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I will start with a short introduction on the topic.

After
this I will set out the development of self-determination
in the colonial context. Despite the fact that selfdetermination is often associated with decolonization, I
will explain that the right of self-determination is also
applicable outside the colonial context. In post-colonial
situations, the emphasis has mostly been on the
internal aspect of self-determination. Although this is a
very controversial issue, in my thesis I have argued that
there is also a a right of external self-determination
outside the colonial context. The central question of my
thesis is whether international law allows for a right of
external self-determination in the form of unilateral
secession as an emergency exit when the internal right
of self-determination is breached. The phrase selfdetermination has strong appeal. No other concept is
as powerful, visceral, emotional, unruly, as steep in
creating aspirations and hopes as self-determination.
The list of nations and peoples claiming selfdetermination is endless and unfortunately the list of
conflicts in the world that are related to selfdetermination claims is equally long. Self-determination
has been referred to as a fundamental principle of
international law and with its inclusion in the
International Human Rights Covenants it became a
human right. It was first included in the Charter of the
United Nations as one of the guiding Purposes and
Principles of the Organisation, and subsequently it has
been proclaimed in numerous international instruments.
In a nutshell the right to self-determination gives
peoples a free choice which allows them to determine
their own destiny. This right can be exercised in a
variety of ways, and traditionally a distinction has been
made between external and internal self-determination.
The external aspect of self-determination developed in

the colonial context and resulted in self-determination


becoming almost synonymous with decolonisation and
independence. The internal aspect of self-determination
was first advocated by US President Wilson during WWI
and refers to the right of a people to participate in the
decision-making processes of the State.
As stated before, self-determination started out as a
political principle, but with its inclusion in the UN
Charter and the International Human Rights Covenants,
it became a legal principle and a human right.
After WWII, the General Assembly started taking a very
active stance in the fight against colonialism and
adopted
numerous
resolutions
linking
selfdetermination to decolonisation. With the adoption of
these resolutions, the General Assembly contributed in
an important way to the development of customary
rules on self-determination.
GA 1514: Declaration on the Granting of Independence
to Colonial Countries and Peoples
GA 1541: Principles which should guide Members in
Determining whether or not an obligation exists to
transmit the information called for under Article 73e of
the Charter (non-self-governing territories)
According to the latter resolution self-determination
could be achieved through:
- Emergence as a sovereign independent state;
- Free association with an independent state; or
- Integration with an independent state.
GA 2625: Declaration on Principles of International Law
Concerning Friendly Relations and Co-operation among

states in Accordance with the Charter of the United


Nations.
(adopted unanimously, thus reflecting the view of
developing, socialist and Western States instant
customary law)
The pronouncements of the ICJ on self-determination (in
the colonial context) have made an important
contribution to the development of the right of selfdetermination. In a number of cases, the ICJ confirmed
the legal status of these resolutions and helped
clarifying the content of the norm.
Advisory Opinion on Western Sahara. According to the
ICJ, the principle of self-determination can be defined as
the need to pay regard to the freely expressed will of
peoples.
Case concerning East Timor. The Court asserted that
the right of peoples to self-determination is one of the
essential principles of contemporary international law
and that it has an erga omnes character.
Despite the fact that self-determination is a principle of
international law and a human right and that it
developed into a customary right to decolonisation and
independence, the principal problem remains that there
is no generally accepted of the rights holders: Who are
the people? The inhabitants of a defined territorial
unit? Colonial peoples? All peoples! See e.g. the South
African people, the Palestinian people (GA). This lack
of a definition resulted in inconsistent practice, double
standards etc. and continues to hamper the effective
exercise of this right.
Despite the fact that some have argued that selfdetermination is only applicable in a colonial context,

this is not the case. There have been cases of selfdetermination outside the colonial context. The end of
the
Cold War and subsequent developments in Europe in
the early nineties set the stage for a renewed emphasis
on the internal aspect of self-determination.
The reunification of Germany was a case of selfdetermination with a positive response from the
international community.
The breakup of the Soviet Union was also an example of
peoples exercising their right of self-determination
outside the colonial context.
The peoples of the Socialist Federal Republic of
Yugoslavia also claimed their right of self-determination
which resulted in the dissolution of this federal State.
The EC set up Guidelines on recognition (general
criteria for recognizing the new States:
- The free expression of the will of the population
concerned, by way of plebiscites or referendums;
- The firm commitment to respect the rule of law,
human rights, and the rights of minorities.
Kosovo is the latest example of self-determination
outside the colonial context. Kosovo will be dealt later.
As stated before, outside the colonial context the
emphasis has been on internal self-determination: the
right of all peoples to participate in the expression of
the political will within the State (representative
government). If we examine the International Human
Rights Covenants and the African Charter on Human
and Peoples Rights, there is no reason to assume that
the right of self-determination was meant to apply in

colonial situations only. An overview of the (non- or


postcolonial)
international
instruments
on
selfdetermination
makes
it
clear
that
beyond
decolonisation, self-determination became more and
more associated with representative government,
democracy and human rights. See e.g. the safeguard
clause, that can be found in a number of international
instruments:
[n]othing in the foregoing paragraphs shall be
construed as authorizing or encouraging any action
which would dismember or impair, totally or in part, the
territorial integrity or political unity of sovereign and
independent
States
conducting
themselves
in
compliance with the principle of equal rights and selfdetermination of peoples as described above and thus
possessed of a government representing the whole
people belonging to the territory without distinction as
to race, creed or colour.
The ICJ discussed the right of self-determination in the
Nicaragua case and in the Advisory Opinion on the
Legal Consequences of the Construction of a Wall in the
Occupied Palestinian Territory.
The Human Rights Committee has discussed the right of
self-determination in General Comment 12 (With regard
to paragraph 1 of article 1, States parties should
describe the constitutional and political processes which
in practice allow the exercise of this right.) and in
General Comment 25 on Article 25 of the ICCPR (the
right to take part in public affairs, to vote and to be
elected). In the State Reports submitted under article
40 of the ICCPR, governments have started to give
attention to the ways in which their own population is
exercising its right of internal self-determination and the

majority of those reports have linked internal selfdetermination with human rights and democracy.
The CERD has also issued a General Recommendation
on self-determination, in which it pointed out that the
internal aspect of self-determination is linked with the
right to political participation and that discrimination of
certain groups within a State would thus violate this
right. According to the Committee, self-determination
continues to be applicable beyond decolonisation.
The African Commission on Human and Peoples Rights
also started to give more attention to internal selfdetermination (see e.g the Guidelines for National
Periodic Reports).
However, the question remains: Who are the people?
Who are the holders of this right outside the colonial
context? The entire population of a territorial unit? The
highest constituent units of federal States in the
process of dissolution, at least if these units have been
formed on an ethnic basis (Soviet Union, Socialist
Federal Republic of Yugoslavia). See also the example of
Indigenous Peoples and the numerous territorial
autonomy arrangements for ethnic sub-groups in
Denmark (Greenland), Norway (Sami), United Kingdom
(Scotland and Wales), France (Corsica), Indonesia (Aceh
and West-Papua), India (Nagaland), Russia (Tartastan).
These examples support an ethnic definition of a
people.
While outside the colonial context the emphasis has
been on internal self-determination, in my thesis I have
argued that there is also a right of external selfdetermination outside the colonial context. Even though
I agree that for reasons of stability (international peace

and security), the right of self-determination needs to


be balanced with the territorial integrity of sovereign
States under international law. This implies that outside
the colonial context, the emphasis should indeed be on
internal self-determination. However, what if a State
persistently denies a people the fundamental right of
internal self-determination? What if a people does not
have a free choice but is repressed and suffers from
gross violations of basic human rights, and all possible
remedies for a peaceful solution to the conflict have
been exhausted? Should that people not be allowed a
self-help remedy in the form of external selfdetermination?
This thesis argues that there is indeed a right of
external self-determination in the form of unilateral
secession. This is not an absolute right, but can only be
invoked under strict conditions and should thus be used
as a last resort only. Hence the use of the term
remedial secession.
While conventional law remains silent on the issue of
secession, I have examined whether a right of remedial
secession can be based on customary international law.
The safeguard clause:[n]othing in the foregoing
paragraphs shall be construed as authorizing or
encouraging any action which would dismember or
impair, totally or in part, the territorial integrity or
political unity of sovereign and independent States
conducting themselves in compliance with the principle
of equal rights and self-determination of peoples as
described above and thus possessed of a government
representing the whole people belonging to the territory
without distinction as to race, creed or colour.

Numerous authors have pointed out that if this


paragraph is read a contrario, it implies that the
territorial integrity or political unity of a sovereign and
independent State will no longer be protected if it does
not conduct itself in compliance with the principle of
equal rights and self-determination of peoples and if the
government is unrepresentative. In other words, if a
State persistently denies a people its right of internal
self-determination that State forfeits its right to
territorial integrity, and consequently the people may
have the remedy of external self-determination, i.e.
unilateral secession.is logically admitted.
There have been several cases in which a right of
remedial secession was recognised.
To examine State practice, we can identify a number of
failed secessionist attempts outside the colonial
context. The international community did not recognize
these unilateral declarations of independence. The
attempts of Chechnya and Abkhazia failed mainly
because were doubts as to whether the selfdetermination claim was actually supported by a
majority of the Chechen/Abkhaz people. Furthermore, it
was not a last resort: the Chechens and Abkhazians had
been unwilling to negotiate any alternatives short of
secession.
Thirdly,
until
the
declaration
of
independence, there had not been any serious
violations of human rights.
We can also identify a number of successful secessions
outside the colonial context. Bangladesh seceded from
Pakistan in 1971. This case is a very good example of
remedial
secession:
denial
of
internal
selfdetermination, gross violation of human rights

(genocide?) and all local remedies were exhausted. The


international community recognised Bangladesh.
Croatia seceded from the Socialist Federal Republic of
Yugoslavia in 1991 and this is also an example of
remedial
secession:
denial
of
internal
selfdetermination, gross violations of human rights
(indiscriminate use of force, ethnic cleansing), all local
remedies to solve the conflict were exhausted. The
international community recognised Croatia.
Kosovo unilaterally declared independence from Serbia
in 2008. This case will be discussed separately.
Even though there is no extensive and virtually
uniform State practice to support a right of remedial
secession, the concept of modern custom indicates that
a substantial manifestation of opinio iuris that a
customary rule exists may compensate for a relative
lack of practice. Relevant State and institutional
practice shows that there is substantial opinio iuris on
the lawfulness of remedial secession in the international
community. In addition to the instruments and judicial
decisions that were discussed, the reactions of States
as regards the secessions of Croatia and Bangladesh
are indicative of this opinio iuris. Negative State
practice can also be taken into account, i.e. the practice
of States as regards unilateral secessions that have
been unsuccessful, as it serves to clarify the scope of
the rule. If both negative and positive State practice is
taken together, it becomes clear that while there is no
absolute
right
of
unilateral
secession
under
international law, there are certain conditions under
which unilateral secession is permitted. On the basis of
the substantial opinio iuris regarding the legality of
remedial secession and limited but relevant State

practice to support such a right, there can be no other


conclusion than that the right of remedial secession is
de lege lata.
This right of unilateral secession is not an absolute right
but meant to be an emergency exit for peoples that
have been subject to gross violations of fundamental
human rights, including the right of (internal) selfdetermination, and only when negotiations between the
parties aimed at finding a peaceful solution to the
conflict have been exhausted.
On February 17, 2008 the Assembly of Kosovo issued a
Declaration of Independence from Serbia. The reaction
of the international community has been mixed. At this
moment, 62 States have recognised Kosovo, including
22 EU member States. The Security Council is divided
over the issue (Russia againts, China neutral), the EU
also and Serbia considers Kosovos declaration illegal.
On October 8, 2008, the General Assembly requested
an Advisory Opinion from the ICJ. Is the unilateral
declaration of independence by the Provisional
Institutions of Self-Government of Kosovo in accordance
with international law?
The first question is whether the Kosovo Albanians are a
people, which is a difficult question considering the lack
of a generally accepted definition. However, I am of the
opinion that the Kosovo Albanians are in fact a people
and therefore have the right of self-determination. On
the basis of what several experts have identified as the
inherent characteristics of a people, it can be
argued that a people must at least have an identity
that distinguishes it from the rest of the population of a
certain territory. Furthermore, the people must also

represent a clear majority on that territory. It is


important to realise that the terms people and
minority may sometimes overlap. On the one hand
it can be argued that the Kosovo Albanians are distinct
from Albanian Albanians and thus they are a people
within Serbia, and as such entitled to the right of selfdetermination. On the other hand it can be argued that
the Kosovo Albanians are not distinct from the Albanian
Albanians, which would make them a national or
ethnic minority within Serbia and as such not entitled
to the right of self-determination. First of all, it must be
noted that the term minority suffers from the same
lack of clarity as the term peoples. There is no
generally accepted definition of what constitutes a
minority. This considerably weakens the assumption
that Kosovo Albanians are an ethnic minority within
Serbia, and that minorities do not have the right to selfdetermination. Second, as stated before, minorities and
peoples are not mutually exclusive terms. Thus it can
be argued that Kosovo Albanians are both a minority
and a people. The difference between an ethnic
minority and a people is that national or ethnic
minorities usually have a kin State. Nevertheless, if a
minority has a collective individuality, an identity by
which it can be distinguished from those living in the
kin State, it can be considered a minority-people
and accordingly it has the right to self-determination.
Considering the fact that Kosovo Albanians do have an
identity by which they can be distinguished from
Albanian Albanians it is submitted here that the former
are in fact a minority and a people at the same time
and that therefore, they have the right of selfdetermination.

Is there a right of remedial secession based on the right


of self-determination for the Kosovo Albanians?
Applying the principles of remedial secession outlined
above, it is noted that the autonomy of Kosovo was
revoked from 1989 onwards (which amounts to a
violation of the right to internal self-determination),
international crimes were committed, notably in 19981999 (albeit by both sides, and possibly even by NATO
when bombing Serbia), and the negotiations between
Kosovo Albanians and Serbs in Rambouillet failed.
Arguably, therefore, in 1999 the conditions for a lawful
secession and independence of Kosovo were met.
(Admittedly, one may still wonder whether the Kosovo
Albanians are really distinct from the Albanian
Albanians, whether independence did not need the
support of the sizable Serb minority in Kosovo, and
whether the fact that crimes were committed by both
sidessome might even argue that the KLA had
initiated a campaign involving the commission of
international crimes, to which the Serbian army only
respondedshould have no bearing on the right to
secession).
Yet if we look at the current situation in 2008/9, it is
hardly disputed that the Serbian government differs
considerably from the Miloevi government. It is
prepared to guarantee far-reaching autonomy to the
province of Kosovo, short of independence; in addition,
given the governments moderation and Serbias
interconnectedness with the European Union, a
repetition of the 1998/99 atrocities appears extremely
unlikely. At this moment therefore, the negative
conditions relating to human rights and internal selfdetermination of the Kosovo Albanians, the fulfilment of

which may trigger a right to unilateral secession, do not


appear to be met.
Security
Council
Resolution
1244
(interim
administration for Kosovo, basis for UNMIK, KFOR until
the future status of Kosovo would be determined) is
often invoked as an argument to consider Kosovos act
illegal, because it reaffirmed the commitment of all
Member States to the sovereignty and territorial
integrity of the Federal Republic of Yugoslavia and the
other States of the region, as set out in the Helsinki
Final Act and annex 2. However, the SC in fact
undermined the territorial integrity and sovereignty of
the FRY by setting up an interim administration under
international supervision.
Another point is: what is the meaning of the fact that 62
States have recognised Kosovo so far? Is recognition
declaratory or constitutive?
I have argued that self-determination has never simply
meant independence. It has meant the free choice of
people.
If this right cannot be exercised internally, if a people
suffers from gross violations of fundamental human
rights and all local remedies to solve the conflict have
been exhausted, there is a right of remedial secession
under customary international law (modern custom).
The enforcement of the right of Self-Determination
urgently needs to be enhanced.
The Committee of 24 on Decolonisation also noncolonial claims to self-determination (right of
petition, advice of SC or GA 0 early warning
system to prevent self-determination conflicts from
escalating)

The ICJ (advisory opinions)


The Human Rights Committee needs to start
considering claims under the Optional Protocol.
States need to agree on a set of Guidelines on
Recognition to depoliticise recognition