Territorial Integrity and The Law of Statehood

TERRITORIAL INTEGRITY AND THE LAW OF STATEHOOD
JURE VIDMAR*
ABSTRACT
International law of statehood is marked by two fundamental

problems: the inadequacies of the statehood criteria and the
shortcomings of both traditional recognition theories—constitutive and
declaratory. Based only on the statehood criteria and recognition
theories, is it possible to answer whether Kosovo is a State or why
Somaliland is not? This Article examines the theory of statehood and
the emergence of new States in the postcolonial era. In the
contemporary world, almost every territory is an integral part of a
sovereign State and is protected in turn by the principle of territorial
integrity. This principle does not prevent the emergence of new States,
but it does ensure that new States do not emerge automatically once
they satisfy the statehood criteria. This Article demonstrates that the
prevailing doctrines of the law of statehood do not adequately consider
the consequences and legal effects of the principle of territorial
integrity. The emergence of a new State in contemporary international
law is not dependent upon satisfying the statehood criteria; instead, it
requires navigating a political process to overcome a competing claim
to territorial integrity.
TABLE OF CONTENTS
I. INTRODUCTION ....................................................................................
II. THE CONCEPT OF THE STATE IN INTERNATIONAL LAW ..........................
A. Understanding the Natural Element of the State .......................
B. Does a State Exist as Soon as it Exists? .....................................
C. The Additional Statehood Criteria .............................................
D. The Principle of Territorial Integrity and the
Sphere of International Legal Neutrality ...................................
* Faculty of Law & St. John’s College, University of Oxford, United Kingdom. The
author’s research is supported by the Early Career Fellowship of the Leverhulme Trust.
101
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102 The Geo. Wash. Int’l L. Rev. [Vol. 44
III. THE EMERGENCE OF NEW STATES IN POST-COLONIAL PRACTICE :
OVERCOMING THE COUNTERCLAIM FOR TERRITORIAL INTEGRITY .......
A. Waiver of the Claim to Territorial Integrity ..............................
1. The Constitutional Mechanism for Secession:
Montenegro and South Sudan ..............................................
2. Prior Approval of the Parent State: The Baltic States
and Eritrea ............................................................................
3. Subsequent Approval of the Parent State: Bangladesh ........
B. Consensual Extinction of the Parent State:
Czechoslovakia and the Soviet Union ........................................
C. Multilateral International Involvement ......................................
1. Non-Consensual Dissolution: The Socialist Federal Republic
of Yugoslavia ................................................................................
2. U.N. Involvement: East Timor ............................................
D. ‘Constitutive Recognition’ .........................................................
1. The Questions of Legality and Constitutive Effects ............
2. Kosovo: How Many and Whose Recognitions
are Necessary? .....................................................................
E. The Impact of Territorial Integrity on Contemporary
Law of Statehood ........................................................................
1. State Practice Summarized, Statehood Theory Updated .....
2. Modern Theory of Statehood, the Obsolete Concept
of Premature Recognition and the Legal Status of
the Statehood Criteria ..........................................................
IV. CONCLUSION .......................................................................................
I. INTRODUCTION
Suppose a dog was defined as an animal that possesses the following:
(a) a snout; (b) four legs; (c) a tail; and (d) the capacity to play with
other dogs. This definition accurately describes most dogs, but its
adequacy is debatable. Do these criteria alone explain why a cat is a
different animal from a dog? Under criterion (c), are dogs with docked
tails still dogs?
Definitional criteria are often helpful conceptually but limited
practically. Article 1 of the 1933 Montevideo Convention on Rights
and Duties of States, which reflects the generally-accepted definition of
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2012] Territorial Integrity and the Law of Statehood 103
a State under customary international law,1 provides that “[t]he State as
a person of international law should possess the following
qualifications: (a) a permanent population; (b) a defined territory; (c)
government; and (d) [the] capacity to enter into relations with other
states.”2 Applying these criteria, is it possible to determine whether
Kosovo3 is a State or why Somaliland4 is not? The Montevideo criteria
alone cannot answer these questions, just as the above definition of a
dog fails to distinguish between cats and dogs.
Some writers argue that the Montevideo criteria have been
supplemented by an additional set of legality-based statehood criteria. 5
This amended set of criteria can perhaps explain why certain effective
entities, such as Southern Rhodesia,6 were not States in situations of
territorial illegality; but in cases like Somaliland, where there is no
territorial illegality,7 the additional statehood criteria fail to explain why
some effective entities are not States.
The answer could lie in the declaratory nature of international
recognition,8 but common practice on this point is conflicting. 9 For
example, Macedonia became a State in 1992, despite a near universal
1. See DAVID HARRIS, CASES AND MATERIALS ON INTERNATIONAL LAW 92 (2010)

(arguing that the Montevideo criteria form a part of customary international law).
2. Convention on Rights and Duties of States art. 1, Dec. 26, 1933, U.S.T. 881, 165
L.N.T.S. 19 [hereinafter Montevideo Convention].
3. For a background on Kosovo, see generally MARC WELLER, CONTESTED STATEHOOD :
KOSOVO’S STRUGGLE FOR INDEPENDENCE (2009); KOSOVO: A PRECEDENT? THE DECLARATION
OF INDEPENDENCE, THE ADVISORY OPINION AND IMPLICATIONS FOR STATEHOOD, SELF -
DETERMINATION AND MINORITY RIGHTS (James Summers ed., 2011) [hereinafter KOSOVO: A
PRECEDENT] (collection of papers discussing the history and implications of Kosovo’s
independence).
4. For a history of Somaliland and a discussion of the question of its legitimacy, see JAMES
CRAWFORD, THE CREATION OF STATES IN INTERNATIONAL LAW 412–15, 417 (2d ed. 2006)
(arguing that despite its ineffectiveness, Somaliland is still a State under international law).
5. See, e.g., CRAWFORD, supra note 4, at 97, 107 (arguing that effectiveness, which is the
primary criterion of statehood under the Montevideo Convention, is no longer the only relevant
factor in determining statehood); see also Robert McCorquodale, The Creation and Recognition
of States, in PUBLIC INTERNATIONAL LAW: AN AUSTRALIAN PERSPECTIVE 184, 190–91 (Sam
Blay, Ryszard Piotrowicz & Martin Tsamenyi eds., 2005) (arguing that statehood requires self-
determination and the protection of human rights, in addition to the traditional Montevideo
criteria).
6. See infra notes 45–49 and accompanying text.
7. See CRAWFORD, supra note 4, at 414 (arguing that Somalia remains the only
internationally accepted State in that territory).
8. See Reference re: Secession of Quebec, [1998] 2 S.C.R. 217, ¶ 155 (Can.) (arguing that
the ultimate success of unilateral secession would depend on international recognition).
9. In contemporary doctrine it is generally accepted that recognition is a declaratory and
not a constitutive act. See HARRIS, supra note 1, at 145 (arguing that most contemporary authors
agree that recognition is declaratory).
lack of recognition, 10 but Somaliland is still not a State, not even a non-
recognized one.
This Article argues that the international law of statehood remains
influenced by the nineteenth century perception of “state as
effectiveness,”11 as well as by practices of decolonization in which
colonial powers were entitled to a claim of territorial integrity in respect
of oversees possessions.12 In contemporary international law States
emerge differently. Currently, nearly all territories form an integral part
of a sovereign State and are, in turn, protected by the principle of
territorial integrity. 13 This principle does not prevent the emergence of
new States,14 but it does ensure that new States do not emerge
automatically once they satisfy the statehood criteria. The statehood
criteria influence this process but do not produce direct legal effects.
This Article first considers the traditional theories of statehood in Part
II and argues that such theories are inadequate in contemporary
international law, because they do not take into account the legal effects
of the principle of territorial integrity. Part III turns to the practice of
State emergence in the era of post-colonialism and identifies the
methods to overcome a counterclaim to territorial integrity. Finally, the
Article argues, in Part IV, that the principle of territorial integrity does
not make State emergence illegal, but it does make State emergence
very unlikely, because the principle places the burden to change the
territorial status quo upon the entity seeking statehood.
II. THE CONCEPT OF THE STATE IN INTERNATIONAL LAW

Writing in 1900, Georg Jellinek argued that a State must have three
10. See Matthew C.R. Craven, What’s in a Name? The Former Yugoslav Republic of
Macedonia and Issues of Statehood, 16 AUST. Y.B. INT’L L. 199, 199–200 (1995) (arguing that
due to the dispute with Greece over its name, Macedonia was for some time almost universally
non-recognized).
11. See generally id. at 37–95 (giving an overview of historic practice when statehood
depended on effective control over a territory); see also Cedric Ryngaert & Sven Sobrie,
Recognition of States: International Law or Realpolitik? The Practice of Recognition in the Wake
of Kosovo, South Ossetia, and Abkhazia, 24 LEIDEN J. INT’L L. 467, 472 (2011) (“A striking
characteristic of the Montevideo requirements is the central role of the principle of effectiveness:
an entity is a state only when certain factual conditions are met—a purely empirical check.”).
12. See Gregory H. Fox, Self-Determination in the Post-Cold War Era: A New Internal
Focus, 16 MICH. J. INT ’L L. 733, 736 (1995) (arguing that the principle of territorial integrity did
not protect colonial possessions but only metropolitan territory).
13. See MALCOLM SHAW, INTERNATIONAL LAW 198 (2008); see also Anne Peters,
Statehood After 1989: ‘Effectivités’ Between Legality and Virtuality, in 3 SELECT PROCEEDINGS
OF THE EUROPEAN SOCIETY OF INTERNATIONAL LAW 171, 179 (James Crawford & Sarah
Nouwen eds., 2012) (arguing that unlike in the past, all territories are now State territories).
14. See infra notes 66–73 and accompanying text.
elements: a territory, a population, and public authority. 15 These three
elements are similar to the subsequently-codified Montevideo criteria, 16
and Jellinek’s elements remain influential in positivist scholarship. 17 A
State comes into objective factual existence upon meeting the statehood
criteria, and its emergence is thereupon acknowledged by international
law.18 The process is analogous to the birth of a child. The applicable
municipal law does not create the birth, it merely registers it. 19
This explanation may work well where children and other tangible
physical subjects or objects are concerned, but there are limitations on
analogizing States to other physical subjects and objective facts. James
Crawford argues that “[a] State is not a fact in the sense that a chair is a
fact; it is a fact in the sense in which it may be said a treaty is a fact: that
is, a legal status attaching to a certain state of affairs by virtue of certain
rules or practices.”20 In this view, the emergence of a new State is not a
simple matter of a self-evident fact, it is the achievement of a certain
legal status. This Section considers the problems with asserting that
States emerge self-evidently as natural facts.
A. Understanding the Natural Element of the State

The Montevideo Convention, inter alia, provides that a State must
have a defined territory. 21 This means that a State needs to possess
“‘something natural” in order to be a State. What does it mean that a
State needs to have a defined territory? A territory itself is an objective
natural fact, while its delimitation, which defines a territory, can only be
a matter of law. According to Hans Kelsen, “[t]raditional theory
distinguishes between ‘natural’ and ‘artificial’, i.e., legal, boundaries;
but the boundaries of a State always have a legal character, whether or
not they coincide with such ‘natural’ frontiers as, for instance, a river or
a mountain range.”22
For example, if the territory of a new State is determined by the
15. See GEORG JELLINEK, ALLGEMEINE STAATSLEHRE 137 (1905) (discussing the three
elements of the State).
16. See supra note 2 and accompanying text.
17. See STEFAN TALMON, KOLLEKTIVE NICHTANERKENNUNG ILLEGALER STAATEN
[COLLECTIVE NON -RECOGNITION OF ILLEGAL STATES] 222 (2004) (Ger.) (arguing that States
become States by meeting Jellinek’s three elements).
18. See id.; Montevideo Convention, supra note 2.
19. See TALMON, supra note 17, at 218–20 (arguing that international law merely registers a
‘birth’ of a new State the same way as municipal law only registers a birth of a child); see also
LASSA OPPENHEIM, INTERNATIONAL LAW 264 (1905) (invoking the “natural birth” of a State).
20. CRAWFORD, supra note 4, at 5.
21. See Montevideo Convention, supra note 2.
22. See HANS KELSEN, GENERAL THEORY OF LAW AND STATE 213 (1999).
international legal principle of uti possidetis,23 the territory of the
newly-emerged State is both a matter of natural fact and a matter of law.
While the continents and the oceans are natural facts, delimitation on
these natural facts is only a matter of law.24 Earth’s geography does not
delineate the territorial boundaries of a State. Boundaries are defined
and States are created according to the law. For this reason, “‘defined
territory” cannot be purely objectively factual.
Even if a “defined territory” were a natural fact, the concept of the
State would not be. Clearly, the defined territory of Kosovo exists
physically, but it is debated whether Kosovo is a State under
international law. 25 Even if the territory is defined and has a permanent
population that is represented by a government with the capacity to
enter into relations with other States, it is unclear whether that territory
forms a separate State or is a part of a larger State. Determining
whether a certain territory is a separate State is dependent upon its legal
status. Statehood thus needs to be understood as legal status and not as
an objective natural fact.
B. Does a State Exist as Soon as it Exists?

Another problem in the positivist perception of State-as-a-fact is its
presumption that “fulfilment of the Montevideo criteria is self-
evident.”26 This leads to the conceptual problem of identifying an
“objective fact” in the decentralized legal system of international law. It
is true that this is a problem of international law in general that exists
not only in the context of statehood specifically. 27 But, it is also true
that accepting that a State comes into existence objectively and
automatically upon meeting the Montevideo criteria necessitates
accepting the rather awkward proposition that “a State exists in
23. See Frontier Dispute (Burk. Faso/Mali), 1986 I.C.J. 544, 566, ¶ 23 (Dec. 22) (“The
essence of the principle [of uti possidetis] lies in its primary aim of securing respect for the
territorial boundaries at the moment when independence is achieved . . . . [T]he application of the
principle of uti possidetis resulted in administrative boundaries being transformed into
international frontiers in the full sense of the term.”). For a comprehensive discussion on uti
possidetis, see Steven Ratner, Drawing a Better Line: Uti Possidetis and the Borders of New
States, 90 AM. J. INT ’L L. 590 (1996)
24. See generally KELSEN, supra note 22 (arguing that boundaries are never natural and
always have a legal character).
25. See, e.g., Jure Vidmar, Kosovo: Unilateral Secession and Multilateral State-Making, in
KOSOVO: A PRECEDENT, supra note 3, at 174–76 (arguing that Kosovo’s legal status is
ambiguous).
26. See HERSCH LAUTERPACHT, RECOGNITION IN INTERNATIONAL LAW 41 (1948).
27. TALMON, supra note 17, at 218–19 (arguing that there is no central authority to decide
which entity is a State because international law has no centralized enforcement mechanism).
international law as soon as it exists.”28
In response to such a circular explanation, Lauterpacht argued that
recognition was constitutive. 29 In the absence of a central authority for
determining whether or not a certain entity is a State, this duty needs to
be performed by (existing) States.30 Once the statehood criteria are met,
other States objectively confirm this fact by granting recognition. 31
Assuming recognition is universally granted, there is then no doubt that
a new State has emerged. 32 If current States do not recognize the new
State, the old problem of the constitutive theory arises: how many and
whose recognitions are necessary to create the objective legal fact that a
new State exists?33
Lauterpacht tried to solve this problem by arguing that once the
statehood criteria are met, foreign States have a duty to grant
recognition. Other States thus objectively confirm the existence of a
new State by granting recognition and, in so doing, end any doubt about
the entity’s legal status.34
This duty to grant recognition is the Achilles heel of Lauterpacht’s
proposition, because the existence of such an obligation is not supported
by State practice. 35 In the absence of an obligation to grant recognition,
Lauterpacht’s approach does not work. If recognition is constitutive
and no duty exists to grant it, there may be entities that are recognized
as new States by some States but not by others. As a consequence, it is
impossible to objectively determine whether they are States.
The explanation that “a State exists as soon as it exists” is inadequate.
Fulfillment of the statehood criteria is not self-evident, and States do not
emerge as a matter of natural fact. Constitutive recognition fails to
explain the logical inconsistencies in the law of statehood within the
traditional paradigm of statehood criteria and recognition theories. For
this reason, Lauterpacht had to create the non-existent duty to grant
recognition. The following Section demonstrates that an effective
28. LAUTERPACHT, supra note 26, at 58.

29. See id. at 55–58 (setting out the arguments in favor of constitutive recognition).
30. See id.
31. See id.
32. See id. at 65–66 (arguing that compulsory recognition would end any doubt pertaining
to the entity’s legal status).
33. Cf. JAMES BRIERLY, THE LAW OF NATIONS 138 (1963) (invoking the old problem of the
constitutive theory: how many and whose recognitions are necessary?).
34. See, e.g., LAUTERPACHT, supra note 26, at 65–66 (arguing in favor of constitutive
recognition).
35. KELSEN, supra note 22, at 223; KRISTINA MAREK, IDENTITY AND CONTINUITY OF
STATES IN PUBLIC INTERNATIONAL LAW 137 (1968); TALMON, supra note 17, at 103 (arguing
that Lauterpacht’s “duty to recognize” is not supported by State practice).
solution must expand beyond these traditional concepts.
C. The Additional Statehood Criteria

Classical theories of statehood focused on the Montevideo criteria,36
while in contemporary international law it appears to be widely
accepted that States do not emerge only by meeting these criteria.37
Referring to the practice of States and U.N. organs, 38 some writers argue
that the traditional Montevideo statehood criteria have been
supplemented by a set of additional ones. 39 The criteria described as
“additional” do not originate in the law of statehood but are concepts
that developed in other fields of international law and that impact the
law of statehood.40 The underlying idea behind the concept is that an
illegally created entity cannot become a State.41
The additional legality-based statehood criteria assert that a State
cannot be created through the use of illegal force, violating the right of
self-determination, or the pursuance of racist policies. 42 The legal
norms underlying the concept of additional statehood criteria are often
considered to be of jus cogens character,43 and therefore, a State
creation in violation of jus cogens would be illegal. 44 The question
remains, however, whether the concept of the additional statehood
criteria explains exhaustively how States emerge in contemporary
international law.
36. See Montevideo Convention, supra note 2.

37. JOHN DUGARD, RECOGNITION AND THE UNITED NATIONS 135–37 (1987) (arguing that
some entities may meet the Montevideo criteria but nevertheless are not States).
38. See, e.g., McCorquodale, supra note 5, at 191 (providing an overview of General
Assembly and Security Council resolutions that indicate the existence of the additional statehood
criteria).
39. See id.
40. The concept of additional statehood criteria is rooted in the prohibition of aggression,
the prohibition of racial discrimination, and the right of self-determination. DUGARD, supra note
37, at 152–62. These are concepts that have developed in general international law and not
specifically in the context of the law of statehood. See id.
41. See CRAWFORD, supra note 4, at 107 (arguing that certain entities may well have met
the Montevideo criteria but were not States due to their illegal creation).
41. See McCorquodale, supra note 5, at 191.
42. See id. at 196–97.
43. See CRAWFORD, supra note 4, at 105 (arguing that the norms underlying the concept of
the additional statehood criteria are of jus cogens character).
44. Id.; see also DUGARD, supra note 37, at 135–37, 152–61 (providing a detailed account
on jus cogens norms that underlie the illegality of State creation). Jus cogens is, in principle,
defined as a norm of general international law from which no derogation is allowed. See Vienna
Convention on the Law of Treaties art. 51, 1155 U.N.T.S. 331, 8 I.L.M. 679 (entered into force
Jan. 27, 1980). The effects of jus cogens remain somewhat controversial in international law, but
a thorough discussion on this issue would fall outside of the scope of this Article. For more, see
Andrea Bianchi, Human Rights and the Magic of Jus Cogens, 19 EUR. J. INT ’L L. 491 (2008).
Discussing the episode of Southern Rhodesia, 45 Crawford explains
that three interpretations are possible: (i) Southern Rhodesia was a
State; (ii) Southern Rhodesia was not a State because recognition was
collectively withheld; or (iii) Southern Rhodesia was not a State
because “the principle of self-determination in this situation prevented
an otherwise effective entity from being regarded as a State.”46
Crawford then argues that the first possibility needs to be rejected in
light of international practice. 47 He rejects the second with the
explanation that recognition is declaratory. 48 Crawford then accepts the
third option, asserting that although the effectiveness-based Montevideo
criteria were met, Southern Rhodesia was not a State because
independence was declared by the racist white-minority government
and an emergence of a new State would have thus violated the right of
self-determination of the majority population. 49
This reasoning underlies the concept of the additional statehood
criteria and is premised on the assumption that certain entities would
have been States if the Montevideo criteria were the only applicable
statehood criteria. If such entities are not States, then a set of additional
statehood criteria must exist. This is, however, an equation with too
few parameters. The logic of this argument works only if it is accepted
that States emerge automatically upon meeting the statehood criteria,
which are those elaborated in the Montevideo Convention plus a set of
legality-based criteria. This argument is problematic because recent
practice suggests that entities can meet both sets of statehood criteria
but are nevertheless not States.
The concept of the additional statehood criteria is influenced by the
zeitgeist of Southern Rhodesia, the South African Homelands, and
Northern Cyprus. 50 It does not take into account the subsequent
45. On November 11, 1965, the government of Southern Rhodesia issued the Unilateral
Declaration of Independence (UDI). CRAWFORD, supra note 4, at 129. This was done despite
both the General Assembly and the Security Council’s decision to adopt a set of resolutions in
which the white-minority government, due to the exclusion of the black population from political
participation, was proclaimed as non-representative of the entire population of Southern Rhodesia
and thus held not to be the right authority to declare independence. See G.A. Res. 1747 (XVI),
U.N. Doc. A/RES/1747 (June 27, 1962); S.C. Res. 202, U.N. Doc. S/RES/202 (May 6, 1965);
G.A. Res. 2022 (XX), U.N. Doc. A/RES/2022 (Nov. 5, 1965).
46. CRAWFORD, supra note 4, at 129. In Talmon’s contrary view, Southern Rhodesia was
an “illegal state”; however, the concept of “illegal states” was also rejected above. TALMON ,
supra note 17, at 215–20.
47. CRAWFORD, supra note 4, at 129–30.
48. Id.
49. See id. at 129–31.
50. Cf. DAVID RAIČ, STATEHOOD AND THE LAW OF SELF-DETERMINATION 151–58 (2002)
(building the concept of the additional statehood criteria exclusively on the examples of Southern
Rhodesia, the Homelands, and Northern Cyprus).
situations in which there was no territorial illegality. The reasoning
behind the concept of the additional statehood criteria, therefore, only
works when territorial illegality is attached to the creation of an
effective entity. This construct can explain why Southern Rhodesia,
where territorial illegality was attached to the situation, did not become
a State, but it cannot articulate what prevents Somaliland from
becoming a State. A strong argument can be made that Somaliland
meets the Montevideo criteria, as its government exercises an effective
control over a defined territory with a permanent population.51
Furthermore, Somaliland did not become effective as a result of the use
of force in the sense of Article 2(4) of the U.N. Charter. 52 It is thus safe
to assume that Somaliland meets both the traditional and the additional
statehood criteria, leaving unanswered the question of why it is not a
State.
Recourse to the statehood criteria, both traditional and additional, is
thus not sufficient to determine whether or not an entity is a State. The
Section below demonstrates that the missing factor is the parent State’s
claim to territorial integrity.
D. The Principle of Territorial Integrity and the Sphere of International

Legal Neutrality
In the process of decolonization, “the only territorial relationship to
be altered was that with the metropolitan power. Achieving
independence . . . did not come at the expense of another sovereign
state’s territory or that of an adjacent colony.”53 Now the process of
decolonization is virtually over, and the world’s territory is completely
divided between States.54 All permanently populated territories have a
parent State which is, in turn, protected by the principle of territorial
integrity.55 It is thus impossible to make a claim for independence in
the contemporary world without there being a competing claim to
51. See Benjamin R. Farley, Calling a State a State: Somaliland and International
Recognition, 23 EMORY INT’L L. REV. 777, 805–09 (2010) (giving evidence that Somaliland
meets the Montevideo criteria). While Farley may well be right that the statehood criteria are
met, he wrongly assumes that this, in combination with declaratory recognition, is enough for
statehood and concludes that Somaliland is a State. Id. at 819.
52. Article 2(4) of the U.N. Charter, prohibits the use of force only in international relations
and is not concerned with the recourse to force within the State itself. U.N. Charter art. 2(4); see
also U.N. Charter art. 2(2) (“All Members, in order to ensure to all of them the rights and benefits
resulting from membership, shall fulfil in good faith the obligations assumed by them in
accordance with the present Charter.”).
53. See Fox, supra note 12.
55. See Peters, supra note 13.
territorial integrity. 56
The principle of territorial integrity of States is one of the
cornerstones of the U.N. Charter system and the post-Second World
War international legal order. 57 In this era it appears to be the most
challenging hurdle an entity needs to overcome on its path to
statehood.58 In the U.N. Charter, a reference to territorial integrity only
appears in Article 2(4) in the context of the prohibition of the use of
force.59 The U.N. Charter is silent on the issue of territorial integrity in
the context of claims for independence not involving the use of force in
international relations.
The Declaration on Principles of International Law,60 which is
reflective of customary international law, 61 makes a reference to the
principle of territorial integrity in two instances. The Declaration
provides: “Every State shall refrain from any action aimed at the partial
or total disruption of the national unity and territorial integrity of any
other State or country.”62 This elaboration interprets the territorial
integrity of States more broadly than Article 2(4) of the U.N. Charter
and liberates the principle from the context of the use of force.
Nevertheless, the concept of territorial integrity remains confined to
relations between States.
In another elaboration, however, the principle is invoked as a
limitation on the right of self-determination. The relevant provision
reads:
Nothing in the foregoing paragraphs [referring to the right of self-
determination] 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
56. See id.

57. For an overview of a number of unsuccessful attempts at secession, see CRAWFORD,
supra note 4, at 403.
58. See id.
59. U.N. Charter art. 2(4).
60. See Declaration on Principles of International Law Concerning Friendly Relations and
Co-operation Among States in Accordance with the Charter of the United Nations, G.A. Res.
2625 (XXV), U.N. Doc. A/RES/2625, at 121 (Oct. 24, 1970) [hereinafter Declaration on
Principles of International Law].
61. Accordance with International Law of the Unilateral Declaration of Independence in
Respect of Kosovo, Advisory Opinion, 2010 I.C.J. 141, ¶ 80 (July 22) (arguing that the
Declaration on Principles of International Law is reflective of customary international law)
[hereinafter Kosovo Advisory Opinion].
62. G.A. Res. 2625 (XXV), supra note 60, at 1214.
colour.63
Because the right of self-determination applies to peoples and not
States, the principle of territorial integrity is not applicable exclusively
in relations between States. 64 The principle of territorial integrity thus
extends not only beyond the use of force context, but also beyond the
context of international (i.e., inter-state) relations. It limits peoples’
right of self-determination, so the elaboration reflects the doctrine that,
outside of colonialism, the right of peoples to self-determination will be
normally consummated internally within the international borders of the
parent State and thus will not result in a new State. 65
In one view, the operation of the principle of territorial integrity leads
to an absolute prohibition of unilateral secession.66 This argument has
little support in positive international law. Indeed, the first elaboration
of the principle of territorial integrity maintains that secession is not
“authorized” or “encouraged,” yet nowhere does the elaboration state
that secession is prohibited or illegal. 67 The elaboration is thus evidence
of the neutrality of international law regarding secession. 68 In this vein,
the International Court of Justice (ICJ) in the Kosovo Advisory Opinion
noted extensive record of States emerging after an initial issuing of a
unilateral declaration of independence. 69 These new States were not
illegal because their independence was declared against the parent
State’s applicable claim to territorial integrity. 70 International law has
63. See id. at 124.

64. This elaboration was ignored by the International Court of Justice (ICJ) in the Kosovo
Advisory Opinion, where the Court, by selective references to the Declaration on Principles of
International Law, (wrongly) established that the principle of territorial integrity only applies in
relations between States. See Kosovo Advisory Opinion, supra note 61, ¶ 80. For a more
thorough account of this issue, see Jure Vidmar, The Kosovo Advisory Opinion Scrutinized, 24
LEIDEN J. INT’L L. 355, 368–69 (2010) (arguing that the ICJ omitted the first elaboration of the
principle of territorial integrity in order to be able to conclude that the principle only applies in
relations between States).
65. See Reference re: Secession of Quebec, [1998] 2 S.C.R. 217, ¶ 126 (Can.) (arguing that
the right of self-determination will be normally consummated internally).
66. See Alexander Orakhelashvili, Statehood, Recognition and the United Nations System:
A Unilateral Declaration of Independence in Kosovo, 12 MAX PLANCK Y.B. U.N. L. 1, 13 (2008)
(“As soon as the principle of territorial integrity applies, it necessarily outlaws secession without
the consent of the parent state. Such understanding avoids systemic inconsistency under which
international law would guarantee territorial integrity yet would not prohibit secession.”).
67. See G.A. Res. 2625 (XXV), supra note 60, at 122, Annex, pmbl. ¶ 15 (warning that
disruption of national unity goes against the spirit of the Charter).
68. See CRAWFORD, supra note 4, at 390 (arguing that international law is neutral with
respect to secession).
69. See Kosovo Advisory Opinion, supra note 61, ¶ 79 (arguing that throughout history
independence was oftentimes initially declared unilaterally and yet such entities nevertheless
became States).
70. Id.
adopted a position of neutrality in regard to unilateral secession: an
entity is neither prohibited from,71 nor entitled to,72 secession when the
parent State continues to make a counterclaim to territorial integrity.
The consequence of this neutral position is that an entity that issues a
unilateral declaration of independence is not precluded from becoming a
State, but achieving independence—and thus the status of a State under
international law—requires more than mere declaration. Declaring
independence does not create a new State, even if the entity exhibits the
attributes of statehood. 73 In the end, the entity may or may not become
a State, but it is not a State if the parent State’s counterclaim to
territorial integrity continues to apply and is not internationally
disregarded.
The legal consequence of a counterclaim to territorial integrity is that
States in international law do not emerge automatically and self-
evidently. The competing counterclaim to territorial integrity also
makes emergence of a new State very unlikely, because the burden of
shifting the territorial status quo falls upon the independence-seeking
entity.
III. THE EMERGENCE OF NEW STATES IN POST-COLONIAL PRACTICE:

OVERCOMING THE COUNTERCLAIM FOR TERRITORIAL INTEGRITY
New States do not emerge as a matter of fact upon meeting the
traditional or additional statehood criteria, because an independence-
seeking entity needs to overcome the counterclaim to territorial integrity
in order to become a State. This Section examines the ways to
overcome this counterclaim.
Commenting on the ICJ’s Kosovo Advisory Opinion, Marc Weller
argues that States may emerge “on a grant of legal authority.”74 Such a
grant “might be made either by the predecessor states through their
consent to secession or, perhaps, exceptionally, by collective
international action of the U.N. Security Council or widespread
recognition triggered by the opposed, but effective, unilateral creation
of statehood.”75
This Section takes the idea of State creation as “a grant of legal
71. Reference re: Secession of Quebec, [1998] 2 S.C.R. 217, ¶ 155 (Can.) (arguing that
despite the parent State’s opposition, an entity seeking independence could still become a State
through international recognition).
72. Id. ¶ 126 (arguing that there is no right to independence).
73. See Peters, supra note 13, at 179 (arguing that the fact that an entity exhibits the
attributes of statehood does not necessarily mean it is a State).
74. Marc Weller, Modesty Can Be a Virtue: Judicial Economy in the ICJ Kosovo Opinion,
24 LEIDEN J. INT ’L L. 127, 129 (2011).
75. Id. at 129–30 (emphases added).
authority” farther and analyzes the practice of post-colonial new State
creations where the claim of parent States for territorial integrity is
prima facie applicable. The Section identifies the following modes of a
grant of legal authority for State creation: (i) waiver of the claim to
territorial integrity by a parent State; (ii) consensual extinction of the
parent State; (iii) multilateral international involvement; and (iv)
“constitutive recognition.”
A. Waiver of the Claim to Territorial Integrity

The least controversial mode of granting legal authority for the
emergence of a new State is a waiver of the claim to territorial integrity
by the parent State. This Article argues that such a waiver may be given
as a matter of constitutional provision or through the political approval
of the parent State. This approval may be given prior to the declaration
of independence or subsequently upon an initial issuing of a unilateral
declaration of independence by the seceding entity.
1. Constitutional Mechanisms for Secession: Montenegro and South
Sudan
The constitutions of the Soviet Union and the Socialist Federal
Republic of Yugoslavia (SFRY) granted the peoples of these two
federations a right to secession. 76 In the absence of a clear
constitutional mechanism allowing for secession, however, the real
value of such a “constitutional waiver” of the claim to territorial
integrity was questionable in practice. When making claims for
independence, some Yugoslav republics did invoke the constitutional
provisions granting a right to independence, 77 but in the end the new
States in the territories of both the SFRY and the Soviet Union did not
emerge on the basis of the “constitutional right to independence.”78
76. KONSTITUTSIIA SSSR (1977) [KONST. SSSR] [USSR CONSTITUTION ] art. 72 (Soviet
Union); USTAV SOCIJALISTIČKE FEDERATIVNE REPUBLIKE JUGOSLAVIJE (1974)
[CONSTITUTION] intro. (Socialist Federal Republic of Yugoslavia).
77. See The Foundational Constitutional Instrument on Sovereignty and Independence of
the Republic of Slovenia pmbl. ¶ 3 (1991), reprinted in THE OFFICIAL GAZETTE OF THE
REPUBLIC OF SLOVENIA, NO. 1/91-I (June 25, 1991); The Constitutional Decree of the Assembly
of the Republic of Croatia on Sovereignty and Independence of the Republic of Croatia, reprinted
in THE OFFICIAL GAZETTE OF THE REPUBLIC OF CROATIA, NO. 31/1991 (June 25, 1991). No
Soviet Republic attempted to follow the “Soviet secession law.” See Law on Procedures for
Resolving Questions Related to the Secession of Union Republics from the USSR art. 2,
reprinted in DOCUMENTS ON AUTONOMY AND MINORITY RIGHTS 753–60 (Hurst Hannum ed.,
1993).
78. See, e.g., Lawrence S. Eastwood Jr., Secession: State Practice and International Law
After the Dissolution of the Soviet Union and Yugoslavia, 3 DUKE J. COMP. & INT’L L. 299, 317–
31 (1993).
This practice affirms that a generally-acknowledged “constitutional
right to independence” is of little relevance if it is not provided in
conjunction with a clear mechanism for secession.
A very good example of a functional constitutional right to secession
is Article 60 of the Constitution of the State Union of Serbia and
Montenegro (SUSM). The Article reads:
After the end of the period of three years, member-states shall have
the right to begin the process of a change of the status of the state or
to secede from the State Union of Serbia and Montenegro.
The decision on secession from the State Union of Serbia and
Montenegro shall be taken at a referendum.
In case of secession of the state of Montenegro from the State Union
of Serbia and Montenegro, international documents referring to the
Federal Republic of Yugoslavia, especially the United Nations
Security Council Resolution 1244, shall only apply to the state of
Serbia as a successor.
The member-state which resorts to the right to secession shall not
inherit the right to international personality and all disputes shall be
solved between the successor-state and the seceded state.
In case that both states, based on the referendum procedure, opt for a
change of the state-status or independence, the disputable questions
of succession shall be regulated in a process analogical to the case of
the former Socialist Federative Republic of Yugoslavia.79
The example of the SUSM is somewhat unusual, because the
transformation of the Federal Republic of Yugoslavia (FRY) into the
very loose federation of the SUSM was an E.U.-brokered political
compromise between Montenegro’s secessionists and unionists.80
Article 60 of the Constitution of the SUSM also reflected this political
compromise and made the SUSM a transitional State in a step toward
Montenegro’s independence.
After a referendum endorsed independence on May 21, 2006, the
Montenegrin Parliament adopted the Declaration of Independence on
June 3, 2006.81 Upon this declaration, international recognition
followed promptly, and on June 30, 2006, Montenegro was admitted to
the U.N. as a new State.82 Article 60 of the Constitution of the SUSM is
79. USTAVNO P OVELJE DRŽAVNE ZAJEDNICE SRBIJA I CRNA GORA [CONSTITUTIONAL

CHARTER OF THE STATE UNION OF SERBIA AND MONTENEGRO] art. 60 (Feb. 4, 2003)
[hereinafter CONSTITUTIONAL CHARTER OF SERBIA AND MONTENEGRO] (the author’s own
translation).
80. INT’L CRISIS GRP., MONTENEGRO’S INDEPENDENCE DRIVE 1 (Dec. 2005), available at
http://www.crisisgroup.org/~/media/Files/europe/169_montenegro_s_independence_drive.
81. DECLARATION OF INDEPENDENCE OF THE REPUBLIC OF MONTENEGRO, translated at
http://www.osce.org/montenegro/19733?download=true (unofficial translation by the
Organization for Security and Co-operation in Europe).
82. G.A. Res. 60/264, U.N. Doc. A/RES/60/264 (June 28, 2006).
thus a prominent example of a functional constitutional right to
secession.
Although the political circumstances were different, South Sudan is
another recent example of secession based on a constitutional
mechanism. Sudan became an independent State in 1956.83 South
Sudan’s path to independence followed the legal regime established
under the Comprehensive Peace Agreement, which was signed on
January 9, 2005, between the central government of Sudan and the
Sudan People’s Liberation Movement/Sudan People’s Liberation
Army.84 The Comprehensive Peace Agreement resulted from the efforts
of the regional peace initiative to end the civil war.85
The Comprehensive Peace Agreement is comprised of texts of
previously signed agreements and protocols. 86 These include the
Machakos Protocol (July 20, 2002); the Protocol on Power Sharing
(May 26, 2004); the Agreement on Wealth Sharing (January 7, 2004);
the Protocol on the Resolution of the Conflict in the Abyei Area (May
26, 2004); the Protocol on the Resolution of the Conflict in Southern
Kordofan and Blue Nile States (May 26, 2004); the Agreement on
Security Arrangements (September 25, 2003); the Permanent Ceasefire
and Security Arrangements Implementation Modalities and Appendices
(October 30, 2004); and the Implementation Modalities and Global
Implementation Matrix and Appendices (December 31, 2004).87
The Machakos Protocol specified that the people of South Sudan
have the right of self-determination and shall determine their future
legal status at a referendum. 88 The Protocol further determined a six-
year interim period in which the internationally monitored referendum
was to take place. 89 The parties later also agreed on the implementation
modalities of the permanent ceasefire and security arrangement. 90 This
83. See Background to Sudan’s Comprehensive Peace Agreement, U.N. MISSION SUDAN ,
http://unmis.unmissions.org/Default.aspx?tabid=515 (last visited Nov. 21, 2012).
84. Comprehensive Peace Agreement Between the Government of the Republic of the
Sudan and the Sudan People’s Liberation Movement/Sudan People’s Liberation Army (Jan. 9,
2005) [hereinafter Comprehensive Peace Agreement], available at
http://www.sd.undp.org/doc/CPA.pdf.
85. For more, see Background to Sudan’s Comprehensive Peace Agreement, supra note 83.
86. See Chapeau of the Comprehensive Peace Agreement, in Comprehensive Peace
Agreement, supra note 84, at xii, ¶ 2.
87. Id. ¶¶ 2–3.
88. Machakos Protocol art. 1.3 (July 20, 2002), in Comprehensive Peace Agreement, supra
note 84.
89. Id. art. 2.5. The six-year interim period started at the time of conclusion of the
Comprehensive Peace Agreement.
90. See Agreement on Permanent Ceasefire and Security Arrangements Implementation
Modalities and Appendices (Dec. 31, 2004), in Comprehensive Peace Agreement, supra note 84.
agreement not only made references to self-determination and an
independence referendum, but also invoked some specific solutions that
would be implemented in the event of South Sudan’s decision for
independence.91
After the adoption of the Comprehensive Peace Agreement, Sudan
promulgated a new interim constitution which granted substantive
autonomy to Southern Sudan.92 The Constitution further specified that
a referendum on the future status of Southern Sudan would be held six
months before the end of the six-year interim period,93 whereby the
people of Southern Sudan would either “(a) confirm unity of the Sudan
by voting to sustain the system of government established under the
Comprehensive Peace Agreement and this Constitution, or (b) vote for
secession.”94
The interim Constitution of Sudan thus created a constitutional right
to secession. The right was then implemented in the Southern Sudan
Referendum Act, promulgated on December 31, 2009.95 The Act
initially repeats the general references to self-determination and the
independence referendum previously invoked in the Comprehensive
Peace Agreement and the Constitution.96 The Act also repeats the
referendum choice provided for by the Constitution through either
“[c]onfirmation of the unity of the Sudan by sustaining the form of
government established by the Comprehensive Peace Agreement and
the Constitution, or . . . [s]ecession.”97
Article 41 of the Act specified the referendum rules and made
specific provisions for the required quorum,98 as well as the winning
majority.99 Article 66 of the Act specified that the decision taken at the
referendum would be binding,100 and Article 67 specified that in the
case of Southern Sudan’s vote for secession, the government would
apply the constitutional provisions that foresaw Southern Sudan’s
91. See id. arts. 17.8, 20.1, 20.2., 21.2.

92. INTERIM NATIONAL CONSTITUTION OF THE REPUBLIC OF SUDAN (July 6, 2005),
translated at http://www.unhcr.org/refworld/docid/4ba749762.html2005 (unofficial translation by
the U.N. High Commissioner for Refugees).
93. Id. art. 222(1).
94. Id. art. 222(2).
95. Southern Sudan Referendum Act 2009, at 33 (Dec. 29, 2009), translated at
http://saycsd.org/doc/SouthernSudanReferendumActFeb10EnglishVersion.pdf (unofficial
translation by Sudanese American Youth Center in San Diego).
96. Id.
97. Id. art. 6(i)–(ii).
98. Id. art. 41(2).
99. Id. art. 41(3).
100. Id. art. 66.
withdrawal from the Sudanese institutional arrangement. 101
The option for secession was given overwhelming support, receiving
98.83% of the votes from a turnout of 97.58%.102 The central
government of Sudan announced it would respect the referendum
results.103 South Sudan declared independence on July 9, 2011, and the
central government of Sudan announced its formal recognition the day
before the declaration. 104
South Sudan’s path to independence was marked by a lengthy civil
war and a grave humanitarian situation105; however, these circumstances
did not create a right to independence. In terms of international law, it
is significant that South Sudan did not become an independent State
before the central government formally agreed to hold a binding
referendum at which an overwhelming majority supported secession.
South Sudan is thus a State creation with the approval of the parent
State. The mechanism for secession was rooted in the 2005 Peace
Agreement and the constitutional arrangement that resulted from this
agreement. International recognition of South Sudan followed
promptly.106 On July 14, 2011, South Sudan became a member of the
U.N.107
Montenegro and South Sudan are both examples of secession based
on constitutional provisions. In both situations the constitutional
arrangement was designed anew as a transitional solution and as the
result of political compromise.
2. Prior Approval of the Parent State: The Baltic States and Eritrea
In most instances a waiver of the claim to territorial integrity is not
expressed in a clear constitutional provision. Nonetheless, the parent
State may waive its claim to territorial integrity after negotiations with
the independence-seeking entity. Practice shows that parent States are
rarely willing to even engage in such negotiations let alone accept
101. Id. art. 67(2).

102. Results for the Referendum of Southern Sudan, S. SUDAN REFERENDUM 2011,
http://southernsudan2011.com (last visited Nov. 21, 2012).
103. See President Omar al-Bashir Gives South Sudan His Blessing, BBC NEWS (July 7,
2011), http://www.bbc.co.uk/news/world-africa-14060475.
104. See South Sudan Counts Down to Independence, BBC NEWS (July 8, 2011),
http://www.bbc.co.uk/news/world-africa-14077511.
105. See Background to Sudan’s Comprehensive Peace Agreement, supra note 83.
106. See South Sudan: World Leaders Welcome New Nation, BBC NEWS (July 9, 2011),
http://www.bbc.co.uk/news/world-africa-14095681.
107. See Press Release, General Assembly, When South Sudan Started Its Journey, Says Its
Representative Upon Country’s Admission to United Nations, It Could Hardly Imagine Road
Would Lead Here, U.N. Press Release GA/11114 (July 14, 2011).
independence of the entity in question, 108 but difficult internal political
situations may be a motivating factor for such considerations. Relevant
examples include the independence of the Baltic States and the
emergence of Eritrea as an independent State.
It is debatable whether the three Baltic States were newly created
States in 1991, or whether their statehood was revived from the interwar
period.109 Based on the 1939 Ribbentrop-Molotov Pact, the three Baltic
States were illegally annexed by the Soviet Union in 1940. 110 While
“[t]he international community almost uniformly refused to grant de
jure recognition to the 1940 Soviet annexation of the Baltic States,”111 it
was de facto accepted that they were constitutive republics of the Soviet
Union.112
During complicated internal political circumstances in 1991,113 the
central government of the Soviet Union agreed to enter into negotiations
on the future legal status of the Baltic States and ultimately agreed to
their independence. 114 After the approval of the Soviet central
government, Estonia declared independence on August 20, 1991, and
Latvia followed a day later on August 21, 1991.115 Lithuania had
already declared independence on March 11, 1990, and at that time
faced severe opposition by the Soviet authorities.116 Estonia and Latvia
are examples of a negotiated settlement in which the parent State agreed
to waive its claim to territorial integrity prior to the issuing of
declarations of independence. Lithuania, in contrast, is an example of a
new State emerging after an initial unilateral declaration of
independence was subsequently accepted by the parent State.
108. For an overview of a number of unsuccessful attempts at secession, see CRAWFORD,

supra note 4, at 403.
109. See Colin Warbrick, Recognition of States, 41 INT’L & COMP. L.Q. 473, 474 (1992)
(arguing that the legal position on this matter would depend on the position one takes with regard
to legality of the Ribbentrop-Molotov Pact).
110. See Pact of Non-Aggression, Secret Additional Protocol art. 1, Ger.-U.S.S.R.., Aug. 23,
1939, 2 U.S.T. 208 (“In the event of a territorial and political rearrangement in the areas
belonging to the Baltic States (Finland, Estonia, Latvia, Lithuania), the northern boundary of
Lithuania shall represent the boundary of the spheres of influence of Germany and U.S.S.R. In
this connection the interest of Lithuania in the Vilna area is recognized by each party.”).
111. Susan E. Himmer, The Achievement of Independence in the Baltic States and Its
Justification, in THE BALTIC PATH TO INDEPENDENCE 323 (Adolf Sprudzs ed., 1994).
112. Id. at 324.
113. See discussion infra Part III.B.
114. For more background, see INETA ZIEMELE, STATE CONTINUITY AND
NATIONALITY : THE BALTIC STATES AND RUSSIA: PAST PRESENT AND FUTURE AS DEFINED BY
INTERNATIONAL LAW 43 (2005) (providing a detailed overview of the political process which led
to Moscow’s approval of the Baltic States’ path to independence).
116. Id.
The three Baltic States were explicitly recognized by the Soviet
Union on September 6, 1991, and only on September 12, 1991, did the
Security Council consider their applications for U.N. membership. 117
As Crawford notes, this suggests that “the position of the Soviet
authorities was treated as highly significant even in a case of suppressed
independence.”118 In other words, even in the specific situation of the
Baltic States, it was not before the parent State’s waiver of the claim to
territorial integrity was granted that the applicants were considered
independent States.
Eritrea was in a different position but also achieved independence
upon prior approval of its parent State, Ethiopia. Unlike the Baltic
States, Eritrea did not have a prior history of independence. It was,
however, an Italian colony and thus an entity governed in separation
from Ethiopia.119 After Italy’s defeat in the Second World War, Eritrea
was temporarily put under British administration120 and then federated
with Ethiopia in 1950. 121 Ethiopia unilaterally terminated the federal
arrangement in 1962.122
Subsequently, the Eritrean Peoples Liberation Front (EPLF) emerged
and sought Eritrean independence. 123 This became feasible after the
change of government in Ethiopia in 1991 when the Ethiopian People’s
Revolutionary Democratic Front (EPRDF) defeated the Ethiopian
military regime.124 Since the EPRDF was backed by the EPLF,125 the
new Ethiopian government came to power with the help of the Eritrean
pro-independence movement.
In 1993, a plebiscite was held under U.N. auspices and at a
participation of 93.9%, an overwhelming 99.8% of votes cast were in
favor of independence.126 Eritrean independence was accepted by the
Transitional Government of Ethiopia, and the new State was admitted to
117. Id.
118. Id. at 394.
119. For more background, see Minasse Haile, Legality of Secessions: The Case of Eritrea, 8
EMORY INT ’L L. REV. 479, 482–87 (1994) (giving a detailed historical account of the origins of a
separate Eritrean entity).
120. Id. at 484.
121. G.A. Res. 390 (V) A, U.N. Doc. A/RES/390 (Dec. 2, 1950).
122. See CRAWFORD, supra note 4, at 402. Ethiopia was at that time still ruled by Emperor
Haile Selassie, whose government was ousted in 1974 by the military regime that stayed in power
until 1991. See Haile, supra note 119, at 487.
123. See CRAWFORD, supra note 4, at 402 (providing a detailed account of Eritrea’s path to
independence).
124. Id.
125. Id.
126. Id.
the U.N. on May 28, 1993.127 Although the internal political situation in
Ethiopia was very complicated, Eritrea became independent under
international law upon the parent State’s previous consent and waiver of
the claim to territorial integrity.
3. Subsequent Approval of the Parent State: Bangladesh
As was already outlined through the example of Lithuania, in some
circumstances an entity may issue a unilateral declaration of
independence but will not necessarily be considered a State before the
parent State accepts its independence. This is an example of a
subsequent, rather than pre-negotiated, waiver of the claim to territorial
integrity. A very prominent example of this kind of a grant of legal
authority is Bangladesh (formerly known as East Pakistan).
Pakistan was formed in 1974 “out of the provinces of the British
India and the Indian states with majority Muslim population.”128 Its
territory was geographically divided in two parts, which were separated
by around 1,000 miles of Indian territory. 129 In East Pakistan most of
the population spoke Bengali, a language not spoken in West Pakistan,
while “[t]he only aspect of social life which the two populations shared
was that of Islam.”130 East Pakistan “had suffered relatively severe and
systematic discrimination from the central government based in
Islamabad.”131
At general Pakistani elections in December 1970, the Awami League,
an autonomy-seeking East Pakistani party, won 167 out of 169 seats
allocated to the eastern part of the State in the Pakistani Parliament. 132
This result meant a solid majority in the 313-seat Pakistani
Parliament.133 In response to the dominance of the Awami League, the
central government suspended the Parliament and introduced a period of
martial rule in East Pakistan, “which involved acts of repression and
even possibly genocide and caused some ten million Bengalis to seek
refuge in India.”134
On April 17, 1971, the Awami League proclaimed the independence
of East Pakistan. 135 At that time, East Pakistani guerrilla forces were
127. G.A. Res. 47/230, U.N. Doc. A/RES/47/230 (May 28, 1993).
128. ALEKSANDAR P AVKOVIĆ & PETER RADAN, CREATING NEW STATES: THEORY AND
PRACTICE OF SECESSION 103 (2007).
129. Id. at 104
130. Id.
132. Id. at 140–41
133. Id. at 141.
134. Id.
135. PAVKOVIĆ & RADAN, supra note 128, at 102.
already in armed conflict with Pakistani armed forces.136 On December
3, 1971, India intervened in support of East Pakistan, fighting Pakistani
armed forces on both eastern and western sides. 137 On December 17,
1971, Pakistani armed forces surrendered and India declared a ceasefire
with the western side. 138 On December 6, 1971, India recognized the
independence of Bangladesh. 139 With the help of Indian forces, the
Awami League exercised substantial control over the territory of
Bangladesh.140 Within weeks, Bangladesh was explicitly recognized by
twenty-eight States.141
Bangladesh could be potentially seen as an example of “remedial
secession”142; however, it is obvious that in spite of the grave
humanitarian situation and the relatively high number of recognitions,143
Bangladesh was not universally seen as being entitled to
independence.144 Although Pakistan withdrew from the eastern part at
the end of 1971, the legal status of Bangladesh remained ambiguous for
more than two years. It was not until Pakistan recognized Bangladesh
on February 22, 1974,145 that universal recognition followed.
Bangladesh was only admitted to the U.N. on September 17, 1974. 146
Even in this potential situation of remedial secession, the new State
unequivocally emerged only after its parent State granted recognition
and, in so doing, waived its claim to territorial integrity.
Thus, the claim to territorial integrity may be waived by the parent
State through prior or subsequent acceptance of independence. The
waiver is usually formalized through the parent State’s recognition of
the independence-seeking entity. A waiver may also be given in
advance through means such as a constitutionally-guaranteed right to
secession.147 In practice, however, such a constitutional right is of little
value if it is not implemented by a clear mechanism for secession.
Where a new State emerges on the basis of a waiver of the claim to
territorial integrity, the parent State continues to exist with the same
identity under international law.
136. See id.

138. See id.
139. See id.
140. See id.
141. See id.
142. Id. at 393.
143. See id.
144. See id.
145. See id.
146. See G.A. Res. 3203 (XXIX), U.N. Doc. A/RES/3203 (Sept. 17, 1974).
147. See discussion supra Part III.A.1.
B. Consensual Extinction of the Parent State: Czechoslovakia and the
Soviet Union
This Section examines cases where the parent State has consensually
dissolved and the new States emerge in the absence of a claim to
territorial integrity. Primary examples of such situations are
Czechoslovakia and the Soviet Union.
The dissolution of Czechoslovakia was negotiated among
democratically-elected political elites while it was unclear whether the
people of either federal unit supported the creation of separate Czech
and Slovak States. As Eric Stein notes:
[The dissolution] was the result of almost three years of
constitutional negotiations which ended in deadlock when the Slovak
side demanded a confederation or a “union” and the Czech side
refused to accept anything but a “functional federation.” In the face
of the “no exit” situation the two sides agreed, with the blessing of
the Federal Parliament, on an orderly breakup and on a dense
network of international agreements between the nascent Republics
defining their future relations. 148
The dissolution of Czechoslovakia was not initiated by secessionist
attempts in either republic but was the result of different views on the
internal organization of the common State and an inability to reconcile
these views. The negotiated settlement extinguished the international
personality of the federation, and Czechoslovakia ceased to exist on
December 31, 1992.149 On January 1, 1993, the Czech Republic and
Slovakia were proclaimed independent States.150 Both were admitted to
the U.N. on January 19, 1992. 151 Czechoslovakia is a clear example of
consensual dissolution, and the emergence of the two new States was
not contested.
While the people did not unequivocally give consent for the alteration
of the territory’s legal status, the international community accepted the
dissolution of Czechoslovakia and the consequential emergence of two
separate States. In the absence of an applicable claim to territorial
integrity or, indeed, in the absence of the parent State, the emergence of
the two new States was a new legal fact which only needed to be
acknowledged by the international community.
The dissolution of the Soviet Union took place in more complicated
political circumstances, but in terms of international law the emergence
148. Eric Stein, Out of the Ashes of a Federation, Two New Constitutions, 45 AM. J. COMP.
L. 45, 45 (1997).
149. See CRAWFORD, supra note 4, at 402.
150. See id.
151. G.A. Res. 47/221, U.N. Doc. A/RES/47/221 (Jan. 19, 1993) (Czech Republic); G.A.
Res. 47/222, U.N. Doc. A/RES/47/222 (Jan. 19, 1993) (Slovakia).
of the new States in its territory resembles the emergence of the Czech
Republic and Slovakia as independent States. The decisive political
development for the dissolution of the Soviet Union was a power
contest between the Soviet Leader Mikhail Gorbachev and the then
already elected president of Russia, Boris Yeltsin. 152 The failed putsch
attempt of a group of Soviet officials in August 1991 further weakened
Gorbachev and the federal organs and strengthened Yeltsin and his
agenda to undermine the federation. 153
Independence was not initially on the agenda of the political
leadership in all of the Soviet republics. 154 Yeltsin’s primary goal was
to undermine Gorbachev’s power and not to disrupt the Soviet Union. 155
The latter result was a side-effect of the primary goal. 156 Meanwhile,
the Ukrainian leadership, faced with a strong pro-independence
movement, only co-opted independence ideas at the end of 1990. 157 In
the Central Asian republics, political elites initially opposed the
referendum on the future of the Soviet Union, but “once it became clear
it would occur, they sought a way to co-opt nationalist sentiment.”158
Nevertheless, “up until the very last minute . . . almost all of Central
Asia’s leaders maintained hope that the Union could be saved.”159
Indeed, independence in many Republics was not a result of secessionist
activities but rather an outcome of political developments in the Soviet
Union. Therefore, for the most part, “it was not nationalism per se, but
the structure of the Soviet state . . . that proved fatal to the USSR.”160
In this political situation, the presidents of Belarus, Russia, and
Ukraine, on December 8, 1991, signed the Agreement Establishing the
Commonwealth of Independent States (CIS) (Minsk Agreement),161
which included the following formulation: “We, the Republic of
Belarus, the Russian Federation . . . and Ukraine, as founder states of
the Union of Soviet Socialist Republics and signatories of the Union
Treaty of 1922 . . . hereby declare that the Union of Soviet Socialist
152. STEPHEN KOTKIN, ARMAGEDDON AVERTED: THE SOVIET COLLAPSE 103 (2001)
(giving an overview of political developments that led to the dissolution of the Soviet Union).
153. Id.
154. Id.
155. Id. at 104.
156. Id.
157. Id. at 105.
158. HENRY E. BRADY & CYNTHIA S. KAPLAN, EASTERN EUROPE AND THE FORMER SOVIET
UNION, in REFERENDUMS AROUND THE WORLD : THE GROWING USE OF DIRECT DEMOCRACY
194 (David I. Butler & Austin Ranney eds., 1994).
159. KOTKIN, supra note 152, at 40.
160. Id. at 106.
161. See Agreement on the Establishing the Commonwealth of Independent States art. 1,
Dec. 8, 1991, 31 I.L.M. 138 [hereinafter Minsk Agreement].
Republics as a subject of international law and a geopolitical reality no
longer exists.”162
On December 21, 1991, the remaining Soviet Republics, with the
exception of Georgia,163 adopted a protocol to the Minsk Agreement,
thus extending the CIS to these former Republics.164 On the same day,
eleven Soviet Republics adopted the Alma Ata Declaration which
declared: “With the establishment of the Commonwealth of
Independent States, the Union of Soviet Socialist Republics ceases to
exist.”165
As a consequence of the transformation into the CIS, the Soviet
Union no longer existed, and thus the claim to territorial integrity was
removed as it was in Czechoslovakia. In the absence of a parent State
that could make a counterclaim to territorial integrity, there was no
doubt that the Soviet republics emerged as independent States. The
emergence of new States was internationally accepted and the
admission to the U.N. rapidly followed. 166 There were, however, two
significant differences between the Soviet and Czechoslovak
dissolutions. Unlike in Czechoslovakia, independence referenda were
held in most Soviet republics167 but had little influence on the dynamic
of the dissolution. In some republics referenda were only held after the
adoption of the Minsk Agreement and the Alma Ata Protocol and, in the
absence of any other choice, merely affirmed the path to independence
162. Id. pmbl.

163. See Protocol to the Agreement Establishing the Commonwealth of Independent States,
Dec. 21, 1991, 31 I.L.M. 147 [hereinafter Protocol Agreement] (enumerating parties to the
Protocol which includes all former Soviet republics with the exception of Georgia and the Baltic
States. The latter had achieved independence in a separate process taking place prior to the
adoption of the Minsk Agreement. See ANTONY AUST, HANDBOOK OF INTERNATIONAL LAW 23
(2005).
164. See Protocol Agreement, supra note 163. Ratifications took place in December of 1991
in Belarus, Ukraine, Russia, Kazakhstan, Turkmenistan, Uzbekistan, Armenia, Kyrgyzstan,
Tajikistan, Azerbaijan, and Moldova. Commonwealth of Independent States, INT’L DEMOCRACY
WATCH, http://www.internationaldemocracywatch.org/index.php/commonwealth-of-indipendent-
states (last visited Nov. 21, 2012). Georgia also eventually ratified the Minsk Agreement on
December 3, 1993. Id.
165. Alma Ata Declaration, Dec. 21, 1991, 31 I.L.M. 148, 149.
166. Moldova, Kazakhstan, Kyrgyzstan, Uzbekistan, Armenia, Tajikistan, Turkmenistan, and
Azerbaijan all became members of the United Nations on March 2, 1992, and Georgia, who made
its application belatedly, on July 31, 1992. Member States of the United Nations, UN. ORG,
http://www.un.org/en/members/ (last visited Nov. 21, 2012). Ukraine and Belarus were original
members of the U.N. and continued their membership. See AUST, supra note 163, at 18 (arguing
that the U.N. membership of Ukraine and Belarus while they were Soviet republics was an
anomaly that was resolved by independence of these two States).
167. BRADY & KAPLAN, supra note 158, at 187–93 (providing for an overview of
independence referenda in the Soviet Union).
with overwhelming majorities.168
Moreover, it was mutually accepted by members of the CIS that
Russia would continue the international personality of the Soviet Union
and inherit its membership in international organizations. Such a
position was expressed in the Decision by the Council of Heads of State
of the CIS, adopted on December 21, 1991: “The States of the
Commonwealth support Russia’s continuance of the membership of the
Union of Soviet Socialist Republics in the United Nations.”169
Crawford notes that “[n]o resolution confirming the continuity of
membership was passed but Russia took up the seat of the Soviet Union
without objections.”170
Thus, the claim to territorial integrity may be removed by a complete
dissolution of the parent State. The next Section turns from consensual
dissolution to the problem of non-consensual dissolution and the
emergence of new States resulting from international involvement.
C. Multilateral International Involvement

New States may also emerge as a consequence of international
involvement that either leads to non-consensual dissolution of the parent
State or procures the parent State’s consent to grant independence to
part of its territory. This Section analyzes the dissolution of the SFRY
and the secession of East Timor as examples of removal of applicable
claims to territorial integrity through multilateral international
involvement. The SFRY was an example of non-consensual dissolution
of the parent State. In the absence of a negotiated agreement, the non-
consensual mode of dissolution could only be determined by
international legal responses to the developments in the SFRY in 1991.
The involvement of the European Community (E.C.) in the SFRY’s
situation crucially influenced universal State practice, while East
Timor’s path to independence was marked by U.N. involvement.
1. Non-Consensual Dissolution: the Socialist Federal Republic of
Yugoslavia
The SFRY was a federation of six republics and two autonomous
provinces.171 At the time of the dissolution, the 1974 SFRY
168. See generally id. (showing that several referendums occurred after the dates of the
Minsk and Alma Alta Protocol).
169. Decision by the Council of Heads of State of the Commonwealth of Independent States,
Dec. 8, 1991, 31 I.L.M. 138.
171. See USTAV SOCIJALISTIČKE FEDERATIVNE REPUBLIKE JUGOSLAVIJE [CONSTITUTION]
(1974) art. 2 (Socialist Federal Republic of Yugoslavia) (defining the constitutive parts of the
federation).
Constitution was in force and defined the republics as States172 with
delimited internal boundaries,173 whereas the “federal organization
relied heavily on the ethnic component.”174
After Slovenia and Croatia both declared independence on June 25,
1991,175 an armed conflict between Slovenia and the Yugoslav National
Army broke out.176 The E.C. brokered a ceasefire agreement signed on
July 7, 1991, at Brioni Islands, Croatia. 177 The Brioni Agreement
stipulated a three-month suspension period in which the pre-declaration
regime of June 25, 1991 would be re-established.178 On August 27,
1991, the E.C. and its member-states founded the Conference on
Yugoslavia, under whose auspices the Arbitration Commission was
established.179 The Arbitration Commission was chaired by the
president of the French Constitutional Court, Robert Badinter (the
Badinter Commission).180 The opinions of the Badinter Commission
were formally not legally binding. 181
Subsequently, at the Council of Ministers meeting on December 16,
1991, the E.C. adopted two documents in which it expressed its
recognition policy in regard to the new States emerging in the territories
of the SFRY and Soviet Union 182—the E.C. Guidelines183 and the E.C.
172. Id. art. 3 (providing that the republics of the Socialist Federal Republic of Yugoslavia
(SFRY) are Slovenia, Croatia, Bosnia-Herzegovina, Serbia, Montenegro and Macedonia, in
addition to Kosovo and Vojvodina as two autonomous provinces within the framework of
Serbia).
173. Id. art. 5 (providing that borders of the federal units may not be altered without their
consent).
174. Danilo Türk, Recognition of States: A Comment, 4 EUR. J. INT ’L L. 66, 71 (1993).
175. See REPUBLIC OF SLOVENIA ASSEMBLY DECLARATION OF INDEPENDENCE (June 25,
1991), reprinted in SNEZANA TRIFUNOVSKA, YUGOSLAVIA THROUGH DOCUMENTS: FROM ITS
CREATION TO ITS DISSOLUTION 286 (1994); DECLARATION OF INDEPENDENCE OF THE REPUBLIC
OF CROATIA (June 25, 1991), reprinted in TRIFUNOVSKA, supra, at 301.
177. See STEVE TERRETT, THE DISSOLUTION OF YUGOSLAVIA AND THE BADINTER
ARBITRATION COMMISSION: A CONTEXTUAL STUDY OF PEACE -MAKING EFFORTS IN THE P OST -
COLD WAR WORLD 74 (2000).
178. Id.
180. Alain Pellet, The Opinions of the Badinter Arbitration Committee: A Second Breath for
the Self-Determination of Peoples, 3 EUR. J. INT ’L L. 178, 178 (1992). The other four members
of the Commission were the presidents of the Constitutional Courts of Germany and Italy, the
president of the Court of Arbitration of Belgium and the president of the Constitutional Tribunal
of Spain. See id. The terms “Badinter Commission” and “Badinter Committee” are used
interchangeably. See id. References to the “Badinter Committee” in secondary sources should
therefore be understood to be synonymous with the “Badinter Commission.”
181. See Türk, supra note 174, at 70 (discussing the mandate of the Badinter Commission).
182. See HARRIS, supra note 1, at 147–52 (giving an overview of the legal developments
associated with the dissolution of the SFRY).
183. As the dissolution of the SFRY coincided with the dissolution of the Soviet Union,
Declaration, respectively.184 The E.C. Guidelines invoked “the normal
standards of international practice and the political realities in each
case”185 when recognition was to be granted.
While the E.C. Guidelines were a more general document expressing
the recognition policy, the E.C. Declaration established a procedure for
recognition of the newly-emerged States in the territory of the SFRY.
The Document foresaw the procedure for application by the entities that
“wish to become states,”186 which was then referred for consideration to
the Badinter Commission, 187 and January 15, 1992 was set as the date
when the decision on recognition would be implemented.188
In its Opinion 1, the Badinter Commission expressed the position
“that the Socialist Federal Republic of Yugoslavia is in the process of
dissolution.”189 Such a view denied the position taken by Serbia,
arguing that “those Republics which have declared or would declare
themselves independent or sovereign have seceded or would secede
from the SFRY which would otherwise continue to exist.”190 The
Badinter Commission based its reasoning on the following arguments:
four out of six republics of the SFRY (Slovenia, Croatia, Bosnia-
Herzegovina, and Macedonia) had declared independence; 191 the
“composition and workings of the essential organs of the Federation . . .
no longer meet the criteria of participation and representatives inherent
in a federal state”;192 and an “armed conflict between different elements
of the federation had erupted . . . [while the] authorities of the
Federation and the Republics have shown themselves to be powerless to
enforce respect, for the succeeding cease-fire agreements concluded
under the auspices of the European Communities or the United Nations
“many of the same issues were raised in relation to both cases.” TERRETT, supra note 177, at 80.
Notably, the European Community (E.C.) became much more involved in the dissolution of the
SFRY, which was a source of instability given the geographical proximity to a number of E.C.
member-states. Id. at 73. Hence the E.C. Declaration only dealt with the SFRY. Id. at 80.
184. See Declarations on Guidelines on the Recognition of New States in Eastern Europe and
in the Soviet Unions, in Letter from Paul Noterdaeme, Permanent Representative of Belgium to
the United Nations et al., to President of the U.N. Sec. Council, Annex 2, U.N. Doc. S/23293
(Dec. 17, 1991).
185. Id. ¶ 2.
186. Declaration on Yugoslavia (EC) (Dec. 16, 1991), in Letter from Paul Noterdaeme, supra
note 184, ¶ 3 [hereinafter EC Declaration].
187. Id. ¶ 4.
188. Id. ¶ 2.
189. Opinion No. 1 of the Arbitration Commission of the Peace Conference on Yugoslavia,
reprinted in TRIFUNOVSKA, supra note 175, at 415, 417.
190. Id. at 415, intro.
191. Id. at 416–17, ¶ 2(a).
192. Id. at 417, ¶ 2(b).
Organization.”193
The Badinter Commission’s Opinion 1 asserted that the
developments in the SFRY could no longer be taken as attempts at
unilateral secession; instead, they amounted to dissolution of the federal
state.194 The difference is crucial because in the event of an attempt at
unilateral secession, the parent State continues to exist and may not be
willing to waive its claim to territorial integrity. Where dissolution is at
issue, however, the parent State no longer exists and there is no
competing claim to territorial integrity. The Badinter Commission thus
interpreted the legal situation in the SFRY as being similar to the
circumstances in the territories of the Soviet Union and in
Czechoslovakia.195
The position of the Badinter Commission that the SFRY no longer
existed was reflected in State practice; most former republics of the
SFRY became universally recognized as States and were admitted to the
membership of the U.N.196 The focus on dissolution in the SFRY was
adopted even by the Security Council. In Resolution 757, the Security
Council held that “the claim by the Federal Republic of Yugoslavia
(Serbia and Montenegro) to continue automatically the membership of
the former Socialist Federal Republic of Yugoslavia (in the United
Nations) has not been generally accepted.”197 Security Council
Resolution 777 further provides:
[T]he Federal Republic of Yugoslavia (Serbia and Montenegro)
cannot continue automatically the membership of the former
Socialist Federal Republic of Yugoslavia in the United Nations; and
therefore recommends to the General Assembly that it decide that the
Federal Republic of Yugoslavia (Serbia and Montenegro) should
apply for membership in the United Nations and that it shall not
participate in the work of the General Assembly. 198
Thus, in the view of the Security Council, all States in the territory of
the former SFRY were newly-created States and had emerged out of
dissolution of the federation. The Badinter Commission subsequently
referred to the position of the Security Council when it pronounced that
“the process of dissolution of the SFRY . . . is now complete and that
193. Id. ¶ 2(c).

194. See id. ¶ 3.
195. See discussion supra Parts III.B, III.C.1.
196. See G.A. Res. 46/236, U.N. Doc. A/RES/46/236 (May 22, 1992) (admission of Slovenia
to the United Nations); G.A. Res. 46/237, U.N. Doc. A/RES/46/237 (May 22, 1992) (admission
of Bosnia-Herzegovina to the United Nations); G.A. Res. 46/238, U.N. Doc. A/RES/46/238 (May
22, 1992) (admission of Croatia to the United Nations).
197. S.C. Res. 757, pmbl. ¶ 10, U.N. Doc. S/RES/757 (May 30, 1992).
198. S.C. Res. 777, ¶ 1, U.N. Doc. S/RES/777 (Sept. 19, 1992).
the SFRY no longer exists.”199
The international involvement channeled through the E.C. bolstered
the pivotal opinion that the SFRY no longer existed and the new States
had emerged in the absence of an applicable claim to territorial
integrity.200 This position was subsequently accepted in the practice of
States and U.N. organs.201 It is significant that the FRY and Macedonia
for some period remained universally non-recognized, yet in the
absence of an applicable counterclaim to territorial integrity, there was
no doubt that they were States. The FRY was an unusual example
because it denied that it was a newly-created State and instead claimed
continuity with the legal personality of the SFRY. 202 Despite being
non-recognized, the FRY appeared before the ICJ in the Bosnia
Genocide case, 203 clearly proving that it was considered a State, given
that only States can be parties to ICJ proceedings.204 The ICJ
implicitly205 and the Badinter Commission explicitly206 stated that the
199. Opinion No. 8 of the Arbitration Commission of the Peace Conference on Yugoslavia
(July 4, 1992), reprinted in TRIFUNOVSKA, supra note 175, at 636, ¶ 4.
200. See Opinion No. 1 of the Arbitration Commission of the Peace Conference on
Yugoslavia, supra note 189, at 415–16.
201. See supra notes 195–196 and accompanying text.
202. The Federal Republic of Yugoslavia’s (FRY) claim to the SFRY’s international
personality is evident from submissions of both Serbia and Montenegro to the E.C. in response to
the invitation to apply for recognition, as expressed by the EC Declaration. EC Declaration,
supra note Error! Bookmark not defined., at 2. In his reply on December 23, 1991, Serbia’s
Foreign Minister recalled that Serbia acquired “internationally recognized statehood at the Berlin
Congress of 1878 and on that basis had participated in the establishment in 1918 of the Kingdom
of Serbs, Croats and Slovenes which became Yugoslavia [and concluded that Serbia] is not
interested in secession.” Roland Rich, Recognition of States: The Collapse of Yugoslavia and the
Soviet Union, 4 EUR. J. INT ’L L. 36, 47 (1993). Montenegro’s Foreign Minister, in his response
on December 24, 1991, also declined the E.C.’s invitation to apply for recognition and recalled
the international personality that Montenegro had prior to joining the Yugoslav State formations.
Id. The issue was also referred to in Opinion 11 of the Badinter Commission: “There are
particular problems in determining the date of State succession in respect of the Federal Republic
of Yugoslavia because that State considers itself to be the continuation of the Socialist Federal
Republic of Yugoslavia rather than a successor State.” Opinion No. 11 of the Arbitration
Commission of the Peace Conference on Yugoslavia (July 16, 1993), reprinted in TRIFUNOVSKA,
supra note 175, at 1017, ¶ 7.
203. See Application of Convention on Prevention and Punishment of Crime of Genocide
(Bosn. & Herz. v. Yugoslavia), Preliminary Objections, 1996 I.C.J. 595, at 596 (July 11)
[hereinafter Bosnia Genocide case].
204. Statute of the International Court of Justice art. 34(1).
205. In the Bosnia Genocide case, the ICJ took the position that the FRY became a party to
the Genocide Convention, to which the SFRY was previously a party, on the day when it adopted
its new constitution. Bosnia Genocide case, supra note 203, ¶ 17. This implicitly means that in
the view of the ICJ, the FRY became a State on April 27, 1992. See id.
Yugoslavia, supra note 202 (stating that the FRY became a State on the day when it adopted its
constitution).
FRY became a State on April 27, 1992, the day of the adoption of its
new constitution.
Although the Badinter Commission recommended its recognition in
1992, Macedonia remained unrecognized by the E.C. member states
until December 16, 1993, and even then it was recognized under a
compromise name, The Former Yugoslav Republic of Macedonia (FYR
Macedonia).207 Prior to recognition by the E.C., on April 8, 1993, the
FYR Macedonia had already become member of the U.N. 208 The
reason for non-recognition was Greece’s objection to its constitutional
name, Macedonia.209 The E.C. did not extend recognition due to
internal policy matters, but this policy was applied almost universally,
given that only Bulgaria, Turkey, and Lithuania granted recognition
under the original name before admission of the FYR Macedonia to the
U.N.210 Nevertheless, the lack of universal recognition for Macedonia
does not mean that Macedonia was not a State in that period. It is
merely an example of political non-recognition.211 It should be noted
that in its Opinion 11, the Badinter Commission held that Macedonia
became a State on November 17, 1991, the day when it adopted a new
constitution proclaiming Macedonia a sovereign State.212
In addition, the central governments of Croatia and Bosnia-
Herzegovina did not exercise effective control over extensive parts of
their territory.213 Thus, these two States did not fully meet the
207. See CRAWFORD, supra note 4, at 398 (discussing recognition of Macedonia).

208. G.A. Res. 47/225, U.N. Doc. A/RES/47/225 (Apr. 8, 1993) (admission of Macedonia to
U.N. membership).
209. See THOMAS GRANT, THE RECOGNITION OF STATES: LAW AND PRACTICE IN DEBATE
AND EVOLUTION 158 (1999).
210. See Rich, supra note 202, at 52 (arguing that the E.C.’s policy of non-recognition of
Macedonia had been virtually universalized but there were a few exceptions).
211. On May 1 and 2, 1992, the E.C. and its member states adopted the Declaration on the
Former Yugoslav Republic of Macedonia, in which it was held that they were “willing to
recognise that State as a sovereign and independent State, within its existing borders, and under a
name that can be accepted by all parties concerned.” Declaration on the Former Yugoslav
Republic of Macedonia, Informal Meeting of Ministers of Foreign Affairs, Guimaracs, 1–2 May
1992, reprinted in CHRISTOPHER HILL & KAREN E. SMITH, EUROPEAN FOREIGN P OLICY : KEY
DOCUMENTS 376 (2000). The use of the term “State” rather than, for example, “entity” clearly
implies that Macedonia’s attributes of statehood were not a subject of dispute; rather, the E.C. did
not want to enter into relations with Macedonia under its constitutional name. In this context, see
also Craven, supra note 10, at 207–18, which argues that non-recognizing States did not deny
Macedonia’s statehood.
Yugoslavia, supra note 202, ¶ 5.
213. See RAIČ, supra note 50, at 338; see also CRAWFORD, supra note 4, at 398 (arguing that
large parts of Croatia and Bosnia-Herzegovina were not controlled by their central governments
and thus these two newly-created States did not meet the statehood criteria).
Montevideo statehood criteria. 214 This did not prevent Croatia and
Bosnia-Herzegovina from becoming States. These two examples thus
further affirm that States do not emerge automatically as a matter of an
objective fact upon meeting the statehood criteria. Emergence of a new
State is a political process regulated by international law. The crucial
element in this process is a removal of the claim to territorial integrity
of the parent State. A declaration of independence may become
internationally accepted even where statehood criteria are not entirely
satisfied.
In a world completely divided between States,215 a populated and
defined territory is presumed to have a territorial sovereign. 216 Once it
was accepted that the SFRY no longer existed, the territories of Croatia
and Bosnia-Herzegovina were no longer under its sovereignty.
Although the two newly emerged States did not meet the statehood
criteria, it would be difficult to argue that they were not States. The
question would arise as to who the sovereign power of these two
territories is. Under contemporary international law, it is untenable that
such a power did not exist or that the two territories could be seized
through use of force. 217
The two situations further affirm the interpretation that the
Montevideo criteria for statehood are not a statehood checklist. 218 What
is crucial for the emergence of a new State is not meeting the
Montevideo criteria but rather overcoming the applicable counterclaim
to territorial integrity. This can be done through international
involvement. The next Section is concerned with East Timor, where the
claim to territorial integrity was also removed by international
involvement, but the involvement led to a different mode of State
creation by securing the approval of the parent State.
2. Overcoming the Territorial Integrity Counterclaim and U.N.
Involvement: East Timor
The history of foreign rule of East Timor has been thoroughly
examined elsewhere. 219 For the purpose of this Article, it should suffice

216. See generally SHAW, supra note 13, at 197–80 (explaining that populated territories
generally have some “coherent political structure”).
217. See generally Malcolm Shaw, Peoples, Territorialism and Boundaries, 8 EUR. J. INT’ L
L. 478, 502 (1997) (arguing that when a federation collapses its internal boundaries need to be
taken into account and territories cannot be subject to conquest).
218. See discussion supra Part II.
219. See generally BILVEER SINGH, EAST TIMOR, INDONESIA AND THE W ORLD : MYTHS AND
REALITIES (1995) (providing an extensive historical overview of the Portuguese rule of Timor in
to recall that the division of the Timor Island dates to Portuguese and
Dutch colonial conquests. 220 The Portuguese first arrived on the island
of Timor at the beginning of the sixteenth century. 221 In the early
seventeenth century, their control over the island was challenged by the
Dutch.222 The Portuguese managed to strengthen their power in the
eastern part of the Timor Island while the Dutch controlled the western
part.223 The division was officially confirmed in a treaty, initially
concluded in 1848,224 and unequivocally accepted by both States in
1859.225 The colonial boundary between the Dutch-controlled western
part and the Portuguese-controlled eastern part of the Timor Island was
finally determined by the Treaty of The Hague in 1913. 226 This
delimitation now represents the international border between the
Democratic Republic of Timor-Leste and Indonesia. 227
Colonial possessions of the Netherlands in the Indonesian
archipelago were lost at the end of the Second World War. 228 Indonesia
declared independence in 1945 and was accepted by the Netherlands in
1949.229 Portugal, on the other hand, retained its colonial possessions
until Portugal’s democratic change in the 1970s.230 The democratic
change in Portugal led to the creation of three rivaling political factions
in East Timor,231 which led to a civil war.232 After the outbreak of
Southeast Asia, and the process by which Portuguese Timor was transformed into Indonesia's
East Timor); HEIKE KRIEGER & DIETRICH RAUSCHNING, EAST TIMOR AND THE INTERNATIONAL
COMMUNITY: BASIC DOCUMENTS (1997); IAN MARTIN, SELF-DETERMINATION IN EAST
TIMOR: THE UNITED NATIONS, THE BALLOT, AND INTERNATIONAL INTERVENTION (2001)
(providing a subjective take on many historical events leading to self-determination of East
Timor, as the author served as Special Representative of the Secretary General for the East Timor
Popular Consultation).
220. See SINGH, supra note 219, at 2–3 (giving a historical overview of the division on the
Timor Island).
221. Id.
222. Id. at 3.
223. Id. at 6.
224. Id.
225. Id.
226. See Gerry van Klinken et al., East Timor Chronology, RMIT UNIV.,
http://rmit.nautilus.org/publications/timor-cronology.html (last visited Nov. 21, 2012).
227. See NEIL DEELEY, THE INTERNATIONAL BOUNDARIES OF EAST TIMOR 25–27 (2001);
see also Case Concerning East Timor (Port. v. Austl.), 1995 I.C.J. 90, ¶¶ 11–16 (June 30)
(discussing the origins of the delimitation on Timor Island).
228. See George W. Davison, Historical Reality and the Case of East Timor, in
INTERNATIONAL LAW AND THE QUESTION OF EAST TIMOR 18 (Catholic Inst. Int’l Relations ed.,
1995).
229. See DEELEY supra note 226, at 2.
230. See SINGH, supra note 219, at 18 (discussing the different colonial backgrounds at the
Timor Island).
231. See id. at 221–25.
232. See MARTIN, supra note 219, at 15–16.
hostilities in 1975, the Portuguese administration left the island, and two
factions subsequently separately declared independence. 233 While the
pro-independence faction claimed that East Timor had become an
independent State, the pro-Indonesian faction maintained that East
Timor had acquired independence from Portugal and entered into
association with Indonesia. 234 On December 7, 1975, Indonesia
occupied the territory, claiming “to be effecting East Timorese self-
determination.”235 On July 17, 1976, the president of Indonesia
promulgated an act that declared East Timor an Indonesian province. 236
In Indonesia’s view, the people of East Timor consummated their right
of self-determination “through integration with Indonesia.”237
In Portugal’s understanding, however, East Timor was not properly
decolonized, and consequently, Portugal still regarded itself as the
administering power.238 Such views were also expressed by the U.N.
through Security Council Resolution 384, which urged the following:
[A]ll States to respect the territorial integrity of East Timor as well as
the inalienable right of its people to self-determination in accordance
with General Assembly resolution 1514 (XV); . . . the Government
of Indonesia to withdraw without delay all its forces from the
Territory [of East Timor]; the Government of Portugal as
administering Power to co-operate fully with the United Nations so
as to enable the people of East Timor to exercise freely their right to
self-determination; . . . all States and other parties concerned to co-
operate fully with the efforts of the United Nations to achieve a
peaceful solution to the existing situations and to facilitate the
decolonization of the Territory. 239
These views were reaffirmed by Security Council Resolution 389 240 and
by a set of General Assembly Resolutions. 241 East Timor remained on
the list of Non-Self-Governing territories 242 and “Portugal continued to
assert its formal ties to East Timor throughout the occupation, notably
233. See id. at 16.

234. See id.
235. RALPH WILDE, INTERNATIONAL TERRITORIAL ADMINISTRATION : HOW TRUSTEESHIP
AND THE CIVILIZING MISSION NEVER WENT AWAY 179 (2008).
236. MARTIN, supra note 219, at 16.
237. Id. at 16–17.
238. Id. at 17.
239. S.C. Res. 384, ¶¶ 1–4, U.N. Doc. S/RES/384 (Dec. 22, 1975). A similar view was
previously expressed in G.A. Res. 3485 (XXX), U.N. Doc. A/RES/3485 (Dec. 12, 1975).
240. S.C. Res. 389, ¶¶ 1–2, U.N. Doc. S/RES/389 (Apr. 22, 1976).
241. G.A. Res. 31/53, U.N. Doc. A/RES/31/53 (Dec. 1, 1976); G.A. Res. 32/34, U.N. Doc.
A/RES/32/34 (Nov. 28, 1977); G.A. Res. 33/39, U.N. Doc. A/RES/33/39 (Dec. 13, 1978); G.A.
Res. 34/40, U.N. Doc. A/RES/34/40 (Nov. 21, 1979); G.A. Res. 35/27, U.N. Doc, A/RES/35/27
(Nov. 11, 1980); G.A. Res. 36/50, U.N. Doc. A/RES/36/50 (Nov. 24, 1981).
242. See WILDE, supra note 235, at 179–80.
by bringing a case about East Timor against Australia to the ICJ in
1991.”243
In 1999, the new Indonesian leadership indicated that it would be
willing to discuss the future legal status of East Timor. 244 On August
30, 1999, upon an agreement between Indonesia and Portugal, a
referendum on the future status of the territory was held. 245 At the
referendum, which was supervised by the U.N. mission, 246 the people of
East Timor rejected an autonomy arrangement within Indonesia and set
the course toward independence. 247 This decision led to an outbreak of
violence that was initiated by Indonesian forces. 248
In response, the Security Council acted under Chapter VII of the U.N.
Charter and adopted Resolution 1264 on September 15, 1999,
authorizing “the establishment of a multinational force under a unified
command structure . . . to restore peace and security in East Timor.”249
Subsequently, the Security Council, again acting under Chapter VII,
adopted Resolution 1272 on October 25, 1999, with which it established
“a United Nations Transitional Administration in East Timor
(UNTAET), which will be endowed with overall responsibility for the
administration of East Timor and will be empowered to exercise all
legislative and executive authority, including the administration of
justice.”250
The crucial factor for East Timor was that Indonesia had already
agreed it would not oppose East Timor’s path to independence. 251 Prior
to the “release” to independence and transfer of power from
international territorial administration to organs of the East Timorese
State, the international administrative authority supervised the creation
of democratic institutions. 252 On March 22, 2002, members of the East
243. Id. at 181.

244. Id. at 181–82.
245. See Agreement Between the Republic of Indonesia and the Portuguese Republic on the
Question of East Timor arts. 1–6, May 5, 1999, 2063 U.N.T.S. 7.
246. See S.C. Res. 1236, ¶¶ 4, 8, 9, U.N. Doc. S/RES/1236 (May 7, 1999).
247. See CRAWFORD, supra note 4, at 561 (discussing the independence referendum in East
Timor).
248. Id.
249. S.C. Res. 1264, ¶ 3, U.N. Doc. S/RES/1264 (Sept. 15, 1999).
250. S.C. Res. 1272, ¶ 1, U.N. Doc. S/RES/1272 (Oct. 25, 1999).
251. See Agreement Between the Republic of Indonesia and the Portuguese Republic on the
Question of East Timor, supra note 245, art. 6.
252. See U.N. Secretary-General, Interim Report of the Secretary-General on the United
Nations Transitional Administration in East Timor, ¶¶ 2–7, U.N. Doc. S/2001/436 (May 2, 2001)
[hereinafter U.N. Secretary-General, Interim Report]; U.N. Secretary-General, Report of the
Secretary-General on the United Nations Transitional Administration in East Timor, ¶¶ 4–8,
U.N. Doc. S/2001/983 (Oct. 18, 2001) (setting out the institutional arrangement and the political
system of East Timor).
Timorese political elite, religious leaders, and representatives of the
civil society signed the text of the new Constitution. 253 The
Constitution entered into force on May 20, 2002, which was the day
foreseen for the proclamation of independence. 254 East Timor’s course
to independence was also affirmed in Security Council Resolution 1338
as adopted on January 31, 2001.255 After the declaration of
independence on May 20, 2002,256 the new State was ultimately
admitted to the U.N. on September 27, 2002. 257
It was argued above that former colonies emerged as new States in
the absence of an applicable claim to territorial integrity.258 Indeed, the
principle of territorial integrity only applies with regard to metropolitan
territory and does not extend to colonial possessions. 259 However, the
real issue in East Timor was independence from Indonesia, not
Portugal. Although East Timor formally remained on the list of non-
self-governing territories,260 it was acknowledged that Indonesia could
invoke the principle of territorial integrity with regard to this territory.
Security Council resolution 1272, for example, in its preamble
reaffirmed “respect for the sovereignty and territorial integrity of
Indonesia.”261 Even the political process leading to independence
shows that Indonesia’s consent was crucial for the emergence of the
new State.
East Timor was guided toward independence by the U.N. However,
this is not to suggest that the emergence of the new State was dependent
upon legal authority granted by the Security Council. Resolution 1272,
adopted under Chapter VII of the U.N. Charter, created an international
territorial administration that was a transitional arrangement; it did not
create a State. East Timor’s path to independence was subsequently
confirmed by Resolution 1338, yet this resolution was not adopted
under Chapter VII of the U.N. Charter. Resolution 1338 did not create
a State or determine that Indonesia had no right to make a claim to
territorial integrity with respect of the territory of East Timor. It merely
253. U.N. Secretary-General, Interim Report, supra note 252, ¶ 4.

254. Id. ¶¶ 2, 4.
255. S.C. Res. 1338, U.N. Doc. S/RES/1338 (Jan. 31, 2001). Notably, this resolution was not
adopted under Chapter VII of the U.N. Charter. Id.
256. See East Timor: Birth of a Nation, BBC NEWS (May 19, 2002),
http://news.bbc.co.uk/2/hi/asia-pacific/1996673.stm.
257. G.A. Res. 57/3, U.N. Doc. A/RES/57/3 (Sept. 27, 2002) (admitting East Timor to the
membership of the United Nations).
258. See Fox, supra note 12, at 736.
259. See id.
260. See WILDE, supra note 235, at 179–80 (arguing that during the Indonesian rule, East
Timor formally remained a Portuguese colony).
261. See S.C. Res. 1272, supra note 250.
affirmed the politically-negotiated path to independence. 262
East Timor may thus be seen as a State that emerged after Indonesia’s
waiver of the claim to territorial integrity after the waiver was procured
by international involvement and channeled through the U.N. It was
ultimately Indonesia’s consent that was the grant of legal authority for
the emergence of the new State. This is different than situations in
which the claim to territorial integrity is removed directly by
international involvement and not by procuring the consent of the parent
State. The next Section turns to the even more controversial situation in
which the parent State continues existing and makes a counterclaim for
territorial integrity, but the claim is internationally disregarded.
D. “Constitutive Recognition”
This subsection is concerned with the question of whether a State
may successfully emerge as a result of unilateral secession. Such
situations are marked by the legal circumstances in which the parent
State’s international personality continues to exist, and the claim to
territorial integrity consequently applies prima facie. In addition, the
parent State is not willing to waive its claim.
As indicated above, the Security Council has never used its binding
powers to create a State. 263 Thus, the only feasible mode of removing
the territorial integrity claim remains recognition by other States. Three
questions arise at this point. First, are foreign States allowed to grant
recognition where an entity tries to emerge as a State against the wishes
of its parent State? Second, if recognition is accepted as a grant of legal
authority leading to the emergence of a new State, does that mean that
recognition is constitutive? Third, if recognition is a grant of legal
authority, how many and whose recognitions are necessary for an entity
to become a State?
1. The Questions of Legality and Constitutive Effects
Practice of States and U.N. organs shows that territorial illegality 264
triggers an obligation erga omnes to withhold recognition of an illegally
created effective entity. 265 This was confirmed in Article 41 of the
262. See S.C. Res. 1338, supra note 255, ¶ 4 (confirming East Timor’s path to
independence).
263. See discussion supra Part III.C.1–2.
264. Cf. CRAWFORD, supra note 4, at 129 (noting the declarations of illegality associated
with Southern Rhodesia’s claims of independence on the basis of the United Kingdom’s
territorial sovereignty).
265. See McCorquodale, supra note 5.
International Law Commission Articles on State Responsibility. 266
Although the association of illegality in the context of the obligation
to withhold recognition with the concept of jus cogens remains
somewhat controversial, 267 the ICJ has given it cautious
acknowledgement in the Kosovo Advisory Opinion.268 International law
clearly demands that under some circumstances States owe an
obligation erga omnes to withhold recognition. 269 At the same time,
nothing in the doctrine or non-recognition practice suggests that an
obligation to withhold recognition applies where independence is
declared without the consent of a parent State or that an obligation erga
omnes would apply because of the unilateral character of a declaration
of independence. 270 Indeed, the principle of territorial integrity of States
cannot be seen as an absolute right of States or even as a norm of jus
cogens.271
That the obligation to withhold recognition does not apply simply
because an attempt at secession is unilateral also follows from
Reference re: Secession of Quebec (the Quebec case), where the
Supreme Court of Canada held that:
The ultimate success of . . . a [unilateral] secession would be
dependent on recognition by the international community, which is
likely to consider the legality and legitimacy of secession having
regard to, amongst other facts, the conduct of Québec and Canada, in
determining whether to grant or withhold recognition. 272
This holding can only be based on the underlying position that the
266. Responsibility of States for Internationally Wrongful Acts, G.A. Res. 56/83, Annex, art.
41, U.N. Doc. A/RES/56/83/Annex (Dec. 12, 2001) (providing that a serious breach of a
peremptory norm leads to an obligation owed erga omnes not to recognize the effective situation
created by such a breach).
267. Stefan Talmon, The Duty Not to ‘Recognize as Lawful’ a Situation Created by the
Illegal Use of Force or Other Serious Breach of a Jus Cogens Obligation: An Obligation Without
Real Substance?, in THE FUNDAMENTAL RULES OF THE INTERNATIONAL LEGAL ORDER: JUS
COGENS AND OBLIGATIONS ERGA OMNES 103 (Christian Tomuschat & Jean-Marc Thouvenin
eds., 2006) (arguing that only a very few jus cogens norms could be relevant in the context of
State creation and that violation of such norms does not result in an entity not being a State).
268. Kosovo Advisory Opinion, supra note 61, ¶ 81 (holding that “declarations of
independence” may be illegal where it is “connected with the unlawful use of force or other
egregious violations of norms of general international law, in particular those of a peremptory
character (jus cogens)”).
269. See McCorquodale, supra note 5.
270. See Jure Vidmar, Conceptualizing Declarations of Independence in International Law,
32 OXFORD J.L. STUD. 153, 166 (2011) (arguing that the unilateral nature of a declaration of
independence does not underlie territorial illegality that triggers an erga omnes obligation to
withhold recognition).
271. See Peters, supra note 13, at 179 (arguing that territorial integrity of States is not a
peremptory norm of international law).
272. Reference re: Secession of Quebec, [1998] 2 S.C.R. 217, ¶ 155 (Can.).
unilateral character of secession does not trigger an obligation to
withhold recognition. Rather, the neutrality of international law with
respect of unilateral secession affects even the act of recognition.
Where an entity tries to emerge as an independent State, international
law does not prescribe that recognition needs to be either granted or
withheld.
The holding in the Quebec case also implies that under some
circumstances the emergence of a new State may actually depend on
recognition. Recognition may create a new State. This is not to say that
recognition should generally be considered a constitutive act. Indeed,
the above-invoked situations of the FRY and Macedonia are good
examples of how a politically non-recognized State can exist and be
treated as a State even where non-recognition is virtually universal, but
in those circumstances the parent State’s international personality was
extinguished and statehood was not challenged by a counterclaim for
territorial integrity. 273 It is different where an entity tries to emerge as a
State against the competing claim for territorial integrity. In such
circumstances recognition does not merely acknowledge the new legal
fact of the existence of a new State but may rather produce such a fact.
Since recognition of an attempt at unilateral secession is not
prohibited under international law, 274 it is difficult to argue that
recognition could not be taken as a grant of legal authority for the
emergence of a new State. Recognition may thus be seen as a means of
international removal of the claim to territorial integrity by the parent
State. In essence, the principle of territorial integrity of States does not
generate an absolute right of States to territorial integrity or an absolute
prohibition of unilateral secession. 275 Foreign States may therefore
choose to disregard the observance of this principle by granting
recognition.
Such an understanding also follows from the doctrine of remedial
secession. In international law de lege lata it is difficult to see remedial
secession as a right of oppressed peoples.276 However, as Shaw argues,
remedial secession may be given effects through recognition, which
“may be more forthcoming where the secession has occurred as a
consequence of violations of human rights.”277 In the Quebec case, the
273. See discussion supra Part III.C.1.

274. See supra note 72 and the accompanying text.
275. See supra Part II.D.
276. See Shaw, supra note 217, at 483 (arguing that there is not enough evidence in
international legal doctrine that would suggest that remedial secession is an entitlement under
international law).
277. Id.
Supreme Court of Canada argued that before deciding on whether or not
recognition of unilateral secession would be granted, States consider
legality and legitimacy of the secessionist claim. 278 Where such a claim
is made by “oppressed peoples,” foreign States are more likely to
consider the claim as being legitimate and give it priority over the
parent State’s claim for territorial integrity. By acknowledging that
recognition could be seen as a grant of legal authority that removes the
claim to territorial integrity and enables the emergence of a State as a
new legal fact, this theory also acknowledges that recognition may have
constitutive effects. In these circumstances, the well-known problem of
the constitutive theory is that it is unclear how many and whose
recognitions are necessary for an entity to become a State. 279 Weller
suggests that recognition would need to be “widespread.”280
Somewhat similarly, Crawford argues that collective recognition
could be seen as virtually a mode of collective State creation. In this
respect, Crawford argues:
[I]n many cases, and this is as true of the nineteenth century as of the
twentieth, international action has been determinative [for new State
creations]: international organizations or groups of States—
especially the so-called ‘Great Powers’—have exercised a collective
authority to supervise, regulate and condition . . . new [state]
creations. In some cases the action takes the form of the direct
establishment of the new State: a constitution is provided, the State
territory is delimited, a head of State is nominated. In others it is
rather a form of collective recognition—although the distinction is
not a rigid one.281
The problem, however, is that not even the qualifiers “widespread”
and “collective” are sufficient to answer the question of how many and
whose recognitions are necessary for an entity to be seen as a
collectively created State. Kosovo illustrates this problem.
2. How Many and Whose Recognitions are Necessary? The Case of
Kosovo
Several parallels can be drawn between Kosovo and East Timor, but
Kosovo was not a colony in the classical sense of “salt water
colonialism.”282 Predominantly settled by ethnic Albanians, the
278. Reference re: Secession of Quebec, [1998] 2 S.C.R. 217, ¶ 155 (Can.).
279. See McCorquodale, supra note 5, at 191, 197.
280. Weller, supra note 74, at 129–30.
282. “Salt water colonialism” refers to the understanding of colonialism in the sense of
European overseas possessions but does not cover oppression within the metropolitan territory of
a State. ALLEN BUCHANAN, JUSTICE, LEGITIMACY, AND SELF-DETERMINATION : MORAL
FOUNDATIONS FOR INTERNATIONAL LAW 339–40 (Will Kymlicka, David Miller & Alan Ryan
territory came under the de facto rule of Serbia in 1912.283 After the
First World War it became an autonomous entity within Serbia and
retained this legal status in the subsequent Yugoslav State formations.284
In 1989, Serbia suspended its autonomy, which resulted in an escalated
ethnic conflict.285 A decade of tensions led to a grave humanitarian
situation and NATO intervention in 1999. 286 A detailed analysis of
these events is beyond the scope of this Article,287 but on June 10, 1999,
the Security Council, acting under Chapter VII of the U.N. Charter,
adopted Resolution 1244, which put the territory of Kosovo under the
regime of international territorial administration. 288
The preamble to Resolution 1244, inter alia, reaffirms “the
commitment of all Member States to the sovereignty and territorial
integrity of the Federal Republic of Yugoslavia and other states of the
region, as set out in the Final Act of Helsinki and annex 2.”289 The
Resolution’s operative paragraphs, however, created a situation in
which the FRY exercised no sovereign powers in Kosovo. 290
eds., 2004). For criticism of this understanding, see id. at 335 (“If the state persists in certain
serious injustices toward a group, and the group’s forming its own independent political unit is a
remedy of last resort for these injustices, then the group ought to be acknowledged by the
international community to have the claim-right to repudiate the authority of the state and to
attempt to establish its own independent political unit.”).
283. See NOEL MALCOLM, KOSOVO: A SHORT HISTORY 252 (1998) (discussing how Kosovo
came under Serbian rule).
284. See id. at 264. This did not only apply to Kosovo Albanians but also to Albanians living
in other parts of the Kingdom of Serbs, Croats, and Slovenes (later called Yugoslavia). See id.
285. Id. at 344.
286. See Dino Kritsiotis, The Kosovo Crisis and Nato’s Application of Armed Force Against
the Federal Republic of Yugoslavia, 49 INT’L & COMP. L.Q. 330, 330 (2000).
287. For more background on these events, see Bruno Simma, NATO, the UN and the Use of
Force: Legal Aspects, 10 EUR. J. INT ’L L. 1, 10 (1999); Antonio Cassese, Ex Iniuria ius Oritur:
Are We Moving Towards International Legitimation of Forcible Humanitarian Countermeasures
in the World Community?, 10 EUR. J. INT’L L. 23, 24 (1999); Christine Chinkin, Kosovo: A
“Good” or “Bad” War?, 93 AM. J. INT ’L L. 841, 844 (1999); Kritsiotis, supra note 286, at 340
(analyzing the (il)legality of the use of force against the FRY).
288. S.C. Res. 1244, U.N. Doc. S/RES/1244 (June 10, 1999). Resolution 1244 refers to the
FRY but now applies to Serbia. See CONSTITUTIONAL CHARTER SERBIA AND MONTENEGRO,
supra note 79, art. 60.
289. Id. pmbl. ¶ 10.
290. The Resolution initially demanded “that the Federal Republic of Yugoslavia put an
immediate and verifiable end to violence and repression in Kosovo, and begin and complete
verifiable phased withdrawal from Kosovo of all military, police and paramilitary forces
according to a rapid timetable.” Id. ¶ 3. It allowed for the return of “an agreed number of
Yugoslav and Serb military personnel” after the withdrawal. Id. ¶ 4. However, as follows from
Annex 2, to which the commitment to territorial integrity expressed in the preamble refers, this
return was merely symbolic and the number of personnel was severely limited. See id., Annex 2,
¶¶ 6, 10 n.1. The Resolution further decided to deploy “international civil and security
presences,” id. ¶ 5, requested “the Secretary-General to appoint, in consultation with the Security
Council, a Special Representative to control implementation of the international civil presence,
Eventually, an international attempt was made to secure approval
from the parent State and confirm Kosovo’s path to independence
through a Security Council resolution, following a pattern similar to that
in the example of East Timor. 291 After this attempt failed, a group of
States decided to lead Kosovo to independence without Serbia’s consent
and a Security Council resolution. 292 There is also evidence that
Kosovo declared independence with the prior approval of a number of
States who had also promised recognition in advance.293 When Kosovo
declared independence on February 17, 2008, the act had significant
international support. 294 The competing claim to territorial integrity
continues to apply,295 however, so it is questionable whether the
emergence of the State of Kosovo is a new legal fact. Clearly, some
States tried to produce such a fact through formal recognition. 296
Although a significant number of States have recognized Kosovo,
recognition is far from being universal. It is therefore questionable
whether this attempt at State creation was successful. Furthermore, it
may well be that recognition actually created the ambiguity with regard
to Kosovo’s legal status. Before the recognitions were granted, it was
clear that Kosovo was not a State. This is now unclear and remains
unclear even after the Kosovo Advisory Opinion in which the ICJ
avoided any reference to Kosovo’s legal status.297
and . . . to coordinate closely with the international security presence,” id. ¶ 6, and authorized
“Member States and relevant international organizations to establish the international security
presence in Kosovo,” id. ¶ 7.
291. See discussion supra Part III.C.2.
292. See, e.g., Dan Bilefski & Nicholas Wood, Talks on Kosovo’s Future Stagnate, N.Y.
TIMES, Dec. 8, 2007, at A6 (citing the willingness of world leaders to move to “the next phase”
following the failure of negotiations); Dan Bilefski, U.S. and Germany Plan to Recognize
Kosovo, N.Y. TIMES, Jan. 11, 2008, at A9 (noting that both the United States and Germany
planned to recognize Kosovo and would be urging the rest of Europe to do so as well).
293. Bilefski, supra note 292.
294. Id.
295. See U.N. SCOR, 63d Sess., 5839th mtg. at 5, U.N. Doc. S/PV.5839 (Feb. 18, 2008)
(“The Republic of Serbia will not accept the violation of its sovereignty and territorial integrity.
The Government of Serbia and the National Assembly of the Republic of Serbia have declared
the decision of the Pristina authorities [the Declaration of Independence] null and void. Likewise,
we are taking all diplomatic and political measures to prevent the secession of a part of our
territory.”).
296. In this context, see the following argument: “Statements by [specific governments] that
Kosovo is independent are little more than feeble attempts to substitute a constitutive approach to
recognition for the widely accepted declaratory theory. Such assertions fly in the face of the
consensus that Security Council Resolution 1244 continues to apply to the territory of Kosovo,
and it might be noted that the ‘preliminary legal assessment’ of the United Nations is that ‘the
opinion does not affect the status of UNMIK or a status-neutral policy.’” Hurst Hannum, The
Advisory Opinion on Kosovo: An Opportunity Lost, or a Poisoned Chalice Refused , 24 LEIDEN J.
INT’L L. 155, 156 (2011) (emphasis in original).
297. The ICJ specifically observed that the question posed to the Court did “not ask whether
Is Kosovo a State? If so, would it be a State without the recognition
which has been granted by a number of States? If recognition is always
declaratory, why should be Kosovo considered a State now when it was
not after the declaration of independence in 1991?298 The FRY’s claim
to territorial integrity existed at that time, and Serbia’s claim to
territorial integrity exists now. 299 Moreover, in light of the continuous
presence of the international territorial administration, 300 Kosovo does
not have a government independent of any other government and thus
cannot satisfy the Montevideo statehood criteria. 301 Similar legal
objections in 1991 to Kosovo’s status as a State under international law
still exist. Notably, however, only Albania granted recognition after the
declaration of independence in 1991,302 while since the 2008 declaration
of independence recognition has been granted by ninety-one States.303
Is this figure widespread enough to be able to claim that Kosovo has
emerged as a State on the basis of international recognition?
In response, the question that exposes the problem of the constitutive
approach could be inverted as follows: whose and how many
or not Kosovo has achieved statehood.” Kosovo Advisory Opinion, supra note 61, ¶ 51.
298. The unofficial parliament of Kosovo Albanians issued a declaration of independence on
September 22, 1991. See Weller, supra note 74, at 129.
299. See id. at 138, 145.
300. Kosovo remains governed by the regime of the international territorial administration,
established under Security Council Resolution 1244, adopted under Chapter VII of the UN
Charter. See S.C. Res. 1244, U.N. Doc. S/RES/1244 (June 10, 1999) (note ¶¶ 5, 6, 7). The
limitations on independence of Kosovo’s government is specifically accepted by the Constitution
of the Republic of Kosovo, adopted on April 9, 2009. Article 147 of the Constitution provides:
“Notwithstanding any provision of this Constitution, the International Civilian Representative
shall, in accordance with the Comprehensive Proposal for the Kosovo Status Settlement dated 26
March 2007, be the final authority in Kosovo regarding interpretation of the civilian aspects of
the said Comprehensive Proposal. No Republic of Kosovo authority shall have jurisdiction to
review, diminish or otherwise restrict the mandate, powers and obligations . . .” KUSHTETUTA E
REPUBLIKËS SË KOSOVËS [CONSTITUTION] art. 147 (Kos.), translated in
http://www.kushtetutakosoves.info/repository/docs/Constitution.of.the.Republic.of.Kosovo.pdf.
The Constitution here refers to the so-called Ahtisaari Plan, which foresees Kosovo’s “supervised
independence,” whereby institutions of Kosovo’s government remain subordinated to the
authority of the international territorial administration. See Letter from the Secretary-General to
the President of the Security Council (Mar. 26, 2007), U.N. Doc. S/2007/168. Kosovo thus
legally accepted the continuous presence of the supreme international authority that poses notable
restraints on its sovereignty. It is therefore obvious that Kosovo does not have an independent
government.
301. After Serbia abolished Kosovo’s autonomy in 1989, Kosovo Albanians created
unofficial parallel State organs. In 1991, independence was declared by these organs which were
not in effective control of Kosovo. DENISA KOSTOVICOVA, KOSOVO: THE P OLITICS OF IDENTITY
AND SPACE 213–15 (2005).
303. As of June 1, 2012, Kosovo has been recognized by 92 States. See Who Recognized
Kosova as an Independent State, KOS. THANKS YOU, http://www.kosovothanksyou.com (last
visited Nov. 21, 2012).
withholdings of recognition are necessary such that an entity is not
considered a State? Is Kosovo a State because it has been recognized
by ninety-one States, or is it not a State because it has been recognized
only by ninety-one States? This dilemma illustrates the problem of the
constitutive approach, yet it also illustrates that it is precisely the high
number of recognitions that has led to the situation in which Kosovo’s
legal status is ambiguous.
Widespread recognition of unilateral secession may create ambiguity
rather than clarify the legal status of an entity. The ambiguity could be
ended by subsequent admission of the secessionist entity to membership
of the U.N.; however, practice shows that no State has been admitted to
the U.N. against the competing claim to territorial integrity by its parent
State. This does not necessarily mean that such an entity may not be a
State. At the same time, in the absence of U.N. membership, there
exists no objective international indicator that would end the ambiguity
and show that the entity is indeed a State.
International law does not preclude recognition of unilateral
secession or an attempt at unilateral secession, and doctrine shows that
recognition in such circumstances could have constitutive effects. It
could thus be taken as a grant of legal authority that could potentially
remove the competing counterclaim to territorial integrity. All of these
can be accommodated within positive international law. However,
where recognition is not universal and is possibly supplemented by
U.N. membership, recognition that is widespread yet not universal
creates ambiguity with regard to the entity’s legal status. Such
ambiguity is a consequence of the concept of the State in international
law. Statehood is a legal status, not an objective, natural fact. Legal
status can be ambiguous.
E. The Impact of Territorial Integrity on Contemporary Law of

Statehood
1. State Practice Summarized, Statehood Theory Updated

Acquiring statehood is not an international legal entitlement.
Existing States are protected by the principle of territorial integrity.
While this principle does not generate an absolute prohibition of
secession, the consequence of its operation is that States cannot emerge
automatically, as a matter of fact. States can only emerge in the legal
circumstances where the claim to territorial integrity is either overcome
or becomes inapplicable.
This Article identified the following modes of such a removal: (i)
waiver of the claim to territorial integrity by the parent State; (ii)
consensual extinction of the parent State; (iii) international involvement
that either leads to non-consensual extinction of the parent State or
procures waiver of the parent State; and (iv) international recognition of
an attempt at unilateral secession, which may have constitutive effects.
The least controversial modes are the parent State’s waiver and
consensual extinction of the parent State. International involvement
leading to non-consensual dissolution and thus extinction of the parent
State is more controversial than situations in which new States emerge
consensually. In principle, where dissolution of the parent State is at
issue, the legal personality of this State is extinguished and, in the
absence of a parent State, there is no applicable claim for territorial
integrity. In the absence of such a claim, there is no barrier between the
entity’s claim for statehood and the acquisition of statehood except
where the emergence of a new State would have been a result of
territorial illegality.
The situation is relatively clear where dissolution is consensual.
Where dissolution is not consensual, a part of the former parent State
continues to claim continuity with the international personality of the
emerging State, but such a claim becomes universally rejected. The
only clear example of non-consensual dissolution is the SFRY where
the Badinter Commission’s legal position of dissolution, rather than
attempts at unilateral secession, was universalized and adopted even by
the Security Council.304 The Badinter Commission’s interpretation of
the events in the SFRY in 1991 as being indicative of dissolution was
only one possible interpretation, yet it was universally followed by
States and U.N. organs. 305 Non-consensual dissolution as a mode of a
removal of the claim to territorial integrity is thus fraught with
difficulty. The international personality of the parent State and thus the
applicable claim to territorial integrity can only be removed if the legal
position of non-consensual dissolution is universally endorsed by the
international community through practice of States and U.N. organs.
The problem of universal acceptance by the international community
is even more prominently present in the theory and practice of
international acceptance of a unilateral declaration of independence.
International law does not prohibit granting recognition to an entity that
declares independence unilaterally. 306 Despite the general perception in
contemporary international law of recognition being a declaratory rather
than constitutive act, it is doctrinally accepted that a State may be
constituted by recognition and that collective recognition could have the
effects of a collective State creation. This conclusion should be
304. See supra Part III.C.1.

305. See supra notes 268–271 and accompanying text.
306. See discussion supra Part III.D.1.
accompanied by a caveat: it is unclear how many and whose
recognitions are necessary for a State to be considered constituted
through recognition. Widespread recognition of an attempt at unilateral
secession creates ambiguity with regard to the legal status of a territory.
This ambiguity may disappear over time, especially if widespread
recognition influences the parent State’s policy and leads to the
realization that opposing the secessionist entity’s statehood is no longer
politically expedient or legally relevant.
2. Modern Theory of Statehood, the Obsolete Concept of Premature
Recognition, and the Legal Status of the Statehood Criteria
In light of the conceptions of the State advanced by this Article, it
appears somewhat odd that modern theory of statehood still refers to the
concept of “premature recognition” whereby States are precluded from
granting recognition to an entity that has not met the Montevideo
criteria.307 In such circumstances recognition is said to offend the
territorial integrity of the parent State in whose territory a new State is
trying to emerge. 308
This explanation, however, is essentially based on the assumption of
“State as effectiveness.”309 Its underlying reasoning is that recognition
offends territorial integrity as long as the entity has not met the
Montevideo criteria. This reasoning, however, implies that when the
statehood criteria are satisfied, the entity emerges as a new State and is
no longer under the sovereignty of its former parent State, thus no
longer offending territorial integrity of that parent. It was demonstrated
above that in contemporary international law this is not the case; new
States do not emerge in this manner.
Even if entities are effective, there is still a presumption of territorial
integrity by their parent States, and such entities do not necessarily
become States. Recognition then still offends territorial integrity but
this does not mean that recognition in such circumstances is illegal.
The concept of premature recognition also leads to paradoxes such as
that of Bosnia-Herzegovina. This State is often used as a relatively
recent example of a premature recognition. 310 However, when
international recognition was extended to Bosnia-Herzegovina in 1992,
307. Compare SHAW, supra note 13, 179 at 460–61 (discussing the concept of premature
recognition), with supra note 2 and accompanying text (regarding the Montevideo elements).
308. See OPPENHEIM’S INTERNATIONAL LAW 143 (Robert Jennings & Arthur Watts eds., 9th
ed. 1992) (arguing that granting recognition before meeting the Montevideo criteria offends the
territorial integrity of the existing State).
309. See generally CRAWFORD, supra note 11, at 45–46 (discussing the concept of
“statehood as effectiveness” which is the effective control over a territory).
310. See RAIČ, supra note 50, at 182 (discussing the concept of premature recognition).
its former parent State, the SFRY, no longer existed in international
perception.311 It is true that the central government of Bosnia-
Herzegovina did not control large parts of the territory 312; however, in
the absence of any other State in that territory, it is unclear whose
territorial integrity recognition of Bosnia-Herzegovina actually
offended. Bosnia-Herzegovina did not meet the Montevideo criteria,
but after the SFRY no longer existed, the only plausible explanation
was that Bosnia-Herzegovina was a State. The only other option was to
accept that it was a terra nullius and could be subject to conquest. 313
Consequently, despite the new State’s ineffectiveness, recognition could
not be premature when the predecessor State no longer existed and, at
the same time, terra nullius situations are no longer acceptable in
international law.
The concept of premature recognition is essentially based on the
above-rejected presumption that States emerge automatically and self-
evidently upon meeting the Montevideo criteria. Moreover, the concept
does not take into account the importance of the claim to territorial
integrity in the contemporary international law of statehood. For these
reasons it is of little relevance in present-day situations where statehood
does not depend on meeting the Montevideo criteria.
Ultimately, these conclusions lead to the question of the legal status
of the statehood criteria under contemporary international law. It seems
to be generally accepted that these criteria form a part of customary
international law, but these findings suggest such an assumption may be
problematic.
Norms of customary international law need to be legal norms. Are
the statehood criteria legal norms of a prescriptive quality? If they
were, they would need to have at least some of the following
qualifications: (i) entities would become States by meeting the
statehood criteria; (ii) entities that do not meet them would not become
States; (iii) recognition of entities that do not meet the statehood criteria
would be prohibited; and (iv) recognition of entities that meet the
statehood criteria would be mandatory.
None of the above is true in contemporary international law, so what
is the normative value of the statehood criteria? They are at best policy
guidelines rather than legal norms. That States grant recognition even

312. See SHAW, supra note 13, at 461 (arguing that the central government of Bosnia-
Herzegovina was not in effective control of the entire territory of the new State).
313. As Shaw argues elsewhere, “[a]ny attempted ethnic reconfiguration of the Former
Yugoslavia on a totally free-for-all basis . . . would most likely have produced an even worse
situation than that which did occur.” See Shaw, supra note 217, at 502.
where the statehood criteria are not satisfied and withhold it where the
criteria are satisfied indicates that State practice does not accept that
statehood depends on meeting the statehood criteria. These criteria,
therefore, do not produce any direct legal effects. To some degree they
can only influence the international practice of acceptance or non-
acceptance of claims for independence.
V. CONCLUSION
A certain territory’s physical existence does not necessitate that the
territory in question constitutes a separate State. A territory can only be
defined under the law, and the question of whether a certain “defined
territory” is a State is a question of legal status.
The interpretation that a State emerges as “a matter of fact” is
problematic because it tries to interpret legal status as a question of the
existence of an objective physical fact. In this interpretation it is
presumed that an entity that meets the traditional statehood criteria
automatically and self-evidently becomes a State. Such an
interpretation is difficult to accept. The traditional statehood criteria are
not a simple checklist that could objectively determine whether or not
an entity is a State. If States could emerge automatically and self-
evidently upon meeting the statehood criteria, then Taiwan would
probably be a State. 314 This suggestion is paradoxical because Taiwan
itself does not claim to be a State.315
Contemporary international law also acknowledges the concept of
additional statehood criteria. These criteria are defined in negative
terms: a State must not emerge as a result of the illegal use of force, in
violation of the right of self-determination, or in pursuance of racist
policies. This is not to say that an entity becomes a State simply by not
breaching these norms. Even under the presumption that the additional
and traditional statehood criteria are met, the entity in question will not
necessarily become a State.
Ultimately, the hurdle that the independence-seeking entity needs to
overcome is the territorial integrity of its parent State. All claims for
independence outside of colonialism are faced with the principle of
territorial integrity that protects their parent States. It would be
erroneous to interpret the principle of territorial integrity as creating an
absolute right of States that could prohibit emergence of a new State.
The operation of the principle of territorial integrity in the context of
314. See CRAWFORD, supra note 4, at 206–07 (considering whether or not Taiwan is a State
and concluding that it is not as it does not even claim to be a State).
315. Id. at 219.
new State creations only means that independence is neither a right nor
an entitlement under international law. While the absence of a specific
right cannot be interpreted as a prohibition of a certain act, it does mean
that a new State cannot unequivocally emerge as a legal fact if the
counterclaim to territorial integrity is not removed in some way.
In contemporary international law, States therefore emerge through
the process of removing their parent State’s claim to territorial integrity.
This process is very demanding for the independence-seeking entity,
because it bears the burden of shifting the territorial status quo. For this
reason, claims for independence outside colonialism very rarely result
in creation of a new State, even where the statehood criteria are fulfilled
in principle.
Statehood is a legal status. In contemporary international law this
status is not achieved by meeting the statehood criteria; it is achieved
through the political process of overcoming the parent State’s applicable
counterclaim to territorial integrity.

Territorial Integrity and The Law of Statehood

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Territorial Integrity and The Law of Statehood

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TERRITORIAL INTEGRITY AND THE LAW OF STATEHOOD

International law of statehood is marked by two fundamental

Electronic copy available at: http://ssrn.com/abstract=2159113

Electronic copy available at: http://ssrn.com/abstract=2159113

1. See DAVID HARRIS, CASES AND MATERIALS ON INTERNATIONAL LAW 92 (2010)

II. THE CONCEPT OF THE STATE IN INTERNATIONAL LAW

A. Understanding the Natural Element of the State

B. Does a State Exist as Soon as it Exists?

28. LAUTERPACHT, supra note 26, at 58.

C. The Additional Statehood Criteria

36. See Montevideo Convention, supra note 2.

D. The Principle of Territorial Integrity and the Sphere of International

56. See id.

63. See id. at 124.

III. THE EMERGENCE OF NEW STATES IN POST-COLONIAL PRACTICE:

A. Waiver of the Claim to Territorial Integrity

79. USTAVNO P OVELJE DRŽAVNE ZAJEDNICE SRBIJA I CRNA GORA [CONSTITUTIONAL

91. See id. arts. 17.8, 20.1, 20.2., 21.2.

101. Id. art. 67(2).

108. For an overview of a number of unsuccessful attempts at secession, see CRAWFORD,

136. See id.

162. Id. pmbl.

C. Multilateral International Involvement

193. Id. ¶ 2(c).

207. See CRAWFORD, supra note 4, at 398 (discussing recognition of Macedonia).

214. See supra note 2 and accompanying text.

233. See id. at 16.

243. Id. at 181.

253. U.N. Secretary-General, Interim Report, supra note 252, ¶ 4.

273. See discussion supra Part III.C.1.

E. The Impact of Territorial Integrity on Contemporary Law of

1. State Practice Summarized, Statehood Theory Updated

304. See supra Part III.C.1.

311. See CRAWFORD, supra note 4, at 398.

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