowned by the Russian Federation. In fact, the lack of progress in achieving federal or confederal settlements in several cases may also be explained with reference to the attitude of the Russian Federation, which has exercised a controlling influence in relation to the so-called ‘frozen’ conflicts and has now decisively imposed a solution for Georgia. But there has also been a distinct hesitance on the part of the central governments, especially Georgia and Moldova, about full federalisation. In retrospect, this hesitation has proven very costly, at least for Georgia. There are indications that this lesson is being learnt by the government in Chisenau, leading to a realisation that it may be necessary after all to embrace asymmetrical federalism. There may also be increasing realisation that it does not suffice to offer autonomy or federalisation in exchange for a surrender of self-determination claims. Instead, it is necessary to see solutions of this kind as part of a continuous development. They may help to maintain territorial unity, but only if applied in a genuine and flexible way. In the end, reiterations of permanent or eternal unity of the state that are invariably adopted as part of these settlements will not guarantee territorial integrity. Only functioning selfgovernance can achieve this. Problems of Implementation The practice of asymmetrical territorial autonomy and of federalisation has given rise to a number of problems which go 147

Escaping the Self-determination Trap

beyond the determination of the precise status of the entity in question. This applies particularly to situations where secessionist movements have exercised effective control over the territory and population in question. While these groups may be willing to trade their claim to self-determination for self-government, they will tend to have a very particular understanding of what self-government may mean. Generally, this will consist of continued rule by the ‘war-time’ leadership, resisting genuine democratisation after the settlement. There may also be a failure to ensure that human rights can be effectively protected throughout the entire state territory, including in the asymmetric entity. ‘New minorities’ may be generated within that entity and require protection. These vulnerable groups may consist either of members of the state-wide majority, suddenly constituting a local minority within the selfgovernance unit, or of smaller minority groups suddenly confronted with life under the rule of the former secessionist fighters, rather than the former central state. This, for example, is the case in relation to the Muslim communities in the Tamil Northeast of Sri Lanka. These groups have threatened to launch their own secessionist struggle should they find themselves under Tamil control after a settlement. In addition to issues of quality of governance in autonomous or federal units, there arises the question of integrative measures with the centre. The more balanced autonomy settlements will build in incentives for genuine participation by the unit of self-governance in the overall state. These go beyond wealth-sharing, covering in particular effective representation in elected state bodies and in the government. Clarity in the assignment of competences and legal dispute settlement mechanisms is also an important element of arrangements. As has already been noted, some self-governance settlements expressly refer to the process of opting into the state as an exercise of self-determination. This practice may contribute to the development of a legally protected expectation that certain 148

Conclusion territorial entities are gaining elements of legal personality in the sense of self-determination outside the colonial context. Such recognition is, of course, even more pronounced in instances where the self-determination dimension of the conflict has been addressed in ways that go beyond autonomy or federalisation. Addressing the Self-determination Claim First, there is the recognition in ceasefire agreements or other provisional, transitional agreements that the self-determination dimension needs to be considered as such. While these agreements do not yet resolve the self-determination deadlock, they at least offer a transitory phase designed to lead to engagement with the self-determination dimension in formal negotiations. Another model concerns the balancing of self-determination claims. Such settlements will unambiguously confirm the applicability of the rule of self-determination. However, they may then dilute the identification of the self-determination entity. Either side may claim confirmation of its legal position in this respect. As there is a mechanism for the administration of the act of selfdetermination attached, however, the issue is resolved in practice. In the case of Northern Ireland, this mechanism consists of recognising that a referendum must be held in both parts of the island, but that no change in status is possible without the concurrence of the North. A further technique consists of the recognition of the applicability of self-determination to the secessionist entity. The recognition is coupled with an interim period of autonomous governance, followed by a referendum. In some cases, there is an expectation that this experience of self-governance will extinguish the wish for external self-determination, with the referendum confirming continued union. There may even be an obligation on the parties to work towards making continued union attractive, in exchange for a referendum on either continued autonomy or full 149

Escaping the Self-determination Trap independence. In other instances, however, it would be clear to all from the outset that the interim period merely provides space to prepare for a referendum with the inevitable result of independence. The Ahtisaari proposal for Kosovo adds yet another model for a possible solution. Initially, there was an expectation that statehood might be granted through an authoritative pronouncement by the Security Council, possibly overriding the lack of consent from Belgrade in relation to the proposed accords. In the absence of an internationally imposed settlement that would in itself be constitutive of statehood, a second route was adopted. According to the settlement plan, Kosovo was to be equipped with all the objective elements of statehood. However, it was left to the organised international community to determine the consequences of these facts and form a view on statehood. It was hoped that this would be done collectively, through a decision of the UN Security Council which would simultaneously establish original limitations on Kosovo’s sovereignty and ‘supervised independence’. As there was no Security Council resolution embracing this solution, another route had to be found to anchor this case of supervised independence. Kosovo unilaterally accepted original limitations on its sovereignty in its Declaration of Independence, along with the exercise of certain international supervisory powers for a period. Due to the deadlock in the Council, the UNMIK operation continued as something of a shell, within which the new EULEX mission will ultimately unfold. Kosovo, along with the former Yugoslav republics, Bougainville and Gagauzia, also points to a further innovation: conditional selfdetermination. External conditionality permits the activation of self-determination in the face of developments external to the entity that may be seeking independence. Internal conditionality relates to the entity’s acceptance of certain international obligations (combating terrorism or weapons of mass destruction, 150

Conclusion observing human and minority rights) and performance according to standards of good governance. While these standards were not spelt out in any detail in the Bougainville settlement, the UN Mission in Kosovo developed a large matrix of such commitments, at one stage encompassing some 127 criteria. Given the assumption that self-determination is an inherent right, at least in the colonial context, this development may at first seem surprising. Conditional self-determination appears to suggest that the organised international community is starting to establish a mechanism for the implementation of self-determination claims outside the colonial context. Finally, there are cases where a right to self-determination is granted in the constitution of the state. While there are a few wellknown examples of this approach, it has not worked terribly well in the past. The invocation of the right of secession by Burmese constituent states, by the Baltic republics in relation to the USSR, and by Croatia and Slovenia were answered with resistance by the centre, and conflict ensued. However, the international response at least to the latter episode has confirmed that internal constitutional commitments of this kind are increasing in relevance at the international level. While constitutional self-determination is principally based on internal law, the organised international community is entitled to take note of such an entitlement. In particular, where the entity so privileged is unilaterally deprived of its constitutional self-determination status or activation of the right is unreasonably refused or delayed after good faith attempts by the secessionist entity to negotiation, state or pre-state rights may be granted. It remains to be seen whether the international failure to respond in this way to the unilateral abrogation of the Chechnya agreements can be explained with reference to the specific facts of that case, or whether it is to be taken as a somewhat cautionary tale of more general application. After all, most of the self-governance settlements reviewed here have 151

Escaping the Self-determination Trap been concluded at the level of internal, constitutional law. While they often came about in consequence of international mediation, they frequently lack a firm basis in international law. Even some of the settlements assigning sovereignty or quasisovereignty to a constituent entity, or confirming an entitlement to self-determination, have been concluded in a state of some legal ambiguity. Negotiators of settlements of this kind are certainly well advised to anchor commitments at the international level and provide for internationalised implementation mechanisms. Towards Multi-level Governance in an International Constitutional System? If this monograph has revealed a number of new techniques of addressing the self-determination dimension outside the colonial context, several questions of a conceptual nature remain. First, how does this practice affect the right to self-determination outside the colonial context? Secondly, what are the consequences for our broader understanding of the international legal order? Thirdly, what specifically are the entitlements that appertain to certain types of groups, populations or peoples? And, finally, there is an issue of process. Does the organised international community engage selfdetermination conflicts through clear and consistently applied mechanisms? With respect to the first question, this review has clearly shown that there is now considerable practice in this area. This practice, while in some aspects diverse, is uniform in relation to at least one issue: it does indeed address self-determination claims outside the colonial context. This in itself is noteworthy, given previous hesitation on the part of international actors. The practice is widespread, covering difficult cases on most continents. The expectation is that this practice marks out a trajectory that will extend into the future. While some further settlements are delayed due to geopolitical circumstances (the attitude of the 152

Conclusion Russian Federation in relation to Eastern/Central Europe) and others have faltered due to the attitude of the one or other local actor (say, Cyprus or Sri Lanka), it is likely that the trend of settlements chronicled here will continue in due course. But what is the legal significance of this trend for the international legal order, beyond the recognition that self-determination conflicts outside the colonial context can be addressed in various ways if the relevant actors so decide? It is tempting to view the increasing willingness to engage with self-determination issues as further evidence of the emergence of one international system of multi-level governance, where national and international constitutional law come into direct contact and become, at times, difficult to distinguish. In such a universal system of public law, the state is only one of many possible layers of public authority. Sovereign powers can be assigned at various levels, ranging from local municipalities to regions, federal entities, the state, sub-regional and regional integration organisations, and global institutions. In relation to each of these there exists an express or implied grant of authority from individual constituencies. Re-negotiating the constitutional assignment of powers to the state is one manifestation of this process. Complex settlements, such as that over Northern Ireland, which address local, regional, and state authority along with cross-border cooperation or the involvement of international agencies in governance, can perhaps be explained only with reference to this conceptual background. The move away from unipolar sovereignty concentrated exclusively in the central state clearly generates greater complexity when one analyses state powers. Moreover, there is an increasing move away from effectiveness of control as the principal criterion for the authority to govern. Instead, along with recent developments concerning democratic governance as such, the practice on the assignment of public authority reviewed here reflects an increasing recognition that, ultimately, the authority to 153

Escaping the Self-determination Trap govern is based on the will of the people.262 In this respect, we are witnessing a gradual recognition of self-determination as a genuine, generalised principle for the construction of states and governance, counting a number of layers of meaning. Impact on the Classical Rule of Self-determination Of course, classically, self-determination has been defined as the right of peoples freely to determine their political status and pursue their economic, social and cultural development.263 In practice, the application of this provision had been severely contextually reduced, in both its ‘external’ and ‘internal’ dimensions. As was noted at the outset, external self-determination in the sense of secession would appertain only to colonial peoples defined by prolonged colonial administration within uti possidetis boundaries.264 Internal self-determination would address both the constitutional system of public authority and the right of democratic participation in governance.265 However, it was simply presumed that any constitutional system and structures of governance were, merely by virtue of their existence, the product of free determination by the people concerned. Internal selfdetermination was therefore, until quite recently, practically irrelevant. The contextual restriction of external self-determination and the sharp division between external and internal self-determination 262

263

264

265

Universal Declaration of Human Rights, Art. 21(3). Full text available at http://www.un.org/Overview/rights.html, accessed 3 November 2008. E.g, UN General Assembly Resolution 2625 (XXV), 24 October 1970. Full text available at http://daccessdds.un.org/doc/RESOLUTION/GEN/NR0/348/90/IMG/NR034 890.pdf ?OpenElement, accessed 3 November 2008. E.g, UN General Assembly resolutions 1514 (XV) and 1541 (XV). Both texts available at http://www.un.org/documents/ga/res/15/ares15.htm, accessed 3 November 2008. Art. 1 of the ICCPR and General Comment, in CCPR/C/21/Rev.1 and Add.1 and 2. See also Art. 25.

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Conclusion appear to be dissolving, however gradually and hesitantly. Several innovative settlements provide for the opportunity of secession, expressly invoking self-determination outside the colonial context. Others re-allocate sovereignty to constituent entities or offer shared sovereignty between the centre and regions. Throughout, the will of sub-state populations is being accommodated in the variety of ways reviewed here, ranging from enhanced local self-governance to possible statehood. Moreover, the populations concerned are increasingly self-constituting. While settlements will generally concern territorially defined entities, this definition is no longer static. Instead of rigid adherence to the uti possidetis principle, several settlements allow populations in certain areas to opt into, or out of, proposed units of self-government (Gagauzia, Philippines, South Sudan). Units of self-governance are given open options to form larger regions or establish regional cooperation (Iraq, Darfur, Eastern Sudan, Bosnia). The approach of international constitutional law can best help us conceptualise these developments. However, it is necessary to distinguish between conceptual explanation of observed phenomena and legal rights. The former help us to understand how and why new developments are taking place, and what effect these developments may have on the international system in the longer term. This understanding will also affect emerging patterns of practice of the future. But it is a different matter to ask whether these developments have already resulted in quite specific legal entitlements which apply equally in all similar circumstances. The cases which have been considered are real, and new settlement practice is impressively widespread. With the exception of a few internationally imposed solutions, the settlements have resulted from negotiations. They are based on specific consent in relation to specific circumstances. Often, these circumstances were brought about by armed conflict. The particular content of settlements is still as likely to be shaped by the relative power of 155

Escaping the Self-determination Trap the sides, and perhaps of the external actors supporting them, as it is required by legal prescription. Moreover, the settlements have generally not been obtained by one central agency, such as the United Nations. Instead, a variety of internal and external actors have been involved, bringing with them a variety of approaches. It is therefore not possible, as yet, to claim that certain types of situation must trigger, by right, a certain specific solution. Hence, it would be premature to assert that ethnic movements of a certain kind will now always have a right to autonomy, or that the solution in certain circumstances has to be asymmetric federation or full independence. The key conclusion is, instead, rather more general. Self-determination claims are now being settled in a variety of ways. Self-governance within existing states remains an important solution, but interim settlements with a view to a referendum on self-determination are becoming increasingly accepted. The range of possible solutions has been significantly enhanced. While the absence of settlements and protracted conflict used to be the rule, a failure to engage in bona fide settlement attempts is now likely to be regarded as unusual. Moreover, it is possible to identify an emerging system in relation to the recognition and administration of self-determination claims, both in colonial and in non-colonial situations. This concerns the respective legal entitlements attracted by the different legal concepts that have been considered in this study, as illustrated by Annex I. If there is gradual consolidation of practices capable of implementing self-determination in new, broader context, the question of implementation mechanisms remains. As demonstrated by the failure to obtain agreement on Kosovo in the Security Council, there is as yet no clear international constitutional process in place to support such ventures. Instead, widespread practice confirms a right of initiative on the part of a diversity of international actors. These range from UN-mandated negotiations to the efforts of regional or sub-regional organisations 156

Conclusion and arrangements (IGAAD on Sudan, EU on Kosovo, OSCE in the Caucasus), to individual states (Norway on Sri Lanka) and even non-state actors (the Aceh negotiations). There is a continued need to enhance the capacity of the organised international community to engage self-determination disputes. As this monograph has shown, the tools for settlement are available, and range significantly beyond the constraints of the classical debate on self-determination. That debate privileged the aim of peace and stability over considerations of popular will and state legitimacy. However, even on its own terms, the classical approach failed catastrophically. Since its inauguration at Versailles, the share of ethno-nationalist wars has risen to 45 percent of all military confrontations around the world. That figure has jumped to 75 percent since the end of the Cold War, and the attempt by the organised international community to ‘hold the line’ on the issue of self-determination in the face of new challenges outside the virtually obsolete colonial context.266 Or, according to another statistic, out of the 215 major armed conflicts that arose between 1945 and 2005, just over half were ethnic conflicts. Of these, well over half again had a pronounced secessionist dimension.267 These internal conflicts over statehood resulted in a highly disproportionate rise in civilian casualties and refugees.268 Such figures are not only significant in terms of the scale of human suffering they mask. They also demonstrate that the classical, restrictive doctrine of self-determination has generated conflict and instability, rather than the peace and stability that was promised. In view of this fact, the emerging, more subtle, flexible and complex application of the rule of self-determination, as highlighted in this monograph, can only be welcomed. 266

267 268

Andreas Wimmer, Lars-Erik Ederman and Brian Min, “Ethnic Diversity, Political Exclusion and Armed Conflict”, in Marc Weller, ed., Political Participation of Minorities in International Law, Oxford: Oxford University Press, forthcoming, Chapter 2. Ibid. See the data provided by the Centre for Systemic Peace, at http://www.systemicpeace. org/conflict.htm, accessed 3 November.

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ANNEX I. Levels of Legal Privileges of Entities 1. Colonial and analogous self-determination entities • Separate legal personality • Uti possidetis boundary • Territorial integrity • Permanent sovereignty over natural resources • Right to administer act of self-determination • However, generally, only one act of self-determination • Right not to be repressed while seeking self-determination • Right to struggle • Right to recognition of national liberation movement • Application of the law of international armed conflict • Right to receive assistance • Imprescriptable status (in theory) 2. Remedial self-determination entity • Separate legal personality generated through nonrepresentation or repression, but only if these are persistent and systematic, and there is no possibility of settlement • Uti possidetis boundary • Territorial integrity • Permanent sovereignty over natural resources • Right to administer act of self-determination • However, generally, only one act of self-determination • Right not to be repressed • Right to resist repression • Right to invoke the doctrine of responsibility to protect in relation to external actors

158

Annex I 3. Constitutional self-determination entities • Potential separate legal personality grounded in constitution or constitutional practice • Uti possidetis boundaries • Guarantee of territorial integrity • Relative sovereignty over natural resources • Right to administer act of self-determination • Obligation to respect minority rights • Right not to be repressed while seeking self-determination • Obligation to negotiate in good faith about secession • Right to unilateral action if negotiations are frustrated by the other side • Right to self-defence 4. Effective (unprivileged) entities • Internal status while struggling • No positive ‘right’ to struggle • Human rights, law of internal armed conflict • Right of international initiative 5. Unlawful entity (having emerged in violation of jus cogens rules) • Must not be recognised • No support must be given in maintaining its status • States should cooperate in restoring the previous situation

159

ANNEX II. Tables of Settlements and Steps towards Settlement Africa*

*

Country Africa Angola

Groups

Settlement

Cabinda

31 May 1999: Peace Accords for Angola (Bicesse Accords) 15 July 2006: Ceasefire Agreement

Chad

Southerners

12 August 2007: Report of the Secretary General on Chad and the Central African Republic

Dem. Rep. Luba Congo

7 October 1999: Ceasefire Agreement

Ethiopia

Eritrea

18 June 2000: Peace Agreement 27 April 2003: Independence of Eritrea based on Results of the Referendum

Ethiopia

Ogaden

18 June 2000: Peace Agreement 7 July 2007: Open Letter to UN Secretary General Ban Ki Moon: Freedom for Ogaden

Ethiopia

Oromo

18 June 2000: Peace Agreement

Criteria for inclusion: (i) diverse ethnic groups; (ii) wish for greater identity within the state or wish to leave the state; and (iii) risk of conflict.

160

Annex II Country

Groups

Settlement

Mali

Tuareg

Morocco

Saharawis

6 January 1991: Accords of Tamanrasset establishing peace between Mali and the Tuaregs 11 November 1992: National Pact Concluded between the Government of Mali and the Unified Movements and Fronts of Azawad Giving Expression to the Special Status of Northern Mali 13 April 2007: Report of the Secretary-General on the situation concerning Western Sahara, tasking the UN Security Council with the project of granting the region a certain degree of autonomy

Nigeria

Biafra

30 May 1967: Proclamation of the Republic of Biafra

Nigeria

Ogoni

Senegal

Diolas in Casamance

14 April 2005: Addendum to the MOSOP Shadow Report to the Committee on the Elimination of Racial Discrimination (CERD) 20 June 2006: Decret N°2006-559 du 20-06-2006 relatif aux attributions du ministre de l’intérieur et des collectivités locales

Somalia

Isaaq and others

18 May 1991: Declaration of Independence

South Africa

Vhavenda

14 March 2006: Manifesto of the Dabalorivhuwa Patriotic Front

161

Escaping the Self-determination Trap Country

Groups

Settlement

Sudan

Darfur Black Muslims

6 July 2005: 2005 Declaration of the Principle for the Resolution of Conflict

Sudan

Nuba

Sudan

Southerners

31 July 1996: Declaration of Principles for the Resolution of the Nuba Mountains’ Problem between the Government of Sudan and the Nuba Mountains United SPLM/A, Nairobi 19 January 2002: Agreement on the Cessation of Hostilities 9 January 2005: The Comprehensive Peace Agreement between the Government of the Republic of the Sudan and the Sudan People’s Liberation Movement/Sudan People’s Liberation Army

Tanzania

Zanzibaris

5 October 1979: Zanzibar Constitution establishing autonomy

162

Annex II Europe* Country Europe

Groups

Settlement

Albania

Greeks

21 March 1996: Friendship and Cooperation Treaty between Greece and Albania 10 December 1991: Referendum Declaring State Independence 12 May 1994: Unofficial Ceasefire

Azerbaijan NagornoKarabakh Bosnia

Croats

21 November 1995: Dayton Peace Agreement; 26 June 2006: Resolution 1513 Constitutional Reform in Bosnia and Herzegovina

Bosnia

Muslims

21 November 1995: Dayton Peace Agreement

Bosnia

Serbs

21 November 1995: Dayton Peace Agreement 26 June 2006: Resolution 1513 Constitutional Reform in Bosnia and Herzegovina

Croatia

Serbs

13 December 2002: Constitutional Law on the Rights of National Minorities

Cyprus

Turkish Cypriots

10 October 2008: Greek Cypriot and Turkish Cypriot leaders agree to meet weekly to continue momentum toward negotiating a reunification of Cyprus

* Criteria for inclusion: (i) diverse ethnic groups; (ii) wish for greater identity within the state or wish to leave the state; and (iii) risk of conflict.

163

Escaping the Self-determination Trap Country

Groups

Settlement

Denmark

Faroe Islands

23 March 1948: Home Rule Act No.137 on the Home Government of the Faroes

Denmark

Greenland

Estonia

Estonians

29 November 1978: The Greenland Home Rule Act No. 577 20 August 1991: Resolution by the Supreme Council of the republic of Estonia on the National Independence of Estonia

France

Coriscans

09 July 2003: Resultats globaux definitifs des électeurs de Corse sur la modification de l’Organisation Institutionnelle de la Corse (Failed referendum on Autonomy)

Georgia

Abkhasians and Ossetians (South)

22 August 2008: Ceasefire between Georgia and Russia 28 August 2008: Russia recognises independence of South Ossetia and Abkhasia

Italy

Sardinians

Italy

South Tyrol

Judgment No.238/2004 of the Constitutional Court of Italy – The Region of Sardinia and the Independent Province of Bolzano 31 January 2001: Special Statute for Trentino Alto Adige

Lithuania

Russians

29 July 1991: Republic of Lithuania Law on Citizenship, granting citizenship to all Russians who were residents prior to the agreement

164

Annex II Country

Groups

Settlement

Macedonia Albanians

17 November 1991: Constitution of Macedonia, Albanians considered as minority population July 2002: legislation authorising Albanian-language university

Moldova

Gagauz

23 December 1994: Law on the Special Legal Status of Gagauzia

Moldova

Transdniestra 22 July 2005: Law on Basic Provisions of the Special Legal Status of Localities from the Left Bank of the Dniester 23 May 2006: Communiqué on the results of the meeting between President of TR I. Smirnov and Vice-Chairman of the Russian Cabinet A. Zhukov

Montenegro Montenegrins 21 May 2006: Referendum on Independence 3 June 2006: Declaration of Independence Norway Saami 7 May 2007: Meeting Report of the Arctic Regional Workshop on Indigenous Peoples’ Territories, Lands and Natural Resources Romania

Magyars (Hungarian)

13 September 1996: Treaty between the Republic of Hungary and Romania on Understanding, Cooperation and Good Neighbourhood

Russia

Chuvash

30 November 2000: Constitution of Chuvash Republic 165

Escaping the Self-determination Trap Country

Groups

Settlement

Russia

Chechen

12 May 1997: Peace Treaty and Principles of Interrelation between Russian Federation and Chechen Republic Ichkeria

Russia

Ingush

11 October 2002: Cooperation and Good Neighbourliness Agreement between North Ossetia and Ingushetia

Russia

Tatars

15 February 1994: Bilateral Powersharing Treaty between the Presidents of Russia and Tatarstan

Russia

Tuvinians

23 October 1993: Constitution of Tyva established as part of Russian Federation with right of secession

Spain

Basques

22 March 2006: Permanent Ceasefire

Spain

Catalans

Sweden

Aaland

Sweden

Saami

19 July 2006: Organic Law 6/2006 on the Reform of the Statute of Autonomy of Catalonia 16 August 1991: Act of Autonomy of Aaland 7 May 2007: Meeting Report of the Arctic Regional Workshop on Indigenous Peoples’ Territories, Lands and Natural Resources

Sweden

Skaneland

20–26 January 1995: Resolution of the General Assembly of the Unrepresented Nations and Peoples Organisation on the Recognition of Regional Borders of Scania

166

Annex II Country

Groups

Settlement

Switzerland Jurassians

1979: Creation of Canton of Jura

Turkey

Kurds

4 October 2006: The cultural situation of the Kurds, Resolution 1519 (2006) Council of Europe

Ukraine

Crimean Tatars

28 June 1996: Constitution of Ukraine Chapter 10. Republic of Crimea 14 December 2001: European Commission against Racism and Intolerance, Second Report on Ukraine

United Kingdom

Northern Ireland

22 March 1999: British Irish Agreement 27 March 2007: St Andrews Agreement Act 2007

United Kingdom

Scotland

9 November 1998: Scotland Act 22 July 2004: Scottish Parliament (Constituencies) Act 2004

167

Escaping the Self-determination Trap Asia* Country Groups Asia/Pacific

Settlement

Bangladesh Chittagong Hill Tribes China Tibetans

2 December 1997: Chittagong Hill Tracts Treaty 14 June 1991: Charter of the Tibetans-in-Exile 31 August 2008: Eighth Round of Chinese-Tibetan Talks

India

Assamese

15 August 1985: Assam Accords between the Government of India and the All Assam Students Union and the All Assam Gana Sangram Parished

India

Bodos

10 February 2003: Memorandum of Settlement on Bodoland Territorial Council

India

Kashmiri

27 October 2002: Common Minimum Programme of the Congress-I, People’s Democratic Party Coalition Government in Jammu and Kashmir

India

Mizos

30 June 1986: Mizoram Accord

India

Nagas

23 January 2003: Statement by NSCN – IM General Secretary at the end of January 2003 Peace Talks in New Delhi

India

Sikhs

24 July 1985: Memorandum of Settlement between Rajiv Gandhi and Sant Harchand Singh Longowal

* Criteria for inclusion: (i) diverse ethnic groups; (ii) wish for greater identity within the state or wish to leave the state; and (iii) risk of conflict.

168

Annex II Country

Groups

Settlement

India

Tripuras

22 December 1991: Constitution of The National Liberation Front of Tripura

Indonesia

Aceh

15 August 2005: Memorandum of Understanding signed between the Indonesian Government and the Free Aceh Movement

Indonesia

East Timor

05 May 1999: Agreement regarding the Modalities for the Popular Consultation of the East Timorese through a Direct Ballot

Indonesia

West Papuans

22 October 2001: Papua of Indonesia Act on Autonomy

Iraq

Kurds

Israel

Palestinians

19 April 2004: Constitution of the Iraqi Kurdistan region 15 November 2005: Agreement on Movement and Access at Rafah Crossing Point

Laos

Hmong

Philippines Igorots

Philippines Moros

31 July 1993: Statements of the Hmong People by Dr. Vang Pobzeb at the Conference of the Working Group on Indigenous Populations of the UN, July 19–31, 1993 9 August 9 2007: Regional Consultation-Dialogue on the 2nd Decade of the World’s Indigenous People Sta. Catalina Convent, Baguio City 17 May 2007: Resolution No. 2/23-MM on Question of Muslims in Southern Philippines 169

Escaping the Self-determination Trap Country

Groups

Sri Lanka

Tamil Eelam 22 February 2002: Agreement on a Ceasefire between the Government of the Democratic Socialist Republic of Sri Lanka and the Liberation Tigers of Tamil

Papua New Bougainville Guinea

Settlement

30 August 2001: The Arawa Bougainville Peace Agreement

170

Bibliography Lovise Aalen, “Ethnic Federalism and Self-determination for Nationalities in a Semi-authoritarian State: The case of Ethiopia”, 13 International Journal on Minority and Group Rights 2–3 (2006). Kenneth Abbott and Duncan Snidal, “Why States Use Formal International Organizations”, 42 Journal of Conflict Resolution 1 (1998). Ahmednasir M. Abdullahi, “Article 39 of the Ethiopian constitution on secession and self-determination”, 31 Verfassung und Recht in Übersee 4 (1998). Dorit Abramovitch, The Relationship in Ideology between Selfdetermination Movements, Nationalism and the Crime of Genocide: The Dynamics of Conflict Escalation, MA Thesis on file at University of Essex (1993). Guido Acquaviva, “Subjects of International Law: A Power-based Analysis”, 38 Vanderbilt Journal of Transnational Law 2 (2005). Adeno Addis. “International Propaganda and Developing Countries”, 21 Vanderbilt Journal of Transnational Law 3 (1988). Advisory Council on International Affairs and Advisory Committee on Issues of Public International Law, Failing States: A Global Responsibility, No. 35 (The Hague, May 2004). Cherylyn Brandt Ahrens, “Chechnya and the Right of Selfdetermination”, 42 Columbia Journal of Transnational Law 2 (2004). Pekka Aikio (ed.), Operationalizing the Right of Indigenous peoples to Selfdetermination (Aabo: Institute for Human Rights, Aabo Akademi University, 2000). Yoanes Ajawin (ed.), When Peace Comes (Lawrenceville, NJ: Red Sea Press, 2002). 171

Escaping the Self-determination Trap Yasushi Akashi, “Self-determination, Autonomy, and Independence in the 21st Century”, 46 Review of International Affairs 1034 (1995). Geoffrey Alderman et al., (eds.) Governments, Ethnic Groups, and Political Representation (Aldershot and New York: Dartmouth Publishing and New York University Press, 1993). Robert Aldrich and John Connell, “The Ends of Empire”, 54 World Today 2 (1998). Yonah Alexander and Robert A. Friedlander, Self-determination: National, Regional, and Global Dimensions (Boulder: Westview Press, 1980). Phillip M. Allen, Self-determination in the Western Indian Ocean (New York: Carnegie Endowment for International Peace, 1996). Stephen Allen, “Recreating ‘one China’: Internal Selfdetermination, Autonomy and the Future of Taiwan”, 4 Asia-Pacific Journal on Human Rights and the Law 1 (2000). Steve Allen, “Statehood, Self-determination and the ‘Taiwan question’”, 9 Asian Yearbook of International Law (2000). Sara E. Allgood, “United Nations Human Rights ‘Entitlements’: the Right to Development Analyzed within the Application of the Right of Self-determination”, Georgia Journal of International and Comparative Law (2003). Dora Alves, The Maori and the Crown (Westport, CT: Greenwood Press, 1999). S. Alvstad, “The Quebec Secession Issue, with an Emphasis on the ‘Cultural’ side of the Equation”, 18 Temple International and Comparative Law Journal (2004). 172

Bibliography Alfred C. Aman, “The Globalizing State: A Future-Oriented Perspective on the Public/Private Distinction, Federalism, and Democracy”, 31 Vanderbilt Journal of Transnational Law (1998). R.P. Anand, New States and International Law (Delhi: Vikas Publishing House, 1972). S. James Anaya, “The Capacity of International Law to Advance Ethnic or Nationality Rights Claims”, 75 Iowa Law Review (1990). S. James Anaya, “Indigenous Rights Norms in Contemporary International Law”, 8 Arizona Journal of International and Comparative Law (1991). S. James Anaya, “A Contemporary Definition of the International Norm of Self-determination”, 3 Transnational Law and Contemporary Problems (1993). S. James Anaya, Symposium on Contemporary Perspectives on Self-determination and Indigenous Peoples’ Rights (Iowa City, University of Iowa College of Law, 1993). S. James Anaya, Indigenous Peoples in International Law, 2nd. ed. (Oxford: Oxford University Press, 2004). David Anderson, Sovereignty and Self-determination: Some Cases Close to Home (Sydney: Pacific Security Research Institute, 1992). Gordon Anderson, “Decouple ‘Nations’ from Territorial States”, 12 International Journal on World Peace (1995). Anthony H. Angelo, “Self-determination, Self-government and Legal Pluralism in Tokelau”, 8 Law and Anthropology (1996). Robert John Araujo, “Sovereignty, Human Rights, and Selfdetermination”, 24 Fordham International Law Journal (2001). 173

Escaping the Self-determination Trap David Armstrong. “Globalization and the Social State”, 24 Review of International Studies (1998). Rudolf Arzinger, Das Selbstbestimmungsrecht im allgemeinen Völkerrecht der Gegenwart (Berlin: Staatsverlag, 1966). Philip Ashton, People’s Rights: The State of the Art (Oxford and New York: Oxford University Press, 2000). Willem Assies and A.J. Hoekema, “Indigenous Peoples’ Experiences with Self-Government: Proceedings of the Seminar on Arrangements for Self-determination by Indigenous Peoples within National States, 10 and 11 February 1994”, Law Faculty, University of Amsterdam (Copenhagen: IWGIA, 1994). Sri Aurobindo, War and Self-determination (Pondicherry, published by the author, 1957). Robert Axelrod, The Evolution of Cooperation (New York: Basic Books, 1984). Guimei Bai, “Zijue-yu-fenli” [Self-determination and Separation], Zhongguo (1996). Guimei Bai, “Lun-renmin-zijuequan” [On Peoples’ Right to Selfdetermination], Zhongguo (1993). Vladimír Balaˇs, “Právo na sebeurˇcení” [Right to Selfdetermination], 136 Právník, (1997). Vesna Bari c-Punda, ´ “The Principle of Equal Rights and Selfdetermination of Peoples and the Dissolution of Yugoslavia”, in Vesna Crni c-Grotic ´ and Vladimir-Duro Degan (eds.) International Law and the Use of Force at the Turn of Centuries: Essays in Honour of V.D. Degan (Rijeka: Faculty of Law, University of Rijeka, 2006). Frederick M. Barnard, Self-direction and Political Legitimacy: Rousseau and Herder (New York: Clarendon Press, 1988). 174

Bibliography Russel Lawrence Barsh, “The Challenge of Indigenous Selfdetermination”, 26 University of Michigan Journal of Law Reform (1993) Viva Ona Bartkus, The Dynamic of Secession (Cambridge: Cambridge University Press, 1999). M. Cherif Bassiouni, The Palestinians’ Rights of Self-determination and National Independence (Detroit: Association of Arab-American University Graduates, 1978). Marija Batistich, “The Right to Self-determination and International Law”, 7 Auckland University Law Review (1995). Anne F. Bayefsky (ed.) Self-determination in International Law: Quebec and Lessons Learned (The Hague: Kluwer Law International, 2000). Tal Becker, “Self-determination in Perspective”, 32 Israel Law Review (1998). Yves Beigbeder, International Monitoring of Plebiscites, Referenda and National Elections (Dordrecht: Martinus Nijhoff, 1994). Christine Bell and Kathleen Cavanaugh, “‘Constructive Ambiguity’ or Internal Self-determination?”, 22 Fordham International Law Journal, 22 (1999). Luke P. Bellocchi, “Recent Developments: Self-determination in the Case of Chechnya”, 2 Buffalo Journal of International Law (1995). Thomas Benedikter, The World’s Working Regional Autonomies: An Introduction (London: Anthem Press, 2007). Harry Beran, “A Liberal Theory of Secession”, 32 Political Studies (1984). Berch Berberoglu, The National Question: Nationalism, Ethnic Conflict, and Self-determination in the 20th Century (Philadelphia: Temple University Press, 1995). 175

Escaping the Self-determination Trap Louis Rene Beres, “Self-determination, International Law and Survival on Planet Earth”, 11 Arizona Journal of International and Comparative Law (1994). Philip Bergmann, Self-determination: The Case of Czechoslovakia, 1968– 1969 (Grassi, Lugano-Bellinzona, 1972). H.R. Berman, “Indigenous Peoples and the Right to Selfdetermination”, 87 American Society of International Law Proceedings (1993). Nathaniel Berman, “Sovereignty in Abeyance: Self-determination and International Law”, 7 Wisconsin International Law Journal (1988). Enrique Bernales B., The Use of Mercenaries as a Means of Violating Human Rights and Impeding the Exercise of the Right of Peoples to Selfdetermination (New York: United Nations, 1992). Rudolf Bernhardt, “Federalism and Autonomy”, in Yoram Dinstein (ed.), Models of Autonomy (New Brunswick: Transaction Press, 1981). István Bibó, The Paralysis of International Institutions and the Remedies: A Study of Self-determination, Concord Among the Major Powers, and Political Arbitration (Hassocks: Harvester Press Ltd., 1976). Guyora Binder, “The Case for Self-determination”, 29 Stanford Journal of International Law (1993). Anthony H. Birch, “Minority Nationalist Movements and Theories of Political Integration”, 30 World Politics (1978). Albert P. Blaustein, “The New Nationalism,” 30 American Journal of Comparative Law (Supplement, 1982). James M. Blaut, The National Question: Decolonizing the Theory of Nationalism (Atlantic Highlands: Zed Books, 1987). 176

Bibliography James M. Blaut, “Nationalism as an Autonomous Force”, 46 Science and Society (1983). Sam K.N. Blay, “Self-determination: A Reassessment in the PostCommunist Era”, 22 Denver Journal of International Law and Policy (1994). Sam K.N. Blay, “Self-determination versus Territorial Integrity in Decolonization Revisited”, 25 Indian Journal of International Law (1985). Y.Z. Blum, “Reflections on the Changing Concept of Selfdetermination”, 10 Israel Law Review (1975). Hanna Bokor-Szegö, New States and International Law (Budapest: Akadémiai Kiadó, 1970). Milica Zarkovic Bookman, The Political Economy of Discontinuous Development: Regional Disparities and Inter-regional Conflict (Praeger Publishers, New York, 1991). Ekkehard W. Bornträger, Borders, Ethnicity, and National Selfdetermination (Vienna: Braumüller, 1999). Derek W. Bowett, “Self-determination and Political Rights in the Developing Countries,” Proceedings of the American Society of International Law, 60th Session, 1966. Bill Bowring, “The Crimean Autonomy”, in Marc Weller and Stefan Wolff (eds.), Autonomy, Self-governance and Conflict Regulation (London: Routledge, 2005). J. Bowyer Bell, On Revolt: Strategies of National Liberation (Cambridge, MA: Center for International Affairs, Harvard University, 1976). John Breuilly, Nationalism and the State (New York: St. Martin’s Press, 1993). 177

Escaping the Self-determination Trap Paul H. Brietzke, “Self-determination, or Jurisprudential Confusion: Exacerbating Political Conflict”, 14 Wisconsin International Law Journal (1995). Lea Brilmayer, “Groups, Histories, and International Law”, 25 Cornell International Law Journal (1992). Lea Brilmayer, “Secession and Self-determination: A Territorial Interpretation”, 16 Yale Journal of International Law (1991). Derick Brinkerhoff, “Exploring State-Civil Society Collaboration: Policy Partnerships in Developing Countries”, 28 Nonprofit and Voluntary Sector Quarterly (1999). Lothar Brock, “Deordering the World of States: New Spaces in International Relations”, 35 New Political Science (1996). Baruch A. Brody and George Sher, Social and Political Philosophy: Contemporary Readings (Fort Worth: Harcourt Brace College Publishers, 1999). Stopford Augustus Brooke, Coercion, Concession, and Home Rule (London: National Press Agency, 1893). C. Lloyd Brown-John, “Self-determination, Autonomy and State Secession in Federal Constitutional and International Law”, 40 South Texas Law Review (1999). Allen Buchanan, “Federalism, Secession, and the Morality of Inclusion”, 37 Arizona Law Review (1995). Allen Buchanan, Justice Legitimacy and Self-determination: Moral Foundations for International Law (Oxford: Oxford University Press, 2004). Lee C. Buchheit, Secession: The Legitimacy of Self-determination (New Haven, CT: Yale University Press, 1978). 178

Bibliography Melina Buckley, The Radical Implications of Conflict Resolution: An Inquiry into the Resolution of Self-determination Conflict without Violence, MA Thesis on file at Carleton University (1988). Hernando Gomez Buendia, The Limits of the Global Village: Globalization, Nations, and the State (New York: United Nations University Press, 1995). Andrew F. Burghardt, “The Bases of Territorial Claims”, 63 Geographical Review (1973). Daniel Byman, “The Logic of Ethnic Terrorism”, 21 Studies in Conflict and Terrorism (1998). Craig J. Calhoun, Why Nationalism? Sovereignty, Self-determination and Identity in a World-System of States (Durham, NC: Center for International Studies, Duke University, 1993). Canadian Bar Association, Law, Democracy, and Self-determination (Ottawa: Canadian Bar Association, 1997). Simon Caney, National Rights, International Obligations (Boulder: Westview Press, 1996). Patricia Carley, Self-determination: Sovereignty, Territorial Integrity, and the Right to Secession (Washington, DC: United States Institute of Peace, 1996). Patricia Carley, Nagorno-Karabakh: Searching for a Solution (Washington: United States Institute for Peace, 1997). Patricia Carley, “U.S. Responses to Self-determination Movements: Strategies for Nonviolent Outcomes and Alternatives to Secession: Report from a Roundtable held in Conjunction with the Policy Planning Staff of the U.S. Department of State” (Washington, DC: United States Institute of Peace, 1997). Edward Hallett Carr, The Future of Nations: Independence or Interdependence (London: Paul, Trench, and Trubner, 1941). 179

Escaping the Self-determination Trap Deborah Z. Cass, “Rethinking Self-determination: A Critical Analysis of Current International Law Theories”, 18 Syracuse Journal of International Law and Commerce (1992). Antonio Cassese, Self-determination of Peoples: A Legal Reappraisal (Cambridge: Cambridge University Press, 1995). Joshua Castellino, International Law of Self-determination: The Interplay of the Politics of Territorial Possession with Formulations of Post-Colonial ‘National’ Identity (The Hague and London: Kluwer Law International, 2000). Joshua Castellino, “Conceptual Difficulties and the Right to Indigenous self-Determination”, in N. Ghanea and A. Xanthaki (eds.) Minorities, Peoples and Self-determination: Essays in Honour of Patrick Thornberry (Leiden: Martinus Nijhoff, 2005). Phillip G. Cerny, “Globalization and the Changing Logic of Collective Action”, 49 International Organization (1995). Elizabeth Chadwick, Self-determination, Terrorism, and the International Humanitarian Law of Armed Conflict (The Hague and Boston: Martinus Nijhoff, 1996). Matthew Chapman, “Indigenous Peoples and International Human Rights: Towards a Guarantee for the Territorial Connection”, 26 The Anglo-American Law Review (1997). Edward Chaszar, “The Problem of National Minorities Before and After the Paris Peace Treaties of 1947”, 9 Nationalities Papers (1981). Naomi Chazan, Irredentism and International Politics (Boulder, CO: Lynne Rienner Publishers, 1991). Lung-chu Chen, “Self-determination and World Public Order”, 66 Notre Dame Law Review (1991). 180

Bibliography Subraty R. Chowdhury, “The Status and Norms of Selfdetermination in Contemporary International Law”, Netherlands International Law Review 24 (1977). T. Christakis, Le droit á l’autodétermination en dehors des situations de decolonisation (Paris: Documentation Française, 1999). Thomas Christiano, “Secession, Democracy and Distributive Justice”, 37 Arizona Law Review (1995). K. Chrysostomides, The Republic of Cyprus: A Study in International Law (The Hague: Martinus Nijhoff, 2000). Chung-Kil Chung, “Impacts of Globalization on Local Autonomy”, 34 Haengjong Nonchong (1996). Christopher Clapham, “Sovereignty and the Third World”, 47 Political Studies (1999). Donald Clark and Robert G. Williamson, Self-determination: International Perspectives (New York: St. Martin’s Press, 1996). Desmond M. Clarke and Charles Jones, The Rights of Nations: Nations and Nationalism in a Changing World (Cork: Cork University Press, 1999). Richard Pierre Claude, Human Rights in the World Community: Issues and Action (Philadelphia: University of Pennsylvania Press, 1992). Maivan Clech-Lam, The Age of Association: The Indigenous Assertion of Self-determination at the United Nations LL.M. Thesis on file at University of Wisconsin at Madison (1992). Maivan Clech-Lam, “Making Room for Peoples at the United Nations: Thoughts Provoked by Indigenous Claims to Selfdetermination”, 25 Cornell International Law Journal (1992). Maivan Clech-Lam, At the Edge of the State: Indigenous Peoples and Selfdetermination (Ardsley, NY: Transnational Publishers, 2000). 181

Escaping the Self-determination Trap Alfred Cobban, The Nation State and National Self-determination (New York: Crowell, 1969). Alfred Cobban, National Self-determination (Oxford and New York: Oxford University Press, 1948). Jules L. Coleman, Secession, Self-determination and the Idea of a Political Community (Washington, DC: Georgetown University Law Center, 1991. J.A. Collins, “Self-determination in International Law: the Palestinians” 12 Case Western Reserve Journal of International Law (1980). B. Conforti, The Law and Practice of the United Nations (3rd rev. ed., Leiden: Martinus Nijhoff, 2005). A.M. Connelly, “The Right of Self-determination and International Boundaries”, 14 Thesaurus Acroasium (1985). Walker Connor, “Nation-Building or Nation-Destroying”, 23 World Politics (1972). Walker Connor, “The Politics of Ethnonationalism”, 27 Journal of International Affairs (1973). Walker Connor, “Self-determination: The New Phase”, 20 World Politics (1967). Walker Connor, “Contemporary Perspectives on Selfdetermination and Indigenous Peoples’ Rights: Symposium”, 3 Transnational Law and Contemporary Problems (1993). James M. Cooper, “State of the Nation: Therapeutic Jurisprudence and the Evolution of the Right of Self-determination in International Law”, 17 Behavioral Sciences and the Law (1999). 182

Bibliography Jeff J. Corntassel and Tomas H. Primeau, “Indigenous Sovereignty and International Law: Revised Strategies for Pursuing Selfdetermination”, 17 Human Rights Quarterly (1995). Lucio Fernando Oliver Costilla, “The Reconstitution of Power and Democracy in the Age of Capital Globalization”, 27 Latin American Perspectives (2000). Council of Europe, Constitutions of Europe: Texts Collected by the Council of Europe Venice Commission, Vol. 2 (Strasbourg: Council of Europe Press, 2004). James Crawford, The Rights of Peoples (Oxford: Clarendon Press, 1988). James Crawford, “Democracy in International Law”, 64 British Yearbook of International Law (1993). James Crawford, “The General Assembly, the International Court and Self-determination”, in AV Lowe and M Fitzmaurice (eds.) Fifty Years of the International Court of Justice: Essays in Honour of Sir Robert Jennings (Cambridge: Cambridge University Press, 1996). James Crawford, “State Practice and International Law in Relation to Secession”, 69 British Yearbook of International Law (1998). James Crawford, “The Right of Self-determination in International Law: Its Development and Future”, in Philip Alston (ed.) People’s Rights (Oxford and New York: Oxford University Press, 2001). James Crawford, The Creation of States in International Law, 2nd ed. (Oxford and New York: Oxford University Press, 2006). Aureliu Cristescu, The Right to Self-determination: Historical and Current Development on the Basis of United Nations Instruments (New York: United Nations, 1981). 183

Escaping the Self-determination Trap Maryann K. Cusimano, Beyond Sovereignty: Issues for a Global Agenda 2000 (New York: St. Martin’s Press, 2000). Erica-Irene A. Daes, “Some Considerations on the Right of Indigenous Peoples to Self-determination”, 3 Transnational Law and Contemporary Problems (1993). Omar Dahbour, A Critique of National Self-determination, Ph.D. Thesis on file at City University of New York (1995). Lori Fisler Damrosch, “‘Sovereignty’ and International Organizations,” 3 U.C. Davis Journal of International Law and Policy (1997). Wolfgang Danspeckgruber and Sir Arthur Watts (eds.), Selfdetermination and Self-administration: A Sourcebook (Boulder: Lynne Rienner, 2000). Carl Davidson, In Defense of the Right to Self-determination (Chicago: Liberator Press, 1976). Walter Phillips Davison and Leon Gordenker, Resolving Nationality Conflicts: The Role of Public Opinion Research (New York: Praeger Publishers, 1980). Benjamin P. Dean, “Self-determination and U.S. Support of Insurgents: A Policy-Analysis Model”, 122 Military Law Review (1988). Richard Dennis Debobes, Self-determination, a Legal and Historical Analysis of the Development and Effect of a Principle of International Law, LL.M. Thesis on file at George Washington University (1972). Richard Dennis Debobes, “Declaration of Principles of Interim Self-government Arrangements”, 35 Survival, (1993–1994). Elizabeth F. Defeis, “Minority Protections and Bilateral Agreements: An Effective Mechanism”, 22 Hastings International and Comparative Law Review (1999). 184

Bibliography Koen DeFrancq, Individual Rights versus the Right to Self-determination, Nationalism, and other Collective Identity Claims: Conflict or Harmony, LL.M. Thesis in International Human Rights Law on file at Department of Law, University of Essex (1996). L.M. Demetriadou, “To What Extent is the Principle of Selfdetermination a Right Under International Law? How Strictly its Framework has been or should be Defined?”, 6 Epitheorese Kypriakou Dikaiou (1988). Derege Demissie, “Self-determination including Secession vs. the Territorial Integrity of Nation-States: A prima facie Case for Secession”, 20 Suffolk Transnational Law Review (1996). Mark E. Denham and Mark O. Lombardi, Perspectives on ThirdWorld Sovereignty: The Postmodern Paradox (New York: St. Martin’s Press, 1996). Meghnad Desai and Paul Redfern, Global Governance: Ethics and Economics of the World Order (London: Pinter Publishers, 1995). Avner De-Shalit, “National Self-determination: Political, not Cultural”, 44 Political Studies (1996). Karl Wolfgang Deutsch, Problems of Justice in International Territorial Disputes (New York: Harper, 1947). Karl Wolfgang Deutsch, “Political Development Toward National Self-determination: Some Recent Concepts and Models”, 4 Comparative Political Studies (1972). Yoram Dinstein, Models of Autonomy (New Brunswick, NJ: Transaction Books, 1981). Herbert Dittgen, “World without Borders? Reflections on the Future of the Nation-State,” 34 Government and Opposition (1999). 185

Escaping the Self-determination Trap Karl Doehring, “Self-determination”, in Bruno Simma (ed.), The Charter of the United Nations: A Commentary (Oxford: Oxford University Press, 1995). Ruth Donner, The Regulation of Nationality in International Law (Ardsley, NY: Transnational Publishers, 1995). G.L. Dorsey, “Nations and Civilizations from the Perspective of Jurisculture”, Saint Louis-Warsaw Transatlantic Law Journal (1997). R. Drummond, “Nationalism and Ethnic Demands: Some Speculations on a Congenial Note,” 10 Canadian Journal of Political Science (1977). Jorri Duursma, Fragmentation and the International Relations of MicroStates: Self-determination and Statehood (Cambridge: Cambridge University Press, 1996). Clyde Eagleton, “Excesses of Self-determination”, 31 Foreign Affairs (1952/1953). Clyde Eagleton, “Self-determination in the United Nations”, 47 American Journal of International Law (1953). Asbjorn Eide, “Internal Conflicts under International Law: Focus on Ethnic Conflict, Minority Rights and Human Rights”, 18 Bulletin of Peace Proposals (1987). Michael Eisner, “A Procedural Model for the Resolution of Secessionist Disputes”, 33 Harvard International Law Journal (1992). Yassin El-Ayouty, The United Nations and Decolonization: The Role of Afro-Asia (The Hague: Martinus Nijhoff, 1971). El-Sayed El-Sayed Mahmoud El-Rayess, The Concept of Selfdetermination as Enunciated and Developed by the United Nations Ph.D. Thesis on file in University of Arizona (1973). 186

Bibliography Rupert Emerson, Self-determination Revisited in the Era of Decolonization (Cambridge, MA: Center for International Affairs, Harvard University, 1964). Rupert Emerson, “Self-determination”, 60 Proceedings of the American Society of International Law (1966). Rupert Emerson, “Self-determination”, 65 American Journal of International Law (1971). J.F. Engers, “From Sacred Trust to Self-determination”, 24 Netherlands International Law Review (1977). Valerie Epps, “The New Dynamics of Self-determination”, 3 ILSA Journal of International and Comparative Law (1997). Valerie Epps, “Self-determination after Kosovo and East Timor”, 6 ILSA Journal of International and Comparative Law (2000). M. Evans and D.T. Olidge, “What can the Past Teach the Future? Lessons from Internationally Supervised Self-determination Elections 1920–1990”, 24 New York University Journal of International Law and Politics (1991/1992). R.E. Ewin, “Can There be a Right to Secede?”, 70 Philosophy (1995). Richard Falk, Law in an Emerging Global Village: A Post-Westphalian Perspective (Ardsley, NY: Transnational Publishers, 1998). Richard Falk, “The New Interventionism and the Third World”, 98 Current History (1999). James E. Falkowski, “Secessionary Self-determination: A Jeffersonian Perspective”, 9 Boston University International Law Journal (1991). Russell F. Farnen, Nationalism, Ethnicity, and Identity: Cross National and Comparative Perspectives (New Brunswick, NJ: Transaction Publishers, 1994). 187

Escaping the Self-determination Trap Milton David Fisher, The Fragmentation of World Order: Possible Consequences of Abuse of the Right to Self-determination (Nicosia: Cyprus Geographical Association, 1987). Milton David Fisher, Self-determination and Human Rights (Nedlands, WA: Indian Ocean Centre for Peace Studies, University of Western Australia, 1992). Gregory H. Fox and Brad R. Roth (eds.), Democratic Governance and International Law (Cambridge: Cambridge University Press, 2000). Thomas M. Franck and P. Hoffman, “The Right of Selfdetermination in Very Small Places”, 8 New York University Journal of International Law and Politics (1975/1976). Thomas M. Franck, “The Emerging Right to Democratic Governance”, 86 American Journal of International Law (1992). Thomas M. Franck “Tribe, Nation, World: Self-Identification in the Evolving International System”, 11 Ethics and International Affairs (1997). Thomas M. Franck, Delegating State Powers: The Effect of Treaty Regimes on Democracy and Sovereignty (Ardsley, NY: Transnational Publishers, 2000). Lawrence M. Frankel, “International Law of Secession: New Rules for a New Era”, 14 Houston Journal of International Law (1992). Michael Freeman, “Democracy and Dynamite: The People’s Right to Self-determination”, 44 Political Studies (1996). Michael Freeman, “National Self-determination, Peace, and Human Rights”, 10 Peace Review (1998). Michael Freeman, “The Right to Self-determination in International Politics: Six Theories in Search of a Policy”, 25 Review of International Studies (1999). 188

Bibliography Robert A. Friedlander, “Proposed Criteria for Testing the Validity of Self-determination as it Applies to Disaffected Minorities”, 25 Chitty’s Law Journal (1977). Jon Blanton Fullerton, Social Unity and the Self-determination of Peoples, Ph.D. Thesis on file at Harvard University (1997). Francis A. Gabor, “Quo Vadis Domine: Reflections on Individual and Ethnic Self-determination under an Emerging International Legal Regime”, 33 The International Lawyer (1999). Kinga Gal, Minority Governance in Europe (Flensburg/Budapest: European Centre for Minority Issues/Local Government Initiative, 2002). Ruth L. Gana, “Which ‘Self ?’ Race and Gender in the Right to Self-determination as a Prerequisite to the Right to Development”, 14 Wisconsin International Law Journal, (1995). Geoffrey Garrett, “Shrinking States? Globalization and National Autonomy in the OECD”, 26 Oxford Development Studies (1998). Eyassu Gayim “Reflections on the Draft Articles of the International Law Commission on State Responsibility: Articles 14, 15, and 19, in the Context of the Contemporary International Law of Self-determination”, 54 Nordisk Tidsskrift for International Ret (1985). Eyassu Gayim, The Principle of Self-determination: A Study of its Historical and Contemporary Legal Evolution (Oslo: Norwegian Institute of Human Rights, 1990). R. Geiss, “Failed States – Legal Aspects and Security Implications”, 47 German Yearbook of International Law (2004). David George, The Ethics of National Self-determination (Newcastle: Department of Politics, University of Newcastle, 1993). 189

Escaping the Self-determination Trap Carl Gershman, “The Right of Self-determination”, Freedom at Issue (1982). Yash Ghai (ed.), Autonomy and Ethnicity (Cambridge: Cambridge University Press, 2000). Nazila Ghanea and Alexandra Xanthaki (eds.) Minorities, Peoples and Self-determination: Essays in Honour of Patrick Thornberry (Leiden: Martinus Nijhoff, 2005). Sabyasachi Ghoshray, “Revisiting the Challenging Landscape of Self-determination within the Context of Nation’s Right to Sovereignty”, 11 ILSA Journal of International and Comparative Law (2005). Juan Gomez-Quinones, “Critique on the National Question, Selfdetermination, and Nationalism”, 9 Latin American Perspective, (1982). David C. Gordon, Self-determination and History in the Third World (Princeton, NJ: Princeton University Press, 1971). Ruth Gordon, “Saving Failed States: Sometimes a Neocolonialist Notion”, 12 The American University Journal of International Law and Policy (1997). Gidon Gottlieb, “Nations without States”, 73 Foreign Affairs (1994). Jean Gottmann, The Significance of Territory (Charlottesville, VA: University Press of Virginia, 1973). F. Lincoln Grahlfs, “Does Self-determination lead to Autonomy?”, 10 Peace Review, (1998). Héctor Gros Espiell, The Right to Self-determination: Implementation of United Nations Resolutions: Study (New York: United Nations, 1980). Damir Grubisa, “Self-determination in a Post-communist Era”, 5 Croatian International Relations Review (1999). 190

Bibliography Zejnullah Gruda, “Some Key Principles for a Lasting Solution of the Status of Kosova: Uti possidetis, the Ethnic Principle, and Selfdetermination”, 80 Chicago-Kent Law Review (2005). Michael M. Gunter, “Self-determination or Territorial Integrity: The United Nations in Confusion”, 141 World Affairs (1979). Ted Robert Gurr, Ethnic Conflict in World Politics (Boulder, CO: Westview Press, 1994). Ted Robert Gurr, “Ethnic Warfare on the Wane”, 79 Foreign Affairs (2000). Ted Robert Gurr, Peoples versus States: Minorities at Risk in the New Century (Washgton DC: United States Institute of Peace Press, 2000). Andres Gutman, An Analysis of the Principle of National Selfdetermination, MA Thesis on file at Sir George Williams University (1972). Stephen Haggard, Developing Nations and the Politics of Global Integration (Washington, DC: Brookings Institution, 1995). Oscar Halecki, National Self-determination and International Cooperation (New York: Fordham University, 1947). John A. Hall and T.V. Hall, International Order and the Future of World Politics (Cambridge and New York: Cambridge University Press, 1999). Raymond L. Hall, Ethnic Autonomy: Comparative Dynamics, the Americas, Europe, and the Developing World (New York: Pergamon Press, 1979). Morton H. Halperin and David J. Scheffer, Self-determination in the New World Order (New York: Carnegie Endowment for International Peace 1992). 191

Escaping the Self-determination Trap Lauri Hannikainen, “The International Legal Basis of the Autonomy and Swedish character of the Åland Islands”, in Lauri Hannikainen and Frank Horn (eds.) Autonomy and Demilitarisation in International Law: the Åland Islands in a Changing Europe (The Hague: Kluwer Law International, 1997). Hurst Hannum and Richard B. Lillich, “The Concept of Autonomy in International Law”, 74 American Journal of International Law (1980). Hurst Hannum, The Theory and Practice of Governmental Autonomy: Final Report (Washington, DC: International Law Institute, U.S. Department of State, 1980). Hurst Hannum, “The Foreign Affairs Powers of Autonomous Regions”, 57 Nordic Journal of International Law (1988). Hurst Hannum, Documents on Autonomy and Minority Rights (Leiden and Boston: Martinus Nijhoff, 1993). Hurst Hannum, “Rethinking Self-determination”, 34 Virginia Journal of International Law (1993). Hurst Hannum, Autonomy, Sovereignty, and Self-determination: The Accommodation of Conflicting Rights (Philadelphia: University of Pennsylvania Press, 1996). Hurst Hannum, “The Right of Self-determination in the TwentyFirst Century”, 55 Washington and Lee Law Review (1998). Hurst Hannum, “The Specter of Secession: Responding to Claims for Ethnic Self-determination”, 77 Foreign Affairs (1998). Otto Harrassowitz, Autonomy: Applications and Implications (London: Kluwer Law International, 1998). Sohail H. Hashmi, State Sovereignty: Change and Persistence in International Relations (Philadelpia: Pennsylvania State University Press, 1997). 192

Bibliography R.F. Hauser, “International Protection of Minorities and the Right of Self-determination”, 1 Israel Yearbook on Human Rights (1971). Robert M. Hayden, “The State as Legal Fiction,” 7 East European Constitutional Review (1998). Sally Healy, “The Principle of Self-determination: Still Alive and Well”, 10 Millennium (1981). Derek Heate, National Self-determination: Woodrow Wilson and his Legacy (Basingstoke: Macmillan, 1994). Hans-Joachim Heintze, Selbstbestimmung und Minderheitenrechte im Völkerrecht: Herausforderungen an den globalen und regionalen Menschenrechtsschutz (Baden-Baden: Nomos Verlagsgesellschaft, 1994). Hans-Joachim Heintze, Selbstimmungsrecht der Völker – Herausforderung der Staatenwelt: Zerfällt die internationale Gemeinschaft in Hunderte von Staaten? (Bonn: Dietz Verlag, 1997). Laurence R. Helfer and Anne-Marie Slaughter, “Toward a Theory of Effective Supranational Adjudication”, 107 Yale Law Journal (1997). Louis Henkin, The International Bill of Rights: The Covenant on Civil and Political Rights (New York: Columbia University Press, 1981). Kristin Henrard, Devising an Adequate System of Minority Protection: Individual Human Rights, Minority Rights, and the Right to Selfdetermination (Boston and Leiden: Martinus Nijhoff, 2000). Alexis Heraclides, “Secessionist Minorities and External Involvement”, 44 International Organizations (1990). Alexis Heraclides, The Self-determination of Minorities in International Politics (London: Frank Cass, 1991). 193

Escaping the Self-determination Trap Alexis Heraclides, “The Ending of Unending Conflicts: Separatist Wars”, 26 Millennium (1997). Bjorn Hettne et al., Globalism and the New Regionalism (Basingstoke: Macmillan, 1999). Christopher Hewitt, Encyclopedia of Modern Separatist Movements (Oxford: ABC-Clio, 2000). Christopher Hill and Karen E. Smith, European Foreign Policy (London: Routledge, 2000). Mitchell A. Hill, “What the Principle of Self-determination Means Today”, 1 ILSA Journal of International and Comparative Law (1995). Peter Hilpold, “Self-determination in the 21st Century – Modern Perspectives for an Old Concept”, 36 Israel Yearbook on Human Rights (2005). Helen M. Hintjens, Alternatives to Independence: Explorations in Postcolonial Relations (Aldershot: Ashgate, 1995). Tony Honore, “The Right to Rebel”, 8 Oxford Journal of Legal Studies (1988). David L. Horowitz, “Patterns of Ethnic Separatism,” 23 Comparative Studies in Society and History (1981). Donald L. Horowitz, Self-determination: Politics, Philosophy, and Law (Cambridge, MA: MacArthur Foundation Program in Transnational Security, Center for International Studies, Massachusetts Institute of Technology, 1996). Miroslav Hroch, “National Self-determination from a Historical Perspective”, 37 Canadian Slavonic Papers (1995). Erich Hula, National Self-determination Reconsidered (New York: New School for Social Research, 1943). 194

Bibliography Erich Hula, “National Self-determination Reconsidered”, 10 Social Research (1943). Erich Hula, Nationalism and Internationalism: European and American Perspectives (Lantham, MD: University Press of America, 1984). Henry Huttenbach and Francesco Privitera, Self-determination from Versailles to Dayton: Its Historical Legacy (Ravenna: Longo, 1999). David A. Ijalaye, “Was ‘Biafra’ at any Time a State in International Law?”, 65 American Journal of International Law (1971). International Centre for Human Rights and Democratic Development, People or Peoples; Equality, Autonomy, and Selfdetermination: The Issues at Stake of the International Decade of the World’s Indigenous People (Montreal: International Centre for Human Rights and Democratic Development, 1996). International Review Service, Colonialism and the Fight for National Freedom (New York: International Review Service, 1955). Catherine J. Iorns, “Indigenous Peoples and Self-determination: Challenging State Sovereignty”, 24 Case Western Reserve Journal of International Law (1992). M.R. Islam, “Use of Force in Self-determination Claims”, 25 Indian Journal of International Law (1985). M.R. Islam, “Indigenous Self-determination at the Crossroads: Right of a State Versus Right of Its People”, 36 Indian Journal of International Law (1996). Michael Jacobsen and Stephanie Lawson, “Between Globalization and Localization: A Case Study of Human Rights Versus State Sovereignty”, 5 Global Governance (1999). John R. Jacobson, The Territorial Rights of Nations and Peoples: Essays from the Basic Issues Forum (Lewiston, NY: E. Mellen Press, 1989). 195

Escaping the Self-determination Trap Kanishka Jayasuriya, “Globalization, Law, and the Transformation of Sovereignty: The Emergence of Global Regulatory Governance”, 6 Indiana Journal of Global Legal Studies (1999). Nihal Jayawickrama, “The Right of Self-determination. A Time for Reinvention and Renewal”, 57 Saskatchewan Law Review (1993). May Jayyusi, Liberation, Democratization, and Transitions to Statehood in the Third World: Proceedings of the Conference Organised by Muwatin, 7–8 November 1997 (Ramallah: Muwatin, The Palestinian Institute for the Study of Democracy, 1998). R.Y. Jennings, The Acquisition of Territory in International Law (Manchester: Manchester University Press, 1963). Ho-Won Jeong, The New Agenda for Peace Research (Aldershot: Ashgate, 1999). Donald Robert Johannes, The Right of Self-determination, MA Thesis on file in St. Louis University (1968). Harold S. Johnson, Self-determination within the Community of Nations (Leyden: A.W. Sijthoff, 1967). Ronald John Johnston et al., Nationalism, Self-determination and Political Geography (Croom Helm, London, 1988). R.J. Barry Jones, The World Turned Upside Down? Globalization and the Future of the State (Manchester: Manchester University Press, 2000). Olga Jourek, Ethno-political Conflicts in Post-Communist Societies: Prospects for Resolution and Prevention in the Context of International Law (Cambridge, MA: John F. Kennedy School of Government, Harvard University, 1999). Christopher C. Joyner, “The United Nations and Democracy”, 5 Global Governance (1999). 196

Bibliography Miles Kahler, International Institutions and the Political Economy of Integration (Washington, DC: Brookings Institution, 1995). Lawrence Kaida, Self-determination and the United Nations, MA Thesis on file in University of Alberta (1981). Kaiyan Homi Kaikobad, “Self-determination, Territorial Disputes and International Law: An Analysis of UN and State Practices”, 1 Geopolitics and International Boundaries (1996). Chiege Ojiugo Kalu, Should the Principle of Self-determination Apply to Nationalist Movements within a State? LL.M. Thesis on file in Harvard Law School (1985). Onyeonoro Kamanu, “Secession and the Right of Selfdetermination: An OAU Dilemma”, 12 Journal of Modern African Studies (1974). Max M. Kampelman, “Secession and Self-determination: New States and Old Problems”, 357 Current (1993). Max M. Kampelman, “Secession and the Right of Selfdetermination: An Urgent Need to Harmonize Principle with Pragmatism”, 16 Washington Quarterly (1993). Myung Koo Kang, “A Reconsideration of Cultural Imperialism Theories: Globalization and Nationalism”, 26 Korean Social Science Journal (1999). J. Kasto, “The Role of New States in the Progressive Development of International Law”, 16 Thesaurus Acroasium (1990). David A. Kay, “Politics of Decolonialization: The New Nations and the UN Political Process”, 21 International Organization (1967). Michael J. Kelly, “Political Downsizing: The Re-Emergence of Self-determination, and the Movement toward Smaller, Ethnically Homogenous States”, 47 Drake Law Review (1999). 197

Escaping the Self-determination Trap Herbert C. Kelman, “Negotiating National Identity and Selfdetermination in Ethnic Conflicts: The Choice Between Pluralism and Ethnic Cleansing”, 13 Negotiation Journal, (1997). Michael Donald Kirby, “The People’s Right to Self-determination – A New Challenge for the ICJ”, The New Zealand Law Journal (1993). Frederic L. Kirgis, “Self-determination of Peoples and Politics”, 86 American Society of International Law Proceedings (1992). Frederic L. Kirgis, “The Degrees of Self-determination in the United Nations Era”, 88 American Journal of International Law (1994). Helge Kleivan and Jens Brosted, Native Power: The Quest for Autonomy and Nationhood of Indigenous Peoples (Bergen: Universitetsforlaget, 1985). Heinz Klöss, Beiträge zu einen System des Selbstbestimmungsrechts (Vienna: Braumüller, 1970). David B. Knight, “Identity and Territory: Geographical Perspectives on Nationalism and Regionalism”, 72 Annals of the Association of American Geographers (1982). David B. Knight, “Self-determination as a Geopolitical Force”, 82 Journal of Geography, (1983). David B. Knight, “Territory and People or People and Territory? Thoughts on Postcolonial Self-determination”, 7 International Political Science Review (1985). K. Knop, Diversity and Self-determination in International Law (Cambridge: Cambridge University Press, 2002). Marcelo G. Kohen, Secession (Cambridge: Cambridge University Press, 2006).

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Bibliography Hans Kohn, “The United Nations and National Selfdetermination”, 20 Review of Politics (1958). Eric Kolodner, “The Future of the Right to Self-determination”, 10 Connecticut Journal of International Law (1994). Eric Kolodner, “Population Transfer: The Effects of Settler Infusion Policies on a Host Population’s Right to Selfdetermination”, 27 New York University Journal of International Law and Politics (1994). Athanassia Kontou, “Colonialist” Treaties and Self-determination: An Example of Treaty Adaptation to a Changing Legal Environment, LL.M. Thesis on file in Harvard Law School (1987). P.H. Kooijmans, “Tolerance, Sovereignty and Self-determination”, 43 Netherlands International Law Review (1996). Martti Koskenniemi, “National Self-determination Today: Problems of Legal Theory and Practice”, 43 International and Comparative Law Quarterly (1994). Keith Krause and W. Andy Knight, State, Society, and the UN System (New York: United Nations University Press, 1995). Dino Kritsiotis, Self-determination: Cases of Crisis: A Collection of Essays (Hull: Hull University Law School, 1994). Josef Laurenz Kunz, The Principle of Self-determination of Peoples, Particularly in the Practice of the United Nations (Munich: R. Lerche, 1964). Jonathan Atta Kusi, The Right of Self-determination in International Law, LL.M. Thesis on file in McGill University (1970). Will Kymlicka, The Rights of Minority Cultures (Oxford and New York: Oxford University Press, 1995).

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Escaping the Self-determination Trap Will Kymlicka, “Theorizing Indigenous Rights”, 48 University of Toronto Law Journal (1999). Edward A. Laing, “The Norm of Self-determination, 1941–1991”, 22 California Western International Law Journal (1991/1992). Jan-Erik Lane, “Principles of Autonomy”, 4 Scandinavian Political Studies (1981). William Henry Lantz, Self-determination: The Parallax Views of Western, Socialist and Third World Nations, LL.M. Thesis on file in George Washington University (1983). Ruth Lapidoth, Autonomy: Flexible Solutions to Ethnic Conflicts (Washington, DC: United States Institute of Peace Press, 1997). Robert Z. Lawrence, Regionalism, Multilateralism, and Deeper Integration (Washington, DC: Brookings Institution, 1996). Andree Lawrey, “Contemporary Efforts to Guarantee Indigenous Rights Under International Law”, 23 Vanderbilt Journal of Transnational Law (1990). Peter M. Leitner, The Future of the Nation-state, MA Thesis on file at SUNY College at Brockport (1975). Rene Lemarchand, “The Siren Song of Self-determination”, 6 UNESCO Courier (1993). Michael D. Levin, Ethnicity and Aboriginality: Case Studies in Ethnonationalism (Toronto: University of Toronto Press, 1993). Andrew Linklater, The Transformation of Political Community: Ethical Foundations of the Post-Westphalian Era (Cambridge: Polity Press, 1998). Karen Litfin, The Greening of Sovereignty in World Politics (Cambridge, MA: MIT Press, 1998). 200

Bibliography David O. Lloyd, “Succession, Secession, and State Membership in the United Nations”, 26 New York University Journal of International Law and Politics (1994). Karl Loewenstein, Political Reconstruction (New York: Macmillan Company, 1946). Terrence M. Loomis, “Indigenous Populations and Sustainable Development: Building on Indigenous Approaches to Holistic, Self-Determined Development”, 28 World Development (2000). Michael Lowy, Fatherland or Mother Earth? Essays on the National Question (Sterling, VA: Pluto Press with the International Institute for Research and Education, 1998). Luis E. Lugo, Sovereignty at the Crossroads? Morality and International Politics in the Post-Cold War Era (Lantham, MD: Rowman and Littlefield, 1996). C.A. Macartney, National States and National Minorities (New York: Russell and Russell, 1968). S. Macedo and A. Buchanan, Secession and Self-determination (New York: New York University Press, 2003). John Mackinlay and Peter Cross (eds.), Regional Peacekeepers: The Paradox of Russian Peacekeeping (New York: UN University Press, 2003). R. McCorquodale (ed.) Self-determination in International Law (Aldershot: Ashgate, 2000). Samuel M. Makinda, “The United Nations and State Sovereignty: Mechanism for Managing International Security”, 33 Australian Journal of Political Science (1998). 201

Escaping the Self-determination Trap William H.J. Manthorpe, “Challenges to National Security: Sovereignty and Self-determination after the Cold War”, 5 Defense Intelligence Journal (1996). John J. Maresca, “Self-determination under Scrutiny: Some Guidelines for Applying the Principle”, 6 Mediterranean Quarterly (1995). Joseph Marko, Autonomie und Integration (Vienna, Cologne, Graz: Rechtsinstitute des Nationalitätenrechts im funktionalen Vergleich, 1995). Monty G. Marshall and Ted Robert Gurr, Peace and Conflict 2005 (Centre for International Development and Conflict Management, Maryland: University of Maryland, 2005). Ian Martin, Self-determination in East Timor: The United Nations, the Ballot and International Intervention (Boulder, CO: Lynne Rienner Publishers, 2001). Richard Anthony Matthew, Politics Divided: Self-determination, Selfpreservation and the Nation-state, Ph.D. Thesis on file at Princeton University (1990). James Mayall, “Nationalism and the International Order”, 14 Millennium (1985). James Mayall, “Sovereignty, Nationalism, and Self-determination”, 47 Political Studies (1999). Ed McCaughan and Bill Felice, “Human Rights & Peoples’ Rights: Views from North and South”, 16 Social Justice (1989). Robert McCorquodale, “Self-determination: A Human Rights Approach”, 43 International and Comparative Law Quarterly (1994). Robert McCorquodale, Self-determination in International Law (Aldershot: Ashgate, 2000). 202

Bibliography John McGarry, “‘Demographic Engineering’: The State-Directed Movement of Ethnic Groups as a Technique of Conflict Regulation”, 21 Ethnic and Racial Studies (1998). Robert W. McGee, “The Theory of Secession and Emerging Democracies: A Constitutional Solution”, 28 Stanford Journal of International Law (1992). Robert W. McGee, “A Third Liberal Theory of Secession”, 14 The Liverpool Law Review (1992). Michael Thomas McKenna, Heterogeneity, Modernity, and Carrying Capacity: The Structural Components of Political Separatism, MA Thesis on file at University of North Carolina at Chapel Hill (1993). Edward McWhinney, The United Nations and a New World Order for a New Millenium: Self-determination, State Succession and Humanitarian Intervention (Boston: Kluwer Law International, 2000). Edward McWhinney, Self-determination of Peoples and Plural-ethnic States in Contemporary International Law: Failed States, Nation-Building and the Alternative, Federal Option (Leiden: Martinus Nijhoff, 2007). Hudson Meadwell, “Secession, States, and International Society”, 25 Review of International Studies (1999). Thomas A. Mensah, Self-determination under United Nations’ Auspices: The Role of the United Nations in the Application of the Principle of Selfdetermination for Nations and People, JSD Thesis on file at Yale Law School (1974). Marvin W. Mikesell, “The Myth of the Nation State”, 82 Journal of Geography (1983). David Leslie Miller, On Nationality (Oxford and New York: Oxford University Press, 1997). 203

Escaping the Self-determination Trap David Leslie Miller, “Minority Indigenous Populations and their Claims for Self-determination”, 21 Case Western Reserve Journal of International Law (1989). James H. Mittleman, “Collective Decolonisation and the UN Committee of 24”, 14 Journal of Modern African Studies (1976). James H. Mittelman, “Rethinking ‘The New Regionalism’ in the Context of Globalization,” 2 Global Governance (1996). William R. Moomaw, “International Environmental Policy and the Softening of Sovereignty”, 21 Fletcher Forum of World Affairs (1997). Margaret Moore, “On National Self-determination”, 45 Political Studies (1997). Margaret Moore, National Self-determination and Secession (Oxford and New York: Oxford University Press, 1998). E.M. Morgan, “The Imagery and Meaning of Selfdetermination”, 20 New York University Journal of International Law and Politics (1987/1988). Halim Moris, “Self-determination: An Affirmative Right or Mere Rhetoric?”, 4 ILSA Journal of International and Comparative Law (1997). G.T. Morris, “In Support of the Right of Self-determination for Indigenous Peoples under International Law”, 29 German Yearbook of International Law (1986). Edward Mortimer and Robert Fine, People, Nation, and State: The Meaning of Ethnicity and Nationalism (New York: I.B. Taurus, 1999). Michael Mosberg, A Guide to Researching the International Principle of Self-determination (Buffalo, NY: W.S. Hein, 1997). Mark L. Movesian, “Sovereignty, Compliance, and the World Trade Organization: Lessons from the History of Supreme Court Review”, 20 Michigan Journal of International Law (1999). 204

Bibliography Daniel Patrick Moynihan, Pandaemonium: Ethnicity in International Politics (Oxford and New York: Oxford University Press, 1993). Karen Mundy, et al., “World Society and the Nation-State”, 1 American Journal of Sociology (1997). Thomas D. Musgrave, Self-determination and National Minorities (New York: Oxford University Press, 2000). Zubeida Mustafa, “The Principle of Self-determination in International Law,” 5 International Lawyer (1971). David Eric Nachmanoff, A Moral Justification for the Right to National Self-determination, Ph.D. Thesis on file at University of CaliforniaDavis (1997). Joane Nagel, “Ethnic Nationalism: Politics, Ideology, and the World Order”, 34 International Journal of Comparative Sociology (1993). Ved P. Nanda, “Self-determination under International Law: Validity of Claims to Secede”, 13 Case Western Reserve Journal of International Law (1981). Ved P. Nanda, “Nationalism and Ethnic Conflict”, 6 Peace Review (1994). Ved P. Nanda, “Nationalism and Self-determination”, 24 New York University Journal of International Law and Politics (1992). Ved P. Nanda, “Revisiting Self-determination as an International Law Concept: A Major Challenge in the Post-Cold War Era”, 3 ILSA Journal of International and Comparative Law (1997). Abeysinghe M. Navaratna-Bandara, The Management of Ethnic Secessionist Conflict: The Big Neighbour Syndrome (Aldershot: Ashgate, 1995). 205

Escaping the Self-determination Trap M.K. Nawaz, The Meaning and Range of the Principle of Selfdetermination (Durham, NC: Rule of Law Research Center, Duke University School of Law, 1965). Jodi Lee Nelson, The Balancing Act: Territorial Politics and the Maintenance of Power, Ph.D. Thesis on file at Columbia University (1998). Gerald L. Neuman, “Territorial Discrimination, Equal Protection, and Self-determination”, 135 University of Pennsylvania Law Review (1987). David Newman, Boundaries, Territory, and Postmodernity (London: Frank Cass, 1999). Kai Nielsen, “Liberal Nationalism, Liberal Democracies, and Secession”, 48 University of Toronto Law Journal (1998). Djura Nincic, The Problem of Sovereignty in the Charter and in the Practice of the United Nations (The Hague: Martinus Nijhoff, 1970). Kaarle Nordenstrengand and Herbert I. Schiller, Beyond National Sovereignty: International Communications in the 1990s (Norwood, NJ: Ablex, 1993). Wentworth Ofuatey-Kodjoe, Self-determination in International Law: Towards a Definition of the Principle, PhD. Thesis on file at Columbia University (1970). Wentworth Ofuatey-Kodjoe, The Principle of Self-determination in International Law (New York: Nellen Publishing, 1977). Martha Brill Olcott, “The Soviet Dis(Union)”, 82 Foreign Policy (1991). Manon Olsthoorn et al., Self-determination in Relation to Individual Human Rights, Democracy and the Protection of the Environment (The Hague: Unrepresented Nations and Peoples Organisation, 1993). 206

Bibliography Walter C. Opello and Stephen J. Rosow, The Nation-state and Global Order: A Historical Introduction to Contemporary Politics (Boulder, CO: Lynne Rienner Publishers, 1999). Diane F. Orentlicher. “Separation Anxiety: International Responses to Ethno-Separatist Claims”, 23 The Yale Journal of International Law (1998). Organisation of People for Indigenous Rights, Self-determination: A People’s Right (Tamuning, Guam: Organisation of People for Indigenous Rights, 1983). Andrew W. Orridge and Colin H. Williams, “Autonomous Nationalism: A Theoretical Framework for Spatial Variations in its Genesis and Development”, 1 Political Geography Quarterly (1982). Albert J. Paolini et al., Between Sovereignty and Global Governance: The United Nations, the State and Civil Society (Basingstoke: Macmillan Press, 1998). George Etzel Pearcy, World Sovereignty (Fullerton, CA: Plycon Press, 1977). David Pearson, “Self-determination and Indigenous Peoples”, 35 Pacific Viewpoint (1994). Allain Pellet, “The Opinions of the Badinter Arbitration Committee: A Second Breath for the Self-determination of Peoples”, 3 European Journal of International Law 1 (1992). Gaetano Pentassuglia, “State Sovereignty, Minorities and Selfdetermination: A Comprehensive Legal View”, 9 International Journal on Minority and Group Rights (2002). F. Peters, “The Right of Nations to Auto-determination,” 2 World Justice (1961). 207

Escaping the Self-determination Trap Anne Paule Picker, Freedom and Survival through Self-determination: A Study of the Principle and a Focus on Indigenous Nations, MA Thesis on file at California Institute of Integral Studies (1993). Necati Polat, “Regressive versus Progressive Self-determination”, 10 Peace Review (1998). Michla Pomerance, Self-determination in Law and Practice: The New Doctrine in the United Nations (The Hague and Boston: Martinus Nijhoff, 1982). Michla Pomerance, “The Badinter Commission: The Use and Misuse of the International Court of Justice’s Jurisprudence”, 20 Michigan Journal of International Law (1998). Robert Post, “Between Philosophy and Law: Sovereignty and the Design of Democratic Institutions”, 42 Nomos (2000). Frank Przetacznik, “The Basic Collective Human Right to Selfdetermination of Peoples and Nations as a Prerequisite for Peace”, 8 New York Law School Journal of Human Rights (1990). Helen Quane, “The United Nations and the Evolving Right to Self-determination”, 47 International and Comparative Law Quarterly (1998). Helen Quane, “A Right to Self-determination for the Kosovo Albanians?”, 13 Leiden Journal of International Law (2000). Christopher O. Quaye, Liberation Struggles in International Law (Philadelphia: Temple University Press, 1991). Alison Quentin-Baxter, “Sustained Autonomy – An Alternative Political Status for Small Islands?”, 24 Victoria University of Wellington Law Review (1994). 208

Bibliography David Quinn, “Self-determination Movements and their Outcomes”, in Joseph J. Hewitt, Jonathan Wilkenfeld and Ted Robert Gurr, Peace and Conflict 2008 (Boulder: Paradigm Publishers, 2007). Uri Ra’anan, Ethnic Resurgence in Modern Democratic States (New York: Pergamon Press, 1980). Uri Ra’anan, State and Nation in Multi-ethnic Societies: The Breakup of Multinational States (Manchester: Manchester University Press, 1991). Kurt Rabl, Ausgewählte Gegenwartsfragen zum Problem der Verwirklichung des Selbsbestimmungsrechts der Völker (Munich: Verlag Robert Lerche, 1965). Kurt Rabl, Das Selbstbestimmungsrecht der Völker: Geschichtliche Grundlagen: Umriss der Gegenwärtigen Bedeutung (Cologne: Böhlau Verlag, 1973). Zoran Radivojevic, “United Nations Reform and the Position of the Trusteeship Council”, 49 Review of International Affairs (1998). Katherine Irene Rahman, Ethnic Conflict in a World of States, Ph.D. Thesis on file at University of Virginia (1990). D. Raic, Statehood and the Law of Self-determination (The Hague: Kluwer Law International, 2002). Kannan Rajarathinam, The Right to National Self-determination, LL.M. Thesis on file at University of Georgia, 1988). Randolph R. Rampola, “Symposium: The Rights of Ethnic Minorities”, 66 Notre Dame Law Review (1991). Stephen J. Randall and Roger Gibbins, Federalism and the New World Order (Calgary: University of Calgary Press, 1994). 209

Escaping the Self-determination Trap Paul Reeves, Indigenous Peoples and Human Rights (Philadlphia: The Australia-New Zealand Studies Center, Pennsylvania State University, 1993). Michael Reisman, “Coercion and Self-determination: Construing Article 2(4)”, 78 American Journal of International Law (1984). Andrew Reynolds (ed.), The Architecture of Democracy (Oxford: Oxford University Press (2001). Henry J. Richardson, “The Rights of Indigenous Populations: The Emerging International Norm”, 16 Yale Journal of International Law (1991). Henry J. Richardson, “Failed States, Self-determination, and Preventive Diplomacy: Colonialist Nostalgia and Democratic Expectations”, 10 Temple International and Comparative Law Journal (1996). Sureda A. Rigo, The Evolution of the Right of Self-determination: A Study of United Nations Practice (Leiden: Sijthoff, 1973). Benjamin Rivlin, Self-determination and Dependent Areas (New York: Carnegie Endowment for International Peace, 1955). Manuel Rodriguez-Orellana, “Human Rights Talk ... and Selfdetermination, Too!”, 73 The Notre Dame Law Review (1998). Ediberto Roman, “Reconstructing Self-determination: The Role of Critical Theory in the Positivist International Law Paradigm”, 53 University of Miami Law Review (1999). Dennis A. Rondinelli, “Decentralization, Territorial Power and the State: A Critical Response,” 21 Development and Change (1990). 210

Bibliography Dov Ronen, The Quest for Self-determination (New Haven: Yale University Press, 1979). James N. Rosenau, et al., Understanding Globalization: The Nation-state, Democracy, and Economic Policies in the New Epoch (Stockholm: Swedish Ministry of Foreign Affairs, 1998). Donald Rothchild, “The Two Senses of Ethnonational Selfdetermination”, 26 Africa Report (1981). Visuvanathan Rudrakumaran, The Legitimacy of Armed Struggle by Secessionist Movements in the Exercise of their Right to Self-determination (1992). Kumar Rupesinghe, Conflict Transformation (New York: St. Martin’s Press, 1995). Avery Russell, “Cooperative Engagement: The New Imperative of International Security”, Carnegie Quarterly (1994). Kevin Ryan, “Rights, Intervention, and Self-determination”, 20 Denver Journal of International Law and Policy (1991) Rudolph C. Ryser, “Between Indigenous Nations and the State: Self-determination in the Balance”, 7 Tulsa Journal of Comparative and International Law (1999). David J. Saari, Global Corporations and Sovereign Nations: Collision or Cooperation? (Westport, CT: Quorom Books, 1999). Milan Sahovic (ed.), Principles of International Law Concerning Friendly Relations and Cooperation (Dobbs Ferry: Oceana Publications, 1972). Yoshikazu Sakamoto, Global Transformation: Challenges to the State System (New York: United Nations University Press, 1994). Juan Carlos Salamanca, Indigenous Peoples: The Right to Selfdetermination as a Right to Democratic Governance, LL.M. Thesis on file at University of Essex (1995). 211

Escaping the Self-determination Trap J. Salo, “Self-determination: An Overview of History and Present State with Emphasis on the CSCE Process”, 2 Finnish Yearbook of International Law (1991). T.V. Sathyamurthy, Nationalism in the Contemporary World: Political and Sociological Perspectives (London: Frances Pinter, 1983). Robert K. Schaeffer, Severed States: Dilemmas of Democracy in a Divided World (Latham, MD: Rowman and Littlefied, 1999). Scott Andrew Schaelen, New Directions for Intervention: The Growing Acceptance of the Use of Force to Promote Internal Self-determination, MA Thesis on file at San Diego State University (1998). Bernard Schechterman and Martin Slann, The Ethnic Dimension in International Relations (New York: Praeger Publishers, 1993). Harris O. Schoenberg, The Concept of ‘People’ in the Principle of Selfdetermination (New York: Columbia University, 1972). Michael Schoiswohl, Status and (Human Rights) Obligations of Nonrecognized De Facto Regimes in International Law: The Case of ‘Somaliland’ (Leiden, Boston: Martinus Nijhoff, 2004). Gertrude E. Schroeder, “On the Economic Viability of New Nation-States,” 45 Journal of International Affairs (1992). Harry D. Schultz, On Re-making the World: Cut Nations Down to Size (Silver Springs, MD: International Commission for the Decentralisation of the World’s Nations, 1991). Bryan Schwartz and Susan Waywood, “A Model Declaration on the Right of Secession”, 11 New York International Law Review (1998). Peter P. Schweitzer et al., Hunters and Gatherers in the Modern World: Conflict, Resistance, and Self-determination (New York: Berghahn Books, 2000). 212

Bibliography Mansoor Sedarat, Self-determination as a Problem within the United Nations, MA Thesis on file at University of Nebraska at Lincoln (1957). Bereket H. Selassie, “The Evolution of the Principle of Selfdetermination”, 1 Horn of Africa (1978). Bereket H. Selassie, “Self-determination”, 13 Case Western Reserve Journal of International Law (1981). Bereket H. Selassie, “Self-determination of Peoples and Polities”, 86 American Society of International Law Proceedings (1992). Mortimer N.S. Sellers, The New World Order: Sovereignty, Human Rights, and the Self-determination of Peoples (Oxford: Berg, 1996). Mortimer N.S. Sellers, “Separatism and the Democratic Entitlement”, 92 American Society of International Law Proceedings (1998). Hugh Seton-Watson, Nations and States (London: Methuen, 1977). Surya P. Sharma, “Self-determination and Current Territorial Disputes-Law and Policy”, 17 Journal of Malaysian and Comparative Law (1990). Malcolm N. Shaw, “The International Status of National Liberation Movements”, 5 Liverpool Law Review (1983). Malcolm N. Shaw “Peoples, Territorialism and Boundaries”, 8 European Journal of International Law (1997). Kamal S. Shehadi, Ethnic Self-determination and the Break-up of States (London: International Institute for Strategic Studies, 1993). Kamal S. Shehadi, Great Powers, International Institutions, and the Creation of National States: A Comparative Study of the Management of Selfdetermination Conflicts by the Concert of Europe, the League of Nations, and the United Nations, Ph.D. Thesis on file at Columbia University (1995). 213

Escaping the Self-determination Trap Aleksandras Shtromas, “Nations, States and World Peace”, International Journal on World Peace 13 (1996). Muhammad Aziz Shukri, The Concept of Self-determination in the United Nations (Damascus: Al Jadidah Press, 1965). Marc A. Sills, Indigenous Peoples’ Politics: An Introduction (Denver, CO: Fourth World Center for the Study of Indigenous Law and Politics, University of Colorado at Denver, 1993). Gerry J. Simpson, The Right of Succession in International Law: A New Theory of Legitimacy, LL.M. Thesis on file at University of British Columbia (1989). Gerry J. Simpson, “The Diffusion of Sovereignty: Selfdetermination in the Post-colonial Age”, 32 Stanford Journal of International Law (1996). Tony Simpson, Indigenous Heritage and Self-determination: The Cultural and Intellectual Property Rights of Indigenous Peoples (Copenhagen: IMGIA, 1997). J. David Singer, “Law, Peace, and Global Governance”, 12 International Journal on World Peace (1995). S.P. Sinha, “Has Self-determination become a Principle of International Law Today?”, 14 Indian Journal of International Law (1974). Brian Slattery, “The Paradoxes of National Self-determination”, 32 Osgoode Hall Law Journal (1994). Anthony D. Smith, “Towards a Theory of Ethnic Separatism”, 2 Ethnic and Racial Studies (1979). Anthony D. Smith, “States and Homelands: The Social and Geopolitical Implications of National Territory”, 10 Millennium 1981. 214

Bibliography Anthony D. Smith, “Ethnic Identity and World Order”, 12 Millennium (1983). Gordon Smith and Moises Naim, Globalization, Sovereignty, and Governance (Ottowa: International Development Research Centre, 2000). Jackie Smith et al., Transnational Social Movements and Global Politics: Solidarity beyond the State (Syracuse: Syracuse University Press, 1997). Stuart Smith, “The Impact of Globalization on Sovereignty and the Environment”, 24 Canada-United States Law Journal (1998). Antonín Snejdárek, Self-determination: Good Slogan in Bad Hands (Prague: Orbis, 1961). Louis L. Snyder, Global Mini-nationalism: Autonomy or Independence (Westport, CT: Greenwood Press, 1982). M. Sornarajah, “Internal Colonialism and Humanitarian Intervention: Evolution of a System of Minority Protection in International Law through the Extension of the Principle of Selfdetermination to include a Right of Secession of a Minority Possessing a Definite Territorial Base”, 11 Georgia Journal of International and Comparative Law (1981). Kenneth Milton Stampp, The United States and National Selfdetermination: Two Traditions (Gettysburg, PA: Gettysburg College, 1991). Galina Vasilevna Starovoitova, National Self-determination: Approaches and Case Studies (Providence, RI: Thomas J. Watson Jr. Institute for International Studies, 1997). Henry J. Steiner, “Ideals and Counter-Ideals in the Struggle over Autonomy Regimes for Minorities”, 66 Notre Dame Law Review (1991). 215

Escaping the Self-determination Trap Ralph Gustav Steinhardt, International Law and Self-determination (Washington, DC: Atlantic Council of the United States, 1994). Peter G. Stercho, Soviet Concept of National Self-determination: Theory and Reality from Lenin to Brezhnev (New York: The Ukranian Congress Committee of America, 1979). Radoslav Stojanovic, “The Principle of Self-determination and Human Rights”, 47 Review of International Affairs (1996). Markku Suksi (ed.), Autonomy: Applications and Implications (The Hague: Kluwer Law International, 1998). Markku Suksi, “Keeping the Lid on the Secession Kettle: A Review of Legal Interpretations Concerning Claims of Self-determination by Minority Populations”, International Journal on Minority and Group Rights (2005). James Summers, “The Status of Self-determination in International Law: A Question of Legal Significance or Political Importance?”, 14 The Finnish Yearbook of International Law (2003). James Summers, Peoples and International Law: How Nationalism and Self-determination Shape a Contemporary Law of Nations (Leiden: Martinus Nijhoff, 2007). Cass R. Sunstein, “Constitutionalism and Secession”, 58 University of Chicago Law Review (1991). A. Rigo Sureda, The Evolution of the Right of Self-determination: A Study of United Nations Practice (Leiden: A.W. Sijthoff, 1973). T. Suzuki, “Self-determination and World Public Order”, 16 Virginia Journal of International Law (1976). T. Suzuki, “Symposium on Indigenous Peoples’ Claims to Selfdetermination”, 8 Arizona Journal of International and Comparative Law (1991). 216

Bibliography T. Suzuki, “Symposium: The Nations Within: Ethnic Group Demands in a Changing World”, 25 Cornell International Law Journal (1992). Saumyendranath Tagore, On the Self-determination of Nations (Calcutta: M.N. Huda, 1940). Strobe Talbott, “Self-determination in an Interdependent World”, 118 Foreign Policy (2000). Yael Tamir, “The Right to National Self-determination”, 58 Social Research (1991). Trevor Taylor and Seizaburo Sato, Future Sources of Global Conflict (Washington, DC: Institute for International Policy Studies, 1995). Christos Theodoropoulos, Colonialism and General International Law: The Contemporary Theory of National Sovereignty and Self-determination (Lagos: New Horizon Publishing House, 1988). Ruth Thompson, The Rights of Indigenous Peoples in International Law: Selected Essays on Self-determination (Saskatoon: Native Law Centre, University of Saskatchewan, 1987). Patrick Thornberry, “Self-determination, Minorities, Human Rights: A Review of International Instruments”, 38 International and Comparative Law Quarterly (1989). Charles Tilly, “National Self-determination as a Problem for all of Us”, 122 Daedalus (1993). Christian Tomuschat, “Protection of Minorities under Article 27 of the International Covenant on Civil and Political Rights”, in Rudolf Bernhardt et al., Völkerrecht als Rechtsordnung, internationale Gerichtsbarkeit, Menschen: Festschrift für Hermann Mosler (Berlin: Springer Verlag, 1983). 217

Escaping the Self-determination Trap Christian Tomuschat, Modern Law of Self-determination (The Hague: M. Nijhoff Publishers, 1993). Mililani B. Trask, Symposium for Sovereignty (Pono Kaulike, HI, 1995). Snezana Trifunovska, Yugoslavia through Documents: From its Creation to its Dissolution (Dordrecht: Martinus Nijhoff, 1994). Mary E. Turpel, “Indigenous Peoples’ Rights of Political Participation and Self-determination: Recent International Legal Developments and the Continuing Struggle for Recognition”, 25 Cornell International Law Journal (1992). William L. Twining, Issues of Self-determination (Aberdeen: Aberdeen University Press, 1991). U.O. Umozurike, Self-determination in International Law (Hamden, CT: Archon Books, 1972). United Nations General Assembly, Declaration on the Granting of Independence to Colonial Countries and Peoples (New York: United Nations Office of Public Information, 1961). Unrepresented Nations and Peoples Organisation, Preventing the Use of Force by States Against Peoples under their Rule: Conference Report on UNPO Special Session held during the General Assembly in The Hague, The Netherlands, August 6, 1991 (The Hague: Unrepresented Nations and Peoples Organisation, 1992). Betty Miller Unterberger, “The United States and National Selfdetermination: A Wilsonian Perspective”, 26 Presidential Studies Quarterly (1996). Alexander Usvatov, “Colonialism Demolished but the Struggle is not Over”, 51 New Times, (1985).

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Bibliography Suzanne E. Valters, The Threat or Use of Force in International Relations and the Right of Self-determination (New York: Columbia University, 1979). Viktor J. Vanberg, “Globalization, Democracy, and Citizen’s Sovereignty: Can Competition Among Governments Enhance Democracy?”, 11 Constitutional Political Economy (2000). James William Vance, Self-determination through Warfare: A Review and Analysis of the Russian-Chechen War as a Method of Establishing Indigenous Autonomy. MS Thesis on file at University of Colorado at Denver (1998). Martin Van Creveld, The Rise and Decline of the State (Cambridge: Cambridge University Press, 1999). Leo van der Vlist, Voices of the Earth: Indigenous Peoples, New Partners and the Right to Self-determination in Practice: Proceedings of the Conference (Amsterdam: International Books, 1994). Vernon van Dyke, “The Individual, the State, and Ethnic Communities in Political Theory”, 29 World Politics (1977). Diana Vincent-Daviss, “The Occupied Territories and International Law: A Research Guide”, 21 New York University Journal of International Law and Politics (1989). Volkstaat Council, Broadening Democracy for Stability: First Interim Report of the Volkstaat Council (Pretoria, The Council, 1995). Hent de Vries and Samuel Weber, Violence, Identity, and Selfdetermination (Stanford, CA: Stanford University Press, 1997). Roland Vuillaume, National Independence and Peace: Extracts from Speeches (Vienna: Secretariat of the World Council of Peace, 1959).

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Escaping the Self-determination Trap Alozie Ndubisi Wachuku, Self-determination and World Order, Ph.D. Thesis on file at Purdue University (1977). R.B.J. Walker, State Sovereignty, Global Civilization, and the Rearticulation of Political Space (Princeton, NJ: Center of International Studies, Woodrow Wilson School of Public and International Affairs, Princeton University, 1988). Rodney S. Watkins, “Multinational Self-determination”, 10 Peace Review (1998). Adam Watson, The Limits of Independence: Relations Between States in the Modern World (New York: Routledge, 1997). Michael Watson, Contemporary Minority Nationalism (Routledge, London, 1990). Matthew Webb, “National Self-determination and Secession”, 34 Australian Journal of Political Science (1999). Myron Weiner, “Peoples and States in a New Ethnic Order?”, 13 Third World Quarterly (1992). Linda Weiss, “Globalization and National Governance: Antinomies or Interdependence?”, 25 Review of International Studies (1999). Marc Weller, “The International Response to the Dissolution of the Socialist Federal Republic of Yugoslavia” 86 American Journal of International Law (1992). Marc Weller, The Crisis in Kosovo 1989–1999 (Cambridge: International Documents and Analysis, Vol. 1, 1999). Marc Weller, “The Rambouillet Conference”, 75 International Affairs (1999). 220

Bibliography Marc Weller, “Self-governance in Interim Settlements: The Case of Sudan”, in Marc Weller and Stefan Wolff (eds.), Autonomy, Selfgovernance and Conflict Regulation (London: Routledge, 2005). Marc Weller (ed.), The Rights of Minorities (Oxford: Oxford University Press, 2005). Marc Weller, “The Self-determination Trap”, 4 Ethnopolitics (2005). Marc Weller (ed.), Universal Minority Rights (Oxford: Oxford University Press, 2007). Marc Weller, “The Vienna Negotiations on the Final Status for Kosovo”, 84 International Affairs 4 (2008). Marc Weller, “Why the Legal Rules on Self-determination Do Not Resolve Self-determination Disputes”, in Marc Weller and Barbara Metzger (eds.), Settling Self-determination Conflicts: Complex Power-sharing in Theory and in Practice (Dordrecht: Martinus Nijhoff, 2008). Marc Weller (ed.), Asymmetric Autonomy as a Tool of Ethno-political Conflict Settlement, Philadelphia: University of Pennsylvania Press (forthcoming). Marc Weller, “Settling Self-determination Conflicts: Recent Developments”, 20 European Journal of International Law 1 (forthcoming). Marc Weller, The Defence of Democracy in International Law (Oxford: Oxford University Press, forthcoming). Marc Weller and Barbara Metzger, Settling Self-determination Disputes: Complex Power-sharing in Theory and in Practice (Dordrecht: Martinus Nijhoff, 2008). 221

Escaping the Self-determination Trap Marc Weller and Jonathan Wheatley, The War in Georgia: Power Politics and the Failure of Conflict Prevention (London: Hurst, forthcoming). Marc Weller and Stefan Wolff (eds.) Autonomy, Self-governance and Conflict Resolution: Innovative Approaches to Institutional Design in Divided Societies (Routledge: London, 2005). Marc Weller and Stefan Wolff (eds.), Institutions for the Management of Ethno-political Conflict in Central and Eastern Europe (Strasbourg: Council of Europe Press, 2008). Christopher H. Wellman, “A Defense of Secession and Political Self-determination”, 24 Philosophy and Public Affairs (1995). Barbara J. Wells, United Nations Decisions on Self-determination, Ph.D. Thesis on file at New York University (1963). Guntram F. A. Werther, Self-determination in Western Democracies: Aboriginal Politics in a Comparative Perspective (Westport, CT: Greenwood Press, 1992). Robin C. A. White, “Self-determination: Time for Reassessment?”, 28 Netherlands International Law Review (1984). Clinton H. Whitehurst, The Forgotten Concepts of Sovereignty, Independence, and Nationhood as Criteria for UN Membership (Clemson, SC: Strom Thurmond Institute of Government and Public Affairs, 1998). Siegfried Wiessner, “Rights and Status of Indigenous Peoples: A Global Comparative and International Legal Analysis”, 12 Harvard Human Rights Journal (1999). Luzius Wildhaber, “Territorial Modifications and Breakups in Federal States”, 33 The Canadian Yearbook of International Law (1995). 222

Bibliography James D. Wilets, “The Demise of the Nation-state: Towards a New Theory of the State under International Law”, 17 Berkeley Journal of International Law (1999). Andrew J. Williams, Failed Imagination? New World Orders of the Twentieth Century (Manchester: Manchester University Press, 1998). Colin H. Williams, National Separatism (Vancouver: University of British Columbia Press, 1982). Patricia Kristen Williams, Nationalist Conflicts: Threats to International Peace?, Ph.D. Thesis on file at Columbia University (1979). Heather A. Wilson, “Humanitarian Protection in Wars of National Liberation”, 8 Arms Control (1987). Heather A. Wilson, International Law and the Use of Force by National Liberation Movements (New York: Clarendon Press, 1988). Jerome Wilson, “Ethnic Groups and the Right to Selfdetermination”, 11 Connecticut Journal of International Law (1996). Woodrow Wilson, Self-determination and the Rights of Small Nations (Dublin: Candle Press, 1918). Erno Wittman, Past and Future of the Right of National Self-determination (Amsterdam: Van Holkema and Warendorf, 1919). Miles D. Wolpin. “Third World Non-alignment: Does it Make a Difference?,” 20 Bulletin of Peace Proposals (1989). John R. Wood “Secession: A Comparative Analytic Framework”, 14 Canadian Journal of Political Science (1981). Jing-dong Yuan, “Multilateral Intervention and State Sovereignty: Chinese Views on UN Peacekeeping Operations”, 49 Political Science (1999). 223

Escaping the Self-determination Trap I. William Zartman, Elusive Peace: Negotiating an End to Civil Wars (Washington, DC: Brookings Institution, 1995). Y.H. Zoubir and D. Volman (eds.) International Dimensions of the Western Sahara Conflict (Westport, CT: Praeger Publishers, 1993).

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