Self-Determination As A Human Right: The Emergency Exit of Remedial Secession

Self-Determination as a Human
Right
The Emergency Exit of Remedial Secession
Christine Griffioen
Science Shop of Law, Economics and Governance, Utrecht

University
Supervised by the Institute of International, Social and
Economic Public Law
August 2010
CIP GEGEVENS KONINKLIJKE BIBLIOTHEEK, DEN HAAG
Griffioen, C.
Self-determination / C. Griffioen
Utrecht: Science Shop of Law, Economics and Governance, Utrecht
University.
Supervised by the Institute of International, Social and Economic
Public Law
ISBN: 978-90-5213-196-2
Headwords:Self-determination, secession
Science Shop of Law, Economics and Governance

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This publication may be completely or partially quoted provided the

author and the Science Shop of Law, Economics and Governance are
mentioned and no changes will be made in the quotes.
‘Self-determination has never simply meant independence. It has
meant the free choice of people.’
ROSALYN HIGGINS
Acknowledgements
‘Joyful is the person who finds wisdom, the one who gains
understanding.’
PROVERBS 3:13
I spent the first eight years of my life in an unusual place. I grew up

in the jungle of Irian Jaya, a province of Indonesia which today is
called Papua. In 1949, the Dutch East Indies were handed over to
Indonesia, with the exception of the then Netherlands New Guinea.
The refusal of the Netherlands to hand over Papua to Indonesia led to
growing tensions between the two countries. In October 1962 the
Netherlands agreed to hand New Guinea over to a temporary United
Nations administration.1 In August 1962 the Netherlands and
Indonesia agreed that the United Nations would subsequently transfer
the administration of New Guinea to Indonesia.2 UNTEA administered
New Guinea from October 1962 to May 1963, when Indonesia
assumed total control and responsibility. Under Article XVIII of the
New York Agreement Indonesia undertook to ascertain the wishes of
the people of West Papua through a consultation process and to hold
a referendum on Papua’s political status. The Papua’s were to
exercise their right of self-determination before the end of 1969 and
would be given the choice whether they would prefer to be
independent or formally become a part of Indonesia. In spite of this
‘Act of Free Choice’, the integration of West Irian into Indonesia
amounted to de facto annexation and a denial of the right to self-
determination. First, the method of consultation was that of the
musjawarah system, which undoubtedly was not in accordance with
international practice. No real and direct consultation of the
population was made; the consultation was indirect in that Regional
Councils were called upon to decide which of the options to accept.
Second, UN staff were unable to properly supervise the elections for
the consultative assemblies. Finally, the Indonesian authorities put
strong pressure on the population of West Irian in order to secure
support for integration into Indonesia.3 The Indonesian ‘Act of Free
1
The United Nations Temporary Executive Authority (UNTEA).
2
Agreement Between the Republic of Indonesia and the Kingdom of the Netherlands
Concerning West New Guinea (West Irian), Signed at the Headquarters of the United Nations,
New York, on 15 August 1962 (“The New York Agreement”).
3
The government even prohibited the most fundamental rights, the right to freedom of
expression, movement and assembly. Presidential Decree No. 8/1963 said: ‘In the region of
West Irian, it shall for the time being, be prohibited to undertake political activity in the form
of rallies, meetings, demonstrations or the printing, publication, announcement, issuance,
dissemination, trading or public display of articles, pictures or photographs without permission
of the Governor or an official appointed by him.’ Quoted in W. Mandowen, ‘West-Papua and the
Right to Self-determination. A Challenge to Human Rights’, in: Th. Rathgeber (ed.), Economic,
Social and Cultural Rights in West-Papua, Germany: Foedus-Verlag 2005, p. 29. The Anti-
i
Choice’ was rather an ‘Act of No Choice’ and the denial of the right to
self-determination ended as a human tragedy for the Papuan People.4
Despite the fact that Indonesia has introduced special autonomy laws
in Papua it is doubtful whether these laws genuinely allow Papuans to
exercise their right of self-determination.5 The Papuans are still
repressed and their culture and existence as a people is threatened
by Indonesia’s migration policy, allowing many Javanese to settle in
Papua. As a result of this policy the Papuans are likely to become a
minority in their own territory. Moreover, Papuans suffer from
discrimination and have no sovereignty over their natural resources.6
The tragic situation of the Papua’s was the starting point of this
thesis. The fact that the Papuans have been denied their right of self-
determination and are still not able to exercise it made me wonder
whether international law might allow them to exercise their right of
self-determination externally, i.e. by becoming independent.
However, during my research I soon learned that I would limit myself
focussing on the Papuans, for the phrase self-determination has
inspired many people all over the world for almost a century. My
supervisor, Cedric Ryngaert also advised me to take a broader
perspective. I would like to take this opportunity to thank him for his
time and support in writing this thesis. His critical remarks were
challenging and encouraged me to extend my limits and broaden my
horizons. Writing this thesis has been a long and sometimes arduous
process, but it has resulted in a greater understanding on my part of
the issue of self-determination. I would like to thank my parents who
have supported me from the day I decided to go back to the
university until today. But most of all I would like to thank Robert, my
dear husband, for his support, love and encouragement throughout
this exigent time.
Bangkok, April 21, 2009
Christine Griffioen
Subversion legislation led to several military operations resulting in many casualties and the
loss of thousands of lives on the part of the Papuans.
4
W. Mandowen, ‘West-Papua and the Right to Self-determination. A Challenge to Human
Rights’, in: Th. Rathgeber (ed.), Economic, Social and Cultural Rights in West-Papua,
Germany: Foedus-Verlag 2005, pp. 28-31. In May 2000, a UN official in New York stated that
West Papua had been a shameful case in the history of the United Nations. See also the Report
of the Robert F. Kennedy Memorial (2004); The Papua Report, March 2004. See also A.
Cassese, Self-determination of peoples: a legal reappraisal, Cambridge: Cambridge University
Press 1995, pp. 82-86.
5
J. Bertrand, ‘Indonesia’s quasi-federalist approach: Accommodation amid strong
integrationist tendencies’, International Journal of Constitutional Law, Vol. 5, 2007, pp. 576-
605.
6
Papua is extremely rich in natural resources, in particular oil.
ii
Summary
The phrase ‘self-determination’ has a strong appeal. In a nutshell, it
gives peoples a free choice which allows them to determine their own
destiny.7 Traditionally, a distinction has been made between external
and internal self-determination. However, for reasons of international
peace and security the right of self-determination needs to be
balanced with the territorial integrity of States. That is why outside
the colonial context, the emphasis must be on the internal aspect of
self-determination. This thesis examines self-determination as a
human right, focusing on the central question whether international
law allows for a right of external self-determination in the form of
unilateral secession when the internal right of self-determination is
breached. It is argued that there is a right of unilateral secession
based on customary international law, despite the fact that State
practice is limited. According to the theory of modern custom, ‘a
substantive manifestation of’ opinio iuris ‘may compensate for a
relative lack of practice’.8 The author argues that there is strong
opinio iuris within the international community in support of a right of
unilateral secession, albeit that this right is subject to very strict
conditions and may only be invoked as a last resort. Peoples are
entitled to resort to unilateral secession only when they are
persistently excluded from political participation, suffer from gross
violations of fundamental human rights and have exhausted every
local remedy available to find a peaceful solution to the conflict. In
other words, remedial secession may be used as an ‘emergency exit’
only.9
7
Expert opinion prepared in 1992 by T.M. Franck, R. Higgins, A. Pellet, M.N. Shaw and C.
Tomuschat, ‘The Territorial Integrity of Québec in the Event of the Attainment of Sovereignty,
in: A. Bayefski (ed.), Self-determination in International Law: Quebec and Lessons Learned,
The Hague: Kluwer Law International 2000, p. 248, para. 1.17.
8
Statement of Principles Applicable to the Formation of General Customary International Law’
by the Committee on Formation of Customary (General) International Law of the International
Law Association, London Conference 2000, available at <http://www.ila-hq.org>, p. 40.
9
See P.H. Kooijmans, ‘Zelfbeschikkingsrecht. Naar een Nieuwe Interpretatie?’, in: N.
Sybesma-Knol and J. van Bellingen (eds.), Naar een nieuwe interpretatie van het Recht op
Zelfbeschikking, Brussel: VUB Press 1995, p. 168.
iii
iv
Table of contents
Acknowledgements i
Summary iii
Table of contents v
1 Introduction 1
2 Self-Determination in the Colonial Context 5

2.1 Introduction 5
2.2 Self-Determination as a Political Principle 5
2.2.1 The Enlightenment, Nationalism, Lenin and Wilson 5
2.2.2 The First World War and the Paris Peace Conference 6
2.2.3 The League of Nations 7
2.3 Conventional Law 10
2.3.1 The United Nations Charter 10
2.3.2 The International Bill of Rights 15
2.3.3 The African Charter on Human and Peoples’ Rights 17
2.4 Customary Law 18
2.4.1 The General Assembly 18
2.4.2 The International Court of Justice 23
2.5 Analyzing Self-Determination in the Colonial Context 29
2.5.1 The People 29
2.5.2 The Content of Self-Determination 31
2.5.3 The Status of Self-Determination 33
2.5.4 Self-Determination in Relation to Other Principles of
International Law 36
2.6 Status and Representation of National Liberation Movements
under International Law 39
2.7 Conclusion 40
3 Self-Determination in the Post-Colonial Context 43

3.1 Introduction 43
3.2 The International Response to Self-Determination Claims
Outside the Colonial Context 44
3.2.1 The Reunification of the German State 44
3.2.2 The Breakup of the Soviet Union 45
3.2.3 The ‘Dissolution’ of the Socialist Federal Republic of
Yugoslavia 47
3.2.4 Kosovo 48
3.2.5 Conclusion 49
3.3 Conventional Law 50
3.3.1 The International Covenant on Civil and Political Rights and
the International Covenant on Economic, Social and Cultural
Rights 50
v
3.3.2 The African Charter on Human and Peoples Rights 54
3.3.3 Conclusion 55
3.4 Customary Law 55
3.4.1 The General Assembly 55
3.4.2 The Helsinki Final Act 1975 59
3.4.3 The Charter of Paris for a New Europe 1990 61
3.4.4 The International Court of Justice 64
3.4.5 The Human Rights Committee 66
3.4.6 The Committee on the Elimination of Racial Discrimination 70
3.4.7 The African Commission on Human Rights and Peoples’
Rights 70
3.4.8 1993 Vienna Conference on Human Rights 72
3.4.9 Declaration on the Rights of Indigenous Peoples 73
3.4.10 Statements by States 78
3.5 Analyzing Self-Determination in the Post-Colonial Context 80
3.5.1 The People 80
3.5.2 The Content of Self-Determination 83
3.5.3 Internal Self-Determination: a Right? 86
3.5.4 Self-determination in Relation to Other Human Rights and
Principles of International Law 87
3.6 Conclusion 90
4 Self-Determination and Remedial Secession 93

4.1 Introduction 93
4.2 Theories on Unilateral Secession 94
4.2.1 International Law is Neutral about Secession 95
4.2.2 International Law Recognises an Absolute Right of
Secession 95
4.2.3 International Law Acknowledges a ‘Qualified’ Right of
Secession 96
4.3 Treaties 98
4.3.1 The Charter of the United Nations 98
4.3.2 The International Human Rights Covenants 99
4.3.3 Protocol I Additional to the Geneva Conventions of 151 101
4.4 Customary International Law 102
4.4.1 The ‘Safeguard Clause’ 102
4.5 Case Law 104
4.5.1 The Åland Islands Dispute 104
4.5.2 The African Commission on Human and Peoples Rights,
Katangese Peoples’ Congress v Zaïre (1995) 105
4.5.3 Supreme Court of Canada, Reference re Secession of
Quebec (1998) 105
4.6 State Practice 107
4.6.1 Recognition 107
4.6.2 Secession Outside the Colonial Context 111
4.6.3 Failed Secessionist Attempts Outside the Colonial Context 115
vi
4.6.4 Remedial Secession 123
4.6.5 Kosovo 126
4.7 Beneficiaries and Criteria for Remedial Secession De Lege
Lata 132
4.8 Conclusion 136
5 Conclusion 139
5.1 Recapitulation and Conclusion 139
5.2 Enhancing the Enforcement of Self-Determination 140
Appendix I 145
Appendix II 148
Appendix III 151
Appendix IV 153
Appendix V 155
Select Bibliography 157
vii
viii
1 Introduction
‘No other concept is as powerful, visceral, emotional, unruly, as steep
in creating aspirations and hopes as self-determination.’10
It seems almost as if there is ‘a kind of magic’ in the phrase ‘self-

determination’.11 The list of nations and peoples claiming self-
determination is endless and unfortunately the list of conflicts in the
world that are related to self-determination claims is equally long.
Examples include the rather recent conflict in the Balkans, which
resulted in the creation of six new States and a seventh whose status
is still uncertain, and the conflicts in Chechnya, Abkhazia, South
Ossetia, Nagorno Karabach, Western Sahara, Aceh, West Papua,
Bougainville, East Timor, Southern Thailand, Tibet and Israel.
Somewhat closer to home are the conflicts in Northern Ireland and
the Basque country, not to mention the self-determination claims of
many indigenous peoples all over the world. These claims and
conflicts are but a few examples to illustrate the powerful appeal of
the right to self-determination.12
Self-determination has been referred to as a fundamental principle of
international law and with its inclusion in the International Human
Rights Covenants it became a human right. It was first included in the
Charter of the United Nations as one of the guiding ‘Purposes and
Principles’ of the Organisation, and subsequently it has been
proclaimed in numerous international instruments.13 In a nutshell, the
right to self-determination gives peoples a free choice which allows
them to determine their own destiny.14 According to Article 1 (1) of
the International Covenant on Civil and Political Rights and the
International Covenant on Economic, Social and Cultural Rights, self-
determination is the right of all peoples to ‘freely determine their
10
W. Danspeckgruber, in: M. C. van Walt van Praag & O. Seroo (eds.), ‘The Implementation of
the Right to Self-Determination as a Contribution to Conflict Prevention. Report of the
International Conference of Experts held in Barcelona from 21 to 27 November 1998,
organized by the UNESCO Division of Human Rights Democracy and Peace and the UNESCO
Centre of Catalonia’, Centre UNESCO de Catalunya, 1999, available at
<http://www.unpo.org>, p. 10.
11
See the album and title track by Queen, ‘A Kind of Magic’, 1986.
12
See e.g. the list of members of the Unrepresented Nations and Peoples Organization,
available at <http://www.unpo.org>.
13
See e.g. the Declaration of Principles of International Law concerning Friendly Relations and
Co-operation among States in accordance with the Charter of the United Nations, adopted by
the United Nations General Assembly in 1970, the Helsinki Final Act adopted by the Conference
on Security and Co-operation in Europe (CSCE) in 1975, the African Charter of Human and
Peoples' Rights of 1981, the Charter of Paris for a New Europe adopted by the CSCE in 1990,
the Vienna Declaration and Programme of Action of 1993 and the Declaration on the Rights of
Indigenous Peoples adopted by the United Nations General Assembly in 2007.
14
Expert opinion prepared in 1992 by T.M. Franck, R. Higgins, A. Pellet, M.N. Shaw and C.
Tomuschat, ‘The Territorial Integrity of Québec in the Event of the Attainment of Sovereignty,
The Hague: Kluwer Law International 2000, p. 248, para. 1.17.
1
political status and freely pursue their economic, social and cultural
development’. This right can be exercised in a variety of ways, and
traditionally a distinction has been made between external and
internal self-determination.
The external aspect of self-determination developed in the colonial
context and, as will be seen later, resulted in self-determination
becoming almost ‘synonymous’ with decolonisation and
independence.15 The internal aspect of self-determination has its
roots in the concept of self-determination as advocated by US
President Wilson and was reinvented after the end of the Cold War in
the early nineties. Internal self-determination refers to the right of a
people to ‘participate in the decision-making processes of the State’.16
Despite the powerful appeal of the right of self-determination, there
are a few problems associated with it. Apart from being a source of
many violent conflicts, the principal shortcoming of self-determination
is that there is no generally accepted definition of the rights holders,
which has seriously affected the exercise of this right. Some States
have tried to limit the group of beneficiaries arguing that only colonial
peoples have the right of self-determination. Others have tried to
limit the scope of the right, arguing that once a people have achieved
independence, the right of self-determination is exhausted.
Obviously, the reason that many consider the external aspect of self-
determination problematic is that it conflicts outright with another
important principle of international law, the territorial integrity of
States. Therefore, while the international community has recognised
self-determination as a general principle of international law, some
States have been reluctant to recognise its external dimension
beyond decolonisation.
However, this thesis will argue that neither of these arguments can
be maintained. Recognizing the inherent tension between self-
determination and the territorial integrity of States, it is submitted
that the right of self-determination is a universal right which is
applicable outside the colonial context and should be defined as
broadly as possible, including both internal and external aspects.
Nevertheless, for reasons of international peace and security the right
of self-determination needs to be balanced with other principles of
international law, in particular the sovereignty and territorial integrity
of States. That is why outside the colonial context, the emphasis
must be on the internal aspect of self-determination.
But what if a State persistently denies a people the fundamental right
of internal self-determination? What if a people do not have a free
choice but are repressed and suffer from gross violations of basic
15
M. Pomerance, Self-Determination in Law and Practice. The New Doctrine in the United
Nations, The Hague: Martinus Nijhoff Publishers 1982, p. 25.
16
D. Raič, Statehood and the Law of Self-Determination, The Hague: Kluwer Law International
2002, p. 237.
2
human rights, and all possible remedies for a peaceful solution to the
conflict have been exhausted? Should those people not be allowed a
‘self-help remedy’ in the form of external self-determination?17 This
thesis will examine self-determination as a human right, focussing on
the principal question of whether international law supports the claim
that a breach of the internal right of self-determination leads to the
right of external self-determination, e.g. a right of unilateral
secession. To be able to answer this question the author will
undertake an extensive analysis of relevant international instruments,
judicial decisions, State practice and the writings of legal scholars.
Given the inextricable link between decolonisation and self-
determination, the second Chapter will provide some insights into the
colonial context in which the right of self-determination developed. As
will be seen, the period of decolonisation has had an enormous
impact on self-determination and, to clarify this, specific attention will
be given to the beneficiaries, the scope and the status of self-
determination under international law, including how it relates to
other principles of international law. Chapter 3 will examine self-
determination in non-colonial situations, focussing in particular on the
internal aspect of the right. The post-Cold War era provided an
excellent breeding ground for the development of internal self-
determination, emphasizing participatory rights and representative
(democratic) governance. Again, specific attention will be given to the
rights holders, the meaning and the status of self-determination
under international law, including how it relates to other human rights
and principles of international law. Having thus provided the
necessary background on self-determination, Chapter 4 will venture
into the external aspect of self-determination outside the colonial
context. Conventional law on unilateral secession will be examined,
followed by an analysis of State practice and opinio iuris in order to
be able to identify the existence of a customary rule on unilateral
secession. The emphasis of this Chapter will lie on the central
question this thesis seeks to answer, whether international law allows
for a right of external self-determination in the form of unilateral
secession as an ‘emergency exit’ when the internal right of self-
determination is breached.18 The fifth and final Chapter will provide a
recapitulation and some concluding remarks, followed by a short
examination of the options available to enhance the international
legal enforcement or supervision of self-determination as a human
right. It is absolutely necessary to find a sustainable solution, so that
17
L.C. Buchheit, Secession. The Legitimacy of Self-Determination, New Haven and London:
Yale University Press 1978, p. 94.
18
P.H. Kooijmans, ‘Zelfbeschikkingsrecht. Naar een Nieuwe Interpretatie?’, in: N. Sybesma-
Knol and J. van Bellingen (eds.), Naar een nieuwe interpretatie van het Recht op
Zelfbeschikking, Brussels: VUB Press 1995, p. 168.
3
from this point onwards peoples will be able to exercise their
fundamental right of self-determination in a peaceful way.
4
2 Self-Determination in the Colonial Context
‘Nearly forty years ago a Professor of Political Science who was also
President of the United States, President Wilson, enunciated a
doctrine which was ridiculous, but which was widely accepted as a
sensible proposition, the doctrine of self-determination. On the
surface it seemed reasonable: let the people decide. It was in fact
ridiculous because the people cannot decide, until somebody decides
who are the people.’19
2.1 Introduction
In order to fully understand self-determination and to be able to

clarify the meaning of it, this Chapter sets out to describe the colonial
context in which it developed. Colonialism is defined in the Concise
Oxford English Dictionary as ‘the policy or practice of acquiring
political control over another country, occupying it with settlers, and
exploiting it economically’.20 After the Second World War self-
determination became the most important tool to abolish this
practice. From that point self-determination developed from a political
principle into a legal rule of international law that became almost
‘synonymous’ with decolonisation.21
The first section of this Chapter will describe the philosophical origins
of self-determination and how it started as a political principle. The
next section will examine how the political principle transformed into
a legal principle when it was incorporated into the Charter of the
United Nations, which is followed by a section on the development of
customary rules on self-determination, mainly focussing on the
external aspect; the right to decolonisation. The holders of the right
of self-determination and what it meant in the colonial context will be
explored in the fifth section. The Chapter will conclude with a short
recapitulation and some critical remarks.
2.2 Self-Determination as a Political Principle
2.2.1 The Enlightenment, Nationalism, Lenin and Wilson
Any discussion of the right to self-determination should start with the

Enlightenment, the American Declaration of Independence of 1776
19
I. Jennings, The Approach to Self-Government, Cambridge: Cambridge University Press
1956. Quoted in J. Crawford, The creation of states in international law, Oxford: Clarendon
Press 2006, p. 124.
20
C. Soanes & A. Stevenson, Concise Oxford English Dictionary, 11th edition (revised),
Oxford: Oxford University Press 2006.
21
Pomerance, supra note 6.
5
and the French Revolution of 1789.22 However, this period has
already been adequately discussed by numerous writers. It suffices to
keep in mind that the ideas that were developed during that time had
a great impact on the concept of self-determination. In fact, the ideas
of ‘representative government’ and ‘popular sovereignty’, that Locke
and Rousseau put forward, lie at the heart of self-determination as it
first developed in Western Europe and the United States.23 In Central
and Eastern Europe, self-determination had a nationalistic flavour.24
The First World War and the Bolshevik Revolution turned self-
determination into an international concept advocated enthusiastically
by Lenin and Wilson.25 For Lenin, self-determination provided an
opportunity to advance his political agenda.26 Rather than being a
concept for the benefit of peoples as such, self-determination was
used as a means to support socialist objectives.27 On the other side of
the ocean, Wilson saw the concept of self-determination from an
entirely different point of view. His version of self-determination was
essentially based on Western conceptions of democratic
government.28 In February 1918, Wilson asserted that
‘[p]eoples are not to be handed about from one sovereignty to another by

an international conference or an understanding between rivals and
antagonists. National aspirations must be respected; peoples may now be
dominated and governed by their own consent. Self-determination is not a
mere phrase, it is an imperative principle of action which statesman will
henceforth ignore at their peril.’29
2.2.2 The First World War and the Paris Peace Conference
The principle of self-determination was also one of the underlying

motivations of the Allied Powers during the First World War.30 At the
Peace Conference in Paris they tried to take the principle of self-
determination as their point of departure, but this was not an easy
task as there were many problems associated with it.31 First of all, it
was not clear to whom self-determination was meant to apply.32 This
22
Cassese, Self-determination of peoples: a legal reappraisal, Cambridge: Cambridge
University Press 1995, p. 11.
23
T.D. Musgrave, Self-Determination and National Minorities, New York: Oxford University
Press 1997, pp. 2-4. See also S. Smis, A Western Approach to the International Law of Self-
Determination: Theory and Practice, Unpublished PhD Thesis, Brussels: Vrije Universiteit
Brussel 2001, p. 15.
24
Musgrave, supra note 14, pp. 4-9. Also Smis, supra note 14, pp. 22-33.
25
Cassese, supra, note 13, p. 13.
26
Ibid., p. 18.
27
Smis, supra note 14, p. 36. Cassese, supra note 13, p. 18.
28
Musgrave, supra note 14, p. 22. Cassese, supra note 13, p. 19.
29
Musgrave, supra note 14, p. 24, quoting H.W.V. Temperley, A History of the Peace
Conference of Paris, Vol. I and IV, London: Oxford University Press 1920 and 1921. (emphasis
added).
30
Cassese, supra note 13, pp. 23-24.
31
Musgrave, supra note 14, pp. 26-27.
32
Smis, supra note 14, p. 43.
6
lack of clarity led US Secretary of States Robert Lansing to make the
following prophetic statement:
‘When the President talks of “self-determination” what unit has he in mind?

Does he mean a race, a territorial area or a community? Without a definite
unit which is practical, application of this principle is dangerous to peace and
stability…[…] The phrase is simply loaded with dynamite. It will raise hopes
which can never be realized. It will, I fear, cost thousands of lives. In the
end it is bound to be discredited, to be called the dream of an idealist who
failed to realize the danger until too late to check those who attempt to put
the principle in force. What a calamity the phrase was ever uttered! What
misery it will cause!’.33
Secession posed another stumbling block.34 If self-determination

would be granted to everyone, there was the risk of disintegration
and war, but to apply it arbitrarily would not be fair either.35 The
participants at the Conference also had difficulty deciding how self-
determination was to be implemented.36 In light of all these problems
it was to be expected that, after the Conference had ended, Wilson
and the other parties at Versailles would be ‘charged with the
betrayal of the principle and the application of a double standard’.37
Accusations of this kind would come back to haunt many politicians
struggling with the concept of self-determination in the years ahead.
It must be admitted that Lansing did have a very clear view of the
problems associated with self-determination.
2.2.3 The League of Nations
In spite of the fact that Wilson fervently proposed to include the

principle of self-determination in the Covenant of the League of
Nations, his proposal was not supported by the Allies and, as a
consequence, the Covenant remained silent on self-determination.38
It would take an additional twenty five years before self-
determination would change from a political into a legal principle,
when it was included in the Charter of the United Nations. In the
interwar period the Great Powers tried to make up for their lack of
support for the inclusion of self-determination in the Covenant in two
separate ways: the protection of minorities and the mandate
system.39
33
R. Lansing, ‘Self-Determination’, Saturday Evening Post, 9 April 1921. Quoted by M.
Pomerance, ‘The United States and Self-Determination: Perspectives on the Wilsonian
Conception’, American Journal of International Law, Vol. 70, 1976, p. 10.
34
35
Ibid., pp. 43-44.
36
Ibid., p. 44.
37
Pomerance, supra, note 6, p. 5.
38
Smis, supra note 14, pp. 50-51. Musgrave, supra note 14, p. 30.
39
See, generally Smis, supra note 14, pp. 53-71.
7
Minority protection was seen as an important alternative to self-
determination and the peace treaties that were signed with several
States at the Peace Conference contained provisions that were to
protect their minorities.40 Special minorities’ treaties were imposed on
some of the new States that were created at Versailles.41 The
minorities’ treaties regime was supervised by the League of Nations,
but the system did not work effectively for a number of reasons.42
First, the minority States resented the fact that the treaties were
forced on them and moreover, that the system was applied
selectively.43 Therefore, they were not inclined to cooperate, which
resulted in mistreatment and persecution of minorities.44 Second, the
minorities themselves sometimes used the system to keep certain
privileges and some of them adopted a superior attitude towards the
majority population.45 Third, the fact that the system was born out of
a lack of support for self-determination also undermined its
potential.46 Before the Second World War, the special protection of
minorities in international law was abandoned and it would not be
until 1966, with the adoption of the International Covenant on Civil
and Political Rights, that minorities re-emerged on the international
scene.47
The mandate system was based on Article 22 of the League
Covenant, providing that
‘[t]o those colonies and territories which as a consequence of the late war
have ceased to be under the sovereignty of the States which formerly
governed them and which are inhabited by peoples not yet able to stand by
themselves under the strenuous conditions of the modern world, there
should be applied the principle that the well-being and development of such
peoples form a sacred trust of civilisation and that securities for the
performance of this trust should be embodied in this Covenant’.48
Mandated territories were divided into three different types,

‘according to the stage of the development of the people, the
geographical situation of the territory, its economic conditions and
other similar circumstances’.49 The whole system was subject to
international supervision with a Permanent Mandate Commission as
an advisory body to the Council of the League.50 While Article 22 did
40
Cassese, supra note 13, p. 26. Musgrave, supra note 14, p. 41.
41
Cassese, supra note 13, p. 26.
42
Smis, supra note 14, pp. 60-61. Musgrave, supra note 14, p. 55.
43
Musgrave, supra note 14, p. 55-56. Cassese, supra note 13, p. 26.
44
Musgrave, supra note 14, p. 55-56.
45
Ibid., p. 56.
46
47
Article 27 of the ICCPR contains rights for individuals belonging to minorities. Smis, supra
note 14, p. 61.
48
The full text of the Covenant of the League of Nations is available at
<http://avalon.law.yale.edu>.
49
Article 22 of the Covenant of the League of Nations.
50
8
not specifically mention it, self-determination was underlying the
mandate system, which was designed to administer the territories of
former colonies as a trust while stimulating self-government, until the
populations of these territories would be able to become
independent.51
The Åland Islands Case, in which the League of Nations was asked to
settle the dispute between Sweden and Finland over the Åland
Islands, provides a very good insight into the legal status of the
principle of self-determination in the 1920s.52 The Åland Islands form
a cluster of islands in the Baltic Sea between Finland and Sweden and
were under Swedish rule until 1809 when Finland and the Islands
both became a part of Russia.53 During the period of Russian rule the
Åland Islanders managed to preserve their Swedish language and
culture and as soon as Finland proclaimed its independence from
Russia in 1917, the Islanders asked to be reunited with Sweden.54
The Islanders appealed to the principle of self-determination to
support their request, but Finland refused and the dispute was
brought before the Council of the League of Nations.55 The Council
appointed a Committee of Jurists to determine whether the dispute
was an international matter, thus falling within the competence of the
League, or was a domestic issue over which the League had no
jurisdiction.56 The report of the Committee first pointed out that
‘[a]lthough the principle of self-determination of peoples plays an important

part in modern political thought, especially since the Great War, it must be
pointed out that there is no mention of it in the Covenant of the League of
Nations. Its recognition in a certain number of international treaties cannot
be considered as sufficient to put it upon the same footing as a positive rule
of the Law of Nations’.57
The Committee’s view that this was a international issue over which
the League had jurisdiction was endorsed by the League Council,
which subsequently appointed a Commission of Rapporteurs to advise
on the solution of the dispute.58 The report of the Commission of
Rapporteurs repeated the conclusion of the Committee of Jurists that
self-determination was not a rule of positive international law and
recommended that the Åland Islands remain a part of Finland, who
51
H. Hannum, ‘Rethinking Self-Determination’, Virginia Journal of International Law, Vol. 34,
1993, p. 6. Smis, supra note 14, pp. 69, 71.
52
Hannum, supra note 42, pp. 8-9.
53
Musgrave, supra note 14, p. 32.
54
Smis, supra note 14, p. 77. Musgrave, supra note 14, pp. 32-33.
55
Musgrave, supra note 14, p. 33. Smis, supra note 14, p. 77.
56
57
Report of the International Committee of Jurists Entrusted by the Council of the League of
Nations with the Task of Giving an Advisory Opinion upon the Legal Aspect of the Åland Island
Question, League of Nations Official Journal, Special Supplement No. 3, 1920, p. 5. Quoted by
58
9
would be obliged to establish special autonomy arrangements for the
Islanders to guarantee the preservation of their culture.59
There are two points with respect to the Åland Islands Case that need
to be emphasised. First, the Committee of Jurists had an interesting
view on ‘the relationship between self-determination and the
protection of minorities’.60 According to the Committee, ‘both have a
common object - to assure to some national Group the maintenance
and free development of its social, ethnical or religious
characteristics’.61 The Committee went on to note that if
‘geographical, economic and other similar considerations’ would not
allow for self-determination to be exercised, the protection of
minorities could provide ‘a solution in the nature of a compromise’.62
Second, it is important to note that the Committee of Jurists and the
Commission of Rapporteurs both considered the possibility of
persistent discrimination of a minority.63 According to the Committee
of Jurists, such a case would fall within the jurisdiction of the
League.64 The Commission of Rapporteurs went even further and
mentioned the possibility of secession.65 The Commission’s view on
this subject will be discussed in the fourth Chapter.
2.3 Conventional Law
2.3.1 The United Nations Charter
The Second World War had deep and long lasting consequences on
the national and international spheres. The international legal order
as we know it today has been influenced to a great extent by this War
and its aftermath. The principle of self-determination also underwent
a significant change in this period. Whereas the previous section has
shown that in the interwar period self-determination was a only a
political principle, the post-war period that will be described in this
section will show the birth of self-determination as a legal principle
and its subsequent growth into a legal right.
On August 14, 1941 Roosevelt and Churchill had already outlined the
plan for a new world order in the Atlantic Charter, containing eight
‘principles of common policy’.66 Two of these principles in essence
59
Cassese, supra note 13, p. 30. Hannum, supra note 42, p. 10.
60
61
Report of the International Committee of Jurists, supra note 48, p. 6. Quoted by Cassese,
supra note 13, p. 30.
62
Ibid. Quoted by ibid., pp. 30-31.
63
64
Report of the International Committee of Jurists, supra note 48, p. 5. Quoted by Cassese,
65
League of Nations, Report presented to the Council of the League by the Commission of
Rapporteurs, LN Council Doc. B7/21/68/106, 1921, pp. 28-29. Quoted by Cassese, supra note
13, pp. 31-32.
66
The full text of the Atlantic Charter is available at <http://avalon.law.yale.edu>.
10
referred to self-determination, without specifically mentioning it.67 In
April 1945, the United Nations Conference on International
Organization took place in San Francisco, during which the Charter of
the United Nations was drafted. The Dumbarton Oaks proposals
formulated the previous year by the Four Powers formed the basis of
the discussions, but since they did not mention self-determination,
the principle was not discussed at first.68 Nevertheless, a Soviet
proposal supported by the Four Powers secured the inclusion of self-
determination in Article 1 of the Charter.69 Although some States
supported the new provision, others expressed concern, or even
outright criticism.70 Most of the concern and criticism focused on the
issue of secession, as many States were afraid that self-determination
would be interpreted as including a right of secession.71 The
statement of the Colombian delegate illustrates this fear:
‘If it [self-determination] means self-government, the right of a country to

provide its own government, yes, we would certainly like it to be included;
but if it were to be interpreted, on the other hand, as connoting a
withdrawal, the right of withdrawal or secession, then we should regard that
as tantamount to international anarchy, and we should not desire that it
should be included in the text of the Charter’.72
At the end of the San Francisco Conference the principle of self-

determination appeared in the Charter of the United Nations in two
places, Chapter I, Article 1(2) containing the purposes of the
Organization and Article 55, Chapter IX, on international economic
and social cooperation. According to Article 1(2) one of the purposes
of the United Nations is:
‘to develop friendly relations among nations based on respect for the
principle of equal rights and self-determination of peoples, and to take other
appropriate measures to strengthen universal peace’.
67
‘Second, they desire to see no territorial changes that do not accord with the freely
expressed wishes of the peoples concerned; Third, they respect the right of all peoples to
choose the form of government under which they will live; and they wish to see sovereign
rights and self government restored to those who have been forcibly deprived of them.’ Ibid.
(emphasis added). See Smis, supra note 14, p. 91.
68
J. Summers, Peoples and International Law. How Nationalism and Self-Determination Shape
a Contemporary Law of Nations, Leiden: Martinus Nijhoff Publishers 2007, p. 146. Musgrave,
69
Amendments Proposed by the Governments of the United States, the United Kingdom, the
Soviet Union, and China: “Chapter I…2. To develop friendly relations among nations based on
respect for the principle of equal rights and self-determination of peoples and to take other
appropriate measures to strengthen universal peace”. Doc. 2 G/29, UNCIO, vol. III, at p. 622.
Quoted by Summers, supra note 59, p. 146. See also Cassese, supra note 13, p. 38.
70
Cassese, supra note 13, p. 38-39.
71
Ibid., p. 39-40.
72
See the microfilmed minutes (unpublished) of the debates of the First Committee of the First
Commission of the San Francisco Conference, 14-15 May and 1 and 11 June, 1945, Library of
the Palais des Nations, Geneva, p. 20. (emphasis added). Quoted by Cassese, supra note 13,
p. 39-40.
11
Article 55 provides that:
‘With a view to the creation of conditions of stability and well-being which

are necessary for peaceful and friendly relations among nations based on
respect for the principle of equal rights and self-determination of peoples,
the United Nations shall promote:
a. higher standards of living, full employment, and conditions of economic
and social progress and development; b. solutions of international
economic, social, health, and related problems; and international cultural
and educational cooperation; and c. universal respect for, and observance
of, human rights and fundamental freedoms for all without distinction as to
race, sex, language, or religion.’73
After having studied the debates on Article 1(2) and the report of the
Syrian Rapporteur to the drafting Commission,74 Cassese concludes
that the Charter principle of self-determination ‘boils down to very
little’.75 According to Cassese, self-determination as enunciated in
Charter of the United Nations did not include a right of secession.76
However, others have argued that the travaux préparatoires are
unclear on this matter, a point which will be discussed more detailed
in the third Chapter.77 Cassese also holds that self-determination as
proclaimed in the Charter did not give colonial peoples the right to
independence.78 But a statement from the Soviet Foreign Minister
reveals at least a different opinion on this matter: ‘We must first of all
see to it that dependent countries are enabled as soon as possible to
take the path of national independence’.79 According to the Minister
the United Nations should facilitate ‘the realization of the principles of
equality and self-determination of nations’ in order to promote the
achievement of this goal.80 Cassese also does not believe self-
determination to include ‘the right of the people of a sovereign State
freely to choose its rulers through regular, democratic and free
elections’.81 However, the parties did associate self-determination
with ‘popular sovereignty’, which refers to the internal aspect of self-
determination and the right to self-government.82
Given this ambiguity, it is submitted here that it is by no means
certain what the Charter principle of self-determination actually does
73
See also Article 56, providing that: ‘All Members pledge themselves to take joint and
separate action in co-operation with the Organization for the achievement of the purposes set
forth in Article 55.’
74
UNCIO, vol. VI, 455 and 714 ff. Quoted by Cassese, supra note 13, p. 41.
75
Cassese, supra note 13, p. 41-42.
76
Ibid., p. 42.
77
See, e.g. Buchheit, supra note 8, p. 73. Also Musgrave, supra note 14, pp. 63-64.
78
79
R.B. Russell, A History of the United Nations Charter, Washington: Brookings Institution
1958, p. 811.
80
Ibid.
81
82
B. Driessen, A Concept of Nation in International Law, The Hague: TMC Asser Instituut 1992,
pp. 49-50.
12
or does not mean.83 If we consider the context of the phrase and the
object and purpose of the United Nations Charter the most that can
be said is that the principle of self-determination as proclaimed in
Article 1(2) was meant to express one of the goals of the United
Nations: it was believed that self-determination would further the
development of friendly relations among States and strengthen
universal peace.84 Thus, self-determination as enunciated in the
Charter was deemed a guiding legal principle rather than a binding
right under international law.85
The meaning of the word ‘peoples’ also remains uncertain, for no
definition was included in the Charter itself and the travaux do not
clarify this issue either.86 Years later the General Assembly would
conclude that ‘the Charter […] contained no elaboration or
explanation of the concept of a ‘people’ and there was no text or
definition to determine what ‘people’ was’.87 As will be seen later, this
uncertainty would continue to hamper the exercise of the right of self-
determination, for until the present day the ‘peoples’ as the holders of
the right have not been identified.
Although the word ‘self-determination’ is nowhere to be found in
Article 73 of Chapter XI of the Charter on non-self-governing
territories and Article 76 of Chapter XII of the Charter on the
international trusteeship system, it has been argued that ‘the drafters
of the Charter considered Chapters XI and XII as specific applications
of the principle of self-determination’.88 However, it remains to be
seen whether this is actually true. The parties decided to develop two
separate regimes for dependent territories, a regime for non-self-
governing territories and a regime for trust territories.
According to Article 73, Members of the United Nations administering
non-self-governing territories were obliged
‘to develop self-government, to take due account of the political aspirations

of the peoples, and to assist them in the progressive development of their
free political institutions, according to the particular circumstances of each
territory and its peoples and their varying stages of advancement’.89
83
See also Musgrave, supra note 14, p. 63-64. And Smis, supra note 14, p. 109.
84
See Article 31 (1) of the Vienna Convention on the Law of Treaties 1969, available at
<http://untreaty.un.org>. Cassese, supra note 13, p. 43. Smis, supra note 14, p. 114.
Pomerance, supra note 6, p. 9. Y.Z. Blum, ‘Reflections on the Changing Concept of Self-
Determination’, Israel Law Review, Vol. 10, 1975, at p. 511 notes that ‘[c]learly then, self-
determination, […] was not originally perceived as an operative principle of the Charter. It was
regarded as a goal to be attained at some indeterminate date in the future; it was one of the
desiderata of the Charter rather than a legal right that could be invoked as such’.
85
H. Hannum, Autonomy, Sovereignty, and Self-Determination. The Accommodation of
Conflicting Rights, Philadelphia: University of Pennsylvania Press 1990, p. 33. Also Smis, supra
note 14, p. 114. And Cassese, supra note 13, p. 43.
86
87
UN Doc. A/6799 (1967), available at <http://www.un.org>.
88
89
Article 73 (b) of the Charter of the United Nations.
13
The drafting history of the Article reveals that the terms ‘self-
government’ and ‘independence’ were debated extensively by the
parties, but as they were unable to agree whether self-government
would or should include independence, the word ‘independence’ was
not included in Article 73.90 The fact that there is no reference to self-
determination in the Article, not even implicitly, makes it rather
unlikely that the drafters intended this to be a ‘specific application’ of
the principle.91 Moreover, self-determination of non-self-governing
territories would become a very controversial issue in the period of
decolonisation that followed the adoption of the Charter.92 The
development of self-determination in the context of decolonisation
will be discussed in paragraph 2.4.
Chapters XII and XII of the Charter regulated the international
trusteeship system that was designed to replace the mandate system
of the League of Nations.93 Article 76 of the Charter contained ‘[t]he
basic objectives of the trusteeship system, in accordance with the
Purposes of the United Nations laid down in Article 1 of the present
Charter’. By referring to Article 1 of the Charter, this formulation thus
implicitly referred to the principle of self-determination.94 Moreover,
one of the objectives of the trusteeship system was
‘to promote the political, economic, social, and educational advancement of

the inhabitants of the trust territories, and their progressive development
towards self-government or independence as may be appropriate to the
particular circumstances of each territory and its peoples and the freely
expressed wishes of the peoples concerned, and as may be provided by the
95
terms of each trusteeship agreement’.
Along these lines it can be argued that under the trusteeship system
the achievement of independence was certainly regarded as a
possible way for the population of trust territories to exercise self-
determination.
Be that as it may, it must be repeated here that at the time the
Charter was drafted, self-determination was not a legal right, but
merely a guiding legal principle, the content of which urgently needed
further specification.96 Nevertheless, the inclusion of the principle of
self-determination in the Charter of the United Nations, a multilateral
treaty establishing an International Organization, is significant. From
then on, self-determination was no longer a political principle, it had
taken its first steps onto the stage of international law. Section 2.5 of
90
91
See also Musgrave, supra note 14, p. 65-66.
92
Ibid.
93
Ibid., p. 64.
94
Ibid., p. 65.
95
Article 76 (b) of the Charter of the United Nations (emphasis added).
96
14
this Chapter will further elaborate the content of self-determination
and to whom it was meant to apply.
2.3.2 The International Bill of Rights
While the Charter of the United Nations contained several provisions

that referred to ‘human rights and fundamental freedoms’, the
content of these provisions still needed to be elaborated.97 Therefore,
after the adoption of the Charter, the international community
undertook to formulate the ‘International Bill of Human Rights’.
Eventually this Bill of Rights would include the Universal Declaration
on Human Rights that was adopted on 10 December 1948 and the
two International Human Rights Covenants that were adopted on 16
December 1966.
Despite the efforts of the Soviet Union, the Universal Declaration of
Human Rights did not mention self-determination.98 Nevertheless,
one cannot help but to notice elements of self-determination in the
Declaration.99 First, the preamble referred to the need to protect
human rights, ‘if man is not to be compelled to have recourse, as a
last resort, to rebellion against tyranny and oppression’. Second,
according to Article 21 (3),
‘The will of the people shall be the basis of the authority of government; this
will shall be expressed in periodic and genuine elections which shall be by
universal and equal suffrage and shall be held by secret vote or by
equivalent free voting procedures’.
This Article expressed the idea of ‘popular sovereignty’, that has

always formed the core of self-determination.100
After the adoption of the Universal Declaration, the General Assembly
requested the Commission on Human Rights to continue drafting a
legally binding instrument on human rights.101 Again, there was a
Soviet proposal to include an Article on self-determination for colonial
peoples in the Covenant on Human Rights, which was supported by
other socialist countries and developing countries.102 However, it may
not come as a surprise that many Western States were not in favour
of the inclusion of such a right in a legally binding instrument because
it could jeopardise their colonial interests.103 To draw the attention
away from these interests, Western States started stressing the
97
Summers, supra note 59, p. 155. Also Cassese, supra note 13, p. 47. See Preamble, Article
1 (3), 13 (b), 55 (c), 62 (2), 68, 76 (c) of the Charter.
98
G.I. Tunkin, Theory of International Law, Cambridge MA: Harvard University Press 1974, p.
64.
99
Summers, supra note, 59, p. 155.
100
Ibid., p. 156.
101
102
Cassese, supra note 13, p. 48-49, 52.
103
Ibid., p 50.
15
universality of self-determination.104 A good example of this strategy
is the statement of the Netherlands that
‘[t]here were more peoples and nations outside the colonial orbit which
were deprived of all opportunity of determining their political status than
105
there were within it’.
As they tried to make sure that the principle of self-determination

that would be included in the Covenants would not be limited to the
colonial context, their tactics resulted in broadening the scope of the
Article.106
In the meantime, it was decided that the Covenant would be divided
into two separate Covenants, both containing an Article on self-
determination.107 The drafting process took almost two decades,
starting as early as 1947 and ending with the adoption of the
International Covenant on Economic, Social and Cultural Rights
(ICESCR) and the International Covenant on Civil and Political Rights
(ICCPR) by the General Assembly in 1966.108 Common Article 1 of the
two Human Rights Covenants reads as follows:
1. All peoples have the right of self-determination. By virtue of that right

they freely determine their political status and freely pursue their economic,
social and cultural development.
2. All peoples may, for their own ends, freely dispose of their natural wealth
and resources without prejudice to any obligations arising out of
international economic co-operation, based upon the principle of mutual
benefit, and international law. In no case may a people be deprived of its
own means of subsistence.
3. The States Parties to the present Covenant, including those having

responsibility for the administration of Non-Self-Governing and Trust
Territories, shall promote the realization of the right of self-determination,
and shall respect that right, in conformity with the provisions of the Charter
109
of the United Nations.
With the inclusion of a provision on self-determination in two Human

Rights Covenants, it could no longer be denied that the political
principle had definitely developed into a positive rule of international
law. Moreover, common Article 1 granted the ‘right of self-
determination’ to ‘all peoples’, not only colonial peoples. Because the
104
Summers, supra note 59, p. 165.
105
Netherlands, 10 GAOR (1955) 3rd Cmittee., 671st mtg., (A/C.3/SR.671) para. 3. Quoted by
ibid., p. 165.
106
107
108
Smis, supra note 14, p. 401. Both Covenants entered into force in 1976. On 5 April 2009
164 out of 192 UN Member States had ratified the ICCPR and 160 had ratified the ICESCR. See
<http://treaties.un.org>.
109
The full text of the two Covenants on Human Rights is available at <http://www.un.org>.
16
scope of this right is thus not confined to the colonial context, the
content of common Article 1 will be discussed more detailed in the
following Chapter.
2.3.3 The African Charter on Human and Peoples’ Rights
Another convention containing a provision on self-determination is the

African Charter on Human and Peoples’ Rights, or the Banjul
Charter.110 The Charter was adopted in 1981 by the 18th Assembly of
Heads of State and Government of the Organization of African Unity
(OAU) and entered into force in October 1986. Article 20 of the Banjul
Charter provides that
1. All peoples shall have the right to existence. They shall have the
unquestionable and inalienable right to self-determination. They shall freely
determine their political status and shall pursue their economic and social
development according to the policy they have freely chosen.
2. Colonized or oppressed peoples shall have the right to free themselves

from the bonds of domination by resorting to any means recognized by the
international community.
3. All peoples shall have the right to the assistance of the State Parties to
the present Charter in their liberation struggle against foreign domination,
be it political, economic or cultural.
While the first paragraph of the Article grants the right to self-
determination to ‘all peoples’, the second paragraph draws attention
to colonised and oppressed peoples.111 Hence, under the Banjul
Charter self-determination is practically equated with
decolonisation.112 Since the European Convention on Human Rights
and the American Convention on Human Rights do not mention self-
determination, the African Charter is the only regional human rights
instrument that contains a provision on self-determination.113 To
avoid ‘difficult discussion’, the drafters of the Charter deliberately
decided not to define the term ‘peoples’.114 The role of the African
Commission on Human Rights in the interpretation of self-
determination and in defining the holders of the right will be
discussed in the next Chapter.
110
The full text of the Banjul Charter is available at <http://www.achpr.org>. All Member
States of the African Union have ratified the Charter.
111
R.N. Kiwanuka, ‘The Meaning of “People” in the African Charter on Human and Peoples’
Rights’, The American Journal of International Law, Vol. 82 (1988), p. 88.
112
113
M.K. Addo, ‘Political Self-Determination Within the Context of the African Charter on Human
and Peoples’ Rights’, Journal of African Law, Vol. 32, 1988, pp. 183-184.
114
See Report of O.A.U. Secretary-General on Draft African Charter on Human and Peoples’
Rights. O.A.U. Doc. C.M./1149, para. 13. Quoted by Addo, ibid., p. 184.
17
2.4 Customary Law
2.4.1 The General Assembly
After the adoption of the Charter of the United Nations the

international community became more and more concerned with the
‘fight against colonialism’.115 The General Assembly in particular took
a very active stance in this matter and as a result of this, the process
of decolonisation became the Organisations top priority.116 With the
adoption of numerous resolutions linking self-determination to
decolonisation, the General Assembly contributed in an important way
to the development of customary rules.117
This paragraph will discuss three General Assembly resolutions on
self-determination that stand out, but first it is necessary to make a
preliminary remark on the legal value of General Assembly
resolutions in general. It has convincingly been argued that ‘General
Assembly resolutions can contribute to the creation of rules of
international law’ in a number of ways.118 For present purposes it
suffices to mention one of these ways, namely when a General
Assembly resolution helps to develop, establish or clarify a rule of
customary law.119 However, it is important to keep in mind that the
legal value of each resolution should be judged on its own merits,
taking into account a number of factors.120 In this respect Rosalyn
Higgins has pointed out that
‘As with much of international law, there is not easy answer to the question:
What is the role of resolutions of international organizations in the process
of creating norms in the international system? To answer the question we
need to look at the subject-matter of the resolutions in question, at whether
they are binding or recommendatory, at the majorities supporting their
adoption, at repeated practice in relation to them, as evidence of opinio
115
116
Ibid.
117
Ibid., p. 115.
118
Ibid., p. 119. See also Cassese, supra note 13, pp. 69-70.
119
Smis, supra note 14, pp. 121-122. See also the opinion of the ICJ in Military and
Paramilitary Activity in and against Nicaragua (Nicaragua v. United States of America), ICJ
Reports (1986), available at <http://www.icj-cij.org>, para. 188, in which the Court stated
that ‘opinio juris may, though with all due caution, be deduced from, inter alia, the attitude of
the Parties and the attitude of States towards certain General Assembly resolutions,’. The
Court referred to General Assembly Resolution 2625 (XXV), ‘Declaration on Principles of
International Law Concerning Friendly Relations and Co-operation among states in Accordance
with the Charter of the United Nations’ of 24 October 1970 (“Friendly Relations Declaration”),
to conclude that ‘[t]he effect of consent to the text of such resolutions cannot be understood
as merely that of a “reiteration or elucidation” of the treaty commitment undertaken in the
Charter. On the contrary, it may be understood as an acceptance of the validity of the rule or
set of rules declared by the resolution by themselves’. See also the ‘Statement of Principles
Applicable to the Formation of General Customary International Law’ by the Committee on
Formation of Customary (General) International Law of the International Law Association,
London Conference 2000, pp. 55-65, available at <http://www.ila-hq.org>.
120
Ibid., p. 127.
18
iuris. When we shake the kaleidoscope and the pattern falls in certain ways,
121
they undoubtedly play a significant role in creating norms’.
The adoption of General Assembly Resolution 1514 (XV) entitled

‘Declaration on the Granting of Independence to Colonial Countries
and Peoples’, by the General Assembly on 14 December 1960 has
been called ‘the beginning of a revolutionary process within the
United Nations’ and ‘an attempt to revise the Charter in a binding
manner’.122 According to its preamble, the resolution was aimed at
‘bringing to a speedy and unconditional end colonialism in all its forms
and manifestations’ and in paragraph two it declared that
‘All peoples have the right to self-determination; by virtue of that right they
freely determine their political status and freely pursue their economic,
social and cultural development’.
While this paragraph seems to grant the right of self-determination to

‘all peoples’, the first paragraph specifically refers to peoples subject
to ‘alien subjugation, domination and exploitation’. The ‘revolutionary’
part of the resolution becomes clear by comparing it with Articles 73
and 76 of the UN Charter on non-self-governing and trust territories.
Whereas Articles 73 and 76 distinguish between these two, paragraph
five of the resolution considers them equal, and that both are entitled
to self-determination.123 Moreover, whereas Articles 73 and 76 refer
to the development of self-government and independence leaving the
administrating powers some discretion to consider ‘the particular
circumstances of each territory’, paragraph three and five of the
resolution adamantly require ‘complete independence’ for all
dependent territories, whether they are ready for it or not.124 The last
important point is that paragraph four of the resolution prohibits the
use of force against dependent peoples in order to allow them to
exercise their right of self-determination in a peaceful manner.125 As
to the legal value of this resolution, Cassese argues that it
‘contributed to the gradual transformation of the ‘principle’ of self-
determination’ into a legal right for non-self-governing peoples’.126 In
1961 the Special Committee on Decolonization was established by the
121
R. Higgins, The Development of International Law Through the Political Organs of the
United Nations, London: Oxford University Press 1969, p. 28.
122
Pomerance, supra note 6, p. 11. For the full text of the resolution, see Appendix I.
123
124
Ibid. Also Pomerance, supra note 6, p. 11.
125
Ibid. Ibid., p. 12.
126
Cassese, supra note 13, p. 70. See also the Study prepared by A. Cristescu, Special
Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of
Minorities, ‘The Right to Self-Determination: Historical and Current Development on the Basis
of United Nations Instruments’, UN Doc. E/CN.4/Sub.2/404/Rev.1, 1981, para. 39.
19
General Assembly, to monitor the implementation of Resolution 1514
(XV) and to make recommendations on its application.127
The landmark resolution on decolonisation was followed by another
anti-colonial resolution that was adopted the next day by the General
Assembly: Resolution 1541 (XV) concerning the ‘Principles which
should guide Members in Determining whether or not an obligation
exists to transmit the information called for under Article 73e of the
Charter’.128 As the title indicates, this resolution was meant to provide
a number of ‘guiding principles’ to enable members to determine
whether they were under an obligation to transmit the information
requested by Article 73 (e) of the UN Charter.
Principle I of the resolution pointed out that Chapter XI of the UN
Charter was meant to apply to territories ‘known to be of the colonial
type’, which according to Principle II were ‘in a dynamic state of
evolution and progress towards a “full measure of self-government”’.
While Resolution 1514 granted the right of self-determination to
colonial peoples, Resolution 1541 clarified that colonial peoples were
‘the inhabitants of non-self-governing territories’.129 Principle IV of the
resolution defined a non-self-governing territory by applying the ‘salt
water theory’, according to which a territory is non-self-governing if it
is ‘geographically separate and is distinct ethnically and/or culturally
from the country administering it’.130 According to Principle V, other
elements to be considered were elements of ‘administrative, political,
juridical, economical or historical nature.’ In Principle VI the
Resolution specified three possible ways in which self-determination
could be achieved:131
(1) Emergence as a sovereign independent state;

(2) Free association with an independent state; or
(3) Integration with an independent state.
Because independence was the preferred means of exercising self-

determination, the resolution stipulated that free association and
integration should be the result of the free choice of the peoples of
the territory concerned, ‘expressed through informed and democratic
processes’.132 While neither Resolution 1514 (XV) nor Resolution 1541
(XV) are legally binding instruments,133 the latter does seem to have
greater legal value because ‘[i]t is consistent with the UN Charter and
127
General Assembly Resolution 1654 (XVI), 27 November 1961, available at
<http://www.un.org>.
128
For an extract of the resolution, see Appendix II.
129
130
Ibid., note 208.
131
Ibid., p. 134.
132
Musgrave, supra note 14, p . 72.
133
Summers, supra note 59, pp. 205-206.
20
with state practice’, whereas Resolution 1514 (XV) was rather
‘carrying the political message’.134
The fact that Resolution 1514 (XV) and 1541 (XV) were anti-
colonialist documents makes it hardly surprising that they were not
supported by most Western States. These two resolutions were to a
large extent the product of Soviet, socialist and Third World efforts to
eradicate colonialism. This was not the case with General Assembly
Resolution 2625 (XXV), ‘Declaration on Principles of International Law
Concerning Friendly Relations and Co-operation among states in
Accordance with the Charter of the United Nations’, adopted
unanimously on 24 October 1970, thus reflecting the views of
developing, socialist and Western States.135 Resolution 2625 (XXV) is
the result of a study of fundamental Charter principles, undertaken by
a Special Committee of the General Assembly.136
The Friendly Relations Declaration has been referred to as a rare
example of ‘instant’ customary law, i.e. it is the unanimous
expression of opinio iuris by the international community on a
number of principles of international law and, despite the fact that
there is no accompanying State practice, the adoption of the
resolution created customary law by itself.137 It cannot be denied that
the resolution does have great legal value, which is supported by the
fact that the ICJ has referred to it in a number of cases138 and the fact
that national courts have mentioned it in their cases.139 International
lawyers also consider it to be an important legal document140 and
Cassese concludes that the Declaration was ‘instrumental in
crystallising a growing consensus concerning the extension of self-
134
Smis, supra note 14, pp. 134, 136.
135
For an extract of the resolution, see Appendix III. Musgrave, supra note 14, pp. 74-75.
136
137
Statement of Principles, supra note 110, pp. 61-65. See also the Nicaragua case, supra
note 110, para. 188. On the concept of ‘instant’ customary international law, see B. Cheng,
‘United Nations Resolutions on Outer Space: “Instant” International Customary Law’, Indian
Journal of International Law, Vol. 5, 1965. The concept of ‘instant’ or ‘modern’ customary
international law will be explained more detailed in Chapter 4.
138
Nicaragua case, supra note 110, paras. 188, 191. Advisory Opinion on Western Sahara, ICJ
Reports 1975, para. 58; and Advisory Opinion on the Legal Consequences of the Construction
of a Wall in the Occupied Palestinian Territory, ICJ Reports 2004, paras. 87-88, 156. All
available at <http://www.icj-cij.org>.
139
Summers, supra note 59, p. 214, quoting Constitutional Court of the Russian Federation,
Tatarstan Case, 30:3 Statutes and Decisions: The Laws of the USSR and Its Successor States
(1994) pp. 40-41; Constitutional Court of the Russian Federation, Chechnya Case, 31:5
Statutes and Decisions: The Laws of the USSR and Its Successor States (1995) p. 52. See also
Supreme Court of Canada, Re. Secession of Quebec, in: A. Bayefski, Self-determination in
International Law: Quebec and Lessons Learned, The Hague: Kluwer Law International 2000,
pp. 494, 496, 498.
140
See, e.g. Hannum, supra note 42, p. 14: ‘Adopted without a vote by the General Assembly
after years of negotiation, the Declaration on Friendly Relations may be considered to state
existing international law. Its provisions therefore possess unusual significance for a General
Assembly Resolution’.
21
determination to other areas’ than the area of non-self-governing
peoples.141
The resolution enumerates seven principles, the fifth of which is ‘the
principle of equal rights and self-determination of peoples’.142
According to the Declaration, ‘[i]n their interpretation and application
the above principles are interrelated and each principle should be
construed in the context of the other principles’.143 The resolution
thus balances the principle of self-determination with other principles
of international law, such as the principles of territorial integrity, non-
intervention and the prohibition on the use of force.144 The balancing
exercise is best illustrated with Paragraph 7 of Principle V, stating
that
‘Nothing in the foregoing paragraphs shall be construed as authorizing or

encouraging any action which would dismember or impair, totally or in part,
the territorial integrity or political unity of sovereign and independent States
conducting themselves in compliance with the principle of equal rights and
self-determination of peoples as described above and thus possessed of a
government representing the whole people belonging to the territory
without distinction as to race, creed or colour’.
As will be seen in the following Chapters, in many cases the principle

of territorial integrity in particular would override the principle of self-
determination. Paragraph 1 of Principle V states
‘By virtue of the principle of equal rights and self-determination of peoples

enshrined in the Charter of the United Nations, all peoples have the right
freely to determine, without external interference, their political status and
to pursue their economic, social and cultural development, and every State
has the duty to respect this right in accordance with the provisions of the
Charter.’
These words, their context as well as the drafting history of this

paragraph supports the view that self-determination as formulated in
this resolution was not only meant to apply to colonial peoples but
instead was meant to be a ‘universal right’, which was granted to all
141
142
The seven principles of the Declaration are: I the principle that States shall refrain in their
international relations from the threat or use of force against the territorial integrity or political
independence of any State, or in any other manner inconsistent with the purposes of the
United Nations; II the principle that States shall settle their international disputes by peaceful
means in such a manner that international peace and security and justice are not endangered;
III the principle concerning the duty not to intervene in matters within the domestic
jurisdiction of any State, in accordance with the Charter; IV the duty of States to co-operate
with one another in accordance with the Charter; V the principle of equal rights and self-
determination of peoples; VI the principle of sovereign equality of States; VII the principle that
States shall fulfil in good faith the obligations assumed by them in accordance with the
Charter.
143
General Part 2 of the Declaration.
144
Smis, supra note 14, p. 137. Summers, supra note 59, p. 216.
22
peoples.145 Besides being aimed at promoting friendly relations and
co-operation among States, a more specific goal of self-determination
was to bring a speedy end to colonialism.146 While Resolution 1541
(XV) enumerates three modes of exercising self-determination, the
Declaration adds a fourth possibility, ‘the emergence into any other
political status freely determined by a people’.147
Paragraph 7 of Principle V, also referred to as the ‘safeguard clause’,
is noteworthy because it seems to make the protection of territorial
integrity dependent on whether or not the government of a State is
representative.148 This paragraph points in the direction of the
internal or democratic aspect of self-determination, as well as to the
possibility of ‘remedial secession’, both of which will be discussed in
the following Chapters.
The process of decolonisation, sparked by the General Assembly, can
be considered to have been rather successful. Since the United
Nations was created in 1945, more than 80 former colonies have
been able to exercise their right of self-determination and have
gained their independence. At this moment, there are 16 non-self-
governing territories remaining. However, it has not been a success
story in every respect. Paragraph 2.5 will address several
shortcomings of the way in which the United Nations, in particular the
General Assembly, has handled self-determination claims in context
of decolonisation.
Except for the Friendly Relations Declaration, which has a broader
scope, the Resolutions of the General Assembly on self-determination
have specifically made the connection between self-determination and
decolonisation.149 Starting with the ‘revolutionary’ Declaration on
Decolonization, followed by the consolidating Resolution 1541 (XV)
and ending with the authoritative Friendly Relations Declaration, the
General Assembly has contributed in a very meaningful way to the
progressive development of the right of self-determination. The
following section will examine the pronouncements of the
International Court of Justice on the right of self-determination.
2.4.2 The International Court of Justice
Whereas the General Assembly Resolutions that have been discussed

in the previous section have been instrumental in furthering the
development of the right of self-determination, the International
Court of Justice has made an important contribution to this
development by ‘confirming the legal status’ of these resolutions.150
145
Ibid. Also Musgrave, supra note 14, p. 75.
146
Paragraph 2 of the Declaration.
147
148
Ibid.
149
Ibid., p. 69.
150
23
In addition to this it is important to note that self-determination in
the context of decolonisation was still a controversial issue at the time
these resolutions were adopted and the pronouncements of the Court
have thus played an important role in clarifying the content of the
norm.151
The first case in which the Court had to consider the principle of self-
determination was the Advisory Opinion on Namibia.152 A
longstanding conflict between the General Assembly and South Africa
over the mandated territory of South West Africa (Namibia) had
already resulted in three Advisory Opinions and two Judgments of the
Court.153 In 1966 the General Assembly had decided to terminate the
mandate because South Africa had ‘failed to fulfil its obligations’ and
consequently decided to put South West Africa ‘under the direct
responsibility of the United Nations’.154 After several resolutions
calling upon South Africa to withdraw from Namibia155 and declaring
South Africa’s continued presence in Namibia illegal,156 the Security
Council asked the International Court of Justice for an Advisory
Opinion on the matter. Referring to the ‘object and purpose’ of the
mandate system the Court pointed out that
‘the subsequent development of international law in regard to non-self-

governing territories, as enshrined in the Charter of the United Nations,
made the principle of self-determination applicable to all of them. The
concept of the sacred trust was confirmed and expanded to all “territories
whose peoples have not yet attained a full measure of self-government”
(Art. 73). Thus it clearly embraced territories under a colonial régime.
Obviously the sacred trust continued to apply to League of Nations
mandated territories on which an international status had been conferred
earlier. A further important stage in this development was the Declaration
on the Granting of Independence to Colonial Countries and Peoples (General
Assembly resolution 1514 (XV) of 14 December 1960), which embraces all
peoples and territories which “have not yet attained independence”. Nor is it
possible to leave out of account the political history of mandated territories
151
Ibid.
152
Legal Consequences for States of the Continued Presence of South Africa in Namibia (South
West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ
Reports (1971), available at <http://www.icj-cij.org>. Musgrave, supra note 14, p. 85.
153
See, generally, T.D. Gill (ed.), Rosenne’s The World Court. What It is and how It works,
Leiden: Martinus Nijhoff Publishers 6th Complete Revised Edition 2003, pp. 137-142.
154
General Assembly Resolution 2145 (XXV), 27 October 1966, available at
<http://www.un.org>, declaring in paragraph 3 ‘that South Africa has failed to fulfil its
obligations in respect of the administration of the Mandated Territory and to ensure the moral
and material well-being and security of the indigenous inhabitants of South West Africa and
has, in fact, disavowed the Mandate’. In paragraph 4 it was decided ‘that the Mandate
conferred upon His Brittanic Majesty to be exercised on his behalf by the Government of the
Union of South Africa is therefore terminated, that South Africa has no other right to
administer the Territory and that henceforth South West Africa comes under the direct
responsibility of the United Nations’.
155
Security Council Resolution 269, 12 August 1969, available at <http://www.un.org>.
156
Security Council Resolution 276, 30 January 1970, available at <http://www.un.org>.
24
in general. […] This is but a manifestation of the general development which
157
has led to the birth of so many new States’.
With this statement, the Court validated the practice of the United
Nations, in particular the General Assembly, with respect to non-self-
governing and trust territories, and confirmed that this practice had
affected the principle of self-determination under international law.158
The next case in which the Court had to address the principle of self-
determination was the Advisory Opinion on Western Sahara.159 After
Spain had agreed to decolonise the Western Sahara a dispute arose
when both Morocco and Mauritania claimed the territory, and in 1975
the General Assembly requested the International Court of Justice to
give an Advisory Opinion on the issue.160 The Court started out by
giving an extensive overview of United Nations practice with respect
to the principle of self-determination, mentioning the inclusion of the
principle in the Charter of the United Nations, recalling the adoption
of General Assembly Resolutions 1514 (XV), 1541 (XV) and 2625
(XXV) and quoting its own jurisprudence in the Namibia Opinion.161
This overview indicates that the Court tried to present self-
determination as a rule of customary international law, the ‘essence’
of which, according to the Court, was
162
‘the need to pay regard to the freely expressed will of peoples’.
It has been argued that even though the Court was considering self-
determination in a colonial context, this statement may also apply
outside the colonial context.163 In this respect the Western conception
of self-determination that was described in paragraph 2.2.1. may be
recalled, according to which self-determination meant ‘representative
government’ and ‘popular sovereignty’. This Western or Wilsonian
157
Namibia, supra note 143, para. 52.
158
Smis, supra note 14, pp. 182-183. A. Cassese, ‘The International Court of Justice and the
right of peoples to self-determination’, in: V. Lowe V. & M. Fitzmaurice (eds.), Fifty years of
the International Court of Justice. Essays in honour of Sir Robert Jennings, Cambridge:
Cambridge University Press 1996, p. 354. See also para. 53: ‘the Court must take into
consideration the changes which have occurred in the supervening half-century, and its
interpretation cannot remain unaffected by the subsequent development of law, through the
Charter of the United Nations and by way of customary law. Moreover, an international
instrument has to be interpreted and applied within the framework of the entire legal system
prevailing at the time of the interpretation. In the domain to which the present proceedings
relate, the last fifty years, as indicated above, have brought important developments. These
developments leave little doubt that the ultimate objective of the sacred trust was the self-
determination and independence of the peoples concerned. In this domain; as elsewhere, the
corpus iuris gentium has been considerably enriched, and this the Court, if it is faithfully to
discharge its functions, may not ignore.’
159
Western Sahara, supra note 129.
160
161
Smis, supra note 14, p. 185. See Western Sahara, supra note 129, paras. 54-73.
162
Western Sahara, supra note 129, para. 59. Smis, supra note 14, p. 185. Cassese, supra
note 149, pp. 357-358.
163
25
understanding of self-determination will be discussed in greater detail
in the next Chapter on self-determination outside the colonial context.
Another point the Court made is that
‘The validity of the principle of self-determination, defined as the need to

pay regard to the freely expressed will of peoples, is not affected by the fact
that in certain cases the General Assembly has dispensed with the
requirement of consulting the inhabitants of a given territory. Those
instances were based either on the consideration that a certain population
did not constitute a “people” entitled to self-determination or on the
conviction that a consultation was totally unnecessary, in view of special
164
circumstances’.
With this statement the Court clarified that there was a legal
obligation to hold a referendum when colonial peoples were exercising
their right of self-determination, except if a population was not a
‘people’ or in case of ‘special circumstances’.165 Unfortunately the
Court did not specify those special circumstances and, given the fact
that there was no definition of a people, this legal obligation could be
easily dispensed with. In fact, the sad story is that the people of
Western Sahara have not been able to exercise their right of self-
determination until this very day. After the Court issued its Opinion,
Morocco and Mauritania both annexed part of the territory, but met
resistance from the Polisario Front, a national liberation movement.
Mauritania backed out in 1979 and Morocco managed to occupy a
large part of the territory. In 1991 a ceasefire was signed between
Morocco and the Polisario Front under the supervision of MINURSO, a
UN peacekeeping mission. Even though a referendum was scheduled
for 1992, at the time of writing no referendum has been held and the
dispute between Morocco and Polisario continues. In 2005 Peter van
Walsum was appointed as the UN Secretary-General’s Personal Envoy
for Western Sahara, but he has not managed to bring the parties
together. Recently the Security Council has extended the mandate of
MINURSO.166
In the Frontier Dispute between Burkina Faso and Mali,167 the Court
examined the relationship between self-determination and uti
possidetis. The principle of uti possidetis, or the principle of ‘the
intangibility of frontiers inherited from colonisation’, is a rule of
international law that ‘freezes the territorial title’ at the moment a
colony achieves independence.168 According to the Court
164
Western Sahara, supra note 129, para. 59.
165
166
S/Res/1813, 30 April 2008, available at <http://www.un.org>.
167
Frontier dispute (Burkina Faso/Republic of Mali), ICJ Reports (1986), available at
<http://www.icj-cij.org>.
168
Cassese, supra note 149, p. 361. See also ibid., paras. 20, 30.
26
‘the principle is not a special rule which pertains solely to one specific
system of international law. It is a general principle, which is logically
connected with the phenomenon of the obtaining of independence, wherever
it occurs. Its obvious purpose is to prevent the independence and stability of
new States being endangered by fratricidal struggles provoked by the
challenging of frontiers following the withdrawal of the administering
169
power’.
After having said this, the Court observed that
‘[a]t first sight this principle conflicts outright with another one, the right of
peoples to self-determination. In fact, however, the maintenance of the
territorial status quo in Africa is often seen as the wisest course, to preserve
what has been achieved by peoples who have struggled for their
independence, and to avoid a disruption which would deprive the continent
of the gains achieved by much sacrifice. The essential requirement of
stability in order to survive, to develop and gradually to consolidate their
independence in all fields, has induced African States judiciously to consent
to the respecting of colonial frontiers, and to take account of it in the
170
interpretation of the principle of self-determination of peoples’.
This statement has rightly been criticized, because it obviously is a

political rather than a legal decision.171 According to the Court, when
the principle of self-determination conflicts with the principle of uti
possidetis, the latter prevails over the former ‘for reasons of
stability’.172
The most recent case in which the Court has considered the principle
of self-determination in the colonial context is the Case Concerning
East Timor.173 After the Portuguese left East Timor, the territory was
annexed by Indonesia, an act that was condemned by the
international community. A very bloody civil war broke out and the
repressive Indonesian occupation would last for 25 years. The
Security Council and the General Assembly both adopted numerous
resolutions rejecting the annexation and reaffirming the right of the
people of East Timor to self-determination and independence.174 In
1989 Australia concluded the Timor Gap Treaty with Indonesia,
concerning the delimitation of the continental shelf between East
Timor and Australia and providing for the joint exploitation of
petroleum resources that were located under this continental shelf.175
169
Frontier dispute, supra note 158, para. 20.
170
Ibid., para. 25.
171
Smis, supra note 14, p. 188. Cassese, supra note 149, p. 362. Summers, supra note 59, p.
273.
172
Ibid.
173
Case Concerning East Timor (Portugal v. Australia), ICJ Reports 1995, available at
<http://www.icj-cij.org>.
174
See SC Res. 384 (22 Dec. 1975), SC Res. 389 (22 Apr. 1976). And GA Res. 3485(XXX) (12
Dec. 1975), GA Res. 31/53 (1 Dec. 1976), GA Res. 32/34 (28 Nov. 1977), GA Res. 33/39 (13
Dec. 1978), GA Res. 34/40 (21 Nov. 1979), GA Res. 35/27 (11 Nov. 1980), GA Res. 36/50 (24
Nov. 1981), GA Res 37/30 (23 Nov. 1982).
175
Gill, supra note 144, p. 192.
27
In 1991 Portugal brought a claim against Australia at the
International Court of Justice because it had strong objections to the
conclusion of this treaty, which according to Portugal not only violated
the right of self-determination of the East Timorese, including the
right to permanent sovereignty over their natural resources, but also
violated Portugal’s status as administering power over East Timor.176
Indonesia could not be summoned, because it had not accepted the
Courts jurisdiction.177 This was also the reason that the Court agreed
with the argument Australia had put forward, that it had no
jurisdiction to decide the case because ‘in order to decide the claims
of Portugal, it would have to rule, as a prerequisite, on the lawfulness
of Indonesia's conduct in the absence of that State’s consent’.178
Portugal had argued that this argument was not applicable in the
present case, because of the erga omnes character of the right of
self-determination, which Australia was legally obliged to respect,
regardless of the unlawful conduct of Indonesia.179 The Court
responded to this argument by pointing out that
‘[i]n the Court’s view Portugal's assertion that the right of peoples to self-
determination, as it evolved from the Charter and from United Nations
practice, has an erga omnes character, is irreproachable. The principle of
self-determination of peoples has been recognized by the United Nations
Charter and in the jurisprudence of the Court […]; it is one of the essential
principles of contemporary international law. However, the Court considers
that the erga omnes character of a norm and the rule of consent to
180
jurisdiction are two different things’.
The Court did mention that for Australia and Portugal, the territory of
East Timor remained a non-self-governing territory and that the
people of East Timor still had the right to self-determination.181 With
this confirmation, the Court ‘conferred legitimacy to the struggle for
self-determination’ of the East Timorese.182 A financial crisis in
Indonesia combined with strong international pressure finally forced
the Indonesian government in 1999 to agree to conduct a UN-
supervised referendum in East Timor. The people of East Timor were
given the choice whether they preferred special autonomy within
Indonesia or independence. When almost 80% of the voters had
chosen independence, Timorese pro-Indonesia militias supported by
176
Ibid. Smis, supra note 14, p. 189. See Case Concerning East Timor, supra note 164, para.
33.
177
Gill, supra note 144, p. 192.
178
Case Concerning East Timor, supra note 164, para. 35. See also Monetary Gold Removed
from Rome in 1943 (Italy v. France, United Kingdom of Great Britain and Northern Ireland and
United States of America), ICJ Reports 1954, available at <http://www.icj-cij.org>, p. 32.
179
Case Concerning East Timor, supra note 164, para. 29.
180
Ibid. (emphasis added).
181
Ibid., paras. 31, 37.
182
P. Hilpold, ‘Self-Determination In The 21st Century – Modern Perspectives For An Old
Concept’, Israel Yearbook on Human Rights, Vol. 36, 2006, p. 258.
28
the Indonesian army started attacking civilians that had voted for
independence. The UN intervened by sending a peacekeeping force,
INTERFET, followed by a temporary UN administration, UNTAET. In
May 2002, after having suffered for more than 25 years, the people of
East Timor were finally able to exercise their right of self-
determination and declared the independence of the Democratic
Republic of Timor-Leste.
In conclusion, the pronouncements of the International Court of
Justice have indeed contributed considerably to clarifying the status
of self-determination under international law.183 Not only did the
Court confirm the existence of a right of self-determination for
colonial peoples, it also unravelled the essence of self-determination,
‘the need to pay regard to the freely expressed will of peoples’.184 The
following paragraph will focus more closely on the ‘people’, the
content and the status of self-determination in the colonial context
and will consider its relationship with other principles of international
law.
2.5 Analyzing Self-Determination in the Colonial Context
2.5.1 The People
One of the major shortcomings of the concept of self-determination is

that it does not define to whom it applies. To recall the words of Sir
Ivor Jennings:
‘On the surface it seemed reasonable: let the people decide. It was in fact
ridiculous because the people cannot decide, until somebody decides who
185
are the people.’
However, it has been argued that within the colonial context, self-
determination was mainly interpreted as applying to ‘colonial
peoples’.186 Moreover, it is assumed that self-determination applied to
the inhabitants of non-self-governing territories as a whole, indicating
a ‘territorial definition’ of the term ‘people’.187 Hannum has pointed
out that during the period that self-determination developed from a
Charter principle into a right,
183
184
Ibid. Smis, supra note 14, p. 185. Western Sahara, supra note 129, para. 59.
185
Jennings, supra note 10.
186
H. Quane, ‘The United Nations and the Evolving Right to Self-Determination’, International
and Comparative Law Quarterly, Vol. 47 July 1998, p. 555. See also Smis, supra note 14, p.
197.
187
Smis, supra note 14, pp. 102, 155. A. Eide, ‘The National Society, Peoples and Ethno-
Nations: Semantic Confusions and Legal Consequences’, Nordic Journal of International Law,
Vol. 64, 1995, p. 357. Quane, supra note 177, pp. 555-556. Musgrave, supra note 14, p. 149.
29
‘the United Nations continued to refer rhetorically to the right of all peoples
to self-determination, when what it really meant was the right of colonial
territories to independence. […] It did not matter how many “peoples” were
found within them, although obviously each contained many different
peoples, nations and ethnic groups. Thus, in general, territories, not
188
peoples, enjoyed the right to independence’.
In the period of decolonisation, the United Nations thus seemed to

prefer an objective, ‘territorial definition’ of a people instead of a
more subjective, ‘ethnic criterion’.189 This conclusion has been
reached on the basis of an analysis of UN practice in that period,
because in most cases the whole population of a non-self-governing
or trust territory achieved independence, whereby the former colonial
boundaries became the boundaries of the newly established State.190
Nevertheless, it has been pointed out that the practice of the United
Nations in the colonial context has not been consistent at all.191 In
this respect, a few examples can be mentioned. The territory of
Ruanda-Urundi, was separated ‘on ethnic grounds’ into two States,
Rwanda and Burundi.192 The British Cameroons were divided, with
Northern Cameroon joining Nigeria and Southern Cameroon joining
French Cameroon.193 Moreover, in a number of cases the United
Nations has allowed colonies achieving independence to absorb, or
rather annex, territories that were never part of the territory before it
became independent, and in most cases the population of these
territories was not properly consulted.194 Examples include the
annexation of Goa by India, the annexation of West New Guinea by
Indonesia, the annexation of Ifni by Morocco and last but not least,
the annexation of Western Sahara by Morocco (and Mauritania). In
fact, the conflict over Western Sahara that continues until this day is
the best example of how difficult it is to ‘identify the “self” in an
objective way’.195
The conclusion that ‘people’ meant ‘colonial people’ has also been
based on an interpretation of Article 1(2) of the Charter in light of
188
H. Hannum, ‘The Right of Self-Determination in the Twenty-First Century’, in: R.P. Claude
and B.H. Weston (eds.), Human Rights in the World Community. Issues and Action,
Philadelphia: University of Pennsylvania Press 2006, p. 243-244. See also W.G. Werner, ‘Self-
Determination and Civil War’, Journal of Conflict and Security Law, Vol. 6, No. 2, 2001, p. 176.
189
Smis, supra note 14, p. 155. See also Pomerance, supra note 6, p. 18. Hannum, supra note
76, p. 454 stating that ‘nineteenth century “national” self-determination gave way to twentieth
century “territorial” self-determination’. And W. Ofuatey-Kodjoe, ‘Self-Determination’, in: O.
Schachter & C.C. Joyner (eds.), United Nations Legal Order, Vol. I, Cambridge: Cambridge
University Press 1995, p. 374.
190
Pomerance, supra note 6, p. 18.
191
Ibid., p. 19.
192
Ibid.
193
Ibid.
194
Ibid., p. 20.
195
Hilpold, supra note 173, p. 256. See also M. Koskenniemi, ‘National Self-Determination
Today: Problems of Legal Theory and Practice, International and Comparative Law Quarterly,
Vol. 43, April 1994, pp. 260, 263. And Pomerance, supra note 6, p. 23.
30
Chapter XI and XII of the Charter, suggesting that ‘peoples’ refers to
‘peoples in non-self-governing or trust territories’.196 Paragraph 6 of
Resolution 1514 (XV), prohibiting the disruption of the territorial
integrity of a country is also invoked to support the territorial
definition of a people.197 Additional support for a territorial definition
of a people may be found in Resolution 1541 (XV), defining a non-
self-governing territory and enumerating three ways in which such a
territory may achieve self-government.198
Be that as it may, in section 2.3.1. of this Chapter it has been pointed
out that Article 1(2) contains no definition of ‘people’ and that the
drafting history does not clarify this issue either. Moreover, section
2.3.2 of this Chapter has revealed that self-determination as
proclaimed in Article 1 of the Human Rights Covenants was not
limited to colonial situations, but had a broader scope. Besides, in
section 2.4.1 it was argued that self-determination as formulated in
the Friendly Relations Declaration was granted to all peoples, not only
colonial peoples.
In addition, it must be noted that the General Assembly has identified
non-colonial peoples as holders of a right of self-determination, e.g.
the ‘South African people’.199 The right of the ‘Palestinian people’ to
self-determination has been recognised by both the General
Assembly200 and the International Court of Justice.201
On the basis of the foregoing arguments, it is submitted here that
even though in the colonial context attempts have been made to
‘solve’ the problem of a lacking definition by interpreting the term
‘people’ as referring to ‘the inhabitants of a separate colonial
territory’,202 such a narrow interpretation is not supported by
consistent UN practice nor by the texts on self-determination that
have been analysed in this Chapter.203 In other words, there is still no
generally accepted definition of a ‘people’ under international law.
2.5.2 The Content of Self-Determination
While the meaning of the term ‘people’ remains unclear, the content
of self-determination is not so difficult to define. According to
196
Musgrave, supra note 14, p. 150. See Ofuatey-Kodjoe, supra note 180, p. 374.
197
198
See G.J. Simpson, ‘The Diffusion of Sovereignty: Self-Determination in the Post-Colonial
Age’, Stanford Journal of International Law, Vol. 32, 1996, p. 272, stating that ‘[t]roughout the
1950s and 1960s, “colonial self-determination” referred to a mode of self-determination based
on a highly specific definition of colonialism. […] The Afro-Asian states, and subsequently the
United Nations itself, subscribed to a theory of salt-water colonialism: Self-determination could
only apply to territories which were separated from their metropolitan parent by oceans or
high seas’.
199
GA Res. 2396 (XXIII), 2 Dec. 1968, available at <http://www.un.org>.
200
GA Res. 2672C (XXV), 8 Dec. 1970, available at <http://www.un.org>.
201
Wall Opinion, supra note 129, para 118.
202
Werner, supra note 179, p. 176.
203
31
Resolution 1514 (XV) and Article 1 of the Human Rights Covenants it
grants peoples the right to ‘freely determine their political status and
freely pursue their economic, social and cultural development’. Article
1(2) of the Human Rights Covenants links self-determination with
‘permanent sovereignty over natural wealth and resources’.204 Self-
determination thus contains a political and an economic aspect, but
this subparagraph will only focus on the right of peoples to ‘freely
determine their political status’.
In the colonial context, the focal point was the right of external self-
determination, i.e. the right of a people to choose its international
political status.205 Resolution 1541 (XV) and the Friendly Relations
Declaration identify four ways in which the right of self-determination
may be exercised: (a) emergence as a sovereign independent state;
(b) free association with an independent state; (c) integration with an
independent state; or (d) emergence into any other political status
freely determined by a people. In the Western Sahara case, the World
Court confirmed the validity of both resolutions but defined the
essence of self-determination as ‘the need to pay regard to the freely
expressed will of the peoples’, indicating that it considered the way in
which self-determination was exercised more important than the final
outcome.206
However, United Nations practice in the context of decolonisation
indicates that there was ‘a strong pro-independence bias’.207 General
Assembly resolutions have used the terms self-determination and
independence together so often that many believe them to be
‘synonymous’.208 Despite this preference for independence, the
previous paragraph already pointed out that the UN decolonisation
practice has not been consistent, and that in many cases either the
people were not offered the choice of independence, or were not
offered a choice at all.209
A final point that needs to be considered is whether the right of
external self-determination is a ‘continuing right’.210 In other words,
does it expire after it has been exercised, or does a people have a
right to change its political status more than once? Even though
Cassese has argued that the right of external self-determination can
be exercised only once, after which it expires, others have argued
204
Pomerance, supra note 6, p. 24. See GA Res. 1314 (XIII), 12 Dec. 1958 and GA Res. 1803
(XVII), 14 Dec. 1962, available at <http://www.un.org>, both stating that ‘permanent
sovereignty over natural wealth and resources’ is ‘a basic constituent of the right to self-
determination’.
205
206
Western Sahara, supra note 129, paras. 54-59. Pomerance, supra note 6, pp. 24-25.
207
208
Ibid.
209
Ibid., p. 26.
210
32
that international law is unclear on this matter.211 The author believes
that neither the instruments that have been examined in this
Chapter, nor UN practice support the assumption that the right of
external self-determination can be exercised only once. Therefore, if a
certain people have opted for association with another State, that
people would still have the right to choose to be independent, and
vice versa.212
In summary, while the content of the right of self-determination in
the colonial context is clear, practice has not always been consistent.
Thus, ‘anti-colonial results’ were considered more important than
‘self-determination methods’.213 The international community may be
criticized for ‘betraying’ the principle of self-determination and
applying ‘double standards’ in the same way Wilson and the
peacemakers at Versailles were criticized.214
2.5.3 The Status of Self-Determination
After having analysed the content of self-determination and

addressing the question to whom it applies, it is necessary to address
the legal status of self-determination under international law within
the colonial context. This Chapter has pointed out that the roots of
self-determination can be found in the eighteenth century, from
where it developed as a political principle advocated by Lenin and
Wilson. In the early twentieth century States clearly did not accept
self-determination as a legal rule, while the political principle was
applied arbitrarily and ‘to a large extent subordinated to other
concerns’.215 However, with the inclusion of self-determination in the
Charter of the United Nations, the political principle without doubt
entered the legal plane.216 This paragraph will analyse the legal status
of self-determination taking account of international conventions,
international custom and judicial decisions, all of which have been
identified as sources of international law in Article 38 of the Statute of
the International Court of Justice.
Starting with international conventions, self-determination was
included in the Charter of the United Nations and in the two Human
Rights Covenants. With its inclusion in the UN Charter, self-
determination became a principle of international law. The General
Assembly has emphasised the validity of the principle of self-
211
Ibid., supra note 3, p. 73. Hilpold, supra note 173, p. 254. See also S. Hillebrink, The Right
to Self-Determination and Post-Colonial Governance: the Case of the Netherlands Antilles and
Aruba, The Hague: T.M.C. Asser Press 2008.
212
See the example of the Netherlands Antilles and Aruba. Hillebrink, supra note 202.
213
Pomerance, supra note 6, p. 28. See Western Sahara, supra note 129, para. 59.
214
215
Cassese, supra note 13, pp. 24, 26.
216
Ibid., p. 43.
33
determination in the Friendly Relations Declaration,217 when it
declared that
‘The principles of the Charter which are embodied in this Declaration

constitute basic principles of international law, and consequently appeals to
all States to be guided by these principles in their international conduct and
to develop their mutual relations on the basis of the strict observance of
218
these principles’.
The inclusion of the right of self-determination in common Article 1 of

the two International Human Rights Covenants which have been
signed by a majority of States has further strengthened its legal
status.219
As regards international custom, the resolutions of the General
Assembly and the pronouncements of the International Court of
Justice have both contributed to the creation of self-determination as
a rule of customary international law.220 On the basis of its
competence under Articles 10, 13 and 14 of the Charter, the General
Assembly was able to formulate numerous resolutions and
declarations on self-determination.221 As Cristescu points out
‘what is beyond challenge, is the fact that, […] resolutions may be

considered to lay down rules which are binding upon States. They become
part of customary law in general, that is to say, of the whole body of rules
and principles established by general usage and recognized as having the
force of law. This clearly applies to the resolutions and declarations of the
United Nations concerning self-determination. They have contributed not
only to the formation of the law on decolonization, but also to the
interpretation and practical application of the rules of law relating to self-
222
determination’.
The International Court of Justice has endorsed the General Assembly

resolutions on self-determination and ‘confirmed the existence of the
right to self-determination’ in the Advisory Opinions on Namibia and
Western Sahara.223 Moreover, in the East Timor case the Court
emphasised that the right of self-determination has an erga omnes
217
Cristescu, supra note 117, paras. 130, 133-134.
218
Friendly Relations Declaration, supra note 110, General Part, para. 3. (emphasis added).
219
Ofuatey-Kodjoe, supra note 169, p. 368. Cristescu, supra note 117, para. 138.
220
Cristescu, supra note 117, paras. 141-143.
221
Ibid., para. 47. Cristescu also quotes a statement of the Office of Legal Affairs of the United
Nations Secretariat: ‘in view of the greater solemnity and significance of a ‘declaration’, it may
be considered to impart, on behalf of the organ adopting it, a strong expectation that Members
of the international community will abide by it. Consequently, in so far as the expectation is
gradually justified by State practice, a declaration may by custom become recognised as laying
down rules binding upon States’. UN Doc. E/CN.4/L.610 (1962), para. 4.
222
Cristescu, supra note 117, para. 151. See also Cassese, supra note 13, p. 70. Smis, supra
note 14, p. 199. And Ofuatey-Kodjoe, supra note 180, pp. 368-370.
223
Ofuatey-Kodjoe, supra note 180, pp. 370-371.
34
character and identified it as ‘one of the essential principles of
contemporary international law’.224
While it has even been argued that self-determination is a
peremptory norm of international law,225 a number of authors has
argued against this proposition.226 The existence of self-determination
as a norm of ius cogens is not very likely for three reasons: first,
there seems to be a lack of support to this effect by an important
segment of the world community,227 second, there are examples of
treaties that conflict with self-determination,228 and third, when
conflicting with other principles of international law, such as uti
possidetis or the principle of territorial integrity, these principles
generally override the principle of self-determination.229
On the basis of the previous paragraphs and the foregoing analysis it
can be concluded that in the context of decolonisation, a customary
rule of international law has been created, granting peoples living
under colonial, alien and racist domination a right to self-
determination.230 Conventional law has also recognised self-
determination as a legal principle in the Charter of the United Nations
and it has been incorporated as a collective human right in the two
International Human Rights Covenants. Thus, self-determination ‘is a
legal concept which finds expression both as a principle of
international law and as a subjective right’.231 The following
224
Case Concerning East Timor, supra note 164, para. 29. The Court confirmed the erga
omnes character of self-determination in the Wall Opinion, supra note 129, paras. 88, 156.
225
According to Article 53 of the Vienna Convention on the Law of Treaties a peremptory norm
of international law (jus cogens) is: ‘a norm accepted and recognized by the international
community of States as a whole as a norm from which no derogation is permitted and which
can be modified only by a subsequent norm of general international law having the same
character.’ Authors supporting the ius cogens character of self-determination include Cassese,
supra note 13, p. 140; Judge Ammoun, Separate Opinion, Barcelona Traction, Light and Power
Company, Limited (Belgium v. Spain), Second Phase (Merits), ICJ Reports 1970, p. 304; I.
Brownlie, Principles of Public International Law, 4th Edition, Oxford: Clarendon Press 1990, p.
513; H. Gross Espiell, ‘Self-Determination and Jus Cogens’, in: A. Cassese (ed.), UN
Law/Fundamental Rights: Two Topics in International Law, Alphen aan den Rijn: Sijthoff &
Noordhoff 1979, pp. 167-173; K. Doehring, ‘Self-Determination’, in: B. Simma (ed.), The
Charter of the United Nations: A Commentary, Oxford: Oxford University Press 1994, p. 70;
S.J. Anaya, ‘Self-Determination as a Collective Right under Contemporary International Law’,
in: P. Aikio & M. Scheinin (eds.), Operationalizing the Right of Indigenous Peoples to Self-
Determination, Turku: Åbo Akademi University 2000, p 3; and Raič, supra note 7, p. 444.
226
See, e.g., Pomerance, supra note 6, p. 70; Summers, supra note 59, p. 392; Cristescu,
supra note 117, para. 154; J. Crawford, ‘Book Review of Antonio Cassese, Self-Determination
of Peoples: A Legal Reappraisal’, American Journal of International Law, Vol. 90, 1996, p. 332.
227
228
Ibid., pp. 380-391, quoting the examples of the Timor Gap Treaty of 1989 between
Australia and Indonesia, the Treaty of Utrecht 1713 between Britain and Spain, and the Sino-
British Joint Declaration of 1984.
229
230
231
Cristescu, supra note 117, para. 139. See also Cassese, supra note 13, pp. 126-133,
identifying a principle of self-determination and a set of customary rules, complementing each
other. Summers, supra note 59, pp. 379-387, notes that the words ‘principle’ and ‘right’ have
been and are often used ‘interchangeably’ in connection with self-determination. See e.g. the
35
paragraph will examine how self-determination relates to other
principles of international law.
2.5.4 Self-Determination in Relation to Other Principles of

International Law
Self-determination often clashes with other principles of international

law, such as the sovereign equality of states and territorial integrity,
uti possidetis, non-intervention and the prohibition on the use of force
in international relations.232
As regards the conflicting principle of uti possidetis, it has been
pointed out in section 2.4.2 that the International Court of Justice
was in favour of a political solution. According to the Court, in case of
a conflict between the two principles the need for stability would
require uti possidetis to prevail over self-determination.233
Whatever the merit of such a solution, it has been argued that the
General Assembly has not been equally helpful in suggesting solutions
in case of other clashing principles.234 On the contrary, following the
example of Resolution 1514 (XV) numerous resolutions have simply
‘restated the “territorial integrity versus self-determination”
problem’.235 There is one important resolution however, that does
indicate a solution in a very specific situation. According to Paragraph
7 of Principle V of the Friendly Relations Declaration, the principle of
self-determination takes precedence over the principle of territorial
integrity in case a government is not representative of the whole
territory. This provision is often referred to as ‘the safeguard clause’.
It has been invoked to support the existence of a right of unilateral
secession as a remedy against violations of basic human rights, and
for this reason it will be discussed in Chapter 4.
Pomerance has pointed out that UN practice as regards ‘territorial
integrity versus self-determination’ seems to indicate that
‘the specific identity of the claimants – whose territorial integrity is pitted

against whose self-determination – remains a crucial, if not the critical
236
factor’.
The principle of territorial integrity continues to challenge the right of

self-determination outside the colonial context.
As regards the principle of non-intervention, Cassese has noted that it
does not apply when oppressed peoples are trying to exercise their
Friendly Relations Declaration, Western Sahara, supra note 129, paras. 55, 57, 59, 70, 71,
161, 162. And Case Concerning East Timor, supra note 164, para. 29.
232
233
Frontier dispute, supra note 158, para. 25.
234
235
Ibid.
236
Ibid., p. 44.
36
right of self-determination, because States are allowed and even
encouraged to support their struggle.237 The status and
representation of national liberation movements under international
law will be discussed in the following paragraph.
The prohibition on the use of force poses another challenge to the
right of self-determination. However, the tension between the
prohibition on the use of force and the right to self-determination has
been mitigated with the revival of the medieval ‘just war’ doctrine,
according to which the struggle of national liberation movements
fighting for self-determination against ‘colonial, alien or racist
domination’ is considered to be a ‘legitimate struggle’.238
In this respect two important examples must be mentioned. Article 7
of the Definition of Aggression239, contains a provision that was
intended to ‘exempt self-determination struggles from any
restrictions’ on the use of force.240 Another example is the adoption of
General Assembly Resolution 3103 (XXVIII), ‘Basic Principles of the
Legal Status of the Combatants Struggling Against Colonial and Alien
Domination and Racist Regimes’ on 12 December 1973, which was
the prelude to the adoption of the First Additional Protocol to the
Geneva Conventions (AP I).241 According to Paragraph 1 of Resolution
3103 (XXVIII)
‘[t]he struggle of peoples under colonial and alien domination and racist
regimes for the implementation of their right to self-determination and
237
Cassese, supra note 13, pp. 175-176, 155-158. See Paragraph 5 of Principle V of the
Friendly Relations Declaration, where it is stated that ‘[e]very State has the duty to refrain
from any forcible action which deprives peoples referred to above in the elaboration of the
present principle of their right to self-determination and freedom and independence. In their
actions against, and resistance to, such forcible action in pursuit of the exercise of their right
to self-determination, such peoples are entitled to seek and to receive support in accordance
with the purposes and principles of the Charter’. (emphasis added). See also Paragraph 3 of
GA Res. 3070 (XXVIII), 30 Nov. 1973, available at <http://www.un.org>, calling ‘upon all
States, in conformity with the Charter of the United Nations and with relevant resolutions of
the United Nations, to recognize the right of all peoples to self-determination and
independence and offer moral, material and any other assistance to all peoples struggling for
the full exercise of their inalienable right to self-determination and independence’. (emphasis
added).
238
Pomerance, supra note 6. p. 48.
239
GA Res. 3314 (XXIX), Definition of Aggression, adopted by the General Assembly without a
vote on 14 December 1974, available at <http://www.un.org>.
240
Pomerance, supra note 6, p, 58. Article 7 provides as follows: ‘Nothing in this Definition,
and in particular article 3, could in any way prejudice the right to self-determination, freedom
and independence, as derived from the Charter, of peoples forcibly deprived of that right and
referred to in the Declaration on Principles of International Law concerning Friendly Relations
and Cooperation among States in accordance with the Charter of the United Nations,
particularly peoples under colonial and racist regimes or other forms of alien domination: nor
the right of these peoples to struggle to that end and to seek and receive support, in
accordance with the principles of the Charter and in conformity with the above-mentioned
Declaration’.
241
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the
Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, available at
<http://www.icrc.org>.
37
independence is legitimate and in full accordance with the principles of
242
international law’.
According to Paragraph 3 of the Resolution, national liberation

struggles ‘are to be regarded as international armed conflicts in the
sense of the 1949 Geneva Conventions’, and those who are fighting
for freedom enjoy combatant status. Paragraph 4 of the Resolution
states that those combatants are also ‘to be accorded the status of
prisoners of war’, enjoying the same treatment as provided for in the
Third Geneva Convention.243
With the adoption of Article 1 AP I, the scope of the Geneva
Conventions was broadened to include
‘armed conflicts in which peoples are fighting against colonial domination

and alien occupation and against racist regimes in the exercise of their right
of self-determination, as enshrined in the Charter of the United Nations and
the Declaration on Principles of International Law concerning Friendly
Relations and Co-operation among States in accordance with the Charter of
244
the United Nations’.
Thus, if there is (i) an armed conflict in which a people is fighting

against colonial domination, alien occupation or a racist régime and if
they are (ii) fighting to exercise their right of self-determination, this
paragraph will be applicable and consequently, these peoples will
enjoy the protection on international humanitarian law. According to
Article 96 (3) of AP I the authority representing these peoples may
address a unilateral declaration to the depositary, which will have the
effect of bringing the Conventions and the Protocol into force. As a
result of this the authority will have the same rights and obligations
as a State.245
Self-determination as a fundamental principle of international law
may clash with other principles of international law and this may pose
difficult questions. While the tension between self-determination and
242
(emphasis added). See also GA Res. 2105 (XX) of 20 Dec. 1965 and GA Res. 2621 (XXV) of
12 October 1970, available at <http://www.un.org>, containing similar statements.
243
Geneva Convention (III) relative to the Treatment of Prisoners of War, 12 August 1949,
available at <http://www.icrc.org>.
244
Article 1 (4) of Additional Protocol I, supra note 232. See generally on Article 1 C. Pilloud et
al (eds.), Commentary on the additional protocols of 8 June 1977 to the Geneva Conventions
of 12 August 1949, Geneva: International Committee of the Red Cross, Dordrecht: Martinus
Nijhoff Publishers 1987, pp. 33-56.
245
Article 96 (3) reads as follows: ‘The authority representing a people engaged against a High
Contracting Party in an armed conflict of the type referred to in Article 1, paragraph 4, may
undertake to apply the Conventions and this Protocol in relation to that conflict by means of a
unilateral declaration addressed to the depositary. Such declaration shall, upon its receipt by
the depositary, have in relation to that conflict the following effects: (a) the Conventions and
this Protocol are brought into force for the said authority as a Party to the conflict with
immediate effect; (b) the said authority assumes the same rights and obligations as those
which have been assumed by a High Contracting Party to the Conventions and this Protocol;
and (c) the Conventions and this Protocol are equally binding upon all Parties to the conflict.’
38
territorial integrity continues to be problematic, this section has
demonstrated that international law is quite clear in cases where self-
determination clashes with the principles of non-intervention and the
non-use of force. In such a situation, the latter principles ‘must yield’
to the principle of self-determination, since States are allowed to
support self-determination struggles246 and given the fact that
national liberation movements are allowed to use force in their
struggle for self-determination. The next paragraph will shortly
discuss the status and representation of national liberation
movements under international law.
2.6 Status and Representation of National Liberation

Movements under International Law
‘Despite the promising language of the United Nations Charter,

opening with the words “[w]e the peoples of the United Nations”,
nations and peoples are, in practice, denied a significant place in the
international legal order’.247 It was only in the context of
decolonisation and apartheid that the representatives of national
liberation movements were ‘regularly invited’ to participate in
proceedings at the United Nations.248 Hence, organizations such as
ZANU and ZAPU (Zimbabwe), SWAPO (Namibia), ANC and PAC
(South Africa), PAIGC (Guinea-Bissau) and FRELIMO (Mozambique)
were given a voice at the United Nations.249 The ANC and PAC even
obtained ‘observer status’ at the United Nations, granting a more
permanent right to take part in the debates of the General
Assembly.250 The Palestinian Liberation Organization (PLO) also
acquired ‘observer status’ in 1974 and Palestine is currently the only
entity ‘having received a standing invitation to participate as observer
[…] in the sessions and the work of the General Assembly and
maintaining [a] permanent observer mission[...] at Headquarters’.251
Other national liberation movements, such as the Frente Polisario
(Western Sahara), are sometimes invited to make statements during
246
247
M.C. van Walt van Praag, ‘The Position of UNPO in the International Legal Order’, in: C.
Brölmann et al (eds.), Peoples and Minorities in International Law, Dordrecht: Martinus Nijhoff
Publishers 1993, p. 313.
248
Ibid., p. 315. See also A.C. Zollner, ‘International Representation of Peoples and Minorities’,
in: C. Brölmann et al (eds.), Peoples and Minorities in International Law, Dordrecht: Martinus
Nijhoff Publishers 1993, pp. 305-306.
249
Zollner, supra note 239, p. 306.
250
Ibid.
251
Blue Book ‘Permanent Missions to the United Nations No. 298’, March 2008 (updated 14
October 2008), available at <http://www.un.org>. See GA Res 3237 (XXIX), 22 Nov. 1974
(observer status); A/Res/43/160, 9 Dec. 1988 (right to circulate communications without
intermediary); A/Res/43/177, 15 Dec. 1988 (Palestine); A/Res/52/250, 7 July 1998 (right to
participate in general debate and additional rights).
39
UN proceedings.252 In 2000, the UN Permanent Forum on Indigenous
Issues (UNPFII) was established, an advisory body to the Economic
and Social Council.253 Recently, indigenous peoples were given the
opportunity to participate in the Working Group that drafted the
United Nations Declaration on the Rights of Indigenous Peoples of 13
September 2007.
This short overview reveals that the status and representation of
peoples under international law is inadequate at the moment.
Therefore, a large number of nations, peoples and minorities have
joined the Unrepresented Nations and Peoples Organization (UNPO)
that was established in 1991 to ‘fill the vacuum in the legal order’.254
It is to be hoped that the United Nations will open its doors more
often for those peoples that are still unrepresented in the
international community so that they can make their claims heard.
2.7 Conclusion
This Chapter set out to describe the colonial context in which self-
determination developed. Starting out as a political principle rooted in
the Enlightenment and eighteenth-century nationalism, self-
determination played a significant part at the Peace Conference at
Versailles and in the interwar period. However, the principle was
applied inconsistently in those days and was easily set aside when
there were other ‘geopolitical, economic or strategic interests’ at
stake.255 With its inclusion in the Charter of the United Nations, self-
determination transformed from a political into a legal principle. Self-
determination was even proclaimed as a human right in the two
International Human Rights Covenants.
The Charter principle of self-determination needed further clarification
and the General Assembly took up this task. In a number of
progressive resolutions, the General Assembly identified the
population of non-self-governing and trust territories as holders of the
right to self-determination and declared that it was to be exercised
through independence, free association, integration or any other
political status desired by the people. The International Court of
Justice endorsed the resolutions of the General Assembly in its
Advisory Opinions on Namibia and Western Sahara. If the ‘actual
behaviour’ of States and their pronouncements in this period of time
are added to these resolutions and opinions, it can be safely asserted
252
See e.g. the ‘Report of the Special Committee on the Situation with regard to the
Implementation of the Declaration on the Granting of Independence to Colonial Countries and
Peoples for 2008’, available at <http://www.un.org>, pp. 25, 45.
253
See <http://www.un.org>. The mandate of UNPFII includes discussing ‘indigenous issues
related to economic and social development, culture, the environment, education, health and
human rights.’
254
Van Walt van Praag, supra note 238, p. 320.
255
40
that there is enough evidence of State practice and opinio iuris to
support the existence of a rule of customary international law
according to which ‘colonial peoples’ and peoples suffering from alien
or racist domination have a right to external self-determination.256
However, even though the International Court of Justice had
identified ‘the need to pay regard to the freely expressed will of
peoples’ as the core of self-determination,257 there have been many
cases in which the ‘will of peoples’ was ‘blatantly set aside’.258 In this
respect, the legal principle of self-determination in the period of
decolonisation suffered from the same arbitrariness and ‘double
standards’ as the political principle in the pre-Charter period had
suffered. The next Chapters will make clear that this would continue
to be a feature of self-determination.
The inclusion of self-determination as a human right in the two
Human Rights Covenants not only confirmed the status of self-
determination as a right under international law, it also evinced that
self-determination was a universal and a ‘continuing right’, not
confined to the colonial context nor to peoples living under colonial,
alien or racist regimes.259 The following Chapter will discuss the
development of self-determination beyond decolonisation.
256
Ibid., p. 70. Smis, supra note 14, p. 197.
257
258
259
See ibid., p. 54.
41
42
3 Self-Determination in the Post-Colonial
Context
‘At this stage, it is too late to put the genie of self-determination back
in its colonialist bottle. Too many additional claims have now been
validated; too large a meaning has been invested in the language of
self-determination.’260
3.1 Introduction
The previous Chapter described the transformation of the political

principle of self-determination into a rule of public international law.
In the colonial context the right of self-determination became almost
‘synonymous’ with independence, and many socialist and Third World
countries interpreted self-determination narrowly as only applying to
colonial peoples.261 They believed that once dependent peoples had
been able to exercise their right of self-determination by becoming
independent, the right ‘expired’.262 However, outside the colonial
context, doctrine and state practice often discern ‘internal’ and
‘external’ self-determination as two ‘different modes of
implementation’ of the right.263 Hence those who try to limit the right
of self-determination to colonial situations only emphasise external
self-determination and fail to take account of the ‘internal’ aspect.264
Even in the high tide of decolonisation several instruments on self-
determination were adopted that were meant to give it a broader
meaning. As stated before, the right of self-determination that was
included in the International Human Rights Covenants and in the
Friendly Relations Declaration was clearly not limited to colonial
situations. In the Advisory Opinion on Western Sahara the
International Court of Justice also defined self-determination in a
more general sense as ‘the need to pay regard to the freely
expressed will of peoples’.265 In addition, State practice, doctrine and
several other international instruments affirm self-determination as
an ‘ongoing right’, the application of which is not confined to the
colonial context.266
260
R. Falk, ’Self-Determination Under International Law: The Coherence of Doctrine Versus the
Incoherence of Experience’, in: W. Danspeckgruber (ed.), The Self-Determination of Peoples.
Community, Nation and State in an Interdependent World, London: Lynne Rienner Publishers
Inc. 2002, p. 38.
261
Pomerance, supra note 6, p. 25. A. Rosas, ‘Internal Self-Determination’, in: C. Tomuschat
(ed.), Modern Law of Self-Determination, Dordrecht: Martinus Nijhoff Publishers 1993, pp.
227-228. Raič, supra note 7, pp. 226-227.
262
263
Raič, supra note 7, p. 227.
264
Ibid., pp. 227-228.
265
266
Raič, supra note 7, p. 228. See also Cassese, supra note 13, pp. 101-102. V.P. Nanda,
‘What Does Self-Determination Mean in the Post Cold War Era?’, Work paper published by the
43
Be that as it may, Simpson correctly stated that ‘the nature of the
model which will replace colonial self-determination is uncertain’ and
‘[i]t certainly will not be easy to define a right to self-determination
with potential applications beyond the colonial context. Nonetheless,
self-determination’s legal relevance depends on its expansive
redefinition.’267
This Chapter will address self-determination as a ‘continuing right’
outside the colonial context, mainly focussing on the internal aspect
of the right.268 First, it is important to describe the post-colonial era in
which self-determination developed, starting with the end of the Cold
War in the early nineties and the international response to post-
colonial self-determination claims. The second paragraph will examine
conventional law reflecting the ‘continuing character’ of self-
determination.269 Several relevant international instruments will be
discussed in the next paragraph, followed by an analysis of the right
of self-determination outside the colonial context. The Chapter will be
concluded with some final observations.
3.2 The International Response to Self-Determination

Claims Outside the Colonial Context
3.2.1 The Reunification of the German State
The fall of the Berlin Wall in November 1989 has been widely
perceived as symbolizing the end of the Cold War. Within one year
this historical event led to the reunification of East and West
Germany. In March 1990 free elections were held in East Germany in
which 80 percent of the East Germans exercising their right of self-
determination voted in favour of unification with West Germany.270
Within six months the Federal Republic of Germany (West Germany)
and the German Democratic Republic (East Germany) had signed a
unification treaty, the preamble of which referred to the union as an
act of self-determination.271 The four Great Powers expressed their
agreement with the German unity when they signed the ‘Treaty on
World Jurist Association for the Eighteenth Biennial Conference on the Law of the World in
Doha, Qatar, September 21-26, 1997, p. 2. Werner, supra note 179, pp. 171-172. And
Koskenniemi, supra note 186, p. 242.
267
Simpson, supra note 189, pp. 274, 286.
268
269
270
W. Czaplinski, ‘Current Developments. The Reunification of Germany’, American Journal of
International Law, Vol. 86, 1992, p. 153.
271
The Unification Treaty between the FRG and the GDR (Berlin, 31 August 1990), available at
<http://www.ena.lu>.
44
the Final Settlement with respect to Germany’.272 According to the
preamble of this treaty the parties welcomed
‘the fact that the German people, freely exercising their right of self-
determination, have expressed their will to bring about the unity of
Germany as a state so that they will be able to serve the peace of the world
as an equal and sovereign partner in a united Europe’.
The end of the Cold War thus enabled the German people to exercise
its right of self-determination, an act which clearly occurred outside
the colonial context and enjoyed the support of the international
community.273
3.2.2 The Breakup of the Soviet Union
The population of the former Soviet Union consisted of a large

number of ethnic groups. The Soviet constitution had established
fifteen republics based on the largest ethnic group within each
territory.274 Attempts at reforming the extremely centralized and
oppressive communist Soviet Union with the policies of glasnost and
perestroika did not succeed.275 In fact, these policies only increased
nationalist aspirations within the Union and in the end led to its
disintegration, starting in the early nineties when thirteen of the
fifteen Union Republics declared independence from the Soviet
Union.276
Concerns about international peace and security may explain the
international community’s reaction to these events, stressing the
need to maintain the territorial integrity of the Soviet Union.277
Cassese has rightly argued that the Baltic States could have made a
valid claim for self-determination on the basis of their annexation
pursuant to the illegal 1939 Molotov-Ribbentrop pact which was also
in violation of the prohibition on the use of force.278 This point of view
is supported by a resolution of the General Assembly,
272
Treaty on the Final Settlement with respect to Germany (Moscow, 12 September 1990),
available at <http://www.ena.lu>. The treaty was signed by the FRG and the GDR, the U.S.,
France, the UK and the USSR.
273
See the statement of the President of the General Assembly on behalf of the General
Assembly on 3 October 1990, in which he welcomed a united Germany, A/45/PV.18
(provisional record), available at <http://www.un.org>.
274
Musgrave, supra note 14, p. 108. The Republics of the Soviet Union were: Armenia,
Azerbaijan, Belorussia, Estonia, Georgia, Kazakhstan, Kirghizia, Latvia, Lithuania, Moldavia,
Russia, Tajikistan, Turkmenistan, Ukraine and Uzbekistan.
275
Ibid., p. 109.
276
Ibid., pp. 109-110.
277
Ibid., p. 110. Quane, supra note 177, pp. 565-566.
278
Cassese, supra note 13, pp. 260-262.
45
‘[r]ecalling with particular satisfaction that independence was restored in
279
Estonia, Latvia and Lithuania through peaceful and democratic means’.
According to Cassese, the other twelve republics did not have a right
to self-determination and certainly not a right of secession under
international law at that time.280 As will be explained in Chapter four,
the breakup of the Soviet Union was a case of consensual secession.
Moreover, it is important to note that according to the Republics, they
were exercising their right to self-determination when they declared
their independence.281 This is supported by the fact that most of the
twelve republics held a referendum on the issue of secession which,
as we have seen in the previous Chapter, was required by the
principle of self-determination, defined as ‘the need to pay regard to
the freely expressed will of peoples’.282
Ultimately, the international community recognised the new States
and they were all admitted as member States of the United
Nations.283 With respect to the process of recognition it is important
to take note of the fact that the European Community and its member
States made recognition dependent on whether certain requirements
were met.284 According to the Declaration on the ‘Guidelines on the
Recognition of New States in Eastern Europe and in the Soviet Union’,
‘[t]he Community and its Member States confirm[ed] their attachment to

the principles of the Helsinki Final Act and the Charter of Paris, in particular
285
the principle of self-determination’.
279
A/Res/48/18, 15 November 1993, available at <http://www.un.org>. (emphasis added).
See also the statement of the Dutch Presidency of the European Community that ‘[t]he
Community and its member States warmly welcome the restoration of the sovereignty and
independence of the Baltic States, which they lost in 1940. They have consistently regarded
the democratically elected parliaments and governments of these States as the legitimate
representatives of the Baltic peoples’. Quoted by C. Warbrick, ‘Recognition of States’,
International and Comparative Law Quarterly, Vol. 41, 1992, p. 474. (emphasis added).
280
281
See e.g. the report submitted by Armenia under Article 40 of the ICCPR, stating that
‘[h]aving as its goal the creation of a democratic State ruled by law, and exercising the right of
peoples to self-determination, Armenia embarked upon the process of establishment of
independent statehood’ (CCPR/C/92/Add. 2, 1998, p. 2). And the report of Ukraine, according
to which ‘[r]elying on article 1 of the International Covenant on Civil and Political Rights and
basing its actions on its domestic legislation in accordance with internationally recognized
legitimate procedures, the people of Ukraine gave effect in 1991 to their right to self-
determination’ (CCPR C/95/Add. 2, 1994, p. 6). Both reports are available at
282
Western Sahara, supra note 129, para. 59. Cassese, supra note 13, p. 266.
283
See Musgrave, supra note 14, p. 113. Recognition of the new States was not problematic,
because the secession was consensual. See also H. Hannum, ‘Self-Determination in the
Twenty-First Century’, in: H. Hannum and E.F. Babbit (eds.), Negotiating Self-Determination,
Oxford: Rowman & Littlefield Publishers, Inc. 2006, p. 62. Also Quane, supra note 177, p. 566.
284
285
Declaration on ‘Guidelines on the Recognition of New States in Eastern Europe and in the
Soviet Union’ (16 December 1991), European Journal of International Law, Vol. 4, 1993, p. 72.
(emphasis added).
46
The guidelines required ‘respect for […] the rule of law, democracy
and human rights’ and ‘guarantees for the rights of ethnic and
national groups and minorities in accordance with the commitments
subscribed to in the framework of the CSCE’. As Cassese pointed out,
‘recognition was made dependent on democratic rule, that is, internal self-
286
determination’.
The European Community thus ‘affirmed the close link existing

between external and internal self-determination’ by making respect
for the rule of law, democracy and human rights a ‘sine qua non’ for
the achievement of independence.287 This was a revolutionary
development. Moreover, the European Community ‘stressed the link
between self-determination and the protection of minorities’.288
3.2.3 The ‘Dissolution’ of the Socialist Federal Republic of Yugoslavia
The population of the former Socialist Federal Republic of Yugoslavia

(SFRY) also consisted of a large number of ethnic groups. The SFRY
was composed of six republics, Bosnia-Herzegovina, Croatia,
Macedonia, Montenegro, Serbia and Slovenia and there were two
Autonomous Provinces within Serbia, Kosovo and Vojvodina. The
‘dissolution’ of Yugoslavia was caused by ‘conflicting nationalist
forces’ and growing ‘ethnic tensions’ which culminated into a civil war
after Croatia and Slovenia had declared their independence.289
The initial reaction of the international community to the Yugoslav
crisis was similar to the way it reacted to the Soviet crisis.290 Western
States were unwilling to watch Yugoslavia fall apart and stressed the
need to preserve its territorial integrity.291 However, the crisis
escalated very quickly and as soon as the European Community
realised that a breakup of Yugoslavia was inevitable it changed its
policy.292 In August 1991 the EC convened the ‘Peace Conference on
Yugoslavia’ and set up an ‘Arbitration Committee’ which would have
the task of ‘monitoring’ whether the seceding republics were able to
286
Cassese, supra note 13, p. 268. See also Hilpold, supra note 173, pp. 279-280.
287
Cassese, supra note 13, pp. 268, 273.
288
Ibid., p. 268. See also Musgrave, supra note 14, p. 112.
289
Musgrave, supra note 14, pp. 113-114. The issue of whether the Yugoslav crisis was a case
of secession or dissolution or both will be addressed in the next Chapter. Hence the use of
quotation marks.
290
291
Ibid. Hannum, supra note 274, p. 63, quoting M. Weller, ‘The International Response to the
Dissolution of the Socialist Federal Republic of Yugoslavia’, American Journal of International
Law, Vol. 86, 1992, p. 569. P. Radan, The Break-up of Yugoslavia and International Law,
London: Routledge 2000, pp. 160-161. And W. Zimmermann, Origins of a Catastrophe, New
York: Times Books, rev. ed. 1999, pp. 133-138.
292
Musgrave, supra note 14, pp. 116-117. Smis, supra note 14, p. 237. Hannum, supra note
274, p. 63.
47
fulfil the conditions of the EC member States.293 These conditions
were enumerated in a Declaration issued on 16 December 1991
containing the ‘Guidelines on the Recognition of New States in
Eastern Europe and in the Soviet Union’.294
The Badinter Commission first addressed three legal issues that
needed to be clarified.295 In Opinions 4 through 7 the Arbitration
Commission considered the applications of Bosnia-Herzegovina,
Croatia, Macedonia and Slovenia, all wishing to be recognised as
independent States.296 It is important to note that in all of these cases
‘the Committee ascertained in particular whether or not referendums on

independence had been held in each republic, as well as whether each
republic had committed itself to respecting the rights of individuals, groups
297
and minorities’.
While Croatia, Macedonia and Slovenia met all the conditions set out
by the European Community, in Bosnia-Herzegovina the Commission
required a referendum to ascertain the will of ‘the whole
population’.298 After a referendum on independence was held a civil
war broke out in Bosnia-Herzegovina, which lasted for three years
and ended with the signing of the Dayton Peace Accords on 14
December 1995.299
3.2.4 Kosovo
In 1999 the Kosovo crisis broke out as ‘the last, but still unfinished
episode of the inter-ethnic conflict in the Balkans that has led to the
dismemberment of the SFRY’.300 On 17 February 2008, the Provisional
Institutions of Self-Government Assembly of Kosovo declared
independence. The reactions of the international community have
293
Cassese, supra note 13, p. 271. Hannum, supra note 274, p. 64. The Arbitration Committee
comprised the presidents of the Constitutional Courts of France, Italy, Germany, Belgium, and
Spain and came to be known as the Badinter Commission, after its President, Robert Badinter.
294
Musgrave, supra note 14, p 117. Hannum, supra note 274, p. 63-64. These requirements
were also applied during the recognition process of the seceding Soviet Republics. See the
‘Guidelines on Recognition’ supra note 276. See also Declaration on Yugoslavia, Extraordinary
EPC Ministerial Meeting, Brussels, 16 December 1991, European Journal of International Law,
Vol. 4, 1993, p. 73.
295
Cassese, supra note 13, p. 271. Opinions 1-3 are reproduced in European Journal of
International Law, Vol. 3, No. 1, 1992, pp. 182-185. In the First Opinion, the Commission
discussed whether this was a case of secession or dissolution. In the Second Opinion, the
Commission addressed the question whether the Serbian population in Croatia and Bosnia-
Herzegovina had the right to self-determination. The Third Opinion considered whether the
internal boundaries between Croatia and Serbia and between Bosnia-Herzegovina and Serbia
could be regarded as frontiers in terms of public international law.
296
Cassese, supra note 13, p. 272. Opinions 4-10 are reproduced in European Journal of
International Law, Vol. 4, No. 1, 1993, pp. 74-84.
297
298
Ibid.
299
300
48
been mixed. The Kosovo crisis including the recent declaration of
independence will be discussed in the next Chapter. For the purpose
of this Chapter it is important to mention that the international
community reacted to Kosovo’s declaration of independence with the
deployment of the European Union Rule of Law Mission in Kosovo
(EULEX), ‘to assist and support the Kosovo authorities in the rule of
law area, specifically in the police, judiciary and customs areas’.301
3.2.5 Conclusion
It is very important to analyse State practice in response to self-

determination claims outside the colonial context. In this respect,
three important points can be made. First of all, the cases that have
been described in this paragraph support the existence of a right of
self-determination outside the colonial context. The reunification of
Germany, the secession of 14 Soviet republics and the ‘dissolution’ of
Yugoslavia were all instances of self-determination that took place in
a non-colonial situation. Second, as the previous Chapter pointed out,
in the colonial context self-determination was considered to be a right
of the whole population of a certain territory. In other words, a people
was territorially defined. State practice during the breakup of the
Soviet Union and Yugoslavia indicates that Western states had
changed their point of view and were ready to acknowledge that there
could be more than one people on a certain territory and that those
peoples had the right of self-determination.302 Third, in reaction to the
events in the former Soviet Union and Yugoslavia the member states
of European Community have established ‘general criteria for
recognizing the new States’.303 Cassese summarizes these criteria as
(i) the free expression of the will of the population concerned, by way of
plebiscites or referendums and
(ii) the firm commitment to respect the rule of law, human rights, and the
304
rights of groups and minorities.
Therefore, Cassese concludes
‘the basic requirement of internal self-determination has been proclaimed

and indeed respect for it, as well as respect for the rights of minorities, have
been raised to the status of sine qua non before the endorsement of
305
external self-determination’.
301
See <http://www.eulex-kosovo.eu>.
302
303
304
Ibid.
305
Ibid. This point will also be elaborated further in the next Chapter on remedial secession.
49
3.3 Conventional Law
After having analysed State practice in relation to self-determination

claims outside the colonial context, the next step will be to examine
whether conventional law supports the existence of a right of self-
determination beyond decolonisation. Therefore, the present
paragraph will study three human rights conventions containing a
provision on self-determination: the two International Human Rights
Covenants and the African Charter on Human and Peoples’ Rights, a
regional convention.
3.3.1 The International Covenant on Civil and Political Rights and

the International Covenant on Economic, Social and Cultural
Rights
In paragraph 2.3.2 it was already noted that a right of self-

determination was included in Article 1 of both Human Rights
Covenants. If we examine common Article 1 in light of the Vienna
Convention on the Law of Treaties, the following observations can be
made. According to Article 31 (1) of the Vienna Convention, the
general rule of interpretation of treaties is
‘the ordinary meaning to be given to the terms of the treaty in their context
306
and in the light of its object and purpose.’
A first look at the text of common Article 1 (1) of the Human Rights
Covenants reveals that the right of self-determination is granted to
‘all peoples’. The ordinary meaning of these words thus indicates that
the right of self-determination is not confined to colonial situations
but may indeed have a ‘universal and continuous character’.307 Rosas
also concludes that
‘Article 1 is not restricted to peoples living under colonial domination but

applies, in principle at least, to all peoples. This is clear from the wording of
paragraph 1, and while some States […] in the early stages made efforts to
achieve some such limitation, these efforts failed, and there seems to have
308
been a growing understanding that the text meant what it said’.
Further support for this conclusion may be found if we consider the

‘context’ of the Article in light of the ‘object and purpose’ of the
treaties. The fact that the right of self-determination was included in
two Human Rights Covenants, the obvious aim of which is to protect
human rights, makes it very unlikely that it would only apply to a
306
(emphasis added).
307
308
Rosas, supra note 252, p. 242.
50
specific category of peoples.309 However, as the previous Chapter
already pointed out there is no definition of the term ‘peoples’. It is
thus necessary to have recourse to the drafting history of the treaty
as a ‘supplementary means of interpretation’.310
During the drafting of the Article several proposals to define the term
‘peoples’ were made, but in the end the drafters decided that it
‘should be understood “in its most general sense and that no
definition was necessary”’.311 It does not become clear what the
drafters meant with the phrase ‘in its most general sense’, but at
least it suggests that ‘peoples’ not only referred to ‘dependent
peoples’ but was intended to have a broader meaning. The problem of
defining the term ‘peoples’ will be dealt with extensively in paragraph
3.5.1.
As regards the scope of Article 1, the travaux of the Third Committee
reveal that
‘[m]uch of the discussion on article 1 had related the question of self-

determination to the colonial issue, but that was only because the peoples
of Non-Self-Governing and Trust Territories had not yet attained
312
independence’.
This point of view was shared by many delegations asserting that
‘the right would be proclaimed in the covenants as a universal right and for
313
all time’.
A point Cassese has noted is that whereas draft Article 1 stated that
‘all peoples shall have the right to self-determination’, Article 1 as it
was adopted states that ‘all peoples have the right to self-
determination’.314 Apparently, the present tense was used ‘to
309
Quane, supra note 177, p. 559.
310
Article 32 of the Vienna Convention on the Law of Treaties.
311
Quane, supra note 177, p. 559-560, quoting from M.J. Bossuyt, Guide to the ‘Travaux
Préparatoires’ of the International Covenant on Civil and Political Rights, Dordrecht: Martinus
Nijhoff Publishers 1987, p. 32.
312
Raič, supra note 7, p. 229, note 9, quoting UN GAOR, 10th sess., Ann., 20 Sept. – 20 Dec.
1955, Doc. A/3077, 8 Dec. 1955, Report of the Third Comm., p. 33. Cf. UN Doc.
A/C.3/SR.309, 9 Nov. 1950, para 57 (Saudi Arabia); UN Doc. A/C.3/SR.310, 10 Nov. 1950,
paras. 23-24 (Belgium); UN Doc. A/C.3/SR.311, 10 Nov. 1950, paras. 30-32 (Mexico);
A/C.3/SR.362, 8 Dec. 1951, para. 11 (Afghanistan); UN Doc. A/C.3/SR.649, 1 Nov. 1955,
paras. 34-36 (Lebanon). See, generally, Bossuyt, supra note 302, pp. 41-45.
313
See UN Doc. A/C.3/SR.312, 13 Nov. 1950, para. 3 (Ethiopia); UN Doc. A/C.3/SR.364, 10
Dec. 1951, para.17 (United States); UN Doc. A/C.3/SR.399, 23 Jan. 1952, para. 53 (Iran); UN
Doc. A/C.3/SR.402, 24 Jan. 1952, para. 13 (Yugoslavia); UN Doc. A/C.3/SR.644, 26 Oct.
1955, para. 1 (Denmark); UN Doc. A/C.3/SR.650, 2 Nov. 1955, para. 13 (Ecuador); UN Doc.
A/C.3/SR.699, 3 Dec. 1956, paras. 12-13 (New Zealand); para. 31 (Lebanon). See also UN
Doc. E/CN.4/SR.254 (1952), p. 5, arguing that the right of self-determination was a universal
right.
314
51
emphasize the fact that the right referred to is a permanent one’.315
Some States argued that if the right of self-determination would be
limited to ‘colonial peoples’, this would undermine its legitimacy.316
According to Belgium
‘The principle of self-determination was universal; to attempt to limit its

application to an arbitrary defined category of population would be to distort
317
a great principle and seriously weaken its value’.
Yugoslavia stated that
‘It was hard to see how “all” peoples could enjoy the right of self-
determination if only one class of signatory States was under an obligation
318
to ensure the exercise of the right’.
A textual interpretation of paragraph 3 also supports the existence of

a right of self-determination beyond the colonial context. According to
Article 1 (3)
‘[t]he States Parties to the present Covenant, including those having

Territories, shall promote the realization of the right of self-determination,
and shall respect that right, in conformity with the provisions of the Charter
319
of the United Nations’.
While this paragraph specifically addresses States that are

responsible for non-self-governing and trust territories, it can only be
interpreted as referring to an obligation of all State parties to
promote and respect the right of self-determination.320
Thus the ordinary meaning of Article 1 and the travaux préparatoires
both support the conclusion that self-determination is a ‘universal’
right and therefore not confined to colonial situations.321 In other
315
Comment made by the Chairman of the Working Party of the Third Committee when he
presented the draft to the Third Committee (UN Doc., A/C.3/SR.668, para. 3), quoted by
316
J. Summers, ‘The Status of Self-determination in International Law: A Question of Legal
Significance or Political Importance?’, Finnish Yearbook of International Law, Vol. 14, 2003, p.
275.
317
7 GAOR (1952) 3rd Cmttee., 446th mtg., (A/C.3/SR.446) para. 31, quoted by Summers,
ibid.
318
10 GAOR (1955) 3rd Cmttee., 657th mtg., (A/C.3/SR.657) para. 12, quoted by Summers,
ibid.
319
(emphasis added).
320
Raič, supra note 7, p. 229. See also Quane, supra note 177, p. 559.
321
Smis, supra note 14, p. 426. Cassese, supra note 13, p. 54. See also Cristescu, supra note
117, para. 214, stating that ‘[t]he right of peoples to self-determination is not an individual
right; it is a collective right which, in the International Covenants on Human Rights, has been
distinguished from other individual rights placed before them and proclaimed as a universal
and perpetual right’. (emphasis added).
52
words, the right of self-determination as proclaimed in the two
Human Rights Covenants is ‘a continuing right’.322
Article 1 stimulated the development of the concept of internal self-
determination in an important way, because it connected self-
determination with civil and political rights.323 It has been argued that
the ‘flexibility’ and ‘adaptability’ of self-determination has allowed it
to attain a new ‘free-standing meaning’ outside the colonial
context.324 The Reports submitted to the Human Rights Committee by
State Parties under Article 40 of the Covenant support this claim.
Those Reports are evidence of ‘subsequent practice in the application
of the treaty which establishes the agreement of the parties regarding
its interpretation’ and will be discussed in paragraph 3.4.5.325
A final point that may be mentioned is that India made a declaration
on Article 1 when it adopted the Covenants:
‘With reference to Article 1 of the …[Covenants] … the Government of the

Republic of India declares that the words ‘the right of self-determination’
appearing in [this article] apply only to the peoples under foreign
domination and that these words do not apply to sovereign independent
States or to a section of a people or nation – which is the essence of
326
national integrity’.
The Government of the Federal Republic of Germany issued a formal

declaration of protest327 against this declaration, and this response
was joined by France328 and the Netherlands.329 Considering the fact
that India is the only country that made a declaration to this effect
and given the protests of three States against this declaration, there
must have been general agreement that self-determination did apply
beyond the colonial context.330 The reaction of the Human Rights
Committee to this declaration will be discussed in paragraph 3.4.5.
To conclude, Article 1 grants an ‘ongoing’ right of self-determination
by virtue of which ‘all peoples freely determine their political status
and freely pursue their economic, social and cultural development’,
indicating the internal aspect of the right.331 It is submitted here that
the strongest argument for the ‘continuing character’ of self-
determination and its internal dimension is provided by the fact that it
was included in two human rights covenants aimed at the universal
322
323
Ibid.
324
Hilpold, supra note 173, p. 262.
325
Article 31 (3) (b) of the Vienna Convention on the Law of Treaties.
326
See UN Doc. CCPR/C/2/Rev. 4, 24 Aug. 1994, p. 25, available at <http://www.ohchr.org>.
327
Ibid., pp. 50-51.
328
Ibid, p. 50.
329
Ibid., pp. 52-53.
330
Cassese, supra note 13. p. 60.
331
Ibid., p. 101. Rosas, supra note 252, p. 243.
53
protection of human rights and without doubt applicable in the
relationship between a State and its own population.332
3.3.2 The African Charter on Human and Peoples Rights
It may not come as a surprise that African States regarded self-

determination primarily as a right of decolonisation.333 As the
previous Chapter explained, it was mostly because of the efforts of
Third World countries, supported by socialist countries, that the
General Assembly started on its anti-colonialist quest, which resulted
in a number of progressive resolutions on self-determination. As a
result of these efforts self-determination became almost
‘synonymous’ with decolonisation, a point of view which is also
reflected in the African Charter.334
Despite this fact, it must be noted that the African Charter was
adopted in 1981, when there were not many colonies left in Africa.335
This makes it very unlikely that self-determination as proclaimed in
the African Charter would only apply in the colonial context.336
Moreover, the same argument that was used in connection with the
right self-determination as proclaimed in the International Human
Rights Covenants may be invoked here. The African Charter is a
human rights treaty and therefore, the right of self-determination
must have a universal character.
A textual interpretation of Article 20 (1) of the Charter reveals the
internal aspect of self-determination and its application beyond
decolonisation.337 According to Article 20 (1)
‘All peoples […] shall have the unquestionable and inalienable right to self-
determination. They shall freely determine their political status and shall
pursue their economic and social development according to the policy they
338
have freely chosen.’
An important development is that the African Commission on Human

and Peoples’ Rights also started looking at self-determination from an
internal point of view.339 The African Commission on Human and
Peoples’ Rights will be dealt with in paragraph 3.4.7.
332
Rosas, supra note 252, p. 243. Raič, supra note 7, p. 235.
333
334
Ibid., p. 176.
335
336
Ibid.
337
Rosas, supra note 252, p. 245. Raič, supra note 7, p. 232. Rosas quotes a recent
comprehensive study on the African Charter in which it is concluded that Article 20 has an
internal dimension. See F. Ouguergouz, La Charte Africaine des Droits de l’Homme et des
Peuples. Historique, portée juridique et contribution à la protection des droits de l’homme en
Afrique, Paris: Presses Universitaires de France 1993, pp. 181-191.
338
(emphasis added).
339
Smis, supra note 14, p. 176, note 29.
54
3.3.3 Conclusion
The three conventions that have been discussed in this paragraph are
the only human rights conventions containing a provision on the right
of self-determination. No other international or regional human rights
treaty mentions the right of self-determination. After having studied
the provisions on self-determination in the International Human
Rights Covenants and the African Charter on Human and Peoples’
Rights, the following observations can be made. These conventions
lend support to the proposition that self-determination is not a right
that is only applicable in the colonial context, but has a broader
meaning. Furthermore, these conventions also point to the internal
aspect of the right of self-determination. Subsequent practice in
relation to these conventions supports the proposition that the
broader meaning of self-determination is to be found in its internal
dimension. This practice will be discussed in paragraphs 3.4.5 –
3.4.7.
3.4 Customary Law
After having examined conventional law on the right of self-

determination in search of clues to support its continued relevance
outside the colonial context, the following paragraphs will continue
this search focussing on customary international law. International
instruments, the pronouncements of the International Court of
Justice, the practice of human rights treaty bodies and statements of
States on self-determination will be examined in order to see whether
there is enough State practice and opinio iuris to support a customary
right of self-determination beyond decolonisation.
3.4.1 The General Assembly
According to the Friendly Relations Declaration self-determination is a

right of ‘all peoples’.340 The Declaration defines self-determination as
‘the right freely to determine, without external interference, their political

341
status and to pursue their economic, social and cultural development.’
The language, context and the travaux préparatoires of the

Declaration all indicate that the principle of self-determination has a
universal scope.342 First of all, the ordinary meaning of the words ‘all
340
Friendly Relations Declaration, supra note 110.
341
Ibid., Principle V, Paragraph 1.
342
Quane, supra note 177, p. 562, quoting 25 G.A.O.R. Supp. No.18 for the drafting history of
the Declaration. See also Smis, supra note 14, p. 138.
55
peoples’ supports a broad interpretation of the principle.343 Second,
the context of the principle, a declaration containing principles of
international law concerning friendly relations and co-operation
among States, suggests that self-determination applies to all
States.344 Third, the report of the drafting committee reveals that it
‘was agreed that [the Declaration] … should contain a general statement of

345
the principle, stressing its universality’.
The ‘universal character of the principle’ was also emphasised by a

number of States.346
Considering the ‘saving clause’ of Paragraph 7 of Principle V of the
Friendly Relations Declaration there is no doubt that self-
determination continues to be applicable outside the colonial
context.347 According to Paragraph 7
‘[n]othing in the foregoing paragraphs shall be construed as authorizing or

encouraging any action which would dismember or impair, totally or in part,
the territorial integrity or political unity of sovereign and independent States
conducting themselves in compliance with the principle of equal rights and
self-determination of peoples as described above and thus possessed of a
government representing the whole people belonging to the territory
348
without distinction as to race, creed or colour’.
This paragraph affirms that self-determination is not a principle that

only States administering non-self-governing or trust territories have
to abide by.349 On the contrary, it insists that all States must respect
the right to self-determination.350 Moreover, they must ‘respect this
right with regard to their own peoples’.351 This interpretation is
supported by numerous General Assembly resolutions.352
343
Quane, supra note 177, p. 562. Smis, supra note 14, p. 138.
344
Quane, supra note 177, p. 562.
345
Ibid., note 138 quoting 25 G.A.O.R. Supp. No. 18, p. 41.
346
Ibid., note 139, quoting 25 G.A.O.R. Supp. No. 18, p. 91 (France), p. 88 (Italy), p. 104
(Australia), p. 122 (US), 25 G.A.O.R. A/C.6/SR.1182 and Corr.1, para. 4 (Portugal), para. 28
(Spain), and 25 G.A.O.R. A/PV.1860, 5-6 (representative of the ‘African Group’).
347
348
(emphasis added).
349
350
Ibid.
351
Ibid.
352
Ibid. See UN Doc. A/Res/36/10, 28 Oct. 1981, para. 1, where General Assembly reaffirms
‘that the universal realization of the right of all peoples, including those under colonial, foreign
and alien domination, to self-determination is a fundamental condition for the effective
guarantee and observance of human rights and for the preservation and promotion of such
rights’ (emphasis added). The same phrase is used in the resolutions on the ‘universal
realization of the right of peoples to self-determination’ the General Assembly adopts annually.
See e.g., UN Doc. A/Res/37/42, 3 Dec. 1982; UN Doc. A/Res/38/16, 22 Nov. 1983; UN Doc.
A/Res/39/18, 25 Nov. 1984; UN Doc. A/Res/40/24, 29 Nov. 1985; UN Doc. A/Res/41/100, 4
Dec. 1986; UN Doc. A/Res/42/94, 7 Dec. 1987; UN Doc A/Res/43/105, 8 Dec. 1988; UN Doc.
A/Res/44/80, 8 Dec. 1989; UN Doc. A/Res/54/155, 29 Feb. 2000; UN Doc. A/Res/55/85, 4
Dec. 2000; UN Doc. A/Res/56/141, 19 Dec. 2001; UN Doc. A/Res/57/197, 18 Dec. 2002; UN
56
Paragraph 7 also raises the important question of whether the post-
colonial right of self-determination may also apply to groups within a
State or whether it only applies to the population as a whole.353 First,
the fact that it is considered necessary to stress the need to preserve
the territorial integrity when exercising the right of self-determination
indicates that a State may comprise more than one people and that
each people within that State is entitled to self-determination.354
Second, Cassese has interpreted the ‘safeguard clause’ of Paragraph
7 of the Friendly Relations Declaration narrowly in the sense that it
only grants racial or religious (sub)groups that are excluded from the
political decision-making process a right of self-determination, while
‘linguistic or national groups do not have a concomitant right’.355 This
narrow interpretation has been rightly criticised by Raič, because a
government that ‘persistently excludes’ certain groups within its
territory from participating in the political decision-making process
cannot be considered ‘representative of the whole people’.356
Raič convincingly argues that the phrase ‘without distinction as to
race, creed or colour’ must be interpreted broadly as referring to the
prohibition of discrimination in general. To support his argument he
points out that Article 1 of the International Convention on the
Elimination of All Forms of Racial Discrimination also defines ‘racial
discrimination’ broadly as
‘any distinction, exclusion, restriction or preference based on race, colour,

descent, or national or ethnic origin […].’
Moreover, the Vienna Declaration of 1993, which will be discussed in

section 3.4.8, not only reaffirmed Paragraph 7 of the Friendly
Relations Declaration, but also widened its scope referring to
‘a Government representing the whole people belonging to the territory

357
without distinction of any kind’.
Doc. R/Res/58/161, 22 Dec. 2003; UN Doc. A/Res/59/180, 20 Dec. 2004; UN Doc.

A/Res/60/145, 16 Dec. 2005; UN Doc. A/Res/61/150, 19 Dec. 2006; UN Doc. A/Res/62/144,
18 Dec. 2007; UN Doc. A/Res/63/163, 18 Dec. 2008.
353
354
Ibid., pp. 248-249. See the Supreme Court of Canada in Reference re Secession of Quebec,
The Hague: Kluwer Law International 2000, pp. 495-496. And Commission on Human Rights,
Sub-Commission on the Prevention of Discrimination and Protection of Minorities, Working
Group on Indigenous Populations, UN Doc. E/CN.4/Sub.2/AC.4/1996/2, 10 June 1996, para.
19, available at <http://www.un.org>. Several other instruments addressing the right of self-
determination also stress the need to preserve the territorial integrity, e.g. the Helsinki Final
Act, the 1993 Vienna Declaration and the Charter of Paris for a New Europe of 1990. These
instruments will be discussed in the following paragraphs.
355
356
357
Vienna Declaration and Programme of Action, 25 June 1993, para. 2, available at
<http://www.ohchr.org>.
57
According to Raič, the drafting history of the Friendly Relations
Declaration also supports the proposition that the right of (internal)
self-determination was not meant to apply only to racial or religious
groups.358
On the basis of the foregoing analysis, it can be concluded that
Paragraph 7 of the Friendly Relations Declaration not only refers to
self-determination as a universal right, but that it may also apply to
groups of peoples within States. This point will be elaborated further
in paragraph 3.5.1. Another conclusion that may be drawn is that the
saving clause of the Friendly Relations Declaration no doubt refers to
the internal aspect of self-determination.359 While Simpson considers
this ‘innovative’, it actually brings to mind the traditional, Western
perception of self-determination which links the principle with
representative government.360 Hence, Paragraph 7 of the Friendly
Relations Declaration may be called a revival of Wilsonian self-
determination. The Declaration is also important in a more
controversial way, because it provides a very strong argument to
support the existence of a right of remedial secession if a government
358
Raič, supra note 7, p. 255. Raič quotes a large number of delegations who stated that the
right of self-determination had ‘universal application’. See UN Doc. A/AC.125/SR.69, 4 Dec.
1967, p. 4 (Yugoslavia); UN Doc. A/AC.125/SR.69, 4 Dec. 1967, p. 12 (France); UN Doc.
A/AC.125/SR.69, 4 Dec. 1967, p. 22 (Kenya); UN Doc. A/AC.125/SR.70, 4 Dec. 1967, p. 13
(Cameroon); UN Doc. A/AC.125/SR.91, 21 Oct. 1968, p. 107 (Guatemala); UN Doc.
A/AC.125/SR.92, 21 Oct. 1968, p. 128 (United States); UN Doc. A/AC.125/SR.101, 5 Nov.
1969, p. 32 (the Netherlands); UN Doc. A/AC.125/SR.104, 5 Nov. 1969, p. 44
(Czechoslovakia); UN Doc. A/AC.125/SR.105, 5 Nov. 1969, p. 54 (United Kingdom); UN Doc.
A/AC.125/SR.105, 5 Nov. 1969, p. 49 (Romania); UN Doc. A/AC.125/SR.106, 5 Nov. 1969, p.
62 (Soviet Union); UN Doc. A/AC.125/SR.106, 5 Nov. 1969, p. 64 (France). Ibid., p. 253, note
109. Raič also refers to the fact that the view of the United Kingdom (UN Doc. A/AC.125/L44,
19 July 1967) and the United States (UN Doc. A/AC.125/L32, 12 Apr. 1966) ‘that a State was
conducting itself in compliance with the right of self-determination if it possessed a
government which was representative as to all distinct peoples of the State was explicitly
supported by Australia (UN Doc. A/AC.125/SR.70, 4 Dec. 1967, p. 6), Ghana (UN Doc.
A/AC.125/SR.68, 4 Dec. 1967, pp. 17-19), Canada (UN Doc. A/AC.125/SR.69, 4 Dec. 1967,
pp. 11-12), France (UN Doc. A/AC.125/SR.69, 4 Dec. 1967, p. 15), Chili (UN Doc.
A/AC.125/SR.93, 21 Oct. 1968, p. 148) and the Netherlands (UN Doc. A/AC.125/SR.107, 5
Nov. 1969, p. 87)’. Ibid., p. 254. According to Raič ‘none of the other participating States -
with the exception of Cameroon (UN Doc. A/AC.125/SR.107, 5 Nov. 1969, pp. 70-71)
contested, rejected or questioned that part of the British and American proposals. When,
during the discussions, concern was expressed, in particular by the socialist and developing
States, with regard to any reference to subgroups as holders of the right to self-determination,
this was mainly on the ground that they feared the inclusion of far too liberal a phrase which
might be interpreted as authorizing these subgroups to secede at will’. Ibid. See e.g. the
statement of Kenya, UN Doc. A/AC.125/SR.107, 5 Nov. 1969, p. 88 and of Romania, UN Doc.
A/AC.125/SR.105, 5 Nov. 1969, p. 49. Both quoted by ibid, p. 255.
359
Cassese, supra note 13, p. 110. Raič, supra note 7, p. 235. C. Tomuschat, ‘Self-
Determination in a Post-Colonial World’, in: C. Tomuschat (ed.), Modern Law of Self-
Determination, Dordrecht: Martinus Nijhoff Publishers 1993, p. 19, also refers to the
‘safeguard clause’ as ‘pointing the way to a new and enlarged understanding of self-
determination in the post-colonial era’. See also P. Thornberry, ‘The Democratic or Internal
Aspect of Self-Determination With Some Remarks on Federalism’, in: C. Tomuschat (ed.),
Modern Law of Self-Determination, Dordrecht: Martinus Nijhoff Publishers 1993, p. 120.
360
Simpson, supra note 189, p. 271.
58
is not ‘representative’. This subject will be discussed in the following
Chapter.
3.4.2 The Helsinki Final Act 1975
One of the first international instruments containing a provision on

self-determination that was certainly not meant to apply to colonial
situations is the Helsinki Final Act of 1975. It was the official
document containing the agreement of the parties to the Conference
on Security and Co-operation in Europe (CSCE), the predecessor of
the Organization for Security and Cooperation in Europe (OSCE) that
was established during the Cold War. Both sides realized that stability
and cooperation in the region would be mutually beneficial and
therefore some sort of agreement was necessary.361 Even though the
product of the Conference, the Helsinki Final Act, is not a treaty, it is
a ‘politically binding agreement’.362 Amongst other things, the Final
Act contains ten ‘Principles Guiding Relations between Participating
States’, one of which is the principle of equal rights and self-
determination of peoples. 363 Principle VIII, paragraph 2 of the Final
Act defines self-determination as
‘By virtue of the principle of equal rights and self-determination of peoples,

all peoples always have the right, in full freedom, to determine, when and
as they wish, their internal and external political status, without external
interference, and to pursue as they wish their political, economic, social and
364
cultural development.’
The inclusion of the right of self-determination in a Declaration that

was meant to apply to the peoples of Europe, who were at the time
not subject to colonial domination, definitely rebuts the assertion that
self-determination only applies in colonial situations.365
Furthermore, self-determination as proclaimed in the Helsinki Final
Act is quite ‘progressive’ when compared to the pronouncements on
361
362
‘OSCE Handbook. The Organization for Security and Co-operation in Europe’, Vienna 2007,
available at <http://www.osce.org>, p. 3. See the Final Act of the CSCE, signed in Helsinki on
1 August 1975, available at ibid.
363
The ten principles, based on the UN Charter and the Friendly Relations Declaration are: I.
Sovereign equality, respect for the rights inherent in sovereignty; II. Refraining from the
threat or use of force; III. Inviolability of frontiers; IV. Territorial integrity of States; V.
Peaceful settlement of disputes; VI. Non-intervention in internal affairs; VII. Respect for
human rights and fundamental freedoms, including the freedom of thought, conscience,
religion or belief; VIII. Equal rights and self-determination of peoples; IX. Co-operation among
States; X. Fulfilment in good faith of obligations under international law.
364
(emphasis added).
365
Cassese, supra note 13, p. 286. Raič, supra note 7, p. 231, quoting G. Arangio-Ruiz,
‘Human Rights and Non-Intervention in the Helsinki Final Act’, Human Rights, Vol. 157, 1977,
pp. 227-228 states that ‘the argument that a reference to self-determination in the Final Act
would therefore be unnecessary, was explicitly rejected during the Helsinki Conference’. See
also Koskenniemi, supra note 186, p. 242.
59
self-determination that have been made within the context of the
United Nations.366 The language of paragraph 2 makes it very clear
that the right of self-determination was not confined to the colonial
context.367 There is no doubt that the phrase ‘all peoples always have
the right’ was intended to affirm the universal scope of self-
determination.368 In addition, the phrase ‘when and as they wish’
warrants the conclusion that the right of self-determination is ‘a
continuing right’.369
Like any other instrument containing a reference to self-
determination the Final Act does not attempt to define the meaning of
the term ‘peoples’ either, but the drafting history indicates that
‘peoples’ referred to ‘the entire population of a State’.370 The travaux
préparatoires also clarify that the parties at the Conference agreed
that the term peoples did not include minorities.371 Instead, the Final
Act deals with minorities separately in Principle VII.372
It is important to note that Principle VIII of the Helsinki Final Act
‘explicitly’ refers to the internal dimension of self-determination.373
According to Cassese
‘[t]he debates preceding the adoption of the Helsinki Declaration illustrate

that the phrase ‘in full freedom’ reflects the Western view that the right of
self-determination cannot be implemented if basic human rights and
fundamental freedoms, in particular the freedom of expression and
374
association, are not ensured to all members of the people concerned’.
Highlighting the internal aspect of self-determination by making the

connection between self-determination, democracy and human rights,
the Helsinki Final Act ‘breaks new ground in international relations’.375
This instrument not only shows that self-determination continues to
be relevant outside the colonial context, but also that beyond
366
367
Ibid.
368
Ibid. Also Summers, supra note 59, p. 236.
369
Cassese, supra note 13, p. 285. Also Smis, supra note 14, p. 164.
370
Raič, supra note 7, p. 246, quoting A. Cassese, ‘Political Self-Determination - Old Concepts
and New Developments’, in: A. Cassese (ed.), UN Law/Fundamental Rights, Two Topics in
International Law, Sijthoff & Noordhoff, 1979, p. 151.
371
Cassese, supra note 13, p. 289. Smis, supra note 14, pp. 163-164.
372
Smis, supra note 14, p. 164. Principle VII, paragraph 4 states that: ‘[t]he participating
States on whose territory national minorities exist will respect the right of persons belonging to
such minorities to equality before the law, will afford them the full opportunity for the actual
enjoyment of human rights and fundamental freedoms and will, in this manner, protect their
legitimate interests in this sphere.’
373
J. Salmon, ‘Internal Aspects of the Right to Self-Determination: Towards a Democratic
Legitimacy Principle?’, in: C. Tomuschat (ed.), Modern Law of Self-Determination, Dordrecht:
Martinus Nijhoff Publishers 1993, p. 268. Raič, supra note 7, p. 235.
374
Cassese, supra note 13, p. 286, note 13, quoting A. Cassese, ‘The Helsinki Declaration and
Self-Determination’, in: T. Buergenthal (ed.), Human Rights, International Law and the
Helsinki Accord, New York: Allanheld 1977, pp. 95-99, 102-103.
375
Cassese, supra note 13, p. 286. Smis, supra note 14, p. 164.
60
decolonisation the emphasis has shifted from its external to its
internal dimension.
3.4.3 The Charter of Paris for a New Europe 1990
After the parties had reached an agreement at Helsinki, several CSCE

‘follow-up meetings’ were held.376 With regard to the instruments that
were adopted during these follow-up meetings it has been argued
that, insofar as they referred to self-determination, the right was
‘downplayed’, because it was feared that ‘it may well open a
Pandora’s box for many States and because it may complicate rather
than resolve the issues facing [..] Europe at that time.377 The author
does not agree with this argument for the following reason. While the
end of the Cold War liberalized Eastern Europe and the Soviet Union,
led to an improvement in international relations between East and
West and paved the way to the reunification of Germany, it also
resulted in the collapse of the Soviet Union and Yugoslavia.378 Thus,
while the parties at the Paris Summit in 1990 had reason to be
optimistic about the future of Europe, they also realized that ‘while
self-determination could be liberating, it could also be highly
destabilizing’.379 French President François Mitterrand expressed this
thought during his opening speech at the summit when he asked:
‘have we overcome the division of Europe into two blocs only to see it
disintegrate as a result of aspirations which had been too long stifled by
380
force?’.
Therefore, it seems that the Charter of Paris for a New Europe381 that
was adopted during the summit does not ‘downplay’ self-
determination, but rather ‘balances’ it with other principles,382 such as
the principle of territorial integrity, in the same way the Friendly
Relations Declaration and the Helsinki Declaration have done. Political
events in the Soviet Union and Yugoslavia caused the parties at the
summit to take a careful stance on self-determination, but this was
not a new phenomenon. Previous instruments containing a provision
on self-determination, including those that were specifically aimed at
colonial situations, have always balanced the principle with other
376
OSCE Handbook, supra note 353, pp. 4-6.
377
Cassese, supra note 13, p. 293 quoting T. Buergenthal, ‘CSCE Human Dimension: The Birth
of a System’, AEL, Vol. I, Book 2, 1990, p. 179.
378
379
Ibid. OSCE Handbook, supra note 353, p. 6. Smis, supra note 14, p. 298.
380
Summers, supra note 59, p. 239, quoting France (CSCE/SP/VR.1) p. 3.
381
Charter of Paris for a New Europe, Paris, 21 November 1990, available at
<http://www.osce.org>.
382
Summers, supra note 59, p. 239 referring to Cassese, supra note 13, pp. 292-296. And
referring to J. Salo, ‘Self-Determination: An Overview of History and Present State with
Emphasis on the CSCE Process’, Finnish Yearbook of International Law, Vol, 2, 1991, p. 320.
61
principles, in particular the principle of territorial integrity. Therefore,
the State representatives at the Paris Summit were not the first to
consider self-determination as a ‘legitimate aspiration’, which
nevertheless ‘needed to be considered with other principles and wider
interests of peace and stability’.383 While Cassese has argued that
‘[t]he seemingly restrictive approach increasingly taken by the CSCE
is chiefly motivated by political factors’, in particular the fear of
secession, it is submitted here that political factors have always cast
a shadow over the right of self-determination, even in the colonial
context.384 As will be elaborated in the following Chapter, political
factors constitute the principal reason why self-determination and
secession continue to have a problematic relationship.
Summers also considers the Charter’s reference to self-determination
‘a trimmed down version of Principle VIII of the Final Act’.385
According to him, ‘[t]he universal significance of the right, its basis
for friendly relations and its internal and external aspects were all
cut’.386 However, as noted before, this seems to be a rather strong
statement. The relevant part of the Charter provides as follows:
‘Our relations will rest on our common adherence to democratic values and
to human rights and fundamental freedoms. We are convinced that in order
to strengthen peace and security among our States, the advancement of
democracy, and respect for and effective exercise of human rights, are
indispensable. We reaffirm the equal rights of peoples and their right to self-
determination in conformity with the Charter of the United Nations and with
the relevant norms of international law, including those relating to
387
territorial integrity of States’.
In reaction to Summer’s statement, several arguments can be made.

First of all, it must be noted that the Charter’s provision on self-
determination is to be found under the heading ‘Friendly Relations
among Participating States’. Given this context, it is difficult to see
how self-determination could not be a guiding principle in the
relations among the parties to the Charter. Second, the overall
context and the fact that the Charter refers to self-determination and
human rights in the same paragraph both support its ‘universal
significance’.388 Third, the parties to the Charter ‘solemnly pledge[d]
[their] full commitment to the Ten Principles of the Helsinki Final Act’,
which makes it unlikely that they intended to ‘trim down’ the
383
384
See Cassese, supra note 13, p. 293.
385
386
Ibid.
387
Charter of Paris, supra note 372, ‘Friendly Relations among Participating States’, para. 7,
(emphasis added).
388
See Summers, supra note 59, p. 239.
62
provisions on self-determination.389 Fourth, while it is true that the
Charter does not specifically refer to external self-determination, an
implicit reference to it is to be found in the phrase ‘in conformity with
[…] the relevant norms of international law’.390 Fifth, the context of
the provision on self-determination referring to democracy, human
rights and fundamental freedoms clearly points to the internal
dimension of self-determination.391 In fact, the Charter is rather
unique compared to other international instruments in the sense that
it strongly emphasises the parties’ commitment to democracy, of
which it gives a very clear definition.392 Hence, there is no doubt that
the CSCE established an important ‘link between democracy, political
pluralism, human rights and [the] rule of law’.393
On the basis of these arguments it can be concluded that the Charter
of Paris did not ‘downplay’ or ‘trim down’ the right of self-
determination as provided for in the Helsinki Final Act at all. On the
contrary, the Charter played an important part in the progressive
development and clarification of the internal and ‘continuing’ aspect
of self-determination, emphasizing democracy, human rights and the
rule of law.394 In this manner the Charter of Paris actively continued,
rather than slowed down, the ‘Helsinki process’.395
The parties at the Paris Summit also took steps to institutionalize the
CSCE by establishing a Council, a Committee of Senior Officials, a
Conflict Prevention Centre and an Office for Free Elections, which later
became the Office for Democratic Institutions and Human Rights
(ODIHR).396 In 1995 the CSCE was renamed Organization for Security
and Co-operation in Europe (OSCE).397
389
Charter of Paris, supra note 372, ‘Friendly Relations among Participating States’, para. 2.
390
Charter of Paris, supra note 372, ‘Friendly Relations among Participating States’, para. 7.
391
See Cassese, supra note 13, p. 294.
392
Smis, supra note 14, p. 299. ‘We undertake to build, consolidate and strengthen democracy
as the only system of government of our nations. In this endeavour, we will abide by the
following: Human rights and fundamental freedoms are the birthright of all human beings, are
inalienable and are guaranteed by law. Their protection and promotion is the first responsibility
of government. Respect for them is an essential safeguard against an over-mighty State. Their
observance and full exercise are the foundation of freedom, justice and peace. Democratic
government is based on the will of the people, expressed regularly through free and fair
elections. Democracy has as its foundation respect for the human person and the rule of law.
Democracy is the best safeguard of freedom of expression, tolerance of all groups of society,
and equality of opportunity for each person. Democracy, with its representative and pluralist
character, entails accountability to the electorate, the obligation of public authorities to comply
with the law and justice administered impartially. No one will be above the law.’ Charter of
Paris, supra note 372, ‘Human Rights, Democracy and Rule of Law’, paras. 1-4, (emphasis
added).
393
Cassese, supra note 13, p. 294. See also Thornberry, supra note 350, p. 123.
394
395
Ibid.
396
OSCE Handbook, supra note 353, p. 6. See also Smis, supra note 14, p. 301, quoting M.
van der Stoel, ‘The Heart of the Matter. The Human Dimension of the OSCE’, Helsinki Monitor,
Vol. 7, 1996, p. 28.
397
OSCE Handbook, supra note 353, p. 8.
63
After having discussed the OSCE’s contribution to the development of
the right to self-determination outside the colonial context, the next
section will analyse the jurisprudence of the International Court of
Justice to see whether the Court supports the existence of a post-
colonial right to self-determination.
3.4.4 The International Court of Justice
The previous Chapter has shown that after the inclusion of self-
determination in the Charter of the United Nations, the principle
became almost synonymous with decolonisation and that the
pronouncements of the International Court of Justice in the context of
decolonisation have also clarified its status as a rule of international
law.398 However, while it was stated before that the Court, in its
Advisory Opinion on Western Sahara, identified ‘free choice’ as the
‘essence’ of self-determination, indicating a universal interpretation of
the right, it may still be argued that this opinion was given in a
colonial context.399 Therefore, it remains important to examine cases
or opinions in which the Court dealt with self-determination outside
the colonial context.
First of all, the Nicaragua case needs to be mentioned, in which the
Court specifically stated that it was not ‘concerned with the process of
decolonization’.400 While this was a case concerning the principle of
non-intervention rather than that of self-determination, the Court did
make an implicit reference to the latter principle when considering the
content of the former:
‘the principle forbids all States or groups of States to intervene directly or

indirectly in internal or external affairs of other States. A prohibited
intervention must accordingly be one bearing on matters in which each
State is permitted, by the principle of State sovereignty, to decide freely.
One of these is the choice of a political, economic, social and
cultural system, and the formulation of foreign policy.
Intervention is wrongful when it uses methods of coercion in regard to such
choices, which must remain free ones’.401
One cannot help but notice the similarity between these words and
the provisions on self-determination in Article 1(1) of the
International Human Rights Covenants and Paragraph 1 of Resolution
1514 (XV).402 Along these lines it can be argued that with this
statement, given outside the colonial context, the Court in fact
398
See Musgrave, supra note 14, p. 90.
399
Western Sahara, supra note 129, para. 59. Raič, supra note 7, p. 277. Cassese, supra note
149, pp. 357-358.
400
Nicaragua case, supra note 110, para. 206.
401
Ibid., para. 205, (emphasis added). See Musgrave, supra note 14, p. 86.
402
64
affirmed the universal scope of ‘the right to freely choose a political,
economic, social and cultural system’, in other words, the right of
self-determination.403
In the Wall Opinion,404 the Court addressed the issue of Palestinian
self-determination from the viewpoint of the legal consequences of
the wall Israel had built on the West-Bank.405 It is important to keep
this ‘narrow focus’ in mind because it prevented the Court from
considering the right of self-determination in a more general way.406
However, there is no doubt that the Court’s pronouncements on self-
determination were given outside the colonial context.
The Court first confirmed that ‘the existence of a “Palestinian people”
is no longer in issue’, and that the ‘legitimate rights’ of the Palestinian
people ‘include the right to self-determination’.407 It seems that all of
the judges, including Judge Buergenthal, dissenting on other grounds,
agreed with this statement.408 After having said this the Court went
on to consider how the right of self-determination of the Palestinian
people was affected by the construction of the wall.409
According to the Court, the construction of the wall created a
situation contrary to international law for two reasons. First of all,
international law prohibits the forceful annexation of territory.410
Secondly, Israel breached international humanitarian law by allowing
Israeli settlements on the Occupied Palestinian Territory.411 On the
basis of these two violations of international law, the Court identified
a third, concluding that the wall ‘thus severely impedes the exercise
by the Palestinian people of its right to self-determination, and is
therefore a breach of Israel’s obligation to respect that right’.412 In
other words, Israel’s violation of the right to self-determination of the
Palestinian people was the result of its prior forceful annexation of
403
Ibid., p. 87.
404
Wall Opinion, supra note 129.
405
406
Ibid.
407
Wall Opinion, supra note 129, para. 118.
408
Summers, supra note 59, p. 263. See Wall Opinion, supra note 129, Declaration of Judge
Buergenthal, para. 4.
409
410
According to the Court, this was done by creating ‘a “fait accompli” on the ground that
could well become permanent, [which] would be tantamount to de facto annexation”, and by
giving expression ‘in loco to illegal measures taken by Israel with regard to Jerusalem and the
settlements as deplored by the Security Council’. Wall Opinion, supra note 129, para. 121-122.
411
Wall Opinion, supra note 129, para. 91-101, 120, 122. As the Court correctly pointed out,
article 49 (6) of the Fourth Geneva Convention prohibits an Occupying Power to ‘deport or
transfer parts of its own civilian population into the territory it occupies’. Moreover, according
to the Court ‘[t]here is also a risk of further alterations to the demographic composition of the
Occupied Palestinian Territory resulting from the construction of the wall inasmuch as it is
contributing […] to the departure of Palestinian populations from certain areas’. Ibid., para.
122. See Summers, supra note 59, pp. 263-264.
412
Wall Opinion, supra note 129, para. 122. See Summers, supra note 59, p. 264.
65
Palestinian territory and the endorsement of Israeli settlements on
that territory, both in violation of international law.413
Since the Court considered self-determination in relation to these two
violations of international law, the scope of the right was ‘limited’.414
Moreover, like most cases of self-determination, the right to self-
determination of the Palestinian people also had political implications
which hampered the Court’s interpretation.415 Nevertheless, the
Court’s pronouncements on the right of self-determination in the Wall
Opinion do confirm its applicability in a post-colonial setting.416 In
summary, both the Nicaragua case and the Wall Opinion lend support
to the proposition that self-determination is not confined to the
colonial context. The following section will focus on the views of the
Human Rights Committee in relation to the right of self-determination
in non-colonial situations.
3.4.5 The Human Rights Committee
The Human Rights Committee has issued a General Comment on self-

determination, which supports the existence of a right to self-
determination beyond decolonisation.417 In General Comment 12, on
Article 1 of the International Covenant on Civil and Political Rights,
the Committee pointed out that
‘Paragraph 3, in the Committee's opinion, is particularly important in that it

imposes specific obligations on States parties, not only in relation to their
own peoples but vis-à-vis all peoples which have not been able to exercise
or have been deprived of the possibility of exercising their right to self-
determination. […] The obligations exist irrespective of whether a people
entitled to self-determination depends on a State party to the Covenant or
418
not’.
Not only has the Human Rights Committee questioned States’ parties
on Article 1 outside the colonial context, but in reaction to General
Comment 12 States’ parties have also started reporting on their
413
414
Ibid.
415
Ibid. See Wall Opinion, supra note 129, Separate Opinion of Judge Kooijmans, para. 32,
according to whom the right of self-determination of the Palestinian people was ‘imbedded in a
much wider context than the construction of the wall and has to find its realization in this wider
context.’ Also ibid., Separate Opinion of Judge Higgins, para. 30, considering the
pronouncement of the Court ‘quite detached from reality’. Even though Higgins emphasised
that ‘if the wall had never been built, the Palestinians would still not yet have exercised their
right to self-determination’, she also admitted that the ‘larger problem’ of the right to self-
determination of the Palestinian people ‘is beyond the question put to the Court for an opinion’.
416
See Wall Opinion, supra note 129, Separate Opinion of Judge Higgins, para. 29-30.
417
Raič, supra note 7, pp. 229-230.
418
Human Rights Committee, General Comment 12, Art. 1, 21st session, 1984, available at
<http://www.ohchr.org>, (emphasis added). For the full text of General Comment 12, see
Appendix IV.
66
efforts to implement self-determination ‘in relation to their own
peoples’.419
It has been noted before that outside the colonial context the
emphasis has been put on internal self-determination, referring to its
application ‘within’ States, and that self-determination is thus a
‘continuing right’ with a universal character.420 There is no doubt that
the Human Rights Committee had the internal dimension of self-
determination in mind when it drafted its General Comment on
common Article 1.421 According to the Committee
‘The right of self-determination is of particular importance because its

realization is an essential condition for the effective guarantee and
observance of individual human rights and for the promotion and
strengthening of those rights. […] Article 1 enshrines an inalienable right of
all peoples as described in its paragraphs 1 and 2. By virtue of that right
they freely ‘determine their political status and freely pursue their economic,
social and cultural development’. The article imposes on all States parties
corresponding obligations. […] With regard to paragraph 1 of article 1,
States parties should describe the constitutional and political processes
422
which in practice allow the exercise of this right’.
It is important to note that the Committee is of the opinion that the

right to self-determination ‘and the corresponding obligations
concerning its implementation are interrelated with other provisions
of the Covenant’, which clearly points to the internal aspect of self-
determination.423 Even though it must be admitted that early practice
of the Committee indicates that the Committee focussed mainly on
external self-determination, recent practice shows that the
Committee is getting more and more interested in internal aspects of
419
Raič, supra note 7, p. 230, quoting UN Doc. A/39/40, 20 Sept. 1984, para. 323 (Gambia);
UN Doc. A/46/40, 10 Oct. 1991, para. 50 (Canada); UN Doc. A/45/40, 4 Oct. 1990, para. 542
(Zaire); UN Doc. A/47/40, 9 Oct. 1992, paras. 194-195 (Iraq). See also the Committee’s
reaction to the periodic report of Azerbaijan, UN Doc. A/49/40, 21 Sept. 1994, p. 51, para.
296, ‘that under article 1 of the Covenant, [the principle of self-determination] applies to all
peoples and not merely to colonized peoples’, quoted by ibid. And the Third Periodic Report of
Peru, UN Doc. CCPR/C/83/Add.1, 21 March 1995; the Fourth Periodic Report of Colombia, UN
Doc. CCPR/C/64/Add.3, 8 Oct. 1996; the First Periodic Report of Georgia, UN Doc.
CCPR/C/100/Add.1, 5 Nov. 1996; and the Fourth Periodic Report of Canada, UN Doc.
CCPR/C/103/Add. 5, 15 Oct. 1997, also quoted by ibid. See also D. McGoldrick, The Human
Rights Committee. Its Role in the Development of the International Covenant on Civil and
Political Rights, Oxford: Clarendon Press 1994, pp. 252-253.
420
Raič, supra note 7, p. 234. Cassese, supra note 13, p. 54. See also Smis, supra note 14, p.
415.
421
Raič, supra note 7, p. 234. See also Thornberry, supra note 350, p. 112-113. And Rosas,
422
General Comment 12, supra note 409.
423
Ibid. Raič, supra note 7, p. 246, refers to ‘the right to freedom of thought (Article 18) and
expression (Article 19), the right of peaceful assembly (Article 21), the right to freedom of
association (Article 22), the right to take part in public affairs, to vote and to be elected
(Article 25), as well as the provision on the prohibition of discrimination (Article 26)’.
424
Smis, supra note 14, p. 414. Also Cassese, supra note 13, pp. 62-64. See e.g. Concluding
observations of the Human Rights Committee, UN Doc. CCPR/C/79/Add.118, 25 April 2000
67
Furthermore, according to a study of State Reports submitted under
Article 40 of the ICCPR, governments are increasingly giving attention
to the ways in which their own population is exercising its right of
internal self-determination.425 In this respect it is important to note
that the majority of these reports have linked internal self-
determination with human rights and democracy.426 In General
Comment 25 on Article 25 of the ICCPR, the Human Rights
Committee also observed this connection when it stated that
‘[a]rticle 25 lies at the core of democratic government based on the consent

of the people and in conformity with the principles of the Covenant. The
rights under article 25 are related to, but distinct from, the right of peoples
to self-determination. By virtue of the rights covered by article 1 (1),
peoples have the right to freely determine their political status and to enjoy
the right to choose the form of their constitution or government. Article 25
deals with the right of individuals to participate in those processes which
427
constitute the conduct of public affairs.’
Lately, States Parties with a heterogeneous population have started

granting autonomy rights to certain ‘ethnic or linguistic groups’ within
their territory as ‘an alternative means of implementing the right of
self-determination’.428 This development strengthens the view that
there may be ‘more than one people’ within a State, a point which will
(Congo), in which ‘[t]he Committee notes with concern that the Congolese people have been
unable, owing to the postponement of general elections, to exercise their right to self-
determination in accordance with article 1 of the Covenant’. See also Concluding observations
of the Human Rights Committee, UN Doc. CCPR/CO/74/SWE, 24 April 2002 (Sweden), UN Doc.
CCPR/CO/82/FIN, 2 December 2004 (Finland), UN Doc. CCPR/C/CAN/CO/5, 20 April 2006
(Canada), UN Doc. CCPR/C/NOR/CO/5, 25 April 2006 (Norway), UN Doc.
CCPR/C/USA/CO/3/Rev.1, 18 December 2006 (United States of America), UN Doc.
CCPR/C/CHL/CO/5, 18 May 2007 (Chile).
425
Raič, supra note 7, p. 246, quoting H. Quane, ‘A right to Self-Determination for the Kosovo
Albanians?’, Leiden Journal of International Law, Vol. 13, 2000, pp. 221-222. According to the
survey, 97 State Reports were analysed, 87 of which commented on self-determination. 69 of
these Reports discussed the internal aspect of self-determination in a direct or indirect
manner. More recent references to internal self-determination are to be found in the following
State Reports: UN Doc. CCPR/C/HRV/2, 2 December 2008, pars. 14-24 (Croatia); UN Doc.
CCPR/C/TCD/1, 6 June 2008, paras. 16-25 (Chad); UN Doc. CCPR/C/ARG/4, 13 March 2008,
para. 143 (Argentina); UN Doc. CCPR/C/MDA/2, 26 December 2007, paras. 125-127 (Republic
of Moldova); UN Doc. CCPR/C/AZE/3, 10 December 2007, paras. 19-20 (Azerbaijan); UN Doc.
CCPR/C/RWA/3, 27 November 2007, para. 125 (Rwanda); UN Doc. CCPR/C/NIC/3, 19 October
2007, paras. 10-13 (Nicaragua); UN Doc CCPR/C/BWA/1, 2 May 2007, paras. 76-84
(Botswana); UN Doc. CCPR/C/SMR/2, 10 January 2007, para. 59 (San Marino).
426
In particular State Reports emphasizing the connection between the right to self-
determination and the right to political participation (Article 25 ICCPR). See Hilpold, supra note
173, p. 274, quoting S. Wheathley, ‘Democracy in International Law: A European Perspective’,
International and Comparative Law Quarterly, Vol. 51, 2002, p. 232. See also Raič, supra note
7, p. 274.
427
Human Rights Committee, General Comment 25, Art. 25, 57st sess., 1996, para. 1 and 2,
available at <http://www.ohchr.org> (emphasis added).
428
Smis, supra note 14, pp. 416-417. See, e.g. UN Doc. CCPR/C/ESP/5, 5 February 2008,
paras. 18-19 (Spain); UN Doc. CCPR/C/RUS/6, 5 February 2008, paras. 1-5 (Russian
Federation); UN Doc. CCPR/C/GBR/6, 18 May 2007, para. 214 (United Kingdom); UN Doc.
CCPR/C/DNK/5, 20 November 2007, paras. 5-55 (Denmark); UN Doc. CCPR/C/FIN/2003/5, 24
July 2003, paras. 86-93 (Finland).
68
be elaborated in paragraph 3.5.1.429 During the last decade the right
to self-determination of indigenous peoples also received the
attention of the Human Rights Committee.430
A last point that needs to be addressed is the reaction of the Human
Rights Committee to the reservation India made when it acceded to
the International Human Rights Covenants, which was discussed in
paragraph 3.3.1. First, it must be noted that the Committee has
questioned India on this reservation, has expressed the view that it
considers it contrary to the object and purpose of the Covenant and
has continuously urged India to withdraw it.431 Secondly, in General
Comment 24 on reservations, the Committee has stated that even
though reservations are permitted by Article 19(3) of the Vienna
Convention, they may not be contrary to the object and purpose of
the treaty.432 Applying the object and purpose test to the Covenant,
the Committee has noted that
‘[a] reservation to article 1 denying peoples the right to determine their own
political status and to pursue their economic, social and cultural
development, would be incompatible with the object and purpose of the
433
Covenant’.
With this statement, it seems the Committee implicitly referred to the

reservation India made to Article 1. The Committee’s reaction to
India’s reservation thus lends support to the proposition that self-
determination is not confined to colonial situations, but instead
applies to all peoples living within sovereign, independent States.
On the basis of the foregoing analysis it can be concluded that the
Human Rights Committee has endorsed the view that self-
determination is applicable outside the colonial context and that in
the last few decades, the Committee has been mainly concerned with
the internal aspect of self-determination. Likewise, States have also
established a link between internal self-determination, human rights
and political participation and have considered it applicable to their
own population.
429
430
S. Errico, ‘The Draft UN Declaration on the Rights of Indigenous Peoples: An Overview’,
Human Rights Law Review, Vol. 7, 2007, p. 748. See, e.g. the Concluding Observations of the
Human Rights Committee: UN Doc. CCPR/C/79/Add.105, 7 April 1999 (Canada); UN Doc.
CCPR/C/79/Add.112, 1 November 1999 (Norway); UN Doc. CCPR/C/BRA/CO/2, 2 November
2005 (Brazil); and UN Doc. CCPR/C/CAN/CO/5, 27 October 2005 (Canada).
431
Smis, supra note 14, pp. 426-428. See e.g. Concluding Observations of the Human Rights
Committee, 4 August 1997, UN Doc CCPR/C/79/Add.81.
432
Human Rights Committee, General Comment 24, Issues relating to reservations made upon
ratification or accession to the Covenant or the Optional Protocols thereto, or in relation to
declarations under article 41 of the Covenant, 52nd sess., 1994, available at
<http://www.ohchr.org>, para. 6.
433
Ibid., para. 9.
69
3.4.6 The Committee on the Elimination of Racial Discrimination
Regardless of the fact that there is no reference to self-determination

in the International Convention on the Elimination of All Forms of
Racial Discrimination, the Committee on the Elimination of Racial
Discrimination has issued a General Recommendation on the right to
In paragraph 4 the Committee observed that
‘[i]n respect of the self-determination of peoples two aspects have to be

distinguished. The right to self-determination of peoples has an internal
aspect, that is to say, the rights of all peoples to pursue freely their
economic, social and cultural development without outside interference. In
that respect there exists a link with the right of every citizen to take part in
the conduct of public affairs at any level, as referred to in article 5 (c) of the
International Convention on the Elimination of All Forms of Racial
Discrimination. In consequence, Governments are to represent the whole
population without distinction as to race, colour, descent or national or
ethnic origin. The external aspect of self-determination implies that all
peoples have the right to determine freely their political status and their
place in the international community based upon the principle of equal
rights and exemplified by the liberation of peoples from colonialism and by
the prohibition to subject peoples to alien subjugation, domination and
435
exploitation.’
With this statement, the Committee not only pointed out that the
internal aspect of self-determination is linked with the right to
political participation and that discrimination of certain groups within
a State would thus violate this right, it also made a far-reaching
statement on external self-determination. Moreover, the Committee
unequivocally pointed out that self-determination continues to be
applicable beyond decolonisation. The existence of a post-colonial
right of external self-determination will be examined in greater detail
in the following Chapter.
3.4.7 The African Commission on Human and Peoples’ Rights
Even though initially self-determination, as proclaimed in the African

Charter, was primarily associated with decolonisation, during the last
two decades the African Commission on Human and People’s Rights
has given more attention to internal self-determination.436 According
434
General Recommendation No. 21, 48th sess., 1996, available at <http://www.ohchr.org>.
435
(emphasis added).
436
Smis, supra note 14, p. 176, note 29. Also Raič, supra note 7, p. 247. See e.g. the
Resolution on Nigeria, adopted by the Commission at its 16th sess., 25 Oct.-3 Nov. 1994,
Banjul, The Gambia, ‘[calling] upon the Nigerian military government to respect the right of
free participation in government and the right to self-determination and hand over the
government to freely elected representatives of the people without unnecessary delay’. See
also the Resolution on the Gambia, which was adopted during the same session. Both
resolutions are available at <http://www.achpr.org>. See also R. Murray, The African
70
to the Guidelines for National Periodic Reports issued by the African
Commission, States’ parties must inform the Commission on
‘legislative and administrative machinery that exists to give effect to the

provisions of the article, namely that [a]ll communities are allowed full
participation in political activities and are allowed equal opportunities in the
economic activities of the country both of which should be according to the
437
choices they have made independently.’
The internal dimension of self-determination has also been observed

by States’ parties.438
The Commission’s observations in the case of Katangese Peoples’
Congress v. Zaire lend support to the proposition that ethnic
subgroups are entitled to internal self-determination.439 The
Katangese Peoples’ Congress had turned to the Commission to seek
endorsement of its liberation struggle and to find support for its wish
to achieve independence from Zaire, because according to the
Congress, the Katangese People had not been able to exercise its
right of self-determination.440
First, the Commission took note of the fact that ‘[t]he issue in the
case is not self-determination for all Zaireans as a people but
specifically for the Katangese’ and concluded that ‘prima facie the
Katangese constituted a people for the purpose of self-
determination’.441 The Commission went on to observe that
‘self-determination may be exercised in any of the following ways:

independence, self-government, local government, federalism,
confederalism, unitarism or any other form of relations that accords with the
wishes of the people but fully cognizant of other recognized principles such
442
as sovereignty and territorial integrity’.
As there was no ‘evidence that the people of Katanga are denied the
right to participate in Government as guaranteed by Article 13 (1) of
the African Charter’, Katanga was ‘obliged to exercise a variant of
self-determination that is compatible with the sovereignty and
Commission on Human and Peoples Rights and International Law, Oxford: Hart Publishing
2000, pp. 104-109.
437
Guidelines for National Periodic Reports, Human Rights Law Journal, Vol. 11, 1990, p. 417,
(emphasis added).
438
Raič, supra note 7, p. 247, note 85, quoting the First and Second Periodic State Report of
Senegal, 1992, The African Commission on Human and Peoples’ Rights, Examination of State
Reports, 12th session, Oct. 1992: Gambia, Zimbabwe and Senegal, App.II. And quoting the
statements by the representatives of Gambia during the examination of the State Report of
Gambia, The African Commission on Human and Peoples’ Rights, Examination of State
Reports, 12th session, Oct. 1992, pp. 17 and 21-22.
439
Raič, supra note 7, p. 255, quoting the African Commission on Human and Peoples’ Rights,
Communication No. 75/92, Katangese Peoples’ Congress v. Zaire, Decision taken at its 16th
Session, Banjul, The Gambia, 1994.
440
Ibid., p. 256.
441
Ibid.
442
Ibid.
71
territorial integrity of Zaire.’443 This case will be discussed further in
the next Chapter on Secession. However it is important to note the
Committee’s reference to the internal dimension of self-determination
and its identification of ethnic subgroups as holders of the right.
After having discussed the views of several human rights treaty
bodies, the next paragraph will focus on yet another United Nations
instrument containing a provision on self-determination, the Vienna
Declaration of 1993.
3.4.8 1993 Vienna Conference on Human Rights
The World Conference on Human Rights, held in Vienna in 1993 was

both a ‘Nightmare’ and a ‘Noble Dream’.444 At the end of the
Conference 160 UN Member States agreed to adopt the ‘Vienna
Declaration and Programme of Action’.445 The Declaration reflects the
general trend of the early nineties, establishing a link between human
rights, democracy and internal self-determination.446 In part I,
paragraph 8 of the Declaration it is stated that
‘Democracy, development and respect for human rights and fundamental

freedoms are interdependent and mutually reinforcing. Democracy is based
on the freely expressed will of the people to determine their own political,
economic, social and cultural systems and their full participation in all
aspects of their lives. In the context of the above, the promotion and
protection of human rights and fundamental freedoms at the national and
international levels should be universal and conducted without conditions
attached. The international community should support the strengthening
and promoting of democracy, development and respect for human rights
447
and fundamental freedoms in the entire world.’
One cannot help but notice the similarity between this paragraph and
what has been identified in this Chapter as the internal aspect of self-
determination.448 The right of self-determination itself is provided for
in paragraph 2 of the Declaration.449
443
444
S. Marks, ‘Nightmare and Noble Dream: The 1993 World Conference on Human Rights’,
Cambridge Law Journal, Vol. 53, 1994, pp. 54-62.
445
Vienna Declaration, supra note 348. Smis, supra note 14, p. 144. The General Assembly
endorsed the Declaration in UN Doc. A/Res/48/121, 20 Dec. 1993. Since the adoption of the
Declaration many General Assembly resolutions on self-determination have mentioned the
Vienna Declaration. For the most recent example, see UN Doc. A/Res/62/146, 18 December
2007. See also the Preamble of the United Nations Declaration on Indigenous Peoples, adopted
by the General Assembly on 13 September 2007, available at <http://www.un.org>.
446
447
Vienna Declaration, supra note 348, (emphasis added).
448
449
According to paragraph 2 ‘[a]ll peoples have the right of self-determination. By virtue of
that right they freely determine their political status, and freely pursue their economic, social
and cultural development. Taking into account the particular situation of peoples under colonial
or other forms of alien domination or foreign occupation, the World Conference on Human
Rights recognizes the right of peoples to take any legitimate action, in accordance with the
72
The first part of paragraph 2 literally repeats common Article 1(1) of
the two Human Rights Covenants.450 The rest of the paragraph
emphasises the ‘traditional’ aspects of self-determination, referring to
‘the particular situation of colonial peoples’ and the right to territorial
integrity.451 However, the paragraph also recognises a right of self-
determination outside the colonial context. First it must be noted that
according to this paragraph, the Conference considers ‘the denial of
the right of self-determination a violation of human rights’. As stated
before, there is no reason to assume that human rights would only
apply to colonial peoples. Second, the Vienna Declaration not only
recalls the Friendly Relations Declaration, it also connects the right of
self-determination and representative government using similar
language.452
Therefore, it can be concluded that the Vienna Declaration
acknowledges that the right of self-determination applies to all
peoples within a State, not only colonial peoples or peoples subject to
alien domination or occupation. Whereas both the Friendly Relations
Declaration and the Vienna Declaration link representative
government with self-determination, the latter is more ‘progressive’,
because it requires States to have a representative government
‘without distinction of any kind’.453 On the basis of this phrase it may
even be argued that the right of self-determination also applies to
minorities.454 This argument will be discussed further in paragraph
3.5.1. The following paragraph will discuss the application of the right
of self-determination to a very specific group of peoples within
independent States, i.e. indigenous peoples.
3.4.9 Declaration on the Rights of Indigenous Peoples 2007
The adoption of the United Nations Declaration on the Rights of

Indigenous Peoples by the UN General Assembly on 13 September
2007 not only represents a significant development as regards the
protection of the rights of indigenous peoples, it has also contributed
to the acknowledgment and clarification of the right of self-
Charter of the United Nations, to realize their inalienable right of self-determination. The World
Conference on Human Rights considers the denial of the right of self-determination as a
violation of human rights and underlines the importance of the effective realization of this
right. In accordance with the Declaration on Principles of International Law concerning Friendly
Relations and Cooperation Among States in accordance with the Charter of the United Nations,
this shall not be construed as authorizing or encouraging any action which would dismember or
impair, totally or in part, the territorial integrity or political unity of sovereign and independent
States conducting themselves in compliance with the principle of equal rights and self-
determination of peoples and thus possessed of a Government representing the whole people
belonging to the territory without distinction of any kind’, (emphasis added).
450
451
452
453
Ibid. See also Raič, supra note 7, p. 273.
454
Smis, supra note 14, p. 146. See also Raič, supra note 7, p. 255.
73
determination ‘outside traditional contexts’.455 The right of self-
determination is one of the key rights proclaimed in the Declaration
and, as a result of this, the drafting process took a significant amount
of time and has been quite difficult.456 Most of the discussion focussed
on whether indigenous groups were actually ‘peoples’.457 Another
important point of discussion was the content and the scope of the
right of self-determination in relation to indigenous peoples.458
As regards the first question, it must be noted that the drafters of the
Declaration were not able to agree on a definition of the term
‘peoples’.459 On the one hand, indigenous peoples have argued ‘that
they are peoples in the sense used by other United Nations
instruments’.460 State representatives, on the other hand, have tried
to ‘narrow down the meaning of the term “peoples” with a view of
preventing the appeal to the right of self-determination’.461 The
455
C.E. Foster, ‘Articulating Self-determination in the Draft Declaration on the Rights of
Indigenous Peoples’, European Journal of International Law, Vol. 12, No. 1, 2001, pp. 141.
According to Foster ‘in different situations self-determination has had different meanings’. She
recognises three specific contexts: ‘the self-determination of colonial or dependent peoples and
of peoples under alien domination or foreign occupation; the self-determination of racial
groups suffering oppression [e.g. apartheid]; and the ongoing self-determination of the whole
population of a state’. Ibid., p. 143. It seems that the first two of the categories Foster
mentions (‘colonial’ and ‘racial’ self-determination) can be considered traditional. Hilpold, supra
note 173, p. 266 also refers to ‘the need of a contextual reading of the right to self-
determination’. See generally, Errico, supra note 421, p. 755. Also S. Errico, ‘The UN
Declaration on the Rights of Indigenous Peoples is Adopted: An Overview’, Human Rights Law
Review, Vol. 7, 2007, p. 756. The Declaration was adopted by a majority of 144 states in
favour, 4 votes against (Australia, Canada, New Zealand and the United States) and 11
abstentions (Azerbaijan, Bangladesh, Bhutan, Burundi, Colombia, Georgia, Kenya, Nigeria,
Russian Federation, Samoa and Ukraine). See <http://www.un.org>.
456
C.M. Brölman & M.Y.A. Zieck, ‘Some Remarks on the Draft Declaration on the Rights of
Indigenous Peoples’, Leiden Journal of International Law, Vol. 8, 1995, p. 104. Summers,
supra note 59, p. 243. In 1982 the Working Group on Indigenous Populations was established
under the UN Sub-Commission on the Prevention of Discrimination and Protection of Minorities.
According to Errico, supra note 421, p. 742, note 7 ‘[i]t is worth noting the use of the word
‘populations’ instead of ‘peoples’ which reflected States’ fears about the implications potentially
flowing from the definition of indigenous groups as ‘peoples’, in particular, regarding the
principle of self-determination’. In 1993 the Working Group had managed to agree on a draft
declaration and in 1994 the Sub-Commission approved of this draft. Subsequently the draft
was presented to the Commission on Human Rights and another Working Group was
established. This Working Group continued working on the draft Declaration until the beginning
of 2006. In June 2006, the draft Declaration was adopted by the Human Rights Council
(replacing the Commission on Human Rights), after which it was presented to the Third
Committee of the General Assembly. Following another round of discussions the Declaration
was finally adopted by the General Assembly during its 61st session in 2007. Summers, supra
note 59, p. 243. See also Errico, supra note 421, pp. 743-745. It is important to note that
representatives of indigenous groups and organisations took part in the drafting process of the
Declaration.
457
458
Ibid.
459
460
Ibid. See, e.g., Annex II, Proposals by Indigenous Representatives, Explanatory Note on the
Use of the Term Indigenous ‘Peoples’, E/CN.4/2001/85, p. 32, available at
461
74
Working Group took the indigenous peoples point of view,462 and in
Article 2 of the Declaration it is stated that
‘[i]ndigenous peoples and individuals are free and equal to all other peoples
and individuals and have the right to be free from any kind of
discrimination, in the exercise of their rights, in particular that based on
463
their indigenous origin or identity’.
Despite the lack of a definition of the term ‘peoples’, the Working

Group has used the definition developed by Martinez Cobo and
identified five criteria to determine whether a people can be
considered indigenous.464
The second hurdle in the discussion between State representatives
and indigenous representatives was the meaning of the right of self-
determination and its scope.465 According to Article 3 of the
Declaration
‘[i]ndigenous peoples have the right to self-determination. By virtue of that

right they freely determine their political status and freely pursue their
economic, social and cultural development’.
There is no doubt that this provision was inspired by Article 1 (1) of

the International Human Rights Covenants.466 Article 4 of the
Declaration explains in greater detail the content of the right to self-
determination of indigenous peoples, stating that
‘[i]ndigenous peoples, in exercising their right to self-determination, have

the right to autonomy or self-government in matters relating to their
internal and local affairs, as well as ways and means for financing their
autonomous functions’.
462
Ibid. According to the Working Group ‘[i]ndigenous peoples are unquestionably ‘peoples’ in
every political, social, cultural and ethnological meaning of this term. They have their own
specific languages, laws, values and traditions; their own long histories as distinct societies
and nations; and a unique economic, religious and spiritual relationship with the territories in
which they have lived. It is neither logical nor scientific to treat them as the same ‘peoples’ as
their neighbours, who obviously have different languages, histories and cultures. The United
Nations should not pretend, for the sake of a convenient legal fiction, that those differences do
not exist.’ UN Sub-Commission on the Prevention and Protection of Minorities, Discrimination
against Indigenous Peoples. Explanatory note concerning the draft declaration on the rights of
indigenous peoples, UN Doc. E/CN.4/Sub.2/1993/26/Add.1, paras. 7-8, available at
463
(emphasis added).
464
Smis, supra note 14, p. 149. See Martinez Cobo, Study on the Problem of Discrimination
against Indigenous Populations, Vol. 5, UN Doc. E/CN.4/Sub.2/1986/7/Add.4, paras. 379-380,
available at <http://www.un.org>. The five criteria are: (1) traditional lands, (2) historical
continuity, (3) distinct cultural characteristics , (4) non-dominance, and (5) self-identification
and group consciousness. See UN Doc. E/CN.4/Sub.2/AC.4/1995/3, available at
465
466
Technical Review of the United Nations Draft Declaration on the Rights of Indigenous
Peoples: Note by the Secretariat, UN Doc. E/CN.4/Sub.2/1994/2, p. 7, para. 30, available at
75
During the discussions on self-determination, many State
representatives questioned whether the right of self-determination as
proclaimed in various treaties and UN instruments had developed into
a rule of customary law, reaching beyond the colonial context.467 Even
though some States were willing to acknowledge a right of self-
determination for indigenous peoples, they tried to limit the scope of
the right by excluding its external dimension and stating that it only
meant autonomy or internal self-government, as provided for in
Article 4.468
First of all, it must be noted that autonomy and internal self-
government may be considered examples of possible means of
exercising the right of self-determination rather than a limitation of
the right as such.469 Moreover, indigenous representatives pointed out
that according to a number of international instruments, the right of
self-determination belongs to all peoples470 and that ‘[t]he Human
Rights Committee […] had already recognised indigenous peoples’
right to self-determination’.471 Any attempt to limit the scope of the
right would thus not only be unlawful, it would also be
discriminating.472
Professor Daes, Chairperson of the Working Group on Indigenous
Populations, has written a very insightful explanatory note to the
Draft Declaration, in which she points out that self-determination as a
‘continuing dynamic right’ has ‘taken on a new meaning in the post-
colonial era’.473 According to Professor Daes, the post-colonial right of
467
Summers, supra note 59, p. 247. See e.g. E/CN.4/Sub.2/1993/29, p. 17, para. 52,
available at <http://www.un.org>, (New Zealand): ‘[A] distinction could be made between the
right of self-determination as it currently existed in international law, a right which developed
essentially in the post-Second World War era and which carried with it a right of secession, and
a proposed modern interpretation of self-determination within the bounds of a nation-State,
covering a wide range of situations but relating essentially to the right of a people to
participate in the political, economic and cultural affairs of a State on terms which meet their
aspirations and which enable them to take control of their own lives.’ See also the statement
by the Australian Government during the 1993 session of the Working Group: ‘[r]ealization of
the right of self-determination is not limited in time to the process of decolonization nor is it
accomplished solely by a single act or exercise. Rather it entails the continuing right of all
peoples and individuals within each state to participate fully in the political process by which
they are governed.’ Quoted by G. Alfredsson, ‘The Right of Self-Determination and Indigenous
Peoples’, in: C. Tomuschat (ed.), Modern Law of Self-Determination, Dordrecht: Martinus
Nijhoff Publishers 1993, p. 51.
468
Summers, supra note 59, p. 247. See e.g. the statements of Columbia, E/CN.4/1997/102,
p. 59, para. 312 and Finland, E/CN.4/2001/85, p. 13, para. 76.
469
470
Summers, supra note 59, p. 249. See, e.g. statements by the National Aboriginal and
Islander Legal Services, E/CN.4/Sub.2/1993/29, p. 18, para. 58 and by the International Work
Group for Indigenous Affairs, E/CN.4/2000/84, p.13, para.76.
471
Summers, supra note 59, p. 249. See e.g. Saami Council, E/CN.4/2000/84, p. 12, para. 71
and E/CN.4/2001/85, p.18, para. 105.
472
Summers, supra note 59, p. 249. See e.g. World Council of Indigenous Peoples,
E/CN.4/1995/WG.15/4, p. 9, para. 6.
473
Professor Daes concludes that ‘[s]elf-determination’ is a continuing dynamic right, in the
sense that it can be reawakened if, at any moment, representative democracy fails and no
76
self-determination is internal rather than external, and mainly
requires representative government and ‘democratic power
sharing’.474 During the drafting process of the Declaration members of
the Working Group have also discussed internal self-determination, in
particular the right of political participation.475 Article 5 of the
Declaration provides another example of how indigenous peoples may
exercise their right of self-determination:
‘Indigenous peoples have the right to maintain and strengthen their distinct
political, legal, economic, social and cultural institutions, while retaining
their right to participate fully, if they so choose, in the political,
476
economic, social and cultural life of the State.
On the basis of the foregoing analysis, the following observations can

be made. First of all, the acknowledgement of a right of self-
determination for indigenous peoples provides another example of the
continued relevance of the right outside the colonial context. Second,
the Declaration not only stresses the internal aspect of self-
determination, it also provides an ‘innovative’ example of how self-
determination may be exercised.477 Article 4 of the Declaration refers
to autonomy as a right of indigenous peoples.478 Thirdly, the
Declaration indicates that ‘ethnic subgroups’ may also be entitled to
internal self-determination.479 Fourth, despite the fact that the
alternatives exist for the defence of fundamental rights and freedoms. The concept of ‘self-
determination’ has accordingly taken on a new meaning in the post-colonial era. Ordinarily, it
is the right of citizens of an existing, independent State to share power democratically.
However, a State may sometimes abuse this right of its citizens so grievously and irreparably
that the situation is tantamount to classic colonialism, and may have the same legal
consequences. The international community and the present writer discourage secession as a
remedy for the abuse of fundamental rights, but, as recent events around the world
demonstrate, secession cannot be ruled out completely in all cases. The preferable course of
action, is to encourage the State in question to share power democratically with all groups,
under a constitutional formula that guarantees that the Government is ‘effectively
representative’. Explanatory note, supra note 453, at pp. 4-5.
474
Ibid.
475
Foster, supra note 446, p. 151. According to Canada ‘self-determination is now seen by
many as a right which can continue to be enjoyed in a functioning democracy in which citizens
participate in the political system and have the opportunity to have input in the political
processes that effect them’. Statement of Canada to the CHR intersessional working group,
October 1999 (emphasis added). Norway was of the opinion that ‘the right to self-
determination includes the right of indigenous peoples to participate at all levels of decision-
making in legislative and administrative matters and the maintenance and development of
their political and economic systems.’ Statement of Norway to the CHR intersessional Working
Group, October 1999 (emphasis added). Both quoted by Foster, supra note 446, p. 151.
476
(emphasis added). With respect to internal self-determination, see also Article 18, stating
that ‘[i]ndigenous peoples have the right to participate in decision-making in matters which
would affect their rights, through representatives chosen by themselves in accordance with
their own procedures, as well as to maintain and develop their own indigenous decision-
making institutions. (emphasis added).
477
478
Errico, supra note 421, p. 749.
479
Raič, supra note 7, p. 258, note 134. According to Raič, ‘[t]he Declaration has been drafted
from the perspective of indigenous peoples as subgroups within a State, that is, as a specific
category of ‘peoples’ and as such entitled to self-determination of peoples.’ See e.g. the
77
majority of indigenous peoples do not have secessionist
aspirations,480 Article 46 (1) stresses the territorial integrity or
political unity of sovereign and independent States.481 Thus, it may be
concluded that the Declaration has made an important contribution to
the development of the right of self-determination in the post-colonial
era, despite the fact that it is not a legally binding instrument.482
3.4.10 Statements by States
While the previous paragraphs have identified ‘the continuing

character of self-determination’ in several instruments, the
pronouncements of the International Court of Justice, the practice of
the Human Rights Committee, the Committee on the Elimination of
Racial Discrimination and the African Commission on Human and
Peoples’ Rights, a number of States have also made statements
expressing opinio iuris on the existence of the right outside the
colonial context.483 Speaking on behalf of the European Community
and its member States, the United Kingdom made the following
statement:
‘[o]n the question of self-determination, the Twelve fully recognize that

right, the exercise of which is an ongoing process and is indissociable from
484
the other provisions of the [Human Rights Covenants].
According to the United Kingdom
‘self-determination is not a one-off exercise. It cannot be achieved for any

485
people by one revolution […]. It is a continuous process’.
Another statement on behalf of the member States of the European

Community was made by Greece
‘[t]he fundamental right of self-determination was violated either by

[colonialism], by the existence of a racist regime such as South Africa’s or
Explanatory Note, supra note 453, para. 23, according to which ‘[i]ndigenous peoples have the
right to self-determination in accordance with international law, subject to the same criteria
and limitations as applied to other peoples in accordance with the Charter of the United
Nations’.
480
Thornberry, supra note 350, p. 130. Summers, supra note 59, p. 250. See also
E/CN.4/1996/84, p. 11, para. 47.
481
Despite this provision, indigenous peoples may have a customary right to secession under
international law. This point will be elaborated further in the next Chapter.
482
Errico, supra note 421, p. 755.
483
484
Ibid. See UN GAOR, 47th sess., Third Committee, A/C.3/47/SR.3, 5 Oct. 1992, para. 22,
available at <http://www.un.org>.
485
Statement of the Representative of the United Kingdom to the Third Committee of the
General Assembly, 12 October 1984, British Yearbook of International Law, Vol. 55, 1984, p.
432.
78
by foreign intervention of occupation, or by denying people regular
486
opportunities to choose their governments and social systems freely’.
More recent statements in support of a post-colonial right of self-

determination have been made in the context of Kosovo’s declaration
of independence. Burkina Faso, for example, recognised the
independence of Kosovo
‘[r]éaffirmant l’importance de l’égalité entre les peuples et de leur droit

487
naturel à disposer d’eux-mêmes’.
Recognizing Kosovo’s independence, Albania made the following

statement:
‘The Government of Republic of Albania considers the creation of the State

of Kosovo as a historical event, sanctioning the right of Kosovo citizens for
488
self-determination […].’
During a meeting of the Security Council on the situation in Georgia,

the representative of the Russian Federation noted that
‘It is necessary to emphasize that, in accordance with the [Friendly

Relations] Declaration, every State must refrain from any violent actions
that might deprive people of their right to self-determination, freedom and
independence. The actions of States must also comply with the principles of
equality and the self-determination of peoples. States must also have
governments that represent all the people living on their territory. There can
be no doubt that Saakashvili’s regime in no way complies with those high
489
standards established by the international community’.
In the context of Israel’s recent attack on Gaza, the representative of

Qatar made the following statement during a meeting of the Security
Council:
‘Arab States and other peace-loving countries of the world were unanimous
in expressing their solidarity with the Palestinian people in connection with
their suffering as a result of Israel’s brutal occupation and recent attack on
Gaza, and well as in standing by Palestinians in their just struggle to achieve
their legitimate and inalienable rights, in particular their right to
independence, self-determination and statehood on their own national soil,
490
with Jerusalem as its capital.
486
Statement of Greece on behalf of the members of the EC, UN GAOR, 43rd sess., Third
Committee, A/C.3/43/SR.4, 10 Oct. 1988, p. 8, para. 30, available at <http://www.un.org>.
487
Declaration de Reconnaissance de l’Etat du Kosovo, fait à Ouagadougou, le 23 avril 2008,
available at <http://www.kosovothanksyou.com>.
488
Statement of Prime Minister of Albania Mr. Sali Berisha on Recognition of Independence of
Kosova, 18 February 2008, available at <http://www.keshilliministrave.al>.
489
Statement of Mr. Churkin (Russian Federation), UN Doc. S/PV/5969, 28 August 2008, p. 9,
available at <http://www.un.org>, (emphasis added).
490
Statement of Mr. Al-Mahmoud (Qatar), UN Doc. S/PV/6061, 6 January 2009, p. 33,
available at <http://www.un.org>, (emphasis added).
79
These are but a few examples of States that have recognised the
existence of the right of self-determination outside the colonial
context. It must also be noted that these statements refer to both the
internal and external dimension of self-determination. The following
paragraphs will focus more closely on the beneficiaries, the content
and status of self-determination and its relation to other human rights
and principles of international law.
3.5 Analyzing Self-Determination in the Post-Colonial

Context
3.5.1 The People
The previous Chapter has shown that, in the colonial context, the
beneficiaries of the right of self-determination have mostly been
defined using a territorial criterion. According to this point of view the
right of self-determination applied to ‘[t]he entire population of a
colony or other dependent territory’.491 In post-colonial situations
however, it is not so easy to determine who is entitled to self-
determination.492 In the previous paragraphs it has been argued that
self-determination cannot be limited to the period of
decolonisation.493 Therefore, Raič has argued that
‘the particular application of self-determination during that historical period

must be seen as the application of a general rule in a specific context, not
494
as a limitation of the right ratione personae’.
Outside the colonial context, several definitions of the term ‘people’

can be distinguished. First of all, according to ‘the representative
government definition’495
‘self-determination is an ongoing and universal right whereby the population

of a given territorial unit exercises popular sovereignty in the choice of its
496
government’.
491
Raič, supra note 7, p. 243. Smis, supra note 14, p. 155. Werner, supra note 179, p. 176.
See, however, Pomerance, supra note 6, p. 19, stating that ‘UN practice has been far less
consistent than is assumed in this respect’.
492
493
Raič, supra note 7, p. 243. See also Musgrave, supra note 14, p. 151, who after a textual
analysis of Article 1 (2) of the UN Charter, the Friendly Relations Declaration and Article 1 of
the International Human Rights Covenants refers to United Nations practice and concludes that
‘the term “people” […] cannot be limited to colonial situations’.
494
Raič, supra note 7, p. 243. Hilpold, supra note 173, p. 266 and Foster, supra note 446, p.
143 also refer to the need of a contextual reading of the right to self-determination. See also
the Expert opinion by Franck, Higgins, Pellet, Shaw and Tomuschat, supra note 5, pp. 241-
303, para. 1.17 and 3.07.
495
496
Ibid.
80
This phrase clearly defines a people as ‘the entire population of a
territorial unit’, regardless of whether it is dependent or
independent.497 Support for this definition can be found in Paragraph
7 of Principle V of the Friendly Relations Declaration and in Article
1(1) of the two International Human Rights Covenants.498 According
to Rosalyn Higgins self-determination ‘refers to the right of the
majority within a generally accepted political unit to the exercise of
power.’499 Principle VIII of the Helsinki Declaration also lends support
to ‘the representative government definition’ of peoples.500 However,
this definition ignores the ethnic, linguistic, cultural and religious
differences between populations within a certain territory, which
brings us to ‘the ethnic definition’ of a people.501
Whereas it has been argued that outside the colonial context the
international community does not recognise ethnic, linguistic or
religious groups as holders of the right of self-determination,502 post-
colonial State practice indicates that the term ‘people’ may also apply
to ‘the highest constituent units of federal States in the process of
dissolution’, at least if these units have been formed on an ethnic
basis.503 Furthermore, the 1993 Vienna Declaration ‘reinforces’ the
conclusion that according to Paragraph 7 of Principle V of the Friendly
Relations Declaration the right of internal self-determination applies
at least to racial and ethnic groups within independent States.504
Moreover, the African Commission on Human Rights has identified
ethnic subgroups as holders of the right of internal self-determination
in the case of the Katangese Peoples’ Congress v. Zaire.505 The
Supreme Court of Canada506 and the Constitutional Court of the
Russian Federation507 both agreed with this point of view.
Many international lawyers hold the opinion that subgroups, including
ethnic groups within independent States, are entitled to internal self-
determination.508 Additional support for this position can be found
497
Ibid.
498
Ibid. See also the previous paragraphs, explaining common Article 1 of the International
Human Rights Covenants and the Friendly Relations Declaration.
499
Higgins, supra note 112, p. 104.
500
501
Ibid.
502
Quane, supra note 177, p. 570-571, stating that this ‘has been counterbalanced […] by the
adoption of international instruments on minority rights.
503
Ibid., p. 571. See e.g. the reaction of the international community to the events in the
former Soviet Union and Yugoslavia. According to Quane, supra note 177, p. 571 however,
State practice on this subject is ‘limited and equivocal’.
504
505
Katangese Peoples’ Congress v. Zaire, supra note 430. Raič, supra note 7, p. 255.
506
Reference re Secession of Quebec, supra note 345, p. 495. (‘[i]t is clear that a ‘people’ may
include only a portion of the population of an existing state’).
507
Tartastan case, Constitutional Court of the Russian Federation, Judgment, 13 March 1992,
translated in: ‘Statutes and Decisions, The Laws of the USSR and Its Successor States’, Vol.
30, No. 3, May-June 1994, pp. 32-44, quoted by Raič, supra note 7, p. 256-257, note 130.
508
See e.g. I. Brownlie, ‘The Rights of Peoples in Modern International Law’, in: J. Crawford
(ed.), The Rights of Peoples, 1988, p. 5; Buchheit, supra note 8, pp. 9-11, 14; T.M. Franck,
‘The Emerging Right to Democratic Governance’, American Journal of International Law, Vol.
81
within the United Nations509 and within the European context.510 State
practice also indicates that ethnic subgroups have been recognised as
holders of the right of self-determination.511 Raič has identified the
following criteria to define a people in an ethnic sense:
‘(1) a group of individual human beings who enjoy some or all of the
following features:
(a) a (historical) territorial connection, on which territory the group forms

a majority;
(b) a common history;
(c) a common ethnic identity or origin;
(d) a common language;
(e) a common culture;
(f) a common religion or ideology;
86, 1992, p. 59; Hannum, supra note 42, pp. 35-39; and J. Klabbers and R. Lefeber, ‘Africa:
Lost Between Self-Determination and Uti Possidetis’, in: C. Brölman et al. (eds.), Peoples and
Minorities in International Law, Dordrecht: Martinus Nijhoff Publishers 1993, pp. 38-42.
509
See e.g. UN Doc. A/Res/441 (V) 2 December 1950 (the Ewe tribe in West Africa); UN Doc.
A/Res/1723 (XVI), 20 December 1961 (Tibetans); UN Doc. S/Res/724, 15 December 1991,
para. 7, urging ‘all States and parties to refrain from any action which might contribute to
increasing tension […] and to impeding or delaying a peaceful and negotiated outcome to the
conflict in Yugoslavia which would permit all the peoples of Yugoslavia to decide upon and to
construct their future in peace’. (emphasis added). The UN Declaration on Indigenous Peoples
also ‘strongly supports the position that ethnic subgroups must be regarded as holders of the
right of internal self-determination’. Raič, supra note 7, p. 258, note 134.
510
EC Declaration on the Situation in Yugoslavia, 5 July 1991, quoted by Raič, supra note 7, p.
237, note 39; Council of Europe, Parliamentary Assembly Resolution 233, 22 April 1997
(Abkhazia); and Vienna Declaration, CSCE Parliamentary Assembly, 8 July 1994, para. 21,
calling upon the Council of Ministers ‘to place discussion of self-determination and the related
issues of territorial integrity and the stability of States on the agenda of the Permanent
Committee, with a view to defining the reasonable limits to the pursuit of self-determination
and setting guidelines so as to enable the territories where different national groups exist to
implement innovative forms of self-government and guarantee, at the institutional level, the
maintenance and development of the linguistic-cultural identities in those territories’, quoted
by ibid, p. 258, note 135, (emphasis added).
511
Raič, supra note 7, p. 258, note 136. See e.g. the numerous territorial autonomy
arrangements for ethnic sub-groups in Colombia, Denmark (Greenland), Ethiopia, France
(Corsica), India (Nagaland), Indonesia (Aceh and West Papua), Moldova (Gagauzia), Norway
(Sami), Russia (Tartastan and Bashkortostan), the Philippines (Mindanao), South Africa, the
Sudan, and the United Kingdom (Scotland and Wales). See also ‘federal state forms in which
the administrative division of the country is essentially based on ethnic considerations, such as
Russia, [the former] Federal Republic of Yugoslavia and Ethiopia’. See also ‘the willingness of
States to grant territorial political autonomy to peoples within their territory’, e.g. Abkhazia
and South Ossetia. Ibid., p. 285-288. See also the State Party Reports under Article 40 of the
ICCPR, e.g. UN Doc. CCPR/C/GEO/3, 7 November 2006, paras. 23-42 (Georgia); UN Doc.
CCPR/C/ESP/5, 5 February 2008, paras. 18-19 (Spain); UN Doc. CCPR/C/RUS/6, 5 February
2008, paras. 1-5 (Russia); UN Doc. CCPR/C/USA/3, 28 November 2005, paras. 4-25 (United
States); UN Doc. CCPR/C/COL/2002/5, 18 September 2002, para. 495 (Colombia); UN Doc.
CCPR/C/BEL/2003/4, 16 May 2003, referring to HRI/CORE/1/Add.1/Rev.1, 6 April 1995
(Belgium); UN Doc. CCPR/C/DNK/5, 20 November 2007, paras. 5-55 (Denmark); and UN Doc.
CCPR/C/FIN/2003/5, 24 July 2003, paras. 86-93 (Finland). Smis, supra note 14, p. 417, also
notes that ‘autonomy in the context of self-determination brings us close to the suggestion
that states can be inhabited by more than one people’.
82
(2) the belief of being a distinct people distinguishable from any other
people inhabiting the globe, and the wish to be recognized as such, as well
512
as the wish to maintain, strengthen and develop the group’s identity.’
Consequently, any group within a State that meets these criteria

would be entitled to internal self-determination.513 In this respect it is
important to distinguish ‘peoples’ from ‘minorities’, because according
to the international instruments that have been discussed in the
previous paragraphs, only the former have the right of self-
determination.514 However, some authors have argued that a minority
can sometimes constitute a ‘people’.515 The most recent qualification
of the term peoples can be found in the United Nations Declaration on
the Rights of Indigenous Peoples.516 After having discussed the
beneficiaries of self-determination in non-colonial situations, the
following paragraph will examine the new meaning of the right.
3.5.2 The Content of Self-Determination
The previous paragraphs have pointed out that outside the colonial
context the emphasis has been put on internal self-determination
rather than external self-determination.517 Internal self-determination
refers to ‘the relationship between a people and “its own” State or
government’518 and may be defined as ‘a mode of implementation of
political self-determination which denotes a right of a people to
participate […] in the decision-making processes of the State’.519 A
majority of international lawyers agrees with this definition.520
512
Raič, supra note 7, p. 262, quoting amongst others Cristescu, supra note 117, pp. 40-41,
para. 279 and UNESCO, International Meeting of Experts on Further Study of the Concept of
the Rights of Peoples, Final Report and Recommendations, 22 February 1990, UN Doc. SHS-
89/CONF.602/7, pp. 7-8. See generally on the difficulty of identifying the ‘nations’ that possess
this right, Koskenniemi, supra note 186, pp. 262-264.
513
514
Ibid., pp. 265-266, note 165. See Article 1 and Article 27 of the ICCPR; Principle VII and
Principle VIII of the Helsinki Final Act 1975 of the CSCE; and the CSCE Charter of Paris of
1990. See Tomuschat, supra note 350, p. 15 and Human Rights Committee, General Comment
23, Art. 27, 50th sess., 1994, available at <http://www.un.org>.
515
See Raič, supra note 7, pp. 265-272. See also Musgrave, supra note 14, pp. 170-171.
516
United Nations Declaration on the Rights of Indigenous Peoples, adopted by the General
Assembly on 13 September 2007, available at <http://www.un.org>.
517
See e.g. Raič, supra note 7, p. 234. Also Smis, supra note 14, p. 415.
518
Thornberry, supra note 350, p. 101.
519
520
Ibid. See e.g., the Expert opinion by Franck, Higgins, Pellet, Shaw and Tomuschat, supra
note 5, p. 278, para. 3.07 according to whom ‘all peoples and parts of peoples are entitled to
the recognition of their identity and to participate in the expression of the political will within
the State’; Klabbers and Lefeber, supra note 499, p. 43, stating that ‘[i]n a multipeople state,
it means that each people should be given the opportunity to participate in the decision-
making process of the state’; Franck, supra note 499, p. 59 points out that ‘[self-
determination] now entitles peoples in all states to free, fair and open participation in the
democratic processes of governance freely chosen by each state’; Hannum, supra note 42, pp.
33-35; Buchheit, supra note 8, p. 16 refers to ‘the right of all groups in a State to influence
governmental behaviour in accordance with constitutional processes’; and Kooijmans, supra
83
However, it is important to note that there are many ways in which
internal self-determination, or ‘the right to participate’, can be
exercised.521 Participation can be either direct or indirect, e.g. through
‘representative’ government or devolution.522
As explained previously, both the Friendly Relations Declaration and
the Vienna Declaration have established a link between self-
determination and representative government.523 Still, the question
remains what ‘representative’ government actually means.524 There is
no doubt that a government that is representative cannot be
discriminatory.525 Moreover, it has been argued that ‘representative
government’ means ‘representative democratic government’.526 In
particular over the last two decades the term ‘representative
government’ has been interpreted as referring to ‘representative or
liberal democracy’.527 Some authors have even argued that there is
an ‘emerging right to democratic governance’.528
A detailed analysis of whether international law recognises a right to
democracy would be outside the scope of this thesis. However, a few
general points can be made. First of all, it is very unlikely that
‘representative government’ necessarily implies Western or liberal
democracy.529 The drafting history of the Friendly Relations
Declaration indicates that ‘representative government’ was not
intended to impose a specific type of government.530 Secondly, it is
important to note that in the Western Sahara case, the International
Court of Justice has stated that
note 9, pp. 162-164. According to the Explanatory note, supra note 453, para. 19, the right of
internal self-determination entitles ‘a people to choose its political allegiance, to influence the
political order in which it lives, and to preserve its cultural, ethnic, historical or territorial
identity’.
521
Raič, supra note 7, p. 237
522
Ibid., p. 239.
523
Ibid., p. 273.
524
Ibid.
525
Ibid.
526
Ibid., p. 273-274. See e.g. General Comment 25, supra note 418. Also R. Higgins,
‘International Law and the Avoidance, Containment and Resolution of Disputes’, Hague Recueil,
1991 V, pp. 165-166.
527
528
Franck, supra note 499. See also B. Boutros-Ghali, ‘An Agenda for Democratization’,
Supplement to the Reports A/50/332 and A/51/512 on Democratization, 17 December 1996.
See generally, G.H. Fox and B.R. Roth (eds.), Democratic Governance and International Law,
Cambridge: Cambridge University Press 2000.
529
Raič, supra note 7, pp. 275-276. According to ibid., p. 275, ‘the classical Western
conception of democracy’ implies ‘representative legislative bodies acting under procedures of
majority rule, freely elected under universal suffrage, competition for office, periodic elections
and the rule of law’. See also Salmon, supra note 364, p. 277. See also J. Wouters, B. de
Meester and C. Ryngaert, ‘Democracy and International Law’, Netherlands Yearbook of
International Law, Vol. 34, 2003, pp. 154-155.
530
84
‘[n]o rule of international law, in the view of the Court, requires the
structure of a State to follow any particular pattern, as is evident from the
531
diversity of the forms of State found in the world today’.
In the Nicaragua case the ICJ re-emphasised that international law

does not require States to have a certain political system.532 A
number of authors has correctly concluded that there is currently no
right to democratic governance under international law.533 Thirdly, to
argue that ‘representative government’ refers to Western or liberal
democratic government, would not give peoples a ‘free choice’, which
is the essence of the right to self-determination.534 Therefore, it can
be concluded that
‘under general international law internal self-determination seems to require

the existence of a ‘representative’ government, which arguably includes
Western conceptions of representative democratic governance, but may also
include other forms of government which are considered to be
535
representative by the people concerned’.
Consequently, any government that persistently blocks certain

peoples on its territory from participating in the decision-making
531
532
Nicaragua case, supra note 110, para. 263. According to the ICJ ‘[h]owever the régime in
Nicaragua be defined, adherence by a State to any particular doctrine does not constitute a
violation of customary international law; to hold otherwise would make nonsense of the
fundamental principle of State sovereignty on which the whole of international law rests, and
the freedom of choice of the political, social, economic and cultural system of a State. […] The
Court cannot contemplate the creation of a new rule opening up a right of intervention by one
State against another on the ground that the latter has opted for some particular ideology or
political system.
533
Wouters, De Meester & Ryngaert, supra note 520, p. 156. S. Wheatley, ‘Democracy in
International Law: A European Perspective’, International and Comparative Law Quarterly, Vol.
51, 2002, pp. 225, 233.
534
Raič, supra note 7, pp. 276-277. According to Salmon, supra note 364, p. 280, ‘[t]he real
difficulty of the matter is to define how a people exercises its internal right to self-
determination. […] In the Western countries it is generally believed that the only right answer
is a system of liberal regime coupled with market economy. Such reasoning is purely
ideological; there are many regimes in the World which are not similar to Western
parliamentarism and which may, however, be viewed as truly representative of the peoples
concerned according to their own social and historic traditions. […] Moreover the historical
failure of the marxist-leninist model does not necessarily mean that other socialist systems are
per se excluded from the democratic model. One should not be mesmerized by a purely liberal
concept of democracy based on a list of formal rights and institutional processes. Democracy
could also mean a relationship, governed - governors, with participation functions.’ See also
Thornberry, supra note 350, p. 116, stating that ‘[t]here are clearly strong and weak senses of
‘representation’- from merely speaking for or on behalf of a represented group, to continually
‘making present’ their views, a much stronger sense.’
535
Raič, supra note 7, pp. 278-279. See also the Expert opinion by Franck, Higgins, Pellet,
Shaw and Tomuschat, supra note 5, para. 3.08, stating that ‘[self-determination] implies the
right to one’s own identity, the right to choose and the right to participate […]. Identity and
democracy are its two essential components’. Hilpold, supra note 173, p. 281 also points out
that democracy is similar to effective participation which in turn is connected to the concept of
internal self-determination. See also Wheatley, supra note 524, p. 230.
85
process acts in violation of the right to self-determination.536 The
latest trend in international law has been the development of
devolution as a means of exercising the right of self-determination.537
Article 4 of the UN Declaration on the Rights of Indigenous Peoples is
innovative in this respect, granting indigenous peoples the right to
autonomy or self-government as a means of exercising their right to
self-determination. Even though at present there is no right to
autonomy under international law,538 it seems that States are
increasingly adopting a positive stance towards autonomy, because
granting autonomy while preserving the territorial integrity of States
contributes to international peace and security.539 In summary, self-
determination as applied to non-colonial situations essentially grants
peoples a right to political participation, which can be exercised in a
variety of ways. The following section will consider the status of
internal self-determination under international law.
3.5.3 Internal Self-Determination: a Right?
The previous paragraphs have pointed out that, outside the colonial
context, self-determination has been recognised as a right of peoples
in the Human Rights Covenants, the African Charter, the Friendly
Relations Declaration, the Helsinki Final Act, the Paris Charter, the
Vienna Declaration and in the Declaration on the Rights of Indigenous
Peoples.540 In this new context, self-determination can be seen as an
‘ongoing right’, which is ‘primarily applicable […] in the relationship
between a State and the population of that State’.541
In addition to the opinio iuris as expressed in the various Declarations
mentioned previously, the status of internal self-determination as a
‘positive legal right’ under international law is supported by State
practice.542 In this respect the State Reports under Article 40 of the
536
Raič, supra note 7, pp. 279-280, referring to the discriminatory Smith régime in Southern
Rhodesia and Apartheid in South Africa. See also Koskenniemi, supra note 186, pp. 247-248,
stating that ‘the definition of colonisation as ‘alien subjugation, domination and exploitation’ is
not limited to a Third World context but seems to cover all situations where a foreign minority
imposes its rule on the majority. It is not difficult to extend this sense to any situation where
an ethnic group becomes the object of human rights abuses or at least a denial of equal
rights.’ See also Resolution 2002/72 of 25 April 2002 of the Commission on Human Rights
(Human Rights Council), in which the Commission established a link between democracy,
human rights and self-determination.
537
Simpson, supra note 189, p. 281.
538
Raič, supra note 7, p. 283. See also Smis, supra note 14, p. 397. In the previous paragraph
it was stated that the UN Declaration on the Rights of Indigenous Peoples is not legally
binding.
539
Smis, supra note 14, p. 397. See e.g. the initial approach of the international community
towards Serbia(-Montenegro) and Kosovo. Simpson, supra note 189, p. 282 argues that ‘the
failure of the United Nations and the European Community to adopt the devolutionary
approach may have doomed the enterprise in Bosnia-Herzegovina’.
540
541
Ibid.
542
Ibid., p. 285.
86
ICCPR that have been discussed in section 3.4.5. may be recalled.543
As stated before, devolution may also be considered a means of
exercising the right of internal self-determination. Therefore, if a
State grants a certain people within its territory autonomy rights, this
may be seen as an acknowledgement of the right of internal self-
determination.544
Even though not all States recognise the right of internal self-
determination, and despite the fact that there are still countries
where the right is disregarded, its ‘universal validity’ cannot be
denied.545 It should not come as a surprise that oppressive
governments contradict the existence of internal self-determination
as a rule of customary international law.546 In this respect it has
rightly been argued that the persistent objector doctrine should be
applied restrictively in case of human rights.547
In summary, ‘international instruments, state practice, jurisprudence
and doctrine point to the conclusion that internal self-determination
must be qualified as a right of nations and peoples under general
international law’.548 As noted before, the right has erga omnes
character549 and it has even been argued that internal self-
determination can be regarded as jus cogens.550 After having reached
this conclusion, the only question that needs to be answered is how
the right of internal self-determination relates to other human rights
and principles of international law.
3.5.4 Self-determination in Relation to Other Human Rights and

Principles of International Law
As noted before, many international instruments on self-

determination contain a provision on the right of self-determination,
while at the same time emphasizing the territorial integrity of
543
Ibid.
544
Ibid., pp. 285-286, recalling the numerous autonomy arrangements in countries all over the
world.
545
Ibid., p. 288.
546
Ibid., quoting Cassese, supra note 13, pp. 102-108 and pp. 323-324, who is of the opinion
that under contemporary international law the right of the whole population of sovereign
States to internal self-determination is a conventional norm only (ICCPR). However, at pp.
302-322 and pp. 346 ff. Cassese observes that ‘a customary rule on internal self-
determination as the right of the whole population of a sovereign State is currently taking
shape in the international community’ and there may even be an emerging right to ‘pluralistic
representative democracy’ for this group. At the moment, 164 States are parties to the ICCPR
(<http://www.ohchr.org>) and some States not party to the ICCPR are party to the African
Charter, another instrument confirming the right of peoples to internal self-determination.
547
H. Lau, ‘Rethinking the Persistent Objector Doctrine in International Human Rights Law’,
Chicago Journal of International Law, Vol. 6, 2005-2006, pp. 495-510.
548
549
Case Concerning East Timor, supra note 164, para. 29.
550
Rosas, supra note 252, p. 247. Cassese, supra note 13, pp. 133-140. See also the list of
authors in favour of the jus cogens character of self-determination, supra note 216.
87
sovereign and independent States.551 According to Koskenniemi
minority protection has provided a helpful tool for States to deal with
the ‘tension’ that exists between self-determination and territorial
integrity.552 While the instruments on self-determination that have
been discussed in the previous paragraphs all attempted to exclude
secession, these instruments have also pointed out that the territorial
integrity of a State is not protected if that State persistently
discriminates against certain groups within its territory.553
Koskenniemi referred to this ‘apparent paradox’ as ‘the triad of self-
determination-territorial integrity-minority protection’.554
United Nations Secretary-General Boutros Boutros-Ghali also
signalled the conflict between self-determination and territorial
integrity in his report ‘An Agenda for Peace’:555
‘[I]f every ethnic, religious or linguistic group claimed statehood, there

would be no limit to fragmentation, and peace, security and economic well-
556
being for all would become ever more difficult to achieve.’
The Secretary-General also points to minority protection, stating that
‘[o]ne requirement for solutions to these problems lies in commitment to

human rights with a special sensitivity to those of minorities, whether
557
ethnic, religious, social or linguistic.’
According to Boutros-Ghali,
‘[t]he sovereignty, territorial integrity and independence of States within the

established international system, and the principle of self-determination for
peoples, both of great value and importance, must not be permitted to work
558
against each other in the period ahead.’
Underlying these problems is the ‘erroneous assumption’ that the

right to self-determination and the right to independence are two
sides of the same coin.559 However, it must be emphasised that the
essence of self-determination is ‘free choice’ and that independence is
only one of the options when a people exercises its right to self-
551
Koskenniemi, supra note 186, p. 256.
552
Ibid.
553
Ibid.
554
Ibid.
555
Koskienniemi, supra note 186, p. 256. An Agenda for Peace. Preventive diplomacy,
peacemaking and peace-keeping. Report of the Secretary-General pursuant to the statement
adopted by the Summit Meeting of the Security Council on 31 January 1992, 17 June 1992,
paras. 17-19, available at <http://www.un.org>.
556
An Agenda for Peace, supra note 546, para. 17.
557
Ibid., para. 18.
558
Ibid., para. 19.
559
Expert opinion by Franck, Higgins, Pellet, Shaw and Tomuschat, supra note 5, para. 1.17.
See also Raič, supra note 7, p. 306.
88
determination.560 In fact, it has been pointed out before that the right
of self-determination is ‘context-dependent’.561 Whereas in the
colonial context, self-determination became almost synonymous with
independence, this Chapter has argued that beyond decolonisation
self-determination has acquired a new meaning. However, it may
equally be argued that the original Western, or Wilsonian, view of
self-determination was re-invented. Be that as it may, it is important
to examine how post-colonial internal self-determination relates to
human rights.562 According to Cassese, self-determination
‘pre-supposes freedom of opinion and expression (Article 21), freedom of

association (Article 22), the right to vote (Article 25(b)), and more generally
the right to take part in the conduct of public affairs, directly or through
freely chosen representatives (Article 25(a)). Whenever these rights are
recognized for individuals, the people as a whole enjoy the right of internal
(political) self-determination; whenever these rights are trampled upon, the
563
right of the people to self-determination is infringed.’
It has been argued that there is no need for internal self-

determination, because individual human rights offer adequate
protection for peoples within States.564 Along these lines, Tomuschat
has questioned whether internal self-determination is a collective
human right at all.565 However, the fact that there is a link between
internal self-determination and other human rights does not make the
internal aspect ‘superfluous’.566 In this respect it is important to
realise that ‘the identity of a group as such is not the equivalent of
the sum of the identities of its members’.567
Moreover, it must be kept in mind that self-determination is a
collective human right and, as such, is intended to offer protection to
groups of peoples rather than individuals. Even though individual
human rights are important with a view to safeguarding the rights of
peoples, they may not always offer ‘sufficient’ protection.568 If a
people is systematically discriminated or repressed by a majority
within a certain territory it is very unlikely that individual human
rights would be able to protect its ‘collective identity’ or ‘collective
560
Expert opinion by Franck, Higgins, Pellet, Shaw and Tomuschat, supra note 5, para. 1.17.
561
Ibid.
562
563
A. Cassese, ‘The Self-Determination of Peoples’, in: L. Henkin (ed.), The International Bill of
Rights: The Covenant on Civil and Political Rights, New York: Colombia University Press 1981,
p. 97.
564
J. Donnelly, Universal Human Rights in Theory and Practice, Ithaca (NY): Cornell University
Press 1989, p. 148.
565
C. Tomuschat, ‘Democratic Pluralism: The Right to Political Opposition’, in: A. Rosas and J.
Helgesen (eds.), The Strength of Diversity: Human Rights and Pluralist Democracy, Dordrecht:
Nijhoff 1992, p. 39.
566
567
Raič, supra note 7, p. 240. Also Hilpold, supra note 173, p. 263. See generally on group
rights v. individual rights, ibid., pp. 287-288.
568
89
interests’.569 The predicament of indigenous peoples all over the world
provides a very good example of this problem. The specific identity of
a people may even cease to exist if the ‘collective interests’ of the
group are disregarded.570
Moreover, according to the General Assembly, ‘the effective
guarantee and observance of individual human rights’ depends on
‘the universal realisation of the right of self-determination’.571 On the
one hand, self-determination presupposes individual freedom, but on
the other hand individual freedom is best protected if a people is able
to exercise its right of self-determination.572 In other words, ‘the
development and protection of individual identity’ and ‘the
development and protection of group identity’ are interdependent.573
Hence, internal self-determination not only serves ‘the well-being of a
people’, it also aims at ‘the well-being of its individual members’.574 It
can be concluded that
‘starting from the assumption that the right to self-determination nowadays,

i.e. in a post-colonial setting, applies to all peoples in all situations where
they are subject to oppression in the form of subjugation, domination and
exploitation by others the human rights approach opens a formidable
575
avenue to find a balanced solution sensitive to all interests involved’.
3.6 Conclusion
This Chapter has pointed out that self-determination is applicable in

the post-colonial era and that
‘outside the colonial context, international law strongly favours the internal
aspect of self-determination: the right of peoples to participate in the
569
Ibid.
570
Ibid.
571
The General Assembly annually adopts a resolution in which it states that ‘the universal
realization of all peoples to self-determination […] is a fundamental condition for the effective
guarantee and observance of human rights and for the preservation and promotion of such
rights’. See supra, note 343. The Human Rights Committee shares this point of view, see
General Comment 12, supra note 409. See also Ominayak and the Lubicon Lake Band v.
Canada, Communication No. 167/1984, 26 March 1990, UN Doc. A/45/40, para. 13.3,
available at <http://www.un.org>; See also the Commission on Human Rights, Resolution 3
(XXXI), 11 Feb. 1975; the Arbitration Commission of the International Conference on
Yugoslavia, Opinion 2, supra note 286; the statements of a great number of States (see, e.g.
Afghanistan: UN Doc. A/C.3/SR.309, 9 Nov. 1950, paras. 52-53, Soviet Union: UN Doc.
A/C.3/SR.309, 9 Nov. 1950, para. 60, Poland: UN Doc. A/C.3/SR.310, 10 Nov. 1950, para. 33,
Ethiopia: UN Doc. A/C.3/SR.399, 23 Jan. 1952, para. 45, Ireland: UN Doc. A/C.3/SR.399, 23
Jan. 1952, para. 50, Greece: UN Doc. A/C.3/SR.647, 28 Oct. 1955, para. 1, Yugoslavia: UN
Doc. A/C.3/SR.647, 28 Oct. 1955, para. 38); and the writings of international lawyers. See
P.H. Kooijmans, ‘Tolerance, Sovereignty and Self-Determination’, Netherlands International
Law Review, 1996, pp. 214-215 and Cristescu, supra note 117, pp. 32-33.
572
573
Ibid.
574
Ibid., p. 242.
575
Hilpold, supra note 173, p. 264, quoting R. McCorquodale, ‘Self-Determination: A Human
Rights Approach’, International and Comparative Law Quarterly, Vol. 43, 1994, pp. 883-885.
90
political system of an existing state. International law, in other words,
favours inclusion (the right to participate in the political frameworks of
existing states) over exclusion (the right to secede from an existing
576
state).’
The traditional colonial model has thus been redefined in the form of
internal self-determination.
As regards the beneficiaries of the right of self-determination, State
practice during the dissolution of Yugoslavia and the Soviet Union has
been revolutionary in the sense that, until then, Western States had
taken a traditional territorial point of view as regards self-
determination.577 The reaction of Western States to the Soviet and
Yugoslav crises indicates their acknowledgment of the fact that there
could be more than one people living within the territory of a certain
State and that these peoples were entitled to self-determination.578
The expansion of the holders of the right of self-determination has
been confirmed by subsequent international instruments,
jurisprudence, the practice of the Human Rights Committee, the
Commission on the Elimination of Racial Discrimination, the African
Commission on Human and Peoples Rights, as well as State practice
and doctrine.
But the scope of the right of self-determination in the post-colonial
context has also been expanded. One of the principal reasons that a
number of States have consistently denied a right of self-
determination outside the colonial context, is that the right has been
equated with secession. However, it has been pointed out that this is
a false assumption.579 Higgins made it clear that
‘[s]elf-determination has never simply meant independence. It has meant

580
the free choice of people.’
Outside the colonial context this free choice has become more
important and has been reaffirmed by the instruments, jurisprudence,
practice and doctrine referred to above. The right of internal self-
determination has emphasised the importance of political
participation through representative government to the effect that a
community is able to influence its future.
The events in the Soviet Union and in Eastern Europe have also
induced an important change. In reaction to the events the member
states of European Community have established general criteria for
576
577
578
Ibid., p. 124.
579
See the Expert opinion by Franck, Higgins, Pellet, Shaw and Tomuschat, supra note 5, para.
1.17.
580
R. Higgins, Problems and Process: International Law and How We Use it, Oxford: Clarendon
Press 1994, p. 119.
91
recognising new states.581 In this manner, States have made the
exercise of the right of external self-determination dependent on
whether the right of internal self-determination and the rights of
minorities have been guaranteed.582 Even though this Chapter has
made it clear that outside the colonial context the main focus has
been on the internal aspect of self-determination, the following
Chapter will examine whether there may also be a right of external
self-determination in non-colonial situations.
581
Cassese, supra note 13, p. 273, enumerates among these criteria ‘(i) the free expression of
the will of the population concerned, by way of plebiscites or referendums and (ii) the firm
commitment to respect the rule of law, human rights, and the rights of groups and minorities’.
582
Ibid.
92
4 Self-Determination and Remedial Secession
‘Until recently in international practice the right to self-determination
was in practical terms identical to, and indeed restricted to, a right to
decolonisation. In recent years a consensus has seemed to emerge
that peoples may also exercise a right to self-determination if their
human rights are consistently and flagrantly violated or if they are
without representation at all or are massively under-represented in
an undemocratic and discriminatory way. If this description is correct,
then the right to self-determination is a tool which may be used to re-
establish international standards of human rights and democracy.’583
4.1 Introduction
In the previous Chapter it has been argued that the right of self-
determination is a continuing right, and that beyond decolonisation
the internal dimension of self-determination has been emphasised
rather that the external aspect.584 Nevertheless, there are examples
of external self-determination outside the colonial context, such as
the secession of Singapore from Malaysia, the dissolution of
Czechoslovakia or the reunification of Germany, to name a few. The
international community did not consider these instances of external
self-determination very problematic, probably because they all
occurred consensually. Unilateral secession, on the other hand, has
always been a very controversial issue under international law. It has
been defined as
‘the separation of part of the territory of a State which takes place in the
585
absence of the prior consent of the previous sovereign’.
It is not difficult to understand why traditionally, the international

community has been very reluctant to consider the possibility of a
right of external self-determination in the form of secession outside
the colonial context.586 First of all, ‘the international community is not
583
Case of Loizidou v. Turkey, European Court of Human Rights, 18 December 1996,
concurring opinion of Judge Wildhaber, joined by Judge Ryssdal, available at
<http://www.echr.coe.int >.
584
Werner, supra note 179, p. 177. See also H. Hannum, ‘Self-Determination, Yugoslavia, and
Europe: Old Wine in New Bottles?’, Transnational Law & Contemporary Problems, Vol. 3, 1993,
p. 58.
585
J. Dugard & D. Raič, ‘The role of recognition in the law and practice of secession’, in: M.G.
Kohen (ed.), Secession. International Law Perspectives, Cambridge: Cambridge University
Press 2006, p. 102. Raič, supra note 7, p. 308. Cf. Crawford, supra note 10, p. 375.
586
Crawford notes that ‘[e]ven in the context of separate colonial territories, unilateral
secession was the exception. Self-determination was in the first instance a matter for the
colonial authority to implement; only if it was blocked by the colonial authority did the United
Nations support unilateral secession. Outside the colonial context, the United Nations is
extremely reluctant to admit a seceding entity to membership against the wishes of the
government of the state from which it purported to secede. In fact there is no case since 1945
93
a suicide club’.587 The recognition of a right of unilateral secession
would seriously impair the sovereignty and territorial integrity of
States, thereby undermining the state-centred system on which
international law is built. Moreover, it was feared that ‘[i]f every
ethnic, religious or linguistic group claimed statehood, there would be
no limit to fragmentation, and peace, security, and well-being for all
would become even more difficult to achieve’.588 Indeed, many
secessionist claims have been violently opposed by the parent State
which has resulted in bloody civil wars. But as long as the controversy
over this issue is not solved, secessionist wars will certainly continue
to threaten international peace and security, causing gross violations
of human rights and the loss of many lives. This makes it extremely
important to consider whether secessionists actually have a valid
claim. Does contemporary international law recognise a right of
unilateral secession based on the right of self-determination? This
Chapter tries to answer this question and starts by examining the
writings of international lawyers on the issue of a possible right of
unilateral secession and whether it may be an absolute or a qualified
right. The following paragraphs will focus on the primary sources of
international law in search of a right of unilateral secession. First of
all, conventional law will be scrutinised, to see whether it supports
the existence of such a right. After this, State practice and opinio iuris
will be examined in order to be able to determine whether there may
be a right of unilateral secession under customary international law.
International instruments as well as judicial decisions concerning
unilateral secession will be studied, followed by an analysis of State
practice in relation to cases of unilateral secession that occurred
outside the colonial context. The next paragraph will focus more
closely on remedial secession, in particular the problem of defining
the holders of the right and which circumstances may warrant the
invocation of this right. The Chapter will conclude answering the
question whether unilateral secession is lex lata or de lege ferenda.
4.2 Theories on Unilateral Secession
The topic of unilateral secession has been hotly debated by many

scholars. In all of the discussions, three main points of view stand
out. According to one group of scholars, international law is neutral
about secession. Another group argues that international law
recognises an absolute right of secession. A third group claims that
where it has done so.’ J.R. Crawford, ‘State Practice and International Law in Relation to
Secession, The British Yearbook of International Law, Vol. 69, 1998, p. 116.
587
J. Castellino, ‘David Raič. Statehood & the Law of Self-Determination’, European Journal of
International Law, Vol. 16, 2005, p. 792. Cf. H.L.A. Hart, The Concept of Law, Oxford:
Clarendon Press 1994, p. 192.
588
An Agenda for Peace, supra note 546.
94
international law acknowledges a ‘qualified’ right of secession. The
following sections will review the merits of each of these viewpoints.
4.2.1 International Law is Neutral about Secession
A number of writers have argued that there is no right of secession

under international law. However, as international law does not
prohibit secession either, they have argued that international law is
neutral about secession.589 Secession is considered to be a political
act instead of a legal act.590 In other words, ‘the existence or
disappearance of the state is a question of fact’, not law.591 Most
authors do acknowledge that, despite this neutrality, international law
will recognise the fact of a successful secession after it has taken
place.592
Nevertheless, it is submitted here that at this moment it is too early
to preclude the existence of a right of secession under international
law. The next paragraphs will first offer an analysis of conventional
law, State practice and opinio juris in order to be able to determine
whether there is a right of unilateral secession under contemporary
international law.
4.2.2 International Law Recognises an Absolute Right of Secession
According to another group of authors, international law grants an

absolute right of unilateral secession.593 Some have based this right
on nationalist theories, claiming that each ‘nation’ must have the
right of self-determination, including the right to form an independent
State.594 Others have based an absolute right of unilateral secession
589
Crawford, supra note 10, p. 390. Also Hannum, supra note 42, p. 42. And T.M. Franck,
‘Postmodern Tribalism and the Right to Secession’, in: C. Brölmann et al (eds.), Peoples and
Minorities in International Law, Dordrecht: Martinus Nijhoff Publishers 1993, p. 12. Also Report
by Thomas M. Franck: “Opinion Directed at Question 2 of the Reference”, in: A. Bayefski, Self-
determination in International Law: Quebec and Lessons Learned, The Hague: Kluwer Law
International 2000, p. 79. And Smis, supra note 14, p. 203.
590
591
Opinion 1 of the Badinter Commission, supra note 586. Also Smis, supra note 14, p. 203.
592
Higgins, supra note 571, pp. 169-171. R. Higgins, ‘Postmodern Tribalism and the Right to
Secession. Comments by R. Higgins’, in: C.M. Brölmann et al. (eds.), Peoples and Minorities in
International Law, Dordrecht: Nijhoff 1993, p. 33. Franck, supra note 580, p. 12. Crawford,
supra note 577, p. 87. See also the Expert opinion by Franck, Higgins, Pellet, Shaw and
Tomuschat, supra note 5, p. 284. Also Supreme Court of Canada in Reference re Secession of
Quebec, supra note 345, pp. 500-502, 505.
593
Buchanan has characterized the view of these authors as ‘Primary Right Theories’,
indicating that a right of secession exists irrespective of any prior violation of rights. In other
words, it is not a remedial right. See A. Buchanan, Justice, Legitimacy, and Self-
Determination. Moral Foundations for International Law, Oxford: Oxford University Press 2004,
p. 352.
594
W. Norman, ‘The Ethics of Secession as the Regulation of Secessionist Politics’, in: M. Moore
(ed.), National Self-Determination and Secession, Oxford: Oxford University Press 1998, p. 35.
Buchanan, supra note 584, pp. 352-353 calls this ‘Ascriptivist Theories’, because membership
95
on ‘liberal democratic theory’, arguing that the only true basis for
legitimate state authority is the consent of the people and that
therefore, they must also have the right to take it back.595 An
absolute right of secession has also been based on ‘plebiscitary right
theories’, arguing that if a majority in a certain territory wishes to
secede, it should be granted the right of unilateral secession.596
The existence of an absolute right of secession seems very unlikely
for it would seriously undermine the territorial integrity of States.597
Moreover, it could be very dangerous. If each nation, ethnic group or
majority population would have an absolute right of secession this
would inevitably lead to fragmentation, causing instability or civil war
and possibly even ‘ethnic cleansing’.598 This may have serious
implications for international peace and security.
4.2.3 International Law Acknowledges a ‘Qualified’ Right of

Secession
A large number of international lawyers have argued that there is a

‘qualified’ right of secession under international law.599 One of the
earliest proponents of a ‘remedial right of secession’ is Buchheit,
arguing that ‘a denial of political freedom and/or human rights’ may
validate a separatist claim.600 According to Buchheit
‘[t]he focus of attention here is on the condition of the group making the
claim. Remedial secession envisions a scheme by which, corresponding to
the various degrees of oppression inflicted upon a particular group by its
governing State, international law recognizes a continuum of remedies
ranging from protection of individual rights, to minority rights, and ending
with secession as the ultimate remedy. At a certain point, the severity of a
State’s treatment of its minorities becomes a matter of international
concern. This concern […] may finally involve an international legitimation of
a right to secessionist self-determination as a self-help remedy by the
aggrieved group (which seems to have been the approach of the General
601
Assembly in its 1970 declaration)’.
of the group that is allowed to secede is defined by ‘ascriptive characteristics’, such as

ethnicity or nationality.
595
Hannum, supra note 42, p. 43. See H. Beran, The Consent Theory of Political Obligation,
London: Croom Helm 1987.
596
Buchanan, supra note 584, p. 353. Also Raič, supra note 7, p. 310.
597
Raič, supra note 7, pp. 310-311. Dugard & Raič, supra note 576, p. 106.
598
See An Agenda for Peace, supra note 546. Also Higgins, supra note 583, p. 35. And C.
Tomuschat, ‘Secession and Self-Determination’, in: M.G. Kohen (ed.), Secession. International
Law Perspectives, Cambridge: Cambridge University Press 2006, p. 29.
599
The ‘qualified secession doctrine’ is proponed by Raič, supra note 7, p. 324.
600
Buchheit, supra note 8, p. 94.
601
Ibid., p. 222.
96
It is important to note that numerous writers support the existence of
a ‘remedial right of secession’ under international law.602 Although
they sometimes have different views on the conditions that warrant
the exercise of the right, many writers recognise that gross violations
of human rights, extreme oppression or a denial of internal self-
determination allow for the remedy of unilateral secession.
It has also been argued that unilateral secession may remedy
situations of inequality and repression amounting to ‘neo-
colonialism’.603 According to Franck
‘when a minority within a sovereign state – especially if it occupies a

discrete territory within that state – persistently and egregiously is denied
political and social equality and the opportunity to retain its cultural identity,
[…] it is conceivable that international law will define such repression,
prohibited by the Political Covenant, as coming within a somewhat stretched
definition of colonialism. Such repression, even by an independent state not
normally thought to be “imperial” would then give rise to a right of
604
“decolonization”.’
Although it seems reasonable to argue that peoples suffering from

‘internal colonialism’ should be able to exercise their right of self-
determination in the same way colonial peoples have done, a right of
unilateral secession should not be restricted to cases of neo-
colonialism, i.e. when peoples are repressed in a way that resembles
traditional colonialism.605 More generally, a right of unilateral
secession may be invoked as a remedy in cases of gross violations of
fundamental human rights, serious oppression or when a people is
not permitted to exercise its right of internal self-determination.606
From a moral point of view, the doctrine of ‘remedial secession’ is
very well-founded. As the previous Chapter has pointed out, the right
of self-determination is a right of ‘all peoples’, not only colonial
peoples. Even if the term ‘peoples’ is interpreted narrowly as referring
602
See e.g., Cassese, supra note 13, pp. 118-120. Also Cristescu, supra note 117, para. 173.
Franck, supra note 580, p. 79. Hannum, supra note 179, p. 244. Kooijmans, supra note 9, pp.
157-168. D. Murswiek, ‘The Issue of a Right of Secession – Reconsidered’, in: C. Tomuschat
(ed.), Modern law of self-determination, Dordrecht: Nijhoff 1993, pp. 26-27. A. Pavkovic & P.
Radan, Creating New States. Theory and Practice of Secession, Aldershot: Ashgate 2007, pp.
232-239. Raič, supra note 7, pp. 326, 328. Tomuschat, supra note 589, p. 42.
603
Franck, supra note 580, pp. 13-14 stating that India e.g. based its intervention in East
Pakistan in 1971 on this theory. This intervention led to the secession of East Pakistan
(Bangladesh) from West Pakistan. Raič, supra note 7, p. 326, note 63, points out that the
‘Belgian thesis’ proponed a similar argument. According to this thesis, Chapter XI of the UN
Charter (Declaration Regarding Non-Self-Governing Territories) should not be restricted to
traditional colonialism, but should also apply to peoples in metropolitan States finding
themselves in a ‘colonial situation’. See UN GAOR, 4th Comm., 9th Sess., 419th mtg, 2 Nov.
1954, para. 20. See P. Thornberry, ‘Self-Determination, Minorities, Human Rights: A Review of
International Instruments’, International and Comparative Law Quarterly, Vol. 38, October
1989, pp. 873-875.
604
Franck, supra note 580, pp. 13-14.
605
606
Ibid. Also Buchheit, supra note 8, p. 222.
97
to ‘the whole people belonging to the territory’607 of an independent
State, this people as a whole would still be entitled to the right of
self-determination. Starting from the assumption that every right
must have a remedy, it seems justified that if the government of an
independent State systematically precludes a certain group from
exercising this right of (internal) self-determination or seriously
violates its basic human rights, there must be a means for this people
to secure its right. However, outside the colonial context, no remedy
seems to be available. Whereas the Special Committee of 24 on
Decolonization has taken on the role of protecting the right of colonial
peoples to self-determination, the international community adopted a
‘hands off approach’ towards self-determination claims outside the
colonial context, in particular external self-determination.608 Not even
the Human Rights Committee is willing to hear self-determination
claims under Optional Protocol 1 to the ICCPR. Therefore, the present
writer shares the point of view that the predicament of many
oppressed peoples in the world today warrants a right of unilateral
secession, as a ‘self-help remedy’ and ‘a last resort’ if there is no
alternative left.609
From a legal point of view, however, it is still unclear whether
international law recognises a right of ‘remedial secession’. Therefore,
it is necessary to examine the two principal sources of international
law, conventional law and customary law, to determine the status of
‘remedial secession under international law. Is a right of ‘remedial
secession’ lex lata or de lege ferenda? The next paragraph may shed
some light on this subject. It will start with an analysis of treaty law
in search of a right of secession, followed by a discussion of the most
cited paragraph in the context of secession, the ‘safeguard clause’.610
4.3 Treaties
4.3.1 The Charter of the United Nations
The travaux préparatoires of the UN Charter reveal two points of view

on the subject of self-determination and secession: ‘[c]oncerning the
principle of self-determination, it was strongly emphasised on the one
side that this principle corresponds closely to the will and desires of
607
Friendly Relations Declaration, supra note 110, Principle V, Paragraph 7.
608
L.M. Frankel, ‘International Law of Secession: New Rules for a New Era’, Houston Journal of
International Law, Vol. 14, 1992, p. 544.
609
Buchheit, supra note 8, p. 222. Canadian Supreme Court in Reference re Secession of
Quebec, supra note 345, p. 498.
610
The ‘safeguard clause’ or the ‘saving clause’ has been articulated for the first time in the
Friendly Relations Declaration (Principle 5, Paragraph 7). It was reiterated in the Vienna
Declaration (Part I, Paragraph 2) and in the General Assembly Declaration on the Occasion of
the Fiftieth Anniversary of the UN, A/Res/50/49, 24 Oct. 1995, para. 1, available at
98
peoples everywhere and should be clearly enunciated in the Charter;
on the other side, it was stated that the principle conformed to the
purposes of the Charter only insofar as it implied the right of self-
government of peoples and not the right of secession’.611 Although
some authors have pointed out that the drafters ‘did not intend to
create a right of secession’612, others have concluded that ‘[a]n
attempt to include a right of secession within the Charter’s meaning
of the phrase “self-determination” cannot be conclusively supported
or discredited by reference to the travaux préparatoires of the San
Francisco conference.’613 Given this controversy, and keeping in mind
the fact that Article 32 of the Vienna Convention considers the
drafting history a ‘supplementary means of interpretation’, other
means of interpretation may be more appropriate. But a textual
interpretation of the phrase ‘self-determination’ in Article 1(2) and 55
of the Charter does not really clarify whether self-determination
includes a right of secession. The only point that can be made is that
the ‘context’ in which the phrase self-determination was put (Chapter
1, Purposes and principles and Chapter IX, International Economic
and Social Cooperation, respectively) and the ‘object and purpose’ of
the Charter (to build an international organization of sovereign States
with a view to maintaining international peace and security) do not
support the existence of a right of secession as part of self-
determination. Therefore, an examination of ‘subsequent practice’ is
needed to make clear whether self-determination could also mean
secession.614 This will be done in paragraph 4.6.
4.3.2 The International Human Rights Covenants
Common Article 1 of the International Human Rights Covenants is

also silent on the issue of unilateral secession.615 According to Article
1, self-determination gives ‘all peoples’ a right to ‘freely determine
their political status’. On the basis of a textual interpretation of the
words ‘freely determine their political status’, the following
observations can be made. First of all, as regards the ‘context’ of
these words, they occupy a cardinal position in a human rights treaty,
the ‘object and purpose’ of which obviously is to protect human
rights.616 Secondly, this phrase refers to external political self-
611
Final Report of the Sixth Committee, San Francisco 1945, UNCIO, doc. 343, I/1/16, Vol. 6
296 (1945), quoted by N.G. Hansen, Modern Territorial Statehood, Unpublished PhD Thesis
Leiden University, 11 November 2008, pp. 87, available at
<https://openaccess.leidenuniv.nl>.
612
Murswiek, supra note 593, p. 35. See also Smis, supra note 14, p. 110, 204.
613
Buchheit, supra note 8, p. 73. See also Musgrave, supra note 14, p. 182.
614
See Article 31 (3) (b) of the Vienna Convention on the Law of Treaties.
615
616
It has been noted before that the Human Rights Committee in General Comment 12
observed that ‘[t]he right of self-determination is of particular importance because its
realization is an essential condition for the effective guarantee and observance of individual
99
determination, i.e. ‘the right to determine and protect one’s own
international status without outside interference’,617 which can be
exercised in three ways, either by creating an independent State,
integrating into another State or associating with another State.618
However a third point, which has been noted previously, is that there
is no conclusive definition of the term peoples. This means that it is
still uncertain whether a people in a certain State, as a whole, are
allowed to determine their political status, or whether an ethnic group
or minority can also exercise this right, which would imply it has a
right of unilateral secession. It all depends on the interpretation of
the term ‘peoples’, which unfortunately leads to a dead end. State
practice in relation to a possible right of secession based on the right
of self-determination as granted in the Covenants does not lead very
far either. As noted before, the Human Rights Committee does not
consider self-determination claims under the first Optional Protocol to
the ICCPR.619 Most State reports do not mention secession and, if
they do, it usually is from a domestic point of view, which does not
help to clarify international law.620 General Comments of the Human
Rights Committee or the comments of its individual members are not
very illuminating either.621 The drafting history of Article 1 shows that
States were not able to agree on the issue of secession.622 Some
States were reluctant to accept self-determination as a legal right623
and asked
‘whether even States having no colonies were indeed prepared to face the
consequences of assuming a legal obligation to promote the right of self-
determination within their borders, and to consent to abide by the [Human
624
Rights] Committee’s decision on any claims that might be made’.
They argued that a right of self-determination included a right of

secession and thus should not be included as a right in the Covenant,
for that would be ‘tantamount to an incitement to insurrection and
human rights and for the promotion and strengthening of those rights. It is for that reason that
States set forth the right of self-determination in a provision of positive law in both Covenants
and placed this provision as article 1 apart from and before all of the other rights in the two
Covenants. (emphasis added). See also Rosas, supra note 252, p. 243.
617
Smis, supra note 14, p. 406. The previous Chapter has clarified the internal aspect of this
phrase.
618
General Assembly Resolution 1541 (XV) concerning the ‘Principles which should guide
Members in Determining whether or not an obligation exists to transmit the information called
for under Article 73e of the Charter’.
619
620
Ibid.
621
Ibid. See General Comment 12, supra note 409.
622
Smis, supra note 14, pp. 209-210.
623
Ibid., p. 209.
624
United Kingdom, 10 UN GAOR, 3d Comm., 642d meeting at 90-91, para. 15, UN Doc.
A/C3/SR.642 (1955), quoted by Buchheit, supra note 8, p. 80, note 148.
100
separatism’.625 As States also disagreed on the beneficiaries of the
right, it can safely be asserted that ‘[t]he travaux are quite
inconclusive’.626
In sum, the UN Charter and the two Human Rights Covenants do not
prohibit unilateral secession, but they do not recognise a right to
secede either.627
4.3.3 Protocol I Additional to the Geneva Conventions of 1949
According to Article 1 (4) of the Protocol Additional to the Geneva

Conventions of 12 August 1949, and relating to the Protection of
Victims of International Armed Conflicts (AP I), the protection of the
Protocol includes
‘armed conflicts in which peoples are fighting against colonial domination

and alien occupation and against racist regimes in the exercise of their right
of self-determination, as enshrined in the Charter of the United Nations and
the Declaration on Principles of International Law concerning Friendly
Relations and Co-operation among States in accordance with the Charter of
628
the United Nations’.
Interestingly, it has been argued that a teleological reinterpretation of

this provision lends support to the existence of a right to secede as a
‘last resort’ for oppressed peoples and for peoples who are subjected
to gross violations of fundamental human rights.629 According to the
General Assembly, the treatment of combatants struggling for
independence was ‘inhuman’.630 The purpose of Article 1 (4) of AP I
thus seems to have been the need to respect ‘the dignity and worth
of the human person’.631 Although the travaux préparatoires of Article
1 (4) and the underlying General Assembly Resolution 3103
(XXVIII)632 indicate that this provision was meant to apply only in
cases of decolonisation and apartheid, a more extensive
interpretation may be possible.633 In light of the prohibition of racial
discrimination, torture and genocide under contemporary
international law the purpose of respecting human dignity would
625
Belgium, 10 UN GAOR, 3d Comm., 643d meeting at 94, para. 10, UN Doc. A/C3/SR.643,
quoted by Buchheit, supra note 8, p. 80, note 149. See also Smis, supra note 14, p. 209.
626
Tomuschat, supra note 589, p. 26.
627
Raič, supra note 7, pp. 316-317. See also Tomuschat, supra note 589, p. 26. Also Smis,
supra note 14, pp. 204, 209.
628
Additional Protocol I, supra note 232.
629
W. Timmermann, ‘Self-Determination Beyond the Decolonization Context: The Case for a
Right of Suppressed Peoples to Secession’, in: Prof. K. Koufa (ed.), Multiculturalism and
International Law, Thessaloniki: Sakkoulas Publications 2007, pp. 368-372, 375.
630
G.A. Res. 3103 (XXVIII), Basic principles of the legal status of the combatants struggling
against colonial and alien domination and racist regimes, 12 December 1973, available at <
http://www.un.org>.
631
Ibid.
632
Ibid.
633
Timmermann, supra note 620, p. 368.
101
certainly be served by allowing suppressed peoples to secede, and by
granting them the protection of international humanitarian law in
their efforts to this effect.634 A teleological interpretation is not only
supported by Article 31 of the Vienna Convention on the Law of
Treaties, but has also been employed in order to protect human rights
and human dignity by the European Court of Human Rights,635 the
International Court of Justice636 and the International Criminal
Tribunal for the Former Yugoslavia.637 Although this argument is very
appealing, it seems a bit far-fetched, and therefore may not be very
convincing.
4.4 Customary International Law
4.4.1 The ‘Safeguard Clause’
A more convincing argument for a right of unilateral secession is to be

found by an a contrario reading of the ‘safeguard clause’ of the
Friendly Relations Declaration,638 which was reaffirmed in the Vienna
Declaration,639 and the General Assembly Declaration on the Occasion
634
Ibid., p. 370.
635
Case of Soering v. the United Kingdom, European Court of Human Rights, 7 July 1989,
para. 87, available at <http://www.echr.coe.int >. In this case, the Court has noted that ‘the
object and purpose of the Convention as an instrument for the protection of individual human
beings require that its provisions be interpreted and applied so as to make its safeguards
practical and effective’.
636
Namibia, supra note 143, para. 53. The Court observed that ‘an international instrument
has to be interpreted and applied within the framework of the entire legal system prevailing at
the time of the interpretation’. See also the dissenting opinion of Judge M. Alvarez in the
Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide
Advisory Opinion, ICJ Reports (1951), available at <http://www.icj-cij.org>, stating that ‘the
said conventions must not be interpreted with reference to the preparatory work which
preceded them; they are distinct from that work and have acquired a life of their own; they
can be compared to ships which leave the yards in which they have been built, and sail away
independently, no longer attached to the dockyard. These conventions must be interpreted
without regard to the past, and only with regard to the future’.
637
Prosecutor v. Tadic, Case No. IT-94-1-AR72, Decision on the Defence Motion for
Interlocutory Appeal on Jurisdiction, Appeals Chamber, 2 October 1995, paras. 91-92.
According to the Appeals Chamber Article 3 of the ICTY Statute has to be interpreted according
to its object and purpose, which is ‘to ensure that no serious violation of international
humanitarian law is taken away from the jurisdiction of the International Tribunal’. The
Appeals Chamber concludes that ‘if correctly interpreted, Article 3 fully realizes the primary
purpose of the establishment of the International Tribunal, that is, not to leave unpunished any
person guilty of any such serious violation, whatever the context within which it may have
been committed.’ This position has been reaffirmed by the Appeals Chamber in Prosecutor v.
Delalic et al., Case No. IT-96-21-A, Appeals Judgment, 20 February 2001, para. 172. In this
case the Appeals Chamber concluded that ‘[i]n light of the fact that the majority of the
conflicts in the contemporary world are internal, to maintain a distinction between the two
legal regimes and their criminal consequences in respect of similarly egregious acts because of
the difference in nature of the conflicts would ignore the very purpose of the Geneva
Conventions, which is to protect the dignity of the human person’. Both available at
<http://www.icty.org>.
638
Friendly Relations Declaration, supra note 110, Paragraph 7 of Principle V.
639
Vienna Declaration, supra note 348, Part I, Paragraph 2.
102
of the Fiftieth Anniversary of the UN.640 In the latter resolution the
‘safeguard clause’ reads as follows:
‘This shall not be construed as authorizing or encouraging any action that

would dismember or impair, totally or in part, the territorial integrity or
political unity of sovereign and independent States conducting themselves in
compliance with the principle of equal rights and self-determination of
peoples and thus possessed of a Government representing the whole people
641
belonging to the territory without distinction of any kind’.
Numerous authors have pointed out that if this paragraph is read a

contrario, it implies that the territorial integrity or political unity of a
sovereign and independent State will no longer be protected if it does
not conduct itself in compliance with the principle of equal rights and
self-determination of peoples and if the government is
unrepresentative.642 In other words, if a State persistently denies a
people its right of internal self-determination that State forfeits its
right to territorial integrity, and consequently the people may have
the remedy of external self-determination, i.e. unilateral secession.643
While conventional law leaves the issue of secession up in the air,
Paragraph 7 of the Friendly Relations Declaration provides the most
convincing legal argument in favour of secession. Even though it must
be admitted that ‘General Assembly resolutions are not usually
[legally] binding as such’, they ‘can in appropriate circumstances
constitute evidence of existing customary law’.644 According to the
International Court of Justice in its Advisory Opinion on the Legality of
the Threat or Use of Nuclear Weapons
‘[General Assembly resolutions] can, in certain circumstances, provide

evidence important for establishing the existence of a rule or the emergence
of an opinio juris. To establish whether this is true of a given General
Assembly resolution, it is necessary to look at its content and the conditions
of its adoption; it is also necessary to see whether an opinio juris exists as
to its normative character. Or a series of resolutions may show the gradua1
645
evolution of the opinio juris required for the establishment of a new rule’.
640
General Assembly Declaration on the Occasion of the Fiftieth Anniversary of the UN, supra
note 601.
641
(emphasis added).
642
See e.g. Raič, supra note 7, pp. 317-324. Also generally, Cassese, supra note 13, p. 118-
120, stating at p. 119 that ‘since the possibility of impairment of territorial integrity is not
totally excluded, it is logically admitted’. Knop, Diversity and Self-Determination in
International Law, Cambridge: Cambridge University Press 2002, pp. 74-77, Timmermann,
supra note 620, pp. 372-373, Pavkovic & Radan, supra note 593, pp. 234-236. See also
Reference re Secession of Quebec, supra note 345, pp. 498-500, also referring to Paragraph 7
of the Friendly Relations Declaration. Crawford, supra note 10, p. 119.
643
Raič, supra note 7, p. 321. Dugard & Raič, supra note 576, pp. 103-104, 137.
644
Statement of Principles, supra note 110, pp. 56-57. See also the text accompanying note
110.
645
Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, ICJ Reports
1996, para. 70, available at <http://www.icj-cij.org>.
103
As noted before in paragraph 2.4.1, the Friendly Relations Declaration
has been referred to as a rare example of ‘instant’ customary law. It
is submitted here that the ‘safeguard clause’ as first enunciated in the
Friendly Relations Declaration, and repeated in the various
declarations and resolutions mentioned before, at least evinces a
strong opinio iuris on the part of the international community that
respect for the territorial integrity of a State is dependent on whether
its government is representative. Moreover, the author shares the
point of view of many other authors, that the ‘safeguard clause’
implicitly authorises secession, albeit a ‘qualified’ right of secession,
for it can only be exercised in exceptional circumstances.646 The exact
circumstances under which this right may be invoked will be analysed
in greater detail in paragraph 4.7. The following section will first
evaluate (semi-) judicial decisions in support of a right of remedial
secession.
4.5 Case Law
4.5.1 The Ǻland Islands Dispute
One of the earliest cases in which the possibility of secession as a last

resort was acknowledged, is the Ǻland Islands Case. In this case, the
Commission of Jurists first concluded that
‘[p]ositive international law does not recognize the right of national groups,
as such, to separate themselves from the State of which they form a part by
647
the simple expression of a wish’.
The Commission of Rapporteurs looking into the matter shared this

view, but nevertheless considered that
‘[t]he separation of a minority from the State of which it forms part and its
incorporation in another State can only be considered as an exceptional
solution, a last resort when the State lacks either the will or the power to
enact and apply just and effective guarantees [of religious, linguistic and
648
social freedom]’.
While the legal value of this statement may be small, it is illustrative

of the fact that as early as 1921, international lawyers considered
unilateral secession as a remedy in case of human rights violations.
646
The ‘qualified secession doctrine’ is proponed by Raič, supra note 7, p. 324. See also
Cassese, supra note 13, p. 112, stating that ‘[o]ne thing is made very clear: any licence to
secede must be interpreted very strictly’, p. 118, ‘Close analysis of both the text of the
Declaration and the preparatory work warrants the contention that secession is not ruled out
but may be permitted only when very stringent requirements have been met’.
647
Quoted by Raič, supra note 7, p. 329.
648
Ibid.
104
4.5.2 The African Commission on Human and Peoples Rights,
Katangese Peoples’ Congress v Zaïre (1995)
In the case of Katangese Peoples’ Congress v. Zaire the African

Commission on Human and Peoples’ Rights seemed to acknowledge
the possibility of a right of unilateral secession in case of
‘concrete evidence of violations of human rights to the point that the

territorial integrity of Zaire should be called into question’ or if there would
be ‘evidence that the people of Katanga are denied the right to participate in
649
Government as guaranteed by Article 13 (1) of the African Charter’.
Since there was no evidence to this effect, Katanga was
‘obliged to exercise a variant of self-determination that is compatible with

650
the sovereignty and territorial integrity of Zaire’.
This decision indicates that the remedy of unilateral secession may be

available if a people is barred from exercising its internal right of self-
determination or when it suffers from gross violations of human
rights.651
4.5.3 Supreme Court of Canada, Reference re Secession of Quebec

(1998)
According to a study of the International Law Association (ILA)

decisions of national courts, being organs of the State may also be
regarded as State practice.652 Moreover, the ILA has acknowledged
that ‘it is often difficult or impossible to separate the two elements’,
i.e. to distinguish State practice and opinio iuris.653 In Reference re
Secession of Quebec, the Supreme Court of Canada addressed the
right of external self-determination.654 The pronouncements of the
Court can be regarded as State practice, but at the same time they
undoubtedly express opinio iuris on the right of external self-
determination. According to the Court, there are two clear cases in
which external self-determination is permitted under international
law.655 The first case is the right of colonial peoples to claim
independence by exercising their right of self-determination.656 The
649
Katangese Peoples’ Congress v. Zaire, supra note 430, para. 6.
650
Ibid.
651
Raič, supra note 7, p. 330. Also Timmermann, supra note 620, p. 374.
652
Statement of Principles, supra note 110, pp. 17-18.
653
Ibid., p. 7. See also P. Haggenmacher, ‘La doctrine des deux éléments du droit coutumier
dans la pratique de la Cour internationale’, Revue Générale de Droit International Public, Vol.
90, 1986, pp. 5, 114.
654
Reference re Secession of Quebec, supra note 345, pp. 498-500.
655
Ibid., p. 498.
656
Ibid.
105
second undisputed case is the right of external self-determination for
peoples ‘subject to alien subjugation, domination or exploitation
outside a colonial context’.657
Furthermore, the Court noted that international lawyers have
identified a third case in which external self-determination may be
legitimate and that
‘[a]lthough this third circumstance has been described in several ways, the
underlying proposition is that, when a people is blocked from the meaningful
exercise of its right to self-determination internally, it is entitled, as a last
resort, to exercise it by secession. The Vienna Declaration […] requirement
that governments represent “the whole people belonging to the territory
without distinction of any kind” adds credence to the assertion that such a
658
complete blockage may potentially give rise to a right of secession.’
It has already been pointed out in the previous paragraph that the
‘saving clause’ contains a very persuasive legal argument for a right
of remedial secession. The fact that the Court also refers to it in the
context of secession supports this statement. While the Court took
note of the fact that
‘it remains unclear whether this third proposition actually reflects an

659
established international law standard’,
it did conclude that
‘the international law right to self-determination only generates, at best, a

right to external self-determination in situations of former colonies; where a
people is oppressed, as for example under foreign military occupation; or
where a definable group is denied meaningful access to government to
pursue their political, economic, social and cultural development. In all three
situations the people in question are entitled to a right to external self-
determination because they have been denied the ability to exert internally
660
their right to self-determination.’
As the Court considered the third circumstance to be ‘manifestly

inapplicable’ in this case, Quebec was not permitted under
international law to secede unilaterally from Canada.661 However, the
Court did recognise a constitutional obligation for the parties to
negotiate the possibility of a secession, especially after a ‘clear
expression of a clear majority of Quebecers that they no longer wish
to remain in Canada’.662 This is an important point, which will be
elaborated in paragraph 7, as the criteria for exercising the right of
657
Ibid.
658
Ibid., pp. 498-499.
659
Ibid., p. 499.
660
Ibid., p. 500.
661
Ibid.
662
Ibid., pp. 503-504.
106
remedial secession will be discussed. Furthermore, the Court draws
attention to the importance of recognition by the international
community for a declaration of independence to be successful.663 If
either party has been unwilling to negotiate, this may influence the
recognition process in case unilateral secession takes place.664
Therefore, the conduct of both parties in a self-determination conflict
is crucial, for it may influence whether or not the international
community will consider a secession legitimate, which consequently
will have effect upon the decision whether it will recognise the newly
established State or not.665 The connection between recognition,
secession and how the parties of a secessionist dispute can influence
the reaction of the international community will be discussed in the
next section. The secessions of Bangladesh, Croatia and Kosovo
present good examples of the status of unilateral secession to as a
‘tool’ to redress a wrong.666 Before turning to these cases, however, it
must be kept in mind that the context in which the Quebecers
advanced their claim differs from that of the Bengalis, Croatians and
Kosovars in every respect.667 While the people of Quebec have been
able to exercise their right of internal self-determination and have not
suffered serious oppression and gross violations of fundamental
human rights, the people of Bangladesh, Croatia and Kosovo have
endured extreme violations of non-derogable human rights, notably
the right to life, in addition they have been violently repressed and
were effectively barred from exercising their internal right of self-
determination.668
4.6 State Practice
4.6.1 Recognition
As the Canadian Supreme Court observed in the Reference re

Secession of Quebec, it is important to pay attention to the
relationship between recognition and secession. As stated before, the
right of external self-determination can be exercised by secession, as
a way to create a new independent State. Even though it is true that
recognition does not ‘provide any retroactive justification for the act
of secession’,669 it is an important element of State practice in
response to external self-determination in the form of secession. In
other words, the moment a State exists, as a fact, as a result of a
successful secession, the reaction of the international community may
663
Ibid., pp. 490, 505.
664
Ibid.
665
Ibid.
666
Case of Loizidou v. Turkey, supra note 574.
667
Hansen, supra note 602, pp. 127-128.
668
Ibid.
669
Reference re Secession of Quebec, supra note 345, p. 505.
107
influence whether it will also have a legal status. This section will first
explain the theory of recognition in international law in short.
Article 1 of the Inter-American Convention on the Rights and Duties
of States (“Montevideo Convention”), which developed into a rule of
customary international law, requires four criteria for the attainment
of statehood: a permanent population, a defined territory, a
government and the capacity to enter into relations with the other
states.670 Along these lines it would seem that if an entity meets all
four of these criteria, it can be considered a State.671 However, things
are not as simple as they appear, for there are two points of view
concerning ‘the legal nature and effect of recognition’: the declaratory
theory and the constitutive theory.672 In short, according to the
declaratory theory, recognition is ‘merely a formal acknowledgement
of an already existing fact’.673 Therefore, under the declaratory
theory, a State that meets the four Montevideo criteria not only
‘exists as a fact’, it also instantly has ‘international legal
personality’.674 In other words, it is not dependent on the recognition
of other States to become a subject of international law.675 The
constitutive theory on the other hand, argues that ‘[t]hrough
recognition only and exclusively a State becomes an International
Person and a subject of International Law’.676 While this theory thus
concedes the existence of a State ‘as a fact’ in the same way as the
declaratory theory concedes, the essential difference between the two
is that the constitutive theory argues that only after a State is
recognised, it will have ‘international personality’.677 ‘Recognition
therefore becomes an additional requirement of statehood’.678
A thorough discussion on the merits of both theories of recognition
will exceed the scope of this thesis. However, a few comments can be
made. An important point of criticism as regards the constitutive
theory is that it leads to uncertainty.679 While some States may
decide to recognise a certain new State, others may not and the
result of the constitutive theory will thus be that the status of that
State will remain uncertain.680 Lauterpacht referred to this situation
670
Raič, supra note 7, p. 24. Inter-American Convention on Rights and Duties of States,
December 26, 1933. The Montevideo Convention is available at <http://avalon.law.yale.edu>.
671
672
Ibid., p. 28.
673
Ibid., p. 32.
674
Ibid.
675
Ibid.
676
L.F.L. Oppenheim, International Law: A Treatise, Vol. I, Peace, London: Longmans, Green
and Co., (1st ed.), 1905, p. 110, quoted by Raič, supra note 7, p. 29.
677
Raič, supra note 7, p. 30
678
Dugard & Raič, supra note 576, p. 97.
679
Ibid.
680
Ibid. Also M.N. Shaw, International Law, Cambridge: Cambridge University Press 2003, p.
369.
108
as a ‘grotesque spectacle’681 and tried to remedy it by arguing that
States have a duty to recognise a new State that meets the
Montevideo criteria.682 However, State practice indicates that States
do not share this point of view and (non-)recognition seems to be
politically motivated rather than the result of a supposed legal
obligation.683 There are cases of premature recognition684 as well as
cases in which recognition was withheld despite the fact that the
required criteria of statehood were met.685
A definite answer in this debate is difficult to find.686 On the one hand,
‘the political nature of recognition has prompted support for the
declaratory school’,687 on the other hand recognition does have ‘an
important consolidating effect with respect to statehood, especially in
situations where the government of the recognised State is not fully
effective’.688 The constitutive theory thus links up with the declaratory
theory through the fourth criterion of statehood, i.e. the capacity to
enter into diplomatic relations with other states. From a practical
point of view it has been noted that
‘if an entity, while meeting the conditions of international law as to

statehood, went totally unrecognized, this would undoubtedly hamper the
exercise of its rights and duties, especially in view of the absence of
diplomatic relations, but it would not seem in law to amount to a decisive
689
argument against statehood itself.’
Again, it must be concluded that a definite answer is difficult to find.

As the Badinter Commission correctly pointed out in Opinion 8,
681
H. Lauterpacht, Recognition in International Law, Cambridge: Cambridge University Press
1963, p. 78.
682
Ibid., p. 6.
683
Dugard & Raič, supra note 576, p. 98. Also Shaw, supra note 671, p. 369. See also Opinion
11 of the Badinter Commission, 16 July 1993, International Legal Materials, Vol. 32, pp. 1587-
1589, in which the Commission noted that recognition is ‘a discretionary act that other states
may perform when they choose and in a manner of their own choosing, subject only to
compliance with the imperatives of general international law’.
684
See e.g., the premature recognition of Bosnia Herzegovina. Bosnia Herzegovina was
recognised by the European Community and the United States on 7 April 1992 and was
admitted as a member of the United Nations on 22 May 1992 (GA Res. 46/237, 22 May 1992).
At that time, there was a civil war going on in Bosnia Herzegovina which means that it cannot
be maintained that the ‘traditional criteria of statehood’ were met. The government of Bosnia
Herzegovina was not effective, nor was there ‘complete control over the territory’. See Dugard
& Raič, supra note 576, pp. 131-132, 135.
685
See, e.g. the situation of Abkhazia, which the international community (except for Russia
and Nicaragua) has refused to recognise as a State, despite the fact that the ‘traditional
criteria of statehood’ have been met. See Raič, supra note 7, p. 419. The example of Abkhazia
will be discussed in the next section.
686
Shaw, supra note 671, p. 369. Also Dugard & Raič, supra note 576, p. 99.
687
Dugard & Raič, supra note 576, p. 98. According to the Badinter Commission, ‘the existence
or disappearance of the state is a question of fact’ and ‘the effects of recognition by other
states are purely declaratory’. Opinion 1, supra note 286.
688
Raič, supra note 7, pp. 39, 427. See also Dugard & Raič, supra note 576, p. 99.
689
Shaw, supra note 671, p. 371. See also Raič, supra note 7, p. 39 and Dugard & Raič, supra
note 576, pp. 98-99.
109
‘while recognition of a state by other states has only declarative value, such
recognition, along with membership of international organizations, bears
witness to these states’ conviction that the political entity so recognised is a
reality and confers on it certain rights and obligations under international
690
law.’
The arbitrariness of recognition caused by its discretionary character

is somewhat mitigated by the fact that recently, collective
(international) recognition is being used in addition to the ‘traditional’
practice of individual recognition.691 Examples of collective recognition
are recognition by the European Community or the granting of
membership of the United Nations.692 This is a welcome trend,
especially if it is used together with a set of guidelines, containing the
policy of the recognising entities.693
One point of criticism with respect to the constitutive theory that has
been put forward is important to note within the context of this
Chapter. If we accept that the right of self-determination includes the
right to independence, the constitutive theory cannot be
maintained.694 The reason for this is that after a unilateral secession
the parent State usually will not be inclined to recognise the newly
established State.695 That way, according to the constitutive theory, a
parent State would be able to effectively block the exercise of the
right of (external) self-determination of a people living within its
territory.696 In other words, as Raič correctly pointed out
‘if recognition would be considered constitutive for the international

personality of the State in question little, if anything, would remain of the
right to self-determination of peoples. This cannot be assumed in light of the
697
fundamental position of this right in international law.’
He goes on to note that
690
Opinion 8, supra note 287. In the same way, the Canadian Supreme Court in Reference re
Secession of Quebec, supra note 345, pp. 500-502, stated that ‘[n]o one doubts that legal
consequences may flow from political facts’ and that ‘although recognition by other states is
not, at least as a matter of theory, necessary to achieve statehood, the viability of a would-be
state in the international community depends, as a practical matter, upon recognition by other
states. That process of recognition is guided by legal norms. However, international law is not
alone constitutive of statehood and, critically, does not relate back to the date of secession to
serve retroactively as a source of a “legal” right to secede in the first place.’
691
According to Dugard & Raič, supra note 576, pp. 99-100, 134 ‘it is fair to conclude that
many States have achieved statehood by admission to the United Nations and that this
procedure for recognition co-exists alongside the traditional method of unilateral recognition.
Any description of the law of recognition that fails to take account of this development cannot
lay claim to be an accurate reflection of State practice’.
692
Ibid., pp. 99-100, 134. See also Shaw, supra note 671, p. 388.
693
See, e.g. the ‘Guidelines on Recognition’, supra note 276.
694
695
Ibid. Serbia, e.g., persistently refuses to recognise Kosovo.
696
697
Ibid. See also ibid., p. 29.
110
‘combining the law of self-determination and recognition practice in the field
of unilateral secession leads to the conclusion that if an entity is recognized
as a State, while it has been established as a result of unilateral secession,
and its creation is sought to be justified on the basis of the right of external
self-determination, the recognition of statehood implies the recognition of
the applicability of a right of unilateral secession of the people in question.
Recognition has thus assumed a dual role: it is not only the State which is
recognized, but also the right of external self-determination of the people
698
concerned.’
Keeping this in mind, the present paragraph will analyse cases of

unilateral secession outside the colonial context. Throughout the
analysis, considerable attention will be given to recognition as an
important element of State practice in relation to secession, in order
to be able to answer the question whether there is a right of
unilateral secession under international law. It must be stressed that
it is not submitted here that recognition retroactively creates a right
to secede.699 An evaluation of the recognition practice of states in
relation to secession may only serve to shed some light on the
question whether the international community considers unilateral
secession legitimate under exceptional circumstances, what those
circumstances are and whether this implies that there may be
additional or ‘modern’ criteria for statehood apart from the
‘traditional’ Montevideo criteria.700
4.6.2 Secession Outside the Colonial Context
There have been many cases of external self-determination in the

form of secession outside the colonial context. At the outset, it must
be noted that dissolution of a State has been distinguished from
secession.701 The importance of the distinction between dissolution
and secession lies in the fact that when a State dissolves, that State
will cease to exist and all parts of the former State will be its equal
successors.702 In case of secession, the ‘old’ State will continue to
exist and the entities that have seceded will have to be recognised as
698
Ibid., pp. 426-427. This view is supported by the concurring opinion of Judge Wildhaber,
joined by Judge Ryssdal in the Case of Loizidou v. Turkey, supra note 574, stating that ‘[w]hen
the international community in 1983 refused to recognise the [Turkish Republic of Northern
Cyprus] as a new State under international law […] it by the same token implicitly rejected the
claim of the "TRNC" to self-determination in the form of secession. Cf. the Canadian Supreme
Court in Reference re Secession of Quebec, supra note 345, pp. 490, 500-502, 505.
699
Reference re Secession of Quebec, supra note 345, p. 501.
700
701
Ibid., p. 358.
702
Ibid. Crawford, supra note 577, p. 92-93. The distinction also has implications for State
succession. See e.g., Article 34 and 35 of the Vienna Convention on Succession of States in
respect of Treaties, 23 August 1978, entered into force on 6 November 1996, available at
<http://untreaty.un.org>.
111
new States by the international community.703 Sometimes opinions
differ whether a certain situation is a case of secession or dissolution,
which makes it impossible to make a clear distinction between the
two at all times.704
Examples of secession outside the colonial context include the
separation of Singapore from Malaysia in 1965, which took place on
the basis of a Separation Agreement between the two parties.705 The
Separation Agreement indicates that this was a case of consensual
secession rather than unilateral secession. The international
community reacted positively and collectively recognised Singapore
by admitting the new State as a member of the United Nations.706
The independence of the Baltic States in 1991 is another example of a
peaceful secession, although this was not a real case of unilateral
secession either, because it was seen as a ‘restoration of
independence’, based on the ‘consent of the parties concerned’.707
The Baltic States were admitted as members of the UN after it was
clear that the Soviet Union would also recognise their
independence.708 The reaction of the international community thus
indicates that in cases of secession the international community
considers it very important to take account of the attitude of the
‘parent’ State.709
The break-up of the Soviet Union starting in 1991 was a case of
secession rather than dissolution, because the legal personality of the
‘old’ State was continued by the Russian Federation.710 This secession
was also consensual, because in the end, all of the twelve republics
agreed with the break-up of the Soviet Union.711 It is important to
note the fact that the Russian Federation as the ‘parent’ State
703
Raič, supra note 7, p. 359. Musgrave, supra note 14, p. 200. According to Crawford, supra
note 10, pp. 390-391, ‘in cases of dissolution, no one party is allowed to veto the process’. See
also Crawford, supra note 577, pp. 92-93.
704
Raič, supra note 7, pp. 358-359. Also Crawford, supra note 10, p. 390.
705
Crawford, supra note 10, p. 392.
706
Ibid., p. 393. See SC res 213 (1965), 20 September 1965 and GA res 2010 (XX), 1
September 1965.
707
See the statement of the President of the Security Council after the SC had adopted a
resolution supporting the applications for UN membership of the three States: ‘The
independence of the [Baltic states] was restored peacefully, by means of dialogue, with the
consent of the parties concerned, and in accordance with the wishes and aspirations of the
three peoples. We can only welcome this development, which obviously represents progress in
respecting the principles of the Charter of the United Nations and in attaining its objectives’,
SCOR, S/PV/3007, 12 September 1991 (Mr Merimée (France)). (emphasis added). See,
generally, Cassese, supra note 13, pp. 258-264.
708
709
Ibid.
710
Ibid., p. 395. See, generally, Cassese, supra note 13, pp. 264-268.
711
Crawford, supra note 10, p. 395. On 8 December 1991 Russia, Belarus and Ukraine signed
the Treaty establishing the Commonwealth of Independent States (CIS) in Minsk. On 21
December 1991 eight other republics of the former Soviet Union (Armenia, Azerbaijan,
Moldova, Kazakhstan, Kirgizstan, Tajikistan, Turkmenistan and Uzbekistan) signed the Protocol
to the Agreement establishing the Commonwealth of Independent States at Alma-Ata,
Kazakhstan, thus joining the CIS. Both the Treaty and the Protocol are available at
<http://www.ena.lu>.
112
acquiesced in the secession, which apparently influenced the positive
attitude of the international community towards the secession.712
Furthermore, the European Community reacted by issuing ‘Guidelines
on the Recognition of New States in Eastern Europe and in the Soviet
Union’,713 which referred to the principle of self-determination and
made recognition dependent on five criteria.714
The break-up of the Socialist Federal Republic of Yugoslavia (SFRY)
started with the secession of Slovenia and Croatia, which caused a
bloody civil war and resulted in the dissolution of Yugoslavia.715 The
international community reacted to the events in the SFRY by
convening a Conference on Yugoslavia.716 As regards recognition of
the constituent republics of the SFRY the Member States of the
European Community adopted a common position. They issued a
Declaration on Yugoslavia717 and applied the ‘Guidelines on the
Recognition of New States in Eastern Europe and in the Soviet
Union’.718 An Arbitration Commission was established with the task of
answering several legal questions and considering the applications for
recognition of the republics.719 One of the Opinions the Arbitration
Commission issued perfectly illustrates the lack of clarity between
secession and dissolution.720 The question the Commission had to
answer was whether the situation in Yugoslavia was a case of
secession, as Serbia and Montenegro had claimed, or whether the
Socialist Federal Republic of Yugoslavia was disintegrating, as the
other republics had argued.721 In its first Opinion of 29 November
1991, the Commission concluded that ‘the Socialist Federal Republic
of Yugoslavia is in the process of dissolution’.722 However, a number
712
Crawford, supra note 10, p. 395. The eleven States that seceded from the former Soviet
Union were all admitted without any objections as members of the United Nations.
713
‘Guidelines on Recognition’, supra note 276.
714
The five criteria were: (i) respect for the provisions of the Charter of the United Nations and
the commitments subscribed to in the Final Act of Helsinki and in the Charter of Paris,
especially with regard to the rule of law, democracy and human rights; (ii) guarantees for the
rights of ethnic and national groups and minorities in accordance with the commitments
subscribed to in the framework of the CSCE; (iii) respect for the inviolability of all frontiers
which can only be changed by peaceful means and by common agreement; (iv) acceptance of
all relevant commitments with regard to disarmament and nuclear non-proliferation as well as
to security and regional stability; (v) commitment to settle by agreement, including where
appropriate by recourse to arbitration, all questions concerning State succession and regional
disputes.
715
716
717
Declaration on Yugoslavia, supra note 285.
718
719
Ibid., p. 396-397.
720
The Opinions of the Commission have been criticized by many writers. See generally,
Hannum, supra note 575, pp. 57-69. M. Pomerance, ‘The Badinter Commission: The Use and
Misuse of the International Court of Justice’s Jurisprudence’, Michigan Journal of International
Law, Vol. 20, 1998, pp. 31-58. Musgrave, supra note 14, pp. 200-207 and P. Radan, ‘Post-
Secession International Borders: A Critical Analysis of the Opinions of the Badinter Arbitration
Commission’, Melbourne University Law Review, Vol. 24, 2000, pp. 50-76.
721
Hannum, supra note 575, p. 63.
722
Opinion 1, supra note 286. Raič, supra note 7, p. 360.
113
of commentators has noted that according to the Commission, Croatia
and Slovenia became independent on 8 October 1991.723 As Croatia
and Slovenia both declared their independence before the SFRY
started disintegrating, this was a case of unilateral secession rather
than dissolution.724
The fact that the SFRY was ‘in the process of dissolution’ was very
convenient from a political point of view, because this implied that
there was no ‘parent’ State to veto the process, which in turn allowed
the European Community to recognise the constituent republics
without being accused of interfering in the internal affairs of a
sovereign State.725 Moreover, labelling the crisis as dissolution ruled
out the possibility of setting a precedent for secession.726 Although
the Federal Republic of Yugoslavia (Serbia and Montenegro) in the
end acquiesced in the secession of the four republics,727 the civil war
that started in the end of 1990 and officially ended with the
conclusion of the Dayton-Paris Peace Agreement in 1995 clearly
indicates that this was not a case of consensual secession.
Another point for which the Commission can be criticized is that it
invoked the principle of uti possidetis in support of the opinion that
‘the former [administrative] boundaries become frontiers protected by
international law’.728 A number of critical authors have rightly pointed
out that the Commission was wrong to argue that the principle of uti
possidetis is applicable outside the colonial context.729
The most important point that must be made with respect to the
Yugoslav crisis is that the recognition of Croatia and Bosnia-
Herzegovina was premature.730 Both entities did not meet the
‘traditional criteria for statehood’ at the time they were recognised by
the international community, for the respective governments were
not effective, nor was there ‘complete control over the territory’.731
According to Raič
‘Recognition, therefore, had a consolidating effect, as it served to secure the

independence of the State and to bolster the effectiveness of its government
732
by lending international legitimacy’.
723
Opinion 11, supra note 674. Raič, supra note 7, p. 360. See also Radan, supra note 711, p.
54.
724
Radan, supra note 711, p. 54. Raič, supra note 7, pp. 360-361. According to Raič, the
unilateral secession did result in the dissolution of the SFRY. See also Musgrave, supra note
14, pp. 200-203.
725
726
Musgrave, supra note 14, p. 203. See also Crawford, supra note 10, p. 401.
727
Ibid., p. 398-399.
728
Opinion 3, supra note 286.
729
Hannum, supra note 575, p. 66. Hannum, supra note 274, pp. 64-65. Pomerance, supra
note 711, pp. 50-57. Radan, supra note 711, pp. 59-65.
730
Dugard & Raič, supra note 576, p. 135. Also Crawford, supra note 10, p. 400.
731
Dugard & Raič, supra note, 576, pp. 131-132, 135.
732
Ibid., p. 135. See also C. Warbrick, ‘Kosovo: The Declaration of Independence’,
International and Comparative Law Quarterly, Vol. 57, July 2008, p. 676, stating that ‘[f]or all
114
The circumstances under which the secession of Croatia took place
will be discussed more detailed in the following section, as they
provide a good example of unilateral ‘remedial secession’.
The secession of Eritrea took place on a consensual basis after an
agreement had been reached between the Eritrean Peoples Liberation
Front (EPLF) and the Transitional Government of Ethiopia, which had
replaced the military regime that had been defeated.733 The
international community collectively recognised Eritrea by admitting it
as a member of the United Nations.734
From the examples of secession outside the colonial context that have
been described so far, the following observations can be made. First
of all, except for the case of Yugoslavia, all secessions were
consensual, which probably positively influenced the recognition
process of the international community. Secondly, the premature
recognition of Croatia and Bosnia-Herzegovina had a ‘consolidating
effect’.735 Thirdly, it is important to take note of the ‘Guidelines on
Recognition’ of the European Community, which apart from the ‘the
normal standards of international practice’ laid down five additional
criteria as a precondition for recognition.736 However, use of the
Guidelines seems to have been a one-off act. The EC Guidelines have
not been used in later recognition practice and neither have they
been used by other States or entities, indicating they exemplified
regional rather than international practice. Nevertheless, the case of
Kosovo which will be discussed in paragraph 4.6.5 demonstrates that
the essence of the Guidelines, in particular respect for the rule of law,
remains important in connection with recognition. Finally, in most
cases of secession, the seceding entities considered it appropriate to
hold a referendum, which indicates respect for the right of (internal)
4.6.3 Failed Secessionist Attempts Outside the Colonial Context
The list of failed secessionist attempts that took place outside the
colonial context is much longer than those secessions that were
successful. A few cases stand out and therefore will be discussed in
the present section.
the Badinter Commission’s adherence to the orthodoxy of the declaratory theory, some at least
of the new States are the products of attempts to create States’, (emphasis added).
733
734
Ibid. See SC res 828, 26 May 1993 and GA res 47/230, 28 May 1993.
735
736
‘Guidelines on Recognition’, supra note 276. See also Crawford, supra note 10, p. 397.
737
Cassese, supra note 13, pp. 262-263, 266, 270.
115
The Turkish Republic of Northern Cyprus
The Turkish Republic of Northern Cyprus (TRNC) seceded from Cyprus
in 1983, nine years after the Turkish invasion of the island.738 So far,
Turkey is the only State that has recognised the TRNC.739 The refusal
of the international community to recognise the independence of the
TRNC is due to the fact that it was created in violation of the
prohibition on the use of force.740
Katanga
The secession of Katanga from the Congo in 1960 was also
considered unlawful by the international community, and the attempt
ended in 1963.741 Katanga seceded shortly after the Congo became
independent from Belgium, but was never recognised by any State.742
It is not entirely clear why Katanga’s attempted secession was
rejected.743 It has been argued that the international community was
concerned with the economic future of the Congo, since the mineral
wealth of the country is mainly situated in the province of Katanga.744
Moreover, the secessionist Tshombe regime was not considered
representative of the Katangan population.745 The Security Council
certainly rejected the intervention of Belgian troops in support of the
secession.746 Besides ‘neo-colonialist paranoia’ there was the fear that
recognising the secession of Katanga would set a precedent that
would lead to other separatist claims within the Congo.747 However,
the Security Council did not state that the secession violated general
international law.748 It must also be noted that the secession could
not have been justified on the basis of the ‘qualified secession
738
739
Ibid., p. 125.
740
See S/Res/541, 18 Nov. 1983. The Security Council adopts a resolution on Cyprus every
year. See, e.g. S/Res/1251, 29 June 1999, ‘[c]alling once more upon all States to respect the
sovereignty, independence and territorial integrity of the Republic of Cyprus, and requesting
them, along with the parties concerned, to refrain from any action which might prejudice that
sovereignty, independence and territorial integrity, as well as from any attempt at partition of
the island or its unification with any other country. This resolution was reaffirmed most
recently in S/Res/1847, 12 December 2008.
741
Dugard & Raič, supra note 576, p. 133. Also Crawford, supra note 10, pp. 404-405.
742
Crawford, supra note 10, p. 405. See S/Res/169, 24 November 1961, available at
<http://www.un.org>, in which the Security Council stressed that the United Nations aimed
‘[t]o maintain the territorial integrity and the political independence of the Republic of the
Congo’. Furthermore it ‘completely reject[ed] the claim that Katanga is “a sovereign and
independent nation”’ and ‘strongly deprecate[d] the secessionist activities illegally carried out
by the provincial administration of Katanga with the aid of external resources and foreign
mercenaries’. The Security Council went on to declare that ‘all secessionist activities against
the Republic of the Congo are contrary to the Loi fondamentale and Security Council decisions
and specifically demand[ed] that such activities […] shall cease forthwith.
743
Raič, supra note 7, p. 334, note 86.
744
745
Ibid.
746
747
748
Raič, supra note 7, p. 334, note 86. See UN Doc. S/Res/169, 24 November 1961, supra
note 733.
116
doctrine’ that was discussed earlier, as the secession clearly was not
an ‘ultimum remedium’ for Katanga.749
Biafra
In 1967 Biafra attempted to secede from Nigeria, which resulted in a
horrible civil war which lasted for almost three years, and caused the
death of more than one million people.750 The reaction of the
international community was mixed.751 Some States provided direct
or indirect support to Biafra, but only five States officially recognised
it.752 The United Nations did not even consider the crisis, because it
was thought to be a matter of the Organization of African Unity.753
The OAU did not react very effectively either. It stressed the
sovereignty and territorial integrity of member States and viewed the
situation as an ‘internal affair’ of Nigeria.754 The reason that Biafra did
not gain widespread recognition is probably mainly due to political
considerations.755 It was feared that recognition of Biafra would have
‘opened the floodgates for an inevitable separatist disintegration’ of
Nigeria or even Africa.756 Opinions differ as to whether the Biafrans
may have had a legitimate claim of self-determination on the basis of
the ‘qualified secession doctrine’.757 Although a right of secession of
the Biafrans cannot be excluded altogether, the circumstances of the
attempted Biafran secession do differ from the situation that led to
the secession of Bangladesh from Pakistan, which will be discussed
later. The major difference is that in the case of Biafra, there may
have been alternatives to secession.758 Be that as it may, the
international community, notably the United Nations, can certainly be
criticised for the inactivity it displayed during the Biafran civil war.
Chechnya
Chechnya proclaimed independence in 1991, and the Russian
government reacted to it by trying to negotiate and offering
autonomy, but the Chechen leaders would not cooperate.759 As the
749
750
751
752
Ibid.
753
Dugard & Raič, supra note 576, p. 111. Also Raič, supra note 7, p. 334. And Buchheit,
supra note 8, pp. 168-169.
754
755
756
Buchheit, supra note 8, p. 174. Also Raič, supra note 7, p. 335.
757
Buchheit, supra note 8, pp. 172-174 considers the Biafrans had a legitimate claim. See also
Raič, supra note 7, p. 335. And Dugard & Raič, supra note 576, p. 111. Cf. G.J. Simpson, The
Right of Secession in International Law: A New Theory of Legitimacy, Unpublished PhD Thesis
University of British Columbia 1989, available at National Library of Canada (Canadian Theses
Service), pp. 163-187 who does not think the Biafran people had a right of unilateral
secession.
758
Simpson, supra note 748, pp. 185-187.
759
Raič, supra note 7, p. 374. See also C. Panico, Conflicts in the Caucasus : Russia's war in
Chechnya, Conflict Studies No. 281, London: Research Institute for the Study of Conflict and
117
Chechens would not settle for anything but independence, the
Russian Army tried to stop the secession in 1994, resulting in the first
Chechen war.760 This devastating war resulted in the death of
thousands of civilians and ended with the Khasavyurt Accord in 1996
and the signing of the Moscow Agreement in 1997.761 In the years
that followed, the Chechens kept refusing Russian autonomy offers.762
However, the Chechen authorities were not able to maintain law and
order in the country, which resulted in gross violations of human
rights and caused many displaced persons.763 In reaction to this
deteriorating situation, the Russian government started the second
Chechen war in October 1999, which formally ended after a few
months in February 2000.764 However, violent Chechen insurgency
and violent Russian counterinsurgency continues until this very day,
causing serious human rights abuses including assassinations,
arbitrary killings and torture.765 Despite the fact that the international
community has rightly condemned the excessive use of force, and
violations of human rights and international humanitarian law by the
Russian armed forces in both Chechen wars, it has never recognised
the independence of Chechnya but has insisted on the territorial
integrity of Russia.766 Although there were obviously (geo)political
Terrorism 1995, pp. 7-11. W.T. Atrokhov, ‘The Khasavyurt Accords: Maintaining the Rule of
Law and Legitimacy of Democracy in the Russian Federation Amidst the Chechen Crisis’,
Cornell International Law Journal, Vol. 32, 1999, pp. 373-374.
760
Ibid. See also A. Eide, ‘Chechnya: In Search of Constructive Accommodation’, Leiden
Journal of International Law, Vol. 14, 2001, pp. 432-433.
761
Raič, supra note 7, p. 374. Eide, supra note 751, p. 433. See also ‘First Chechnya War -
1994-1996’, available at <http://www.globalsecurity.org>. M. Kramer, ‘The Perils of
Counterinsurgency. Russia’s War in Chechnya’, International Security, Vol. 29, Issue 3,
2004/2005, p. 5. And Atrokhov, supra note 750, pp. 374-381.
762
Raič, supra note 7, p. 375. Atrokhov, supra note 750, pp. 377-378
763
Kramer, supra note 752, pp. 6-7. L. Aron, ‘Chechnya. New Dimensions of the Old Crisis’,
American Enterprise Institute for Public Policy Research, February 1, 2003, available at
<http://www.aei.org>. Raič, supra note 7, p. 374.
764
Eide, supra note 751, p. 434. Raič, supra note 7, p. 374. Kramer, supra note 752, pp. 7-8.
765
‘Second Chechnya War – 1999-?’, available at <http://www.globalsecurity.org>. See also
C.J. Chivers, ‘Slain Exile Detailed Cruelty of the Ruler of Chechnya’, The New York Times,
January 31, 2009, available at <http://www.nytimes.com>. Kramer, supra note 752, pp. 8-12.
According to a recent report of Freedom House, Chechnya is one of the world’s most repressive
societies: ‘Worst of the Worst. The World’s Most Repressive Societies 2009’, available at
<http://www.freedomhouse.org>.
766
See the report of the Secretary-General on ‘The situation of human rights in the Republic of
Chechnya of the Russian Federation’, 20 March 1997, UN Doc. E/CN.4/1997/10, available at
<http://www.un.org>. See also the critical ‘Report of the High Commissioner for Human
Rights on the Situation in the Republic of Chechnya of the Russian Federation’, 20 February
2001, UN Doc. E/CN.4/2001/36, available at <http://www.un.org>. See also the first three
rulings of the European Court of Human Rights, finding Russia guilty of serious violations of
human rights in Chechnya: European Court of Human Rights. Isayeva, Yusupova and Bazayeva
v. Russia, Isayeva v. Russia and Khashiyev and Akayeva v. Russia, 24 February 2005,
available at <http://www.echr.coe.int>. See also the statement of US Secretary of State
Albright on March 24, 2000, noting that ‘[w]e cannot ignore the fact that thousands of
Chechen civilians have died and more than 200,000 have been driven from their homes.
Together with other delegations, we have expressed our alarm at the persistent, credible
reports of human rights violations by Russian forces in Chechnya, including extrajudicial
killings. There are also reports that Chechen separatists have committed abuses, including the
118
reasons for the reaction of the international community, such as the
need for stability in the region after the dissolution of the Soviet
Union, support for the new democratic regime and fear of setting a
precedent which would lead to fragmentation, there are other reasons
which may explain the lack of support for Chechen independence.767
First of all, there are doubts as to whether the proclamation of
independence was actually supported by the Chechen people as
‘holders of the right of self-determination’.768 Second, throughout the
conflict, the Chechen authorities were unwilling to negotiate any
‘alternatives short of secession for the implementation of the right of
self-determination’.769 Thirdly, until the start of the first Chechen war,
there were no gross violations of human rights which may have
supported a claim for remedial secession.770 The Khasavyurt Accord of
1996 excluded secessionist demands for a period of five years, during
which the Chechens refused to accept any autonomy offer made by
killing of civilians and prisoners. Our consistent criticism of Russia's policy in the North
Caucasus should not be interpreted as a defense of Chechen insurgent groups. We have never
questioned Russia's responsibility to defend its territorial integrity or to combat terrorism and
lawlessness. But that does not begin to justify the Russian Government's decision to use such
massive force against civilians inside Chechnya. The war in Chechnya has greatly damaged
Russia's international standing and is isolating Russia from the international community.
Russia's work to repair that damage, both at home and abroad, or its choice to risk further
isolating itself, is the most immediate and momentous challenge that Russia faces’, available
at <http://geneva.usmission.gov>. (emphasis added). And resolution 2000/58 of the
Commission on Human Rights on the ‘Situation in the Republic of Chechnya of the Russian
Federation’, 25 April 2000, UN Doc. E/CN.4/RES/2000/58, available at http://www.un.org>,
calling upon ‘all parties to the conflict to take immediate steps to halt the hostilities and the
indiscriminate use of force and to begin without delay the holding of a political dialogue and
effective negotiations with the aim of achieving a peaceful solution to the crisis, which fully
respects the territorial integrity and the Constitution of the Russian Federation’, (emphasis
added). Crawford, supra note 10, p. 409. Also Raič, supra note 7, p. 375. The only
government that has recognised the independence of Chechnya was the Taliban government of
Afghanistan.
767
Raič, supra note 7, p. 378. The need for stability in the region is also considered important
because of the key position Chechnya occupies in relation to the control of oil resources. See
Eide, supra note 751, pp. 434-435. See also J.I. Charney, ‘Self-determination: Chechnya,
Kosovo and East Timor’, Vanderbilt Journal of Transnational Law, Vol. 34, 2001. Russia’s veto
in the Security Council obviously prevented the adoption of a resolution on the situation in
Chechnya. However, it is important to note that the General Assembly was not able to agree
on a resolution on Chechnya either.
768
Raič, supra note 7, p. 376. Eide, supra note 751, p. 435. Also Charney, supra note 758.
769
Raič, supra note 7, pp. 376-377. Panico, supra note 750. Atrokhov, supra note 750, pp.
373-374, 377-378.
770
At least recently there had not been any serious violations. It must be kept in mind
however, that the Chechens suffered extremely under the regime of Tsar Nicholas in the
eighteenth and nineteenth century and during the purges and deportations under Stalin in the
twentieth century, before and during the Second World War. See Atrokhov, supra note 750,
pp. 369-374. Charney, supra note 758 rightly points out that the Chechens themselves
resorted to violence in an early stadium of the conflict, instead of trying to negotiate a peaceful
solution. See also Raič, supra note 7, p. 377.
119
Russia.771 For these reasons, it can be argued that there was no
‘qualified right of secession’ for Chechnya.772
Abkhazia
Even though the history of Abkhazia’s claim to independence differs
from that of Chechnya, there are similar reasons for the international
community’s rejection of their attempted secession from Georgia.
Abkhazia officially declared its independence from Georgia on 12
October 1999 after a decade of secessionist struggle.773 Until recently,
the Security Council has constantly reaffirmed ‘the commitment of all
Member States to the sovereignty, independence and territorial
integrity of Georgia within its internationally recognized borders’.774
However, the situation changed as a result of the conflict between
Russia and Georgia over South Ossetia. On 26 August 2008, Russia
decided to recognise both Abkhazia and South Ossetia as independent
States.775 This recognition was followed by strong reactions from
other States and international organisations, such as the United
States,776 NATO,777 the OSCE,778 the Council of Europe779 and the
771
Raič, supra note 7, pp. 377-378. For an overview and analysis of the negotiations between
Russia and Chechnya, see C. Blandy, ‘Chechen Status – Wide Differences Remain’, 27 January
1998, Conflict Studies Research Centre, available at <http://www.globalsecurity.org>.
772
Raič, supra note 7, p. 378. Eide, supra note 751, pp. 435-437, argues for granting
Chechnya autonomy within the Russian Federation.
773
774
See S/Res/1808, 15 April 2008, available at <http://www.un.org>.
775
See the statement by the President of Russia, Dmitry Medvedev on 26 August 2008 that
‘[a] decision needs to be taken based on the situation on the ground. Considering the freely
expressed will of the Ossetian and Abkhaz peoples and being guided by the provisions of the
UN Charter, the 1970 Declaration on the Principles of International Law Governing Friendly
Relations Between States, the CSCE Helsinki Final Act of 1975 and other fundamental
international instruments, I signed Decrees on the recognition by the Russian Federation of
South Ossetia's and Abkhazia's independence. Russia calls on other states to follow its
example. This is not an easy choice to make, but it represents the only possibility to save
human lives’, available on <http://www.kremlin.ru>.
776
See the statement of President Bush on 26 August 2008 that ‘[t]he United States condemns
the decision by the Russian President to recognize as independent states the Georgian regions
of South Ossetia and Abkhazia. […] The territorial integrity and borders of Georgia must be
respected, just as those of Russia or any other country. […] In accordance with United Nations
Security Council Resolutions that remain in force, Abkhazia and South Ossetia are within the
internationally recognized borders of Georgia, and they must remain so’, available on
<http://www.whitehouse.gov>.
777
See the statement of Secretary-General Jaap de Hoop Scheffer, that ‘[t]his is in direct
violation of numerous UN Security Council resolutions regarding Georgia's territorial integrity,
resolutions that Russia itself has endorsed. Russia's actions in recent weeks call into question
Russia's commitment to peace and security in the Caucasus. NATO firmly supports the
sovereignty and territorial integrity of Georgia and calls on Russia to respect these principles’,
available on <http://news.bbc.co.uk>.
778
See the statement of the OSCE Chairman-in-Office, Finnish Foreign Minister Alexander
Stubb, that ‘[t]he recognition of independence for South Ossetia and Abkhazia violates
fundamental OSCE principles. As all OSCE participating States, Russia is committed to
respecting the sovereignty and territorial integrity of others. Russia should follow OSCE
principles by respecting the territorial integrity and sovereignty of Georgia’, available on
<http://www.osce.org>.
779
See the statement of Secretary-General Terry Davis that ‘[t]he unilateral recognition of the
independence of Abkhazia and South Ossetia by the Russian Federation violates the territorial
120
European Union,780 all condemning Russia’s action and considering it
a violation of international law. So far, only Nicaragua has followed
Russia’s example.781 Russia’s recognition of South Ossetia and
Abkhazia was probably based on geopolitical reasons and was
certainly a reaction to the independence of Kosovo, which Russia has
fervently opposed.782 However, this seems rather hypocritical given
the fact that until this time, Russia has not recognised Kosovo’s
independence. On the other hand, the majority of EU member States
and the US could also be accused of ‘double standards’ because of
their recognition of Kosovo while refusing to recognise South Ossetia
and Abkhazia.783 The right of independence of Kosovo, and the
question whether this can be considered a precedent, will be
discussed in the following section. It has been argued that there may
be two reasons that the international community, except for Russia
and Nicaragua, so far has rejected Abkhazia’s claim to independence.
First of all, Abkhazia has been unwilling to consider the autonomy
Georgia has offered, which ‘suggests that the Abkhazians are not
prepared to exhaust effective and peaceful remedies before claiming
secession’.784 Secondly, ‘there is no evidence of widespread and
serious violations of the fundamental rights of the Abkhazians by
Georgia’.785 Thirdly, it is not certain whether Abkhazia’s claim reflects
integrity of a fellow Council of Europe member state. It jeopardises prospects for a negotiated
settlement of the dispute about the future status of these two regions. Russia cannot have it
both ways. In the past, Russia has strongly supported the principle of territorial integrity. The
decision to recognise Abkhazia and South Ossetia must strike any objective observer as being
inconsistent with this principle. The ultimate victim of this decision is the international
credibility of the Russian Federation. The Russians cannot invoke international law only when
they feel like it’, available on <http://news.bbc.co.uk>.
780
See the Presidency conclusions of the Extraordinary European Council held in Brussels on 1
September 2008, in which ‘[t]he European Council strongly condemns Russia's unilateral
decision to recognise the independence of Abkhazia and South Ossetia. That decision is
unacceptable and the European Union calls on other States not to recognise this proclaimed
independence and asks the Commission to examine the practical consequences to be drawn. It
recalls that a peaceful and lasting solution to the conflict in Georgia must be based on full
respect for the principles of independence, sovereignty and territorial integrity recognised by
international law, the Final Act of the Helsinki Conference on Security and Cooperation in
Europe and United Nations Security Council resolutions’, available on
<http://news.bbc.co.uk>.
781
See Decreto No. 46-2008 and Decreto No. 47-2008 of the President of the Republic of
Nicaragua, available on <http://www.cancilleria.gob.ni>.
782
See the statement of Dmitry Medvedev in the Financial Times of 26 August 2008:
‘Meanwhile, ignoring Russia’s warnings, western countries rushed to recognise Kosovo’s illegal
declaration of independence from Serbia. We argued consistently that it would be impossible,
after that, to tell the Abkhazians and Ossetians (and dozens of other groups around the world)
that what was good for the Kosovo Albanians was not good for them. In international relations,
you cannot have one rule for some and another rule for others’, available on
<http://www.ft.com>.
783
See, e.g. N. Popescu, ‘Europe’s Unrecognized Neighbours. The EU in Abkhazia and South
Ossetia’, Centre for European Policy Studies, Working Document No. 260/March 2007, p. 18,
available on <http://www.ceps.be>.
784
785
Abkhazia rather seems to be a perpetrator in this respect. Dugard & Raič, supra note 576,
p. 118.
121
the wishes of ‘a clear majority within Abkhazia itself’.786 The same
three arguments can be put forward with respect to South Ossetia’s
claim to independence.
The Republic of Serbian Krajina

After the proclamation of independence by Croatia on 8 October
1991, the Serb minority in Croatia declared the independence of the
Republic of Serbian Krajina on 19 December 1991, but the Republic
was never recognised by the international community.787 On the
contrary, both the General Assembly and the Security Council
stressed the need ‘to preserve [the] territorial
integrity [of the Republic of Croatia] within the internationally
recognized borders’, and emphasised ‘in this regard that the
territories comprising the United Nations Protected Areas are integral
parts of the territory of the Republic of Croatia’.788 The General
Assembly emphasised ‘that the Serbian-controlled territories of
Croatia must be peacefully reintegrated into the rest of the
country’.789 The Badinter Commission also addressed the question
whether the Serbian population in Croatia and Bosnia-Herzegovina
had the right of external self-determination, but the answer was
negative.790 In 1995 Croatia managed to re-establish its sovereignty
over the territory.791 The rejection of Serbian Krajina’s independence
by the international community can be explained by the fact that it
was not a case of ‘remedial secession’.792 It has been pointed out that
when the Serbs declared their independence, the Croatian
government was representative of the population of Croatia as a
whole.793 Moreover, the Serbs in Croatia were not discriminated in
such a way that they should have a right of unilateral secession and
they were not subjected to gross violations of basic human rights
either.794 The fact that the Serbs were not willing to ‘negotiate
alternative solutions, short of secession’ indicates that they did not
intend to exhaust ‘all effective and realistic as well as peaceful
solutions’.795 Therefore, it has rightly been concluded that the Serbs
did not have a right of unilateral secession.796
786
Ibid.
787
Raič, supra note 7, pp. 386, 389.
788
See A/Res/49/43, 9 Dec. 1994, preamble and para. 4. Also S/Res/815, 30 March 1993,
para. 5. And S/Res/1023, 22 Nov. 1995, preamble.
789
See A/Res/49/43, supra note 779, preamble.
790
Opinion 2, supra note 286.
791
Raič, supra note 7, pp. 386, 390.
792
Ibid., p. 390.
793
Ibid., pp. 390-391.
794
Ibid., pp. 391-393.
795
Ibid., p. 393.
796
Ibid.
122
Conclusion
From the examples of failed secessionist attempts that took place
outside the colonial context that were described in this section the
following observations can be made. First, the fact that these States
were not recognised by the larger part of the international community
indicates that most States did not consider their claim legitimate.
Second, the reasons for non-recognition included (i) their creation
was in violation of fundamental rules of international law such as the
the right of self-determination or the prohibition on the use of force,
(ii) the claim was not considered to be representative of the people
concerned, (iii) secession was not considered an ‘ultimum remedium’,
because of the availability of alternatives, (iv) there was no evidence
of violation of the right of internal self-determination or gross
violations of fundamental human rights, (v) there was fear of setting
a precedent which would lead to fragmentation, (vi) (geo)political
reasons.
4.6.4 Remedial Secession
The following cases of unilateral secession that took place outside the
colonial context need to be described separately, because of their
remedial character.
Bangladesh
The secession of Bangladesh (East Pakistan) from West Pakistan in
1971 is a very good example of ‘remedial secession’. The political and
economic inequality between East and West Pakistan had caused
many problems for years, and the Bengali people tried to address
them by striving for autonomy.797 In December 1970 the Awami
League of the Bengalis had won the elections for a National Assembly
of Pakistan, with an election programme consisting of a six-point plan
aimed at turning Pakistan into a federation.798 However, the
uncooperative stance of West Pakistan resulted in a political crisis.799
When the Awami League was not able to take office the Bengalis
started a peaceful campaign of non-cooperation.800 West Pakistan
reacted to this with ‘a large-scale military operation’.801 The leader of
the Bengalis responded with a declaration of independence on 26
March 1971.802 Subsequently, several Awami League leaders were
arrested and the bloody civil war that followed led to the death of
797
Dugard & Raič, supra note 576, pp. 120-121.
798
V.P. Nanda, ‘Self-Determination in International Law. The Tragic Tale of Two Cities –
Islamabad (West Pakistan) and Dacca (East Pakistan)’, American Journal of International Law,
Vol. 66, 1972, p. 323. Also Dugard & Raič, supra note 576, p. 121.
799
Dugard & Raič, supra note 576, p. 121. Also Nanda, supra note 789, p. 323.
800
Nanda, supra note 789, p. 323. Also Dugard & Raič, supra note 576, p. 121.
801
802
Ibid.
123
more than one million Bengalis and probably around 10 million
refugees.803 The West Pakistan Army used excessive force and some
have even accused it of genocide.804 After more than eight months of
fighting India intervened on behalf of the Bengalis and within two
weeks the West Pakistan Army was defeated.805 India was the first to
recognise Bangladesh on 6 December 1971, followed by Bhutan on 7
December 1971.806 The rest of the international community withheld
recognition until it was clear that the West Pakistan Army had been
defeated.807 However, it is important to note that the recognition of
more than 50 States was in fact premature.808 While the ‘traditional
criteria of statehood’ require an effective government that has control
over the territory, over 50 States recognised Bangladesh when the
Indian troops were still in the country.809 On 17 September 1974
Bangladesh was collectively recognised by a majority of States when
it became a member of the United Nations.810 It is clear the Bengalis
seceded for remedial purposes, which makes the secession of
Bangladesh the favourite example of many authors in favour of a
right of ‘remedial secession’. The Bengali people was not able to
exercise its right of internal self-determination, it was subjected to
gross violations of basic human rights culminating in what has been
called ‘genocide’ and local remedies were exhausted when their
request for autonomy had been denied.811
Croatia
The separation of Croatia from the SFRY is another example of
unilateral ‘remedial secession’.812 The Croats and Slovenes had
become tired of being politically dominated and economically
exploited by the Serbs, and first tried to address the issue internally
by asking greater autonomy within the Federation.813 Soon it became
clear that Serbia would not agree with this but instead wanted to
centralise the Federation, and the tensions culminated in a political
crisis.814 When Serbia and Montenegro would not permit a Croatian
candidate to become President of the Federation, Croatia and
803
Ibid.
804
Nanda, supra note 789, p. 323.
805
806
Ibid.
807
Crawford, supra note 10, p. 393. Also Dugard & Raič, supra note 576, p. 121.
808
809
Ibid.
810
GA Res. 3203 (XXIX), 17 Sept. 1974, available at <www.un.org>. On the practice of
collective (international) recognition, see text accompanying notes 682 and 683. According to
Rule 136 of the Rules of Procedure of the General Assembly, available at
<http://www.un.org>, ‘a two-thirds majority of the members present and voting’ is required
to be admitted as a member of the United Nations.
811
Dugard & Raič, supra note 576, pp. 122-123. See also Hansen, supra note 602, p. 165.
812
813
Ibid., pp. 123-124.
814
Ibid., p. 124.
124
Slovenia responded with a declaration of independence on 25 June
1991.815 A civil war broke out when the Yugoslav National Army (YNA)
invaded Croatia to suppress the secession and to support the Serbian
minority within Croatia.816 Through the diplomatic efforts of the
European Community, representatives of the Republic of Slovenia,
the Republic of Croatia and the Socialist Federal Republic of
Yugoslavia managed to reach an agreement with the Brioni Accord of
7 July 1991.817 The Agreement contained a cease-fire and suspended
the declarations of independence of Slovenia and Croatia for a period
of three months.818 In this period, the parties had to negotiate with
each other in order to reach a solution for the crisis.819 However, soon
after the conclusion of the Brioni Accord, a full-scale civil war broke
out with the YNA and the Serb minority in Croatia fighting against the
Croatians.820 This ferocious war, in which the YNA ‘resorted to a
disproportionate and indiscriminate use of force’821 and the practice of
‘ethnic cleansing’, resulted in gross violations of human rights,
notably the right to life.822 When Serbia and Montenegro also
excluded the other Republics from political participation within the
Federation through a coup d’état, Croatia again issued a declaration
of independence on 8 October 1991.823 As noted before, the
recognition of Croatia by the member States of the European
Community on 15 January 1992 was premature, as the government
of Croatia did not have complete control over the territory and
therefore could not be considered to be effective as required by the
‘traditional criteria for statehood’.824 Moreover, EC recognition rather
seemed to depend on the criteria set out in the ‘Guidelines on
Recognition’825 issued on 16 December 1991. EC recognition thus had
a ‘consolidating effect’ and may be seen as an affirmation that the EC
considered the secession legitimate.826 On 22 May 1992, Croatia was
collectively recognised when it was admitted as a member of the
United Nations.827
It cannot be denied that the secession of Croatia had a remedial
character and that it was considered to be lawful. Although Croatia’s
declaration of independence on 25 June 1991 seemed unlawful
because there were still alternatives instead of secession, it must be
815
Musgrave, supra note 14, p.115. Smis, supra note 14, p. 236. Dugard & Raič, supra note
576, p. 124.
816
817
Ibid.
818
Ibid.
819
Ibid.
820
Ibid.
821
See the Declaration on Yugoslavia, supra note 285.
822
Dugard & Raič, supra note 576, pp. 124-125.
823
Ibid., pp. 125-126.
824
Ibid., p. 135.
825
826
827
A/Res/46/238, 22 May 1992, available on <http://www.un.org>.
125
noted that later on Croatia did intend to negotiate another solution
when it signed the Brioni Accord.828 Only after having been subjected
to gross violations of human rights and unable to exercise their right
of internal self-determination did the Croatians declare their
independence on 8 October 1991. Therefore, Croatia’s secession at
that time can be considered an act of ‘remedial secession’, which was
considered lawful under international law.829
4.6.5 Kosovo
The most recent example of unilateral secession is the declaration of

independence by the Assembly of Kosovo on 17 February 2008.830
The reaction of the international community has been mixed. At the
time of writing the independence of Kosovo has been recognised by
56 of the 192 UN member States, including 22 EU member States.831
So far the UN has adopted a neutral stance on the status of
Kosovo,832 which can be explained by the fact that the Security
Council is still divided over the issue.833 The EU was not able to reach
a common position on Kosovo either, and five member States have
not recognised its independence.834 Serbia as the ‘parent’ State
considers Kosovo’s declaration of independence illegal and has
refused to recognise Kosovo.
Despite the controversy, the Secretary-General of the UN has
‘reconfigured’ UNMIK in order to adapt it to the new situation.835 On
26 November 2008 the Security Council agreed with the deployment
of the EULEX mission in Kosovo, which is based on Security Council
Resolution 1244 (1999)836 and designed ‘to assist and support the
Kosovo authorities in the rule of law area’.837 On 8 October 2008, the
828
829
Raič, supra note 7, p. 362. Dugard & Raič, supra note 576, p. 130. See also Murswiek,
supra note 593, pp. 30-31.
830
For the full text of the Kosovo Declaration of Independence, see <http://www.assembly-
kosova.org>.
831
For an overview of the States that have recognised Kosovo and the recognition texts see
the website <http://www.kosovothanksyou.com>.
832
See, e.g. the statement of Secretary-General Ban Ki-moon in the Report of the Secretary-
General on the United Nations Interim Administration Mission in Kosovo, S/2008/458, 15 July
2008, para. 29, available at <http://www.un.org>.
833
Three permanent members (United States, United Kingdom, France) have recognised
Kosovo, one is neutral (China) and the other (Russia) considers the declaration of
independence to be unlawful.
834
Spain, Slovakia, Romania, Cyprus and Greece. See ‘EU splits on Kosovo recognition’,
available on <http://news.bbc.co.uk>.
835
See the statement of Secretary-General Ban Ki-moon, supra note 823, para. 3: ‘in the light
of the fact that the Security Council is unable to provide guidance, I have instructed my
Special Representative to move forward with the reconfiguration of UNMIK as set out in my
special report, in order to adapt UNMIK to a changed reality and address current and emerging
operational requirements in Kosovo’, available at <http://www.un.org>.
836
S/Res/1244, 10 June 1999, available at <http://www.un.org>.
837
See <http://www.eulex-kosovo.eu>. And the ‘Statement by the President of the Security
Council’, S/PRST/2008/44, 26 November 2008, available at <http://www.un.org>. The United
126
General Assembly has supported Serbia’s request to ask the
International Court of Justice for an advisory opinion on the legality of
Kosovo’s declaration of independence, and adopted a resolution to
this effect.838 The Court’s Opinion is not to be expected soon, and in
the meantime the status of Kosovo remains uncertain. It is very
unlikely that the General Assembly would consider an application for
membership of Kosovo before the Court has issued its Opinion.
Besides, the Security Council would not be likely to recommend
Kosovo’s admission either, given the fact that Russia considers the
secession to be illegal.
Even though the international community remains divided over the
issue, from a legal point of view some arguments can be made in
favour of Kosovo’s declaration of independence. While this is not the
place to examine the history of Kosovo in detail, the past events
obviously have an impact on the legality of Kosovo’s act. At the end
of the 1980s, the autonomy of Kosovo was drastically reduced under
the Milošević regime, and the Kosovar Albanians have been
systematically repressed in the years that followed. In reaction to the
violation of their human rights and the severity of the Serbian rule,
the Kosovo Liberation Army started to fight back.839 The situation
escalated in 1998 and negotiations between Serbian and Albanian
representatives under NATO supervision failed, as the Serbs were
unwilling to accept the Rambouillet Agreement,840 containing
provisions that ‘would have granted substantial autonomy to
Kosovo’.841 In reaction to Yugoslavia’s unwillingness to cooperate, and
its continuing practice of repression and ‘ethnic cleansing’ of the
ethnic Albanians within Kosovo, NATO carried out an extensive
bombing campaign against Yugoslavia to stop the Serbs.842 The
Kosovo War ended on 9th June 1999, with the signing of the
Kumanovo Agreement,843 which laid the basis for the ‘deployment in
Kosovo under UN auspices of effective international civil [UNMIK] and
security [KFOR] presences’. The Security Council supported ‘the
interim administration for Kosovo’ in Resolution 1244, which would
have a temporary character:
‘[f]acilitating a political process designed to determine Kosovo’s future

status, taking into account the Rambouillet accords’ and [i]n a final stage,
States also participates in EULEX, see the ‘Joint Press Statement by the United States of
America and the European Union on U.S. Participation in the EULEX Mission in Kosovo’,
available at <http://www.state.gov >.
838
A/Res/63/3, 8 October 2008, available at <http://www.un.org>.
839
Warbrick, supra note 723, pp. 676-677.
840
The full text of the Agreement is available at <http://www.state.gov>.
841
Warbrick, supra note 723, p. 677.
842
Ibid.
843
The full text of the Military Technical Agreement between the International Security Force
(“KFOR”) and the Governments of the Federal Republic of Yugoslavia and the Republic of
Serbia is available at <http://www.nato.int>.
127
overseeing the transfer of authority from Kosovo’s provisional institutions to
844
institutions established under a political settlement’.
Whereas Resolution 1244 did not specifically address Kosovo’s future

status,845 it did reaffirm
‘the commitment of all Member States to the sovereignty and territorial

integrity of the Federal Republic of Yugoslavia and the other States of the
846
region, as set out in the Helsinki Final Act and annex 2’.
The negotiation process over the future status of Kosovo took almost
ten years and the parties became ever more intransigent, which
made it impossible to reach an agreement.847 In February 2007 Martti
Ahtisaari, the Secretary-General’s Special Envoy for the future status
process for Kosovo, informed the Security Council that
‘[t]he time has come to resolve Kosovo’s status. Upon careful consideration
of Kosovo’s recent history, the realities of Kosovo today and taking into
account the negotiations with the parties, I have come to the conclusion
that the only viable option for Kosovo is independence, to be supervised for
848
an initial period by the international community’.
NATO and the EU were willing to take responsibility for the

‘international supervision’ that Ahtisaari proposed, through KFOR and
EULEX.849 Despite Ahtisaari’s proposal further negotiations were
undertaken, but they would not lead to a solution.850 After Serbia had
rejected the Settlement proposal on 16 January 2008,851 negotiations
seemed definitely exhausted.852 A month later, Kosovo unilaterally
declared its independence from Serbia.
While there are several arguments that can be put forward in support
of this unilateral declaration of independence, there are also
844
S/Res/1244, supra note 827, para. 10 and 11 e) and f).
845
846
S/Res/1244, supra note 827, preamble (emphasis added). Annex 2, para. 8 of the
resolution also referred to ‘the principles of sovereignty and territorial integrity of the Federal
Republic of Yugoslavia’.
847
848
See the Letter dated 26 March 2007 from the Secretary-General addressed to the President
of the Security Council, presenting the Report of the Special Envoy of the Secretary-General on
Kosovo’s future status, S/2007/168, 26 March 2007, para. 5, available at
<http://www.un.org>. Ahtisaari, also stated that ‘[w]hile independence for Kosovo is the only
realistic option, Kosovo’s capacity to tackle the challenges of minority protection, democratic
development, economic recovery and social reconciliation on its own is still limited. Kosovo’s
political and legal institutions must be further developed, with international assistance and
under international supervision’, ibid., para. 11. Moreover, Ahtisaari envisaged that ‘the
supervisory role of the international community would come to an end only when Kosovo has
implemented the measures set forth in the Settlement proposal’, ibid., para. 13.
849
850
Ibid., pp. 678-679.
851
See S/PV.5821, 16 January 2008, available at <http://www.un.org>.
852
128
arguments against Kosovo’s act. A full discussion of all the arguments
that have been put forward would exceed the scope of this thesis,
therefore the following section will only focus on a few specific pros
and cons. The main question whether international law grants a right
of unilateral secession, which lies at the heart of the discussions on
Kosovo, is dealt with in the broader context of this thesis.
First of all, it is submitted here that, under the circumstances, Kosovo
did have a right of unilateral secession based on the right of self-
determination and for remedial purposes. The recent history of
Kosovo evidences that the right of internal self-determination of the
Kosovars has been denied and that they have been subjected to gross
violations of human rights, including systematic discrimination, ethnic
cleansing, and genocide. In addition, Kosovo did participate in a
negotiation process that took almost ten years. Only after it was clear
that all negotiations were exhausted, did Kosovo resort to the remedy
of unilateral secession. Therefore, Kosovo’s declaration of
independence can be considered lawful under international law.853
The principal argument that has been invoked against the legality of
Kosovo’s unilateral act, is Security Council Resolution 1244, which has
been discussed previously.854
However, Tomuschat has made an observation that considerably
weakens this argument.855 He first notices that Resolution 1244 does
not mention self-determination.856 But according to Tomuschat, given
the fact that the ethnic Albanians ‘met all the criteria listed in’ the
‘safeguard clause’ of the Friendly Relations Declaration, ‘a case could
have been made for acknowledging a right of self-determination to
the benefit of the Kosovars’.857 Tomuscat considers it ‘obvious’ why
the Security Council did not mention this more clearly in Resolution
1244, because
‘to state that a State has forfeited its right to control a given part of its
national territory inhabited by an ethnic group suffering massive
discrimination is a decision replete with delicate consequences. To set such
a precedent might also turn out to be harmful to certain members of the
858
Council’.
Nevertheless, he concludes that
853
Cf. the Final Report of NATO, ‘The Kosovo Crisis in an International Law Perspective: Self-
Determination, Territorial Integrity and the NATO Intervention’, prepared by Dajena Kumbaro,
16 June 2001, pp. 39-49, available at <http://www.nato.int>. On the same grounds, the
Report concludes that ‘the Kosovo Albanians should be entitled to decide the status of Kosovo
through the expression of their free and genuine will’. Ibid., pp. 48-49.
854
S/Res/1244, supra note 827, preamble.
855
C. Tomuschat, ‘Yugoslavia’s Damaged Sovereignty over the Province of Kosovo’, in: G.
Kreijen et al (eds.), State, Sovereignty and International Governance, Oxford: Oxford
University Press 2002, pp. 323-347.
856
Ibid., p. 341.
857
Ibid., p. 343.
858
Ibid., p. 344.
129
‘[i]mplicitly, […] the philosophy of forfeiture permeates resolution 1244,
providing the only possible justification for the establishment of interim but
859
long-term UN rule over Kosovo.’
Thus, while the Security Council remained silent on a possible right of

self-determination for the Kosovars and only reaffirmed the territorial
integrity of the FRY, it did in fact undermine this territorial integrity
by setting up an interim administration under international
supervision.
After having argued that Kosovo did have a right to unilateral
secession under international law, a second issue that needs to be
addressed is whether Kosovo is a State. Those arguing against
Kosovo’s unilateral declaration would point at the Montevideo criteria
for Statehood,860 according to which Kosovo is not a State, since the
government is not able to exercise complete control over the territory
without the assistance of KFOR.861 The continued international
presence on the territory of Kosovo thus indicates that it is not a
State (yet).862
However, it has been argued previously that there are two points of
view as regards recognition of Statehood, namely the declaratory and
the constitutive theory. It has also been argued that whereas
recognition may not be entirely constitutive of Statehood, it may
indeed have a ‘consolidating’ effect.863 The examples of Bangladesh
and Croatia that were described support this view. In the same way,
it can be argued that the early recognition of Kosovo by 56 UN
member States up until now, besides indicating that many States
consider Kosovo’s claim legitimate, may also serve to ‘consolidate’ the
Statehood of Kosovo.864 As noted before, the fourth criterion for the
attainment of Statehood, i.e. the capacity to enter into relations with
other States, connects the declaratory with the constitutive theory of
recognition. Realising that the four criteria supported by the
declaratory theory should always be met, and that therefore, Kosovo
cannot be considered a State, the author would still argue that if a
majority of States were to recognise Kosovo, and would thus enter
into diplomatic relations with it, it would be difficult even for Serbia to
deny Kosovo’s existence as a State under international law.
859
Ibid.
860
Convention on Rights and Duties of States, supra note 661.
861
Warbrick, supra note 723, pp. 682, 689.
862
Ibid.
863
864
Cf. Warbrick, supra note 723, p. 689, arguing that in the case of Kosovo ‘we are dealing
with the creation of a State’, thus opting for the constitutive theory.
130
Conclusion
The preceding paragraph has made it clear that there have not been
many cases of successful unilateral secession, and that arguably
there is not enough State practice to support the existence of a
customary right of unilateral remedial secession based on the right of
self-determination. Nevertheless, it can be argued that ‘negative’
State practice must also be taken into account, i.e. the practice of
States as regards unilateral secessions that have been unsuccessful,
as it serves to clarify the scope of the rule. If both negative and
positive State practice is taken together, it becomes clear that while
there is no absolute right of unilateral secession under international
law, there are certain conditions under which unilateral secession is
permitted.
In this respect it is important to note that the recent example of
Kosovo has shown that the majority of States that have recognised
Kosovo, have made it clear that the case of Kosovo is ‘unique’ or ‘sui
generis’ and that it should certainly not be used as a precedent by
any other ethnic group with secessionist pretensions.865 However,
while indeed each claim to external self-determination has to be
judged on its merits, taking account of the special circumstances of
the case it cannot be ignored that State practice does indicate a few
special features that may give rise to a right of unilateral secession as
a last resort to secure the right of self-determination of the people
concerned.
Another point that must be made is that since the Nicaragua case,
there has been a lot of discussion on ‘modern’ customary
international law.866 While traditional custom emphasises State
practice, modern custom tends to emphasise opinio iuris.867 In the
Nicaragua case, the ICJ did not consider it necessary to establish the
existence of ‘extensive and virtually uniform’ State practice, because
there was very strong opinio iuris in the international community
concerning the non-use of force and non-intervention, expressed inter
alia in the Friendly Relations Declaration.868 Based on the Court’s
865
Warbrick, supra note 723, p. 679. See e.g. the statement of United States Secretary of
State Condoleeza Rice when announcing the US recognition of Kosovo, that ‘[t]he unusual
combination of factors found in the Kosovo situation - including the context of Yugoslavia's
breakup, the history of ethnic cleansing and crimes against civilians in Kosovo, and the
extended period of UN administration - are not found elsewhere and therefore make Kosovo a
special case. Kosovo cannot be seen as a precedent for any other situation in the world today’,
available at <http://www.state.gov>.
866
Nicaragua case, supra note 110. See generally, A.E. Roberts, ‘Traditional and Modern
Approaches to Customary International Law: a Reconciliation’, American Journal of
International Law, Vol. 95, 2001. B. Simma & P. Alston, ‘ The Sources of Human Rights Law:
Custom, Jus Cogens and General Principles’, Australian Yearbook of International Law, Vol. 12,
1988-1989. D.P. Fidler, ‘Challenging the Classical Concept of Custom: Perspectives on the
Future of Customary International Law’, German Yearbook of International Law, Vol. 39, 1996.
867
Roberts, supra note 857, p. 758.
868
Ibid., paras. 186-188. According to the North Sea Continental Shelf Cases, ICJ Reports
(1969), available at <http://www.icj-cij.org>, para. 74, ‘State practice, including that of
States whose interests are specially affected, should have been both extensive and virtually
131
pronouncements in this case, a number of authors have argued that if
there is ‘a substantial manifestation of acceptance (consent or belief)
by States that a customary rule exists’, this ‘may compensate for a
relative lack of practice, and vice versa’.869 This is particularly the
case in the field of human rights obligations and rules of a
fundamental character.870 The author shares this point of view and
argues that, despite the lack of extensive and virtually uniform State
practice, there is strong opinio iuris in the international community to
support the existence of a customary right of unilateral secession
based on the right of self-determination, albeit this right is subject to
very strict conditions and may only be used for remedial purposes.
This opinio iuris is evidenced in particular by the numerous General
Assembly resolutions and declarations of general international
conferences on the right of self-determination.871
The following paragraph will examine the content and beneficiaries of
the right of remedial secession, specifically focussing on the question
under which circumstances a right of external self-determination in
the form of secession may be invoked.
4.7 Beneficiaries and Criteria for Remedial Secession De

Lege Lata
The first question that needs to be addressed is also the most difficult
and crucial problem within the context of the right of self-
determination: who are the holders of the right of unilateral
secession? This is problematic, since there is no generally accepted
definition of a ‘people’ under international law. The main reason why
States have traditionally been unwilling or unable to agree on a
definition of the holders of the right of self-determination, i.e. ‘the
people’, is that
uniform in the sense of the provision invoked; and should moreover have occurred in such a
way as to show a general recognition that a rule of law or legal obligation is involved’. See also
the Statement of Principles, supra note 110, pp. 41.
869
Statement of Principles, supra note 110, pp. 40-42. See also Cheng, supra note 128. F.L.
Kirgis, ‘Custom on a Sliding Scale’, American Journal of International Law, Vol. 81, 1987, p.
146. G.M. Danilenko, Law-making in the International Community, Dordrecht: Nijhoff 1993, p.
107. O. Schachter, ‘Entangled Treaty and Custom’, in: Y. Dinstein et al (eds.), International
Law at a Time of Perplexity. Essays in Honour of Shabtai Rosenne, Dordrecht: Nijhoff 1989,
pp. 717-738. R.A. Müllerson, Ordering Anarchy: International Law in International Society, The
Hague: Nijhoff 2000, p. 229.
870
Schachter, supra note 860. T. Meron, Human Rights and Humanitarian Norms as Customary
International Law, Oxford: Clarendon 1989. L.L. Bruun, ‘Beyond the 1948 Convention –
Emerging Principles of Genocide in Customary International Law’, Maryland Journal of
International Law and Trade, Vol. 17, 1993, pp. 216-217. R.B. Lillich, ‘The Growing Importance
of Customary International Human Rights Law’, Georgia Journal of International and
Comparative Law’, Vol. 25, 1995. It is important to note that the right of self-determination is
widely regarded as a fundamental rule of international law.
871
According to the ILA, ‘the same principles apply to the resolutions of international
conferences of a universal character as apply to resolutions of the UN General Assembly’.
Statement of Principles, supra note 110, pp. 65-66.
132
‘the recognition of groups inside the national territory as holders of a right
of self-determination would automatically lead to a right of secession, since
872
self-determination includes a right to opt for independent statehood’.
Instead, many have argued that the right of self-determination only

applied to ‘the whole people belonging to [a certain] territory’.873
However, under contemporary international law a strict territorial
definition of the holders of the right of self-determination is no longer
tenable. There have been many cases in which a group within a State
has been recognised as holder of the right of self-determination.874
Moreover, the previous Chapter has shown that States also recognise
the internal right to self-determination of groups within their territory.
The Canadian Supreme Court has made an interesting point when it
contended that
‘[i]t is clear that a people may include only a portion of the population of an
existing State. […] To restrict the definition of the term to the population of
existing states would render the granting of a right to self-determination
largely duplicative, given the parallel emphasis within the majority of the
source documents on the need to protect the territorial integrity of existing
875
states, and would frustrate its remedial purpose.’
It may not be possible to come up with a clear definition of ‘a people’,

but given the current state of international law, and considering the
‘remedial purpose’ of the right of self-determination, it would be
advisable for the international community to try again to agree on a
minimum set of criteria, which would make it easier to take a
consistent approach to self-determination claims in the future. In fact,
a number of experts has already identified the following ‘inherent
characteristics’ of a ‘people’:
‘1. a group of individual human beings who enjoy some or all of the
following common features:
(a) a common historical tradition;

(b) racial or ethnic identity;
(c) cultural homogeneity;
(d) linguistic unity;
872
Tomuschat, supra note 846, p. 344.
873
Principle V, paragraph 7, Friendly Relations Declaration, supra note 110.
874
See, e.g., the Palestinian people within the State of Israel that was identified by the
International Court of Justice in the Wall Opinion, supra note 129. Indigenous Peoples have
also been recognised as holders of the right of self-determination in the United Nations
Declaration on the Rights of Indigenous Peoples of 13 September 2007. Peoples within the
Soviet Union also claimed self-determination, which led to the secession of eleven republics
from the Russian Federation. The same can be argued as regards the self-determination claims
of the peoples within the four constituent republics of the SFRY, which resulted in the
dissolution of Yugoslavia.
875
Reference re Secession of Quebec, supra note 345, pp. 495-496, (emphasis added).
133
(e) religious or ideological affinity;
(f) territorial connection;
(g) common economic life;
2. the group must be of a certain number which need not be large (e.g. the
people of micro States) but which must be more than a mere association of
individuals within a State;
3. the group as a whole must have the will to be identified as a people or

the consciousness of being a people - allowing that groups or some
members of such groups, though sharing the foregoing characteristics, may
not have that will or consciousness; and possibly;
4. the group must have institutions or other means of expressing its

876
common characteristics and will for identity.’
A fifth and very important element that has been added to these
criteria is that the group must form ‘a clear majority’877 on a ‘distinct’
territory.878 In practice, this latter criterion will work to protect other
‘peoples’ within the same territory from a secession which is against
their will. The attempted secessions of Abkhazia and South Ossetia
have made it clear that it can be very problematic if a certain people
attempts to secede when it does not form a clear majority on the
territory it wishes to ‘take’. Furthermore, it has been noted that the
terms ‘people’ and ‘minority’, may sometimes ‘overlap’.879 This can be
illustrated with the dilemma of the Kosovo Albanians. On the one
hand it can be argued that the Kosovo Albanians are distinct from
Albanian Albanians and thus they are a people within Serbia, and as
such entitled to the right of self-determination. On the other hand it
can be argued that the Kosovar Albanians are not distinct from the
Albanian Albanians, which would make them a ‘national’ or ‘ethnic’
minority within Serbia and as such not entitled to the right of self-
determination. First of all, it must be noted that the term ‘minority’
suffers from the same lack of clarity as the term ‘peoples’. There is no
generally accepted definition of what constitutes a minority.880 This
considerably weakens the assumption that Kosovar Albanians are an
ethnic minority within Serbia, and that minorities do not have the
right to self-determination. Second, as stated before, minorities and
peoples are not mutually exclusive terms.881 Thus it can be argued
that Kosovo Albanians are both a minority and a people. According to
876
See the Final Report UNESCO supra note 503, pp. 7-8. Cf. Cristescu, supra note 117, para.
279. See also Raič, supra note 7, pp. 262-263. And Murswiek, supra note 593, p. 37.
877
Murswiek, supra note 593, p. 37. It is difficult to give an indication of what constitutes a
clear majority. The present author would suggest that as the risk of creating a large minority
in the newly established State must be brought to a minimum, a majority of at least 80%
would be required. The Kosovo Albanians e.g. constitute 90% of the population of Kosovo.
878
Raič, supra note 7, p. 262. Murswiek, supra note 593, p. 37.
879
Murswiek, supra note 593, p. 37. Also Raič, supra note 7, p. 272.
880
881
Ibid., p. 269. Murswiek, supra note 593, p. 37.
134
Raič, the difference between an ethnic minority and a people is that
national or ethnic minorities usually have a ‘kin State’.882
Nevertheless he also argues that if a minority has a ‘collective
individuality’, an identity by which it can be distinguished from those
living in the ‘kin State’, it can be considered a ‘minority-people’ and
accordingly it has the right to self-determination.883 Considering that
the characteristics of a people enumerated before apply to the Kosovo
Albanians, and considering the fact that Kosovo Albanians do have an
identity by which they can be distinguished from Albanian Albanians,
it is submitted here that Kosovo Albanians are in fact a minority and a
people at the same time and that therefore, they have the right of
After having identified the right’s holders, the second question is
under which circumstances they may be entitled to exercise their
right of unilateral secession. On the basis of the instruments, State
practice and the writings of international lawyers that have been
examined so far, the following criteria for a right of secession can be
identified:
(i) Gross and systematic violations of fundamental human rights and

885
persistent violation of the right of internal self-determination;
(ii) Negotiations for a peaceful solution of the conflict within the State have
886
been exhausted.
It is important to note that before resorting to what Cassese has

referred to as ‘the most radical form of external self-determination’,
all local remedies for solving the conflict must be exhausted.887
Furthermore, Raič has pointed out that if the criteria mentioned
previously are not met, and a certain people would nevertheless
secede, this would be an ‘abuse of right’ and a ‘violation of the law of
self-determination’, which consequently would make the secession
unlawful.888 In this respect, it is important to notice that the cases of
unilateral secession that occurred outside the colonial context have
882
Raič, supra note 7, p. 268. In the case of the Kosovo Albanians, this would be Albania.
883
Ibid., pp. 268-269.
884
See Van Walt van Praag, supra note 1, p. 12.
885
Dugard & Raič, supra note 576, p. 109. Cassese, supra note 13, pp. 119-120. Buchanan,
supra note 584, pp. 353-355. Murswiek, supra note 593, pp. 25-27. Buchheit, supra note 8,
pp. 94, 222. Cristescu, supra note 117, para. 173. Franck, supra note 580, p. 79. Hannum,
supra note 179, p. 244. Kooijmans, supra note 9, pp. 157-168. Pavkovic & Radan, supra note
593, pp. 232-239. Raič, supra note 7, pp. 326, 328. Tomuschat, supra note 589, p. 42.
886
Dugard & Raič, supra note 576, p. 109. Cassese, supra note 13, pp. 119-120. Reference re
Secession of Quebec, supra note 345, pp. 490, 503-505. State practice also indicates the
necessity of exhausting local remedies before resorting to secession.
887
888
Dugard & Raič, supra note 576, pp. 106, 109.
135
demonstrated that many seceding entities tried to legitimise their
secession by holding referendums.889
This leads to the final point that must be made. If a State is created
while not meeting the abovementioned criteria, or if its creation
violated the right of self-determination, the international community
will not recognise it as a State.890 This proposition is supported by
State practice, examples including the failed secessions of Southern
Rhodesia, Katanga, Chechnya, South Ossetia and Abkhazia.891 Since
these attempted secessions did not express the will of the people
concerned, the international community was unwilling to grant
recognition. Therefore, Raič concludes that ‘the obligation of respect
for the right of self-determination’ is now a ‘constitutive condition for
statehood’.892 Along these lines, it can be argued that Russia’s
recognition of Abkhazia and South Ossetia was illegal because these
attempted secessions violated the right of self-determination of the
peoples of Abkhazia and South Ossetia. Moreover, it was premature
and in violation of the principle of non-intervention.893
4.8 Conclusion
To conclude this Chapter, it is necessary to make a few observations.

In addition to the strong moral grounds to argue for the existence of
a right of unilateral remedial secession, such as the need for a
remedy to protect the fundamental right of self-determination and the
argument Buchanan put forward, that individuals also have a moral
right to self-defence,894 it seems that there is also a legal basis for
such a right under international law.
An inquiry into the UN Charter, the two International Human Rights
Covenants and Protocol I, Additional to the Geneva Conventions of
1949 has shown that treaties containing a provision on the right of
self-determination are actually silent on secession.
Therefore, an examination of State practice and opinio iuris was
necessary in order to see whether there may be a customary right of
secession under international law. The ‘safeguard clause’ of the
Friendly Relations Declaration,895 the Vienna Declaration,896 and the
General Assembly Declaration on the Occasion of the Fiftieth
889
Cassese, supra note 13, p. 266. The Baltic States, most of the former Soviet Republics and
Slovenia, Croatia and Macedonia all held referendums before seceding. Ibid., pp. 262-263,
266, 270.
890
Dugard & Raič, supra note 576, p. 109. See also Crawford, supra note 10, p. 131.
891
Dugard & Raič, supra note 576, p. 109. Also Crawford, supra note 10, pp. 128-131. And
J.E.S. Fawcett, ‘Security Council Resolutions on Rhodesia’, British Yearbook of International
Law, Vol. 41, 1965-1966, pp. 112-113.
892
893
Cf. ibid.
894
Buchanan, supra note 584, p. 354.
895
Friendly Relations Declaration, Paragraph 7 of Principle V, supra note 110.
896
Vienna Declaration, Part I, Paragraph 2, supra note 348.
136
Anniversary of the UN,897 is frequently cited in support of a right of
‘remedial’ secession, and this Chapter has pointed out that the
instruments containing the ‘safeguard clause’ express a strong opinio
iuris that the territorial integrity of States is dependent on whether
the internal right of self-determination is guaranteed. While it has
been argued that the Friendly Relations Declaration was aimed at
regulating the relations among States, and that therefore it does not
provide a right of secession for groups within those States as such,898
an a contrario reading of the clause reveals that the clause ‘implicitly’
recognises a right of secession.899 A discriminatory and repressive
government that violates basic human rights of a group within its
territory, including the right of (internal) self-determination, ‘forfeits’
its right to territorial integrity, which allows other States to recognise
or support the seceding entity without being accused of violating the
sovereignty or territorial integrity of the State concerned with their
otherwise unlawful intervention.900
There have also been a few judicial decisions to support the existence
of opinio iuris on the existence of a right of remedial secession. The
most recent case, Reference re Secession of Quebec in particular,
provides some interesting insights. At this moment we are awaiting
the Advisory Opinion of the International Court of Justice on the
legality of Kosovo’s declaration of independence. It is to be expected
that the opinion of the Court will shed more light on this subject.
It has been pointed out previously that even though there is no
‘extensive and virtually uniform’ State practice to support a right of
remedial secession, the concept of modern custom indicates that a
‘substantial manifestation’ of opinio iuris ‘that a customary rule exists
may compensate for a relative lack of practice’.901 This Chapter has
shown that there is substantial opinio iuris on remedial secession in
the international community. In addition to the aforementioned
instruments and judicial decisions, the reactions of States as regards
the secessions of Croatia, Bangladesh and Kosovo also indicate opinio
iuris on the lawfulness of secession for remedial purposes. The recent
secession of Kosovo is illustrative. At this moment 56 States have
recognised a State that has no effective control over its territory, and
while the international community has not yet granted collective
recognition, the larger part indirectly supports Kosovo’s action. The
897
GA Res. 50/6 of 24 October 1995, para. 1, supra note 601.
898
899
Ibid., pp. 103-104.
900
Tomuschat, supra note 846, p. 344. Also Dugard & Raič, supra note 576, pp. 103-104.
901
Statement of Principles, supra note 110, p. 40. See also Tomuschat, supra note 589, p. 42,
stating that ‘[o]n the basis of […] deductive reasoning, remedial secession should be
acknowledged as part and parcel of positive law, notwithstanding the fact that its empirical
basis is fairly thin, but not totally lacking: […] the events leading to the establishment of
Bangladesh and the events giving rise to Kosovo as an autonomous entity under international
administration can both be classified as coming within the purview of remedial secession’.
(emphasis added).
137
presence of KFOR and the EULEX mission in Kosovo are proof of this
support. In light of these developments, two questions are relevant.
The first question is “Does a State exist?”, despite the fact that it
does not yet meet the requirement of effective control?902 The second
question is “Should this State exist?”.903 In other words, does the
international community consider Kosovo’s unilateral action
legitimate? The analysis of the Kosovo case in this Chapter warrants
more than a tentative ‘yes’.
On the basis of the substantial opinio iuris on the legality of remedial
secession, and limited but relevant State practice to support such a
right, there can be no other conclusion than that the right of remedial
secession is de lege lata. This right of unilateral secession is not an
absolute right but meant to be an ‘emergency exit’ in case of gross
violations of human rights including the right of (internal) self-
determination.904
902
W.V. O’Brien and U.H. Goebel, ‘United States Recognition Policy Toward the New Nations’,
in W.V. O’Brien (ed.), The New Nations in International Law and Diplomacy, London: Stevens
& Sons 1965, p. 106: ‘The traditional question is, “Does a state exist?” (In the case of
recognition of a new government, the question is, “Does it have effective control of the
population and territory of the state?”) To [Sir Hersch] Lauterpacht, these conditions were
substantially “definite and exhaustive.” However, as subjective criteria gained importance, the
question became increasingly, “Should this state, which seems to enjoy a real existence in the
material sense, exist as an international person?” The “should” could be couched in the context
of the political, legal, or even moral norms. Thus the U.S. refused recognition for sixteen years
to the [government of the] Soviet Union, despite its clear establishment as an independent
entity by, at the latest, the early 1920’s.’ Quoted by Hansen, supra note 602, p. 163.
903
Ibid.
904
Kooijmans, supra note 9, p. 168.
138
5 Conclusion
‘I wish to state very clearly my view that the responsibility to protect
norm is not, as some have suggested, a leap into wishful thinking.’905
5.1 Recapitulation and Conclusion
While the philosophical roots of the right to self-determination can be

traced back to the Enlightenment, where it found inspiration in the
ideas of representative government and popular sovereignty, it would
not be until the end of the Cold War that the original meaning of self-
determination would be reinvented. Even though Wilson and Lenin
started advocating the right of self-determination throughout the first
half of the twentieth century, it essentially remained a political
principle until it was proclaimed in the Charter of the United Nations,
when it became a principle of international law.
Within ten years of the adoption of the Charter the General Assembly
took up the task of putting an end to colonialism using self-
determination as an instrument. Through the adoption of several anti-
colonialist resolutions the General Assembly progressively developed
the principle of self-determination by linking it with decolonisation. As
a result of this, self-determination became almost ‘synonymous’ with
decolonisation, and many colonial peoples managed to shake off the
colonial yoke and became independent.
Despite the fact that many have argued that the right of self-
determination is exhausted once a colonial people have acquired
independence, it cannot be denied that the end of the Cold War and
the subsequent developments in Europe in the early nineties set the
stage for all kinds of new developments in international law, including
a renewed emphasis on the internal aspect of self-determination. As
this thesis has pointed out, the right of self-determination is not
confined to colonial situations, but is an ‘ongoing’ right with universal
application. As the International Court of Justice pointed out, the
essence of the right of self-determination is ‘the need to pay regard
to the freely expressed will of peoples’.906 The inclusion of self-
determination as a human right in two International Human Rights
Covenants removes any doubt as regards its universality, given the
fact that both Covenants are widely ratified.907 It is also beyond doubt
that outside the colonial context there has been a preference for the
internal dimension of self-determination, according to which all
905
L. Arbour, ‘The responsibility to protect as a duty of care in international law and practice’,
Review of International Studies, Vol. 34, 2008, p. 447.
906
907
See supra, note 99.
139
peoples have the right to ‘participate in the expression of the political
will within the State’.908
Nevertheless, in non-colonial situations the right of external self-
determination is not altogether excluded. Even though conventional
law on self-determination is silent on secession, this thesis has made
it clear that there is a right of unilateral secession based on
customary international law, despite the fact that State practice is
limited. According to the theory of modern custom, ‘a substantive
manifestation of’ opinio iuris ‘may compensate for a relative lack of
practice’.909 The author has argued that there is strong opinio iuris
within the international community in support of a right of unilateral
secession, albeit that this right is subject to very strict conditions and
may only be invoked as a last resort. A breach of the internal right of
self-determination, as stated in the central question of this thesis, is
not enough to allow for a right of unilateral secession under
international law. Peoples are entitled to resort to the ‘self-help
remedy’ of unilateral secession only when they are persistently
excluded from political participation, suffer from gross violations of
fundamental human rights and have exhausted every local remedy
available to find a peaceful solution to the conflict. In other words,
remedial secession may be used as an ‘emergency exit’ only. In order
to reduce the use of this ‘emergency exit’ and to prevent the denial of
self-determination claims from escalating into violent conflicts, the
following section will provide a few practical recommendations to
enhance the enforcement of self-determination.
5.2 Enhancing the Enforcement of Self-Determination
As a human right occupying a fundamental position under

international law, the right of self-determination suffers from a
serious lack of effective enforcement mechanisms. While the Special
Committee of 24 on Decolonization is responsible for the
implementation of the Declaration on decolonisation, thus protecting
the right of self-determination of colonial peoples, the right to self-
determination of peoples outside the colonial context seems to have
been forgotten. For this reason, and for the moral and legal reasons
that have been set out in the previous Chapter, it has been submitted
in this thesis that peoples are entitled to the ‘self-help remedy’ of
unilateral secession.910
Traditionally, States have obviously been very reluctant to
acknowledge such a right, out of fear that it would undermine the
State system of international law they so carefully built. This is why
908
Expert opinion by Franck, Higgins, Pellet, Shaw and Tomuschat, supra note 5, p. 278.
909
Statement of Principles, supra note 110, p. 40.
910
140
they have emphasised the principle of the territorial integrity of
States, at the expense of the right of self-determination. However,
this thesis has made it clear that
‘[t]he principle of territorial integrity must not serve as a shield for tyrants,
dictators, or totalitarian rulers; it must not become a screen behind which
human deprivations are sought to be justified, condoned, and
911
perpetuated’.
Only a few years ago, ‘the responsibility to protect’ was put forward
at the 2005 World Summit,912 according to which the State is
primarily responsible for protecting its people against ‘abusive
behaviour’.913 Only if the State is ‘unwilling or unable’ to do this will
the international community be ‘called upon to step in and help, or
compel and […] even coerce States to put in place the requisite web
of protection’.914
The idea of the responsibility to protect was developed after NATO’s
humanitarian intervention in Kosovo in 1999, which has been
extensively debated in the legal literature. In fact, Kosovo actually
illustrates perfectly that remedial secession and humanitarian
intervention have a great deal in common.915 While both remain
controversial subjects in international law, they also find support
within a substantial part of the international community.
States have always feared an outbreak of secessionist claims once a
right of remedial secession would be recognised, which is exactly why
this thesis has argued that the right of remedial secession may only
be used as an emergency exit, depending on the fulfilment of a set of
strict criteria.916 Many States that have recognised Kosovo have
already emphasised that this was a unique situation, which may not
be seen as a precedent. This also explains why a significant number
of States have recognised Kosovo, while refusing to recognise
Abkhazia. It is important to emphasise that every self-determination
claim must be judged on its own merits.
911
L.C. Chen, ‘Self-Determination and World Public Order’, Notre Dame Law Review, Vol. 66, 1991, p.
1297.
912
UN Doc. A/RES/60/1, 24 October 2005, available at <http://www.un.org>. See also the
Report of the International Commission on Intervention and State Sovereignty, ‘The
Responsibility to Protect’, December 2001, available at <http://www.iciss.ca>.
913
Arbour, supra note 896, p. 448. See para. 138 of the 2005 World Summit Outcome, stating
that ‘[e]ach individual State has the responsibility to protect its populations from genocide, war
crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention
of such crimes, including their incitement, through appropriate and necessary means. We
accept that responsibility and will act in accordance with it. The international community
should, as appropriate, encourage and help States to exercise this responsibility and support
the United Nations in establishing an early warning capability’.
914
Arbour, supra note 896, p. 448.
915
Tomuschat, supra note 589, p. 41-42.
916
See Frankel, supra note 599, p. 548.
141
If every claim is to be judged by an independent international
institution, the risk of abusing this right is also diminished. Buchanan
has already pointed out that there is no direct need for another
international body, since the Committee of 24 on Decolonization could
very well broaden its task and start considering self-determination
claims outside the colonial context.917
It is very important to ‘establish an early warning capability’918 to
prevent separatist claims from escalating into a civil war. As
Müllerson aptly noted, once a people have broken away, bringing
them back to the ‘motherland’ will be like ‘trying to push toothpaste
back into the tube’.919 Therefore, it may be a very good idea to create
a right of petition for these groups.920 The Committee of 24 should be
empowered to conduct investigations and issue recommendations on
the validity of these claims.921 In this respect it is important to stress
once again that secession is a remedy of last resort, which implies
that it is certainly not always the best or even the only means of
solving a self-determination conflict.922 Therefore, the investigating
Committee must first try to consider whether there are other
possibilities to achieve internal self-determination, e.g. greater
autonomy, for the group seeking international recognition for its
claim.923 After the Committee has issued a report on the situation, the
General Assembly and the Security Council must adopt resolutions to
enforce the Committee’s recommendations.924 This approach is
warranted by the responsibility to protect, to which the international
community is committed.
The International Court of Justice may also be a suitable organ to
deal with self-determination claims. However, since only States have
standing before the Court, the only way the Court may be entrusted
with the task of considering self-determination claims is by means of
an Advisory Opinion, which would require the support of the General
Assembly.
Without doubt, the Human Rights Committee would be the most
suitable body to protect the right of self-determination of peoples
outside the colonial context. It has been noted that in the past the
Committee has been unwilling to consider claims under Article 1 of
the ICCPR. The Committee has been rightly criticized for taking this
position and it is submitted here that it is based on a wrong
917
Buchanan, supra note 584, p. 359.
918
See para. 138 of the 2005 World Summit Outcome, supra note 902.
919
R. Müllerson, ‘Precedents in the Mountains: On the Parallels and Uniqueness of the Cases of
Kosovo, South Ossetia and Abkhazia’, Chinese Journal of International Law, Vol. 8, 2009, p. 24.
920
Frankel, supra note 599, p. 546.
921
Ibid.
922
Ibid., p. 553.
923
Ibid.
924
Ibid., pp. 560-561.
142
interpretation of the Optional Protocol (OP). According to Article 2 of
the OP,
‘individuals who claim that any of their rights enumerated in the Covenant
have been violated and who have exhausted all available domestic remedies
may submit a written communication to the Committee for consideration’.925
How is it possible that this provision could mean anything other than
that individuals have a right to claim that their government has
violated their right of self-determination, even though this is a
‘collective right’? Therefore, the present author argues that the
Human Rights Committee should change its view on this subject and
take a more active stance towards the protection of the right of self-
determination.
Lastly, it is suggested here that the international community should
also strive to develop a common position on recognition, for example
by adopting a General Assembly Resolution on this issue. While it
may not be possible to force States to recognise an entity that meets
the criteria for remedial secession (as have been identified in this
thesis), the international community must be able to agree on a set
of ‘guidelines on recognition’ in the same way the EC was able to
agree on a number of criteria for recognition.926 A common approach
to recognition, based on respect for human rights, including the right
of self-determination, will not only enhance the protection of this right
but will also depoliticise recognition, thereby making it less arbitrary
and more just
925
(Emphasis added).
926
143
144
Appendix I
Declaration on the Granting of Independence to Colonial Countries
and Peoples
Adopted by General Assembly Resolution 1514 (XV) of 14 December
1960
The General Assembly,
Mindful of the determination proclaimed by the peoples of the world

in the Charter of the United Nations to reaffirm faith in fundamental
human rights, in the dignity and worth of the human person, in the
equal rights of men and women and of nations large and small and to
promote social progress and better standards of life in larger
freedom,
Conscious of the need for the creation of conditions of stability and

well-being and peaceful and friendly relations based on respect for
the principles of equal rights and self-determination of all peoples,
and of universal respect for, and observance of, human rights and
fundamental freedoms for all without distinction as to race, sex,
language or religion,
Recognizing the passionate yearning for freedom in all dependent

peoples and the decisive role of such peoples in the attainment of
their independence,
Aware of the increasing conflicts resulting from the denial of or

impediments in the way of the freedom of such peoples, which
constitute a serious threat to world peace,
Considering the important role of the United Nations in assisting the

movement for independence in Trust and Non- Self- Governing
Territories,
Recognizing that the peoples of the world ardently desire the end of
colonialism in all its manifestations,
Convinced that the continued existence of colonialism prevents the

development of international economic co-operation, impedes the
social, cultural and economic development of dependent peoples and
militates against the United Nations ideal of universal peace,
Affirming that peoples may, for their own ends, freely dispose of their
natural wealth and resources without prejudice to any obligations
145
arising out of international economic co-operation, based upon the
principle of mutual benefit, and international law,
Believing that the process of liberation is irresistible and irreversible

and that, in order to avoid serious crises, an end must be put to
colonialism and all practices of segregation and discrimination
associated therewith,
Welcoming the emergence in recent years of a large number of

dependent territories into freedom and independence, and
recognizing the increasingly powerful trends towards freedom in such
territories which have not yet attained independence,
Convinced that all peoples have an inalienable right to complete

freedom, the exercise of their sovereignty and the integrity of their
national territory,
Solemnly proclaims the necessity of bringing to a speedy and

unconditional end colonialism in all its forms and manifestations;
And to this end Declares that:
1. The subjection of peoples to alien subjugation, domination and

exploitation constitutes a denial of fundamental human rights, is
contrary to the Charter of the United Nations and is an impediment to
the promotion of world peace and co-operation.
2. All peoples have the right to self-determination; by virtue of that

right they freely determine their political status and freely pursue
their economic, social and cultural development.
3. Inadequacy of political, economic, social or educational

preparedness should never serve as a pretext for delaying
independence.
4. All armed action or repressive measures of all kinds directed

against dependent peoples shall cease in order to enable them to
exercise peacefully and freely their right to complete independence,
and the integrity of their national territory shall be respected.
5. Immediate steps shall be taken, in Trust and Non-Self-Governing

Territories or all other territories which have not yet attained
independence, to transfer all powers to the peoples of those
territories, without any conditions or reservations, in accordance with
their freely expressed will and desire, without any distinction as to
146
race, creed or colour, in order to enable them to enjoy complete
independence and freedom.
6. Any attempt aimed at the partial or total disruption of the national

unity and the territorial integrity of a country is incompatible with the
purposes and principles of the Charter of the United Nations.
7. All States shall observe faithfully and strictly the provisions of the
Charter of the United Nations, the Universal Declaration of Human
Rights and the present Declaration on the basis of equality, non-
interference in the internal affairs of all States, and respect for the
sovereign rights of all peoples and their territorial integrity.
147
Appendix II
Principles which should guide Members in determining whether or not
an obligation exists to transmit the information called for in article 73
e of the Charter of the United Nations, General Assembly Resolution
1541 (XV), (extracts)
Principle I
The authors of the Charter of the United Nations had in mind that
Chapter XI should be applicable to territories which were then known
to be of the colonial type. An obligation exists to transmit information
under Article 73 e of the Charter in respect of such territories whose
peoples have not yet attained a full measure of self-government.
Principle II
Chapter XI of the Charter embodies the concept of Non-Self-
Governing Territories in a dynamic state of evolution and progress
towards a "full measure of self-government". As soon as a territory
and its peoples attain a full measure of self-government, the
obligation ceases. Until this comes about, the obligation to transmit
information under Article 73 e continues.
Principle III
The obligation to transmit information under Article 73 e of the
Charter constitutes an international obligation and should be carried
out with due regard to the fulfilment of international law.
Principle IV
Prima facie there is an obligation to transmit information in respect of
a territory which is geographically separate and is distinct ethnically
and/or culturally from the country admin-istering it.
Principle V
Once it has been established that such a prima facie case of
geographical and ethnical or cultural distinctness of a territory exists,
other elements may then be brought into consideration. These
additional elements may be, inter alia, of an administrative, political,
juridical, economic or historical nature. If they affect the relationship
between the metropolitan Slate and the territory concerned in a
manner which arbitrarily places the latter in a position or status of
subordination, they support the presumption that there is an
obligation to transmit information under Article 73 e of the Charter.
Principle VI
A Non-Self-Governing Territory can be said to have reached a full
measure of self-government by:
148
(a) Emergence as a sovereign independent State;
(b) Free association with an independent State; or
(c) Integration with an independent State.
Principle VII
(a) Free association should be the result of a free and voluntary
choice by the peoples of the territory concerned expressed through
informed and democratic processes. It should be one which respects
the individuality and the cultural charac-teristics of the territory and
its peoples, and retains for the peoples of the territory which is
associated with an independent State the freedom to modify the
status of that territory through the expression of their will by
democratic means and through constitutional processes.
(b) The associated territory should have the right to determine its
internal constitution without outside interference, in accordance with
due constitutional processes and the freely expressed wishes of the
people. This does not preclude con-sultations as appropriate or
necessary under the terms of the free association agreed upon.
Principle VIII
Integration with an independent State should be on the basis of
complete equality between the peoples of the erstwhile Non-Self-
Governing Territory and those of the independent country with which
it is integrated. The peoples of both territories should have equal
status and rights of citizenship and equal guarantees of fundamental
rights and freedoms without any distinction or discrimination; both
should have equal rights and opportunities for representation and
effective participation at all levels in the executive, legislative and
judicial organs of government.
Principle IX
Integration should have come about in the following circumstances :
(a) The integrating territory should have attained an advanced stage
of self-government with free political institutions, so that its peoples
would have the capacity to make a responsible choice through
informed and democratic processes;
(6) The integration should be the result of the freely ex-pressed
wishes of the territory's peoples acting with full knowl-edge of the
change in their status, their wishes having been expressed through
informed and democratic processes, im-partially conducted and based
on universal adult suffrage. The United Nations could, when it deems
it necessary, supervise these processes.
Principle X
The transmission of information in respect of Non-Self-Governing
Territories under Article 73 e of the Charter is subject to such
149
limitation as security and constitutional considerations may require.
This means that the extent of the information may be limited in
certain circumstances, but the limitation in Article 73 e cannot relieve
a Member State of the obligations of Chapter XI. The "limitation" can
relate only to the quantum of information of economic, social and
educa-tional nature to be transmitted.
Principle XI
The only constitutional considerations to which Article 73 e of the
Charter refers are those arising from constitutional relations of the
territory with the Administering Member. They refer to a situation in
which the constitution of the territory gives it self-government in
economic, social and educational matters through freely elected
institutions. Nevertheless, the responsibility for transmitting
information under Article 73 e continues, unless these constitutional
relations preclude the Government or parliament of the Administering
Member from receiving statistical and other information of a technical
nature relating to economic, social and educational conditions in the
territory.
Principle XII
Security considerations have not been invoked in the past. Only in
very exceptional circumstances can information on economic, social
and educational conditions have any security aspect. In other
circumstances, therefore, there should be no necessity to limit the
transmission of Information on security grounds.
150
Appendix III
Declaration on Principles of International Law Concerning Friendly
Relations and Co-operation Among States in Accordance with the
Charter of the United Nations, General Assembly Resolution 2625
(XXV), (extracts)
The principle of equal rights and self-determination of peoples
(1) By virtue of the principle of equal rights and self-determination of

peoples enshrined in the Charter of the United Nations, all peoples
have the right freely to determine, without external interference, their
political status and to pursue their economic, social and cultural
development, and every State has the duty to respect this right in
accordance with the provisions of the Charter.
(2) Every State has the duty to promote, through joint and separate
action, realization of the principle of equal rights and self-
determination of peoples, in accordance with the provisions of the
Charter, and to render assistance to the United Nations in carrying
out the responsibilities entrusted to it by the Charter regarding the
implementation of the principle, in order:
(a) To promote friendly relations and co-operation among States; and
(b) To bring a speedy end to colonialism, having due regard to the
freely expressed will of the peoples concerned;
and bearing in mind that subjection of peoples to alien subjugation,
domination and exploitation constitutes a violation of the principle, as
well as a denial of fundamental human rights, and is contrary to the
Charter.
(3) Every State has the duty to promote through joint and separate
action universal respect for and observance of human rights and
fundamental freedoms in accordance with the Charter.
(4) The establishment of a sovereign and independent State, the free

association or integration with an independent State or the
emergence into any other political status freely determined by a
people constitute modes of implementing the right of self-
determination by that people.
(5) Every State has the duty to refrain from any forcible action which
deprives peoples referred to above in the elaboration of the present
principle of their right to self-determination and freedom and
independence. In their actions against, and resistance to, such
forcible action in pursuit of the exercise of their right to self-
determination, such peoples are entitled to seek and to receive
151
support in accordance with the purposes and principles of the
Charter.
(6) The territory of a colony or other Non-Self-Governing Territory

has, under the Charter, a status separate and distinct from the
territory of the State administering it; and such separate and distinct
status under the Charter shall exist until the people of the colony or
Non-Self-Governing Territory have exercised their right of self-
determination in accordance with the Charter, and particularly its
purposes and principles.
(7) Nothing in the foregoing paragraphs shall be construed as

authorizing or encouraging any action which would dismember or
impair, totally or in part, the territorial integrity or political unity of
sovereign and independent States conducting themselves in
compliance with the principle of equal rights and self-determination of
peoples as described above and thus possessed of a government
representing the whole people belonging to the territory without
distinction as to race, creed or colour.
(8) 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.
152
Appendix IV
General Comment No. 12: The right to self-determination of peoples
(Article 1)
1. In accordance with the purposes and principles of the Charter of

the United Nations, article 1 of the International Covenant on Civil
and Political Rights recognizes that all peoples have the right of self-
determination. The right of self-determination is of particular
importance because its realization is an essential condition for the
effective guarantee and observance of individual human rights and for
the promotion and strengthening of those rights. It is for that reason
that States set forth the right of self-determination in a provision of
positive law in both Covenants and placed this provision as article 1
apart from and before all of the other rights in the two Covenants.
2. Article 1 enshrines an inalienable right of all peoples as described

in its paragraphs 1 and 2. By virtue of that right they freely
"determine their political status and freely pursue their economic,
social and cultural development". The article imposes on all States
parties corresponding obligations. This right and the corresponding
obligations concerning its implementation are interrelated with other
provisions of the Covenant and rules of international law.
3. Although the reporting obligations of all States parties include

article 1, only some reports give detailed explanations regarding each
of its paragraphs. The Committee has noted that many of them
completely ignore article 1, provide inadequate information in regard
to it or confine themselves to a reference to election laws. The
Committee considers it highly desirable that States parties' reports
should contain information on each paragraph of article 1.
4. With regard to paragraph 1 of article 1, States parties should

describe the constitutional and political processes which in practice
allow the exercise of this right.
5. Paragraph 2 affirms a particular aspect of the economic content of

the right of self-determination, namely the right of peoples, for their
own ends, freely to "dispose of their natural wealth and resources
without prejudice to any obligations arising out of international
economic cooperation, based upon the principle of mutual benefit,
and international law. In no case may a people be deprived of its own
means of subsistence". This right entails corresponding duties for all
States and the international community. States should indicate any
factors or difficulties which prevent the free disposal of their natural
wealth and resources contrary to the provisions of this paragraph and
153
to what extent that affects the enjoyment of other rights set forth in
the Covenant.
6. Paragraph 3, in the Committee's opinion, is particularly important

in that it imposes specific obligations on States parties, not only in
relation to their own peoples but vis-à-vis all peoples which have not
been able to exercise or have been deprived of the possibility of
exercising their right to self-determination. The general nature of this
paragraph is confirmed by its drafting history. It stipulates that "The
States Parties to the present Covenant, including those having
Territories, shall promote the realization of the right of self-
determination, and shall respect that right, in conformity with the
provisions of the Charter of the United Nations". The obligations exist
irrespective of whether a people entitled to self-determination
depends on a State party to the Covenant or not. It follows that all
States parties to the Covenant should take positive action to facilitate
realization of and respect for the right of peoples to self-
determination. Such positive action must be consistent with the
States' obligations under the Charter of the United Nations and under
international law: in particular, States must refrain from interfering in
the internal affairs of other States and thereby adversely affecting the
exercise of the right to self-determination. The reports should contain
information on the performance of these obligations and the
measures taken to that end.
7. In connection with article 1 of the Covenant, the Committee refers

to other international instruments concerning the right of all peoples
to self-determination, in particular the Declaration on Principles of
International Law concerning Friendly Relations and Co-operation
among States in accordance with the Charter of the United Nations,
adopted by the General Assembly on 24 October 1970 (General
Assembly resolution 2625 (XXV)).
8. The Committee considers that history has proved that the

realization of and respect for the right of self-determination of
peoples contributes to the establishment of friendly relations and
cooperation between States and to strengthening international peace
and understanding.
154
Appendix V
Conference on Security and Co-operation in Europe
Helsinki Final Act 1975 (extract)
VIII. Equal rights and self-determination of peoples
The participating States will respect the equal rights of peoples and
their right to self-determination, acting at all times in conformity with
the purposes and principles of the Charter of the United Nations and
with the relevant norms of international law, including those relating
to territorial integrity of States.
By virtue of the principle of equal rights and self- determination of

peoples, all peoples always have the right, in full freedom, to
determine, when and as they wish, their internal and external political
status, without external interference, and to pursue as they wish their
political, economic, social and cultural development.
The participating States reaffirm the universal significance of respect

for and effective exercise of equal rights and self- determination of
peoples for the development of friendly relations among themselves
as among all States; they also recall the importance of the
elimination of any form of violation of this principle.
155
156
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Summary Record of the 4th Meeting: 3rd Committee, held on Monday,
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UN Doc. S/PV/5969, 28 August 2008, Security Council, 63rd year:
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Cases
International Court of Justice

Reservations to the Convention on the Prevention and Punishment of
the Crime of Genocide Advisory Opinion, ICJ Reports 1951.
Monetary Gold Removed from Rome in 1943 (Italy v. France, United

Kingdom of Great Britain and Northern Ireland and United States of
America), ICJ Reports 1954.
North Sea Continental Shelf Cases, ICJ Reports (1969).
Barcelona Traction, Light and Power Company, Limited (Belgium v.

Spain), Second Phase (Merits), ICJ Reports 1970.
Advisory Opinion on Legal Consequences for States of the Continued

Presence of South Africa in Namibia (South West Africa)
notwithstanding Security Council Resolution 276, ICJ Reports 1971
Advisory Opinion on Western Sahara, ICJ Reports 1975
Frontier dispute (Burkina Faso/Republic of Mali), ICJ Reports 1986.

Military and Paramilitary Activity in and against Nicaragua (Nicaragua
v. United States of America), ICJ Reports 1986.
Case Concerning East Timor (Portugal v. Australia), ICJ Reports 1995.

Advisory Opinion on the Legality of the Threat or Use of Nuclear
Weapons, ICJ Reports 1996.
Advisory Opinion on the Legal Consequences of the Construction of a

Wall in the Occupied Palestinian Territory, ICJ Reports 2004.
International Criminal Tribunal for Yugoslavia

Prosecutor v. Tadic, Case No. IT-94-1-AR72, Decision on the Defence
Motion for Interlocutory Appeal on Jurisdiction, Appeals Chamber, 2
October 1995.
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Prosecutor v. Delalic et al., Case No. IT-96-21-A, Appeals Judgment,
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European Court of Human Rights

Case of Loizidou v. Turkey, European Court of Human Rights, 18
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Case of Soering v. the United Kingdom, European Court of Human

Rights, 7 July 1989.
Isayeva, Yusupova and Bazayeva v. Russia, European Court of

Human Rights, 24 February 2005.
Isayeva v. Russia, European Court of Human Rights, 24 February

2005.
Khashiyev and Akayeva v. Russia, European Court of Human Rights,

24 February 2005.
National Courts
The (First) Russian Constitutional Court, Tatarstan Case (1994)
The (Second) Russian Constitutional Court, Chechnya Case (1995)
The African Commission on Human and Peoples Rights, Katangese

Peoples’ Congress v Zaïre (1995)
Supreme Court of Canada, Reference re Secession of Quebec (1998)
Arbitration
Opinions 1-3 of the Badinter Arbitration Committee, established by
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International Law, Vol. 3, No. 1, 1992.

the Peace Conference on Yugoslavia, European Journal of
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the Peace Conference on Yugoslavia, International Legal Materials,
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Others
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Self-Determination As A Human Right: The Emergency Exit of Remedial Secession

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Self-Determination as a Human

The Emergency Exit of Remedial Secession

Science Shop of Law, Economics and Governance, Utrecht

Science Shop of Law, Economics and Governance

This publication may be completely or partially quoted provided the

I spent the first eight years of my life in an unusual place. I grew up

Bangkok, April 21, 2009

2 Self-Determination in the Colonial Context 5

3 Self-Determination in the Post-Colonial Context 43

4 Self-Determination and Remedial Secession 93

Select Bibliography 157

It seems almost as if there is ‘a kind of magic’ in the phrase ‘self-

In order to fully understand self-determination and to be able to

2.2 Self-Determination as a Political Principle

2.2.1 The Enlightenment, Nationalism, Lenin and Wilson

Any discussion of the right to self-determination should start with the

‘[p]eoples are not to be handed about from one sovereignty to another by

The principle of self-determination was also one of the underlying

‘When the President talks of “self-determination” what unit has he in mind?

Secession posed another stumbling block.34 If self-determination

2.2.3 The League of Nations

In spite of the fact that Wilson fervently proposed to include the

Mandated territories were divided into three different types,

‘[a]lthough the principle of self-determination of peoples plays an important

2.3 Conventional Law

2.3.1 The United Nations Charter

‘If it [self-determination] means self-government, the right of a country to

At the end of the San Francisco Conference the principle of self-

‘With a view to the creation of conditions of stability and well-being which

‘to develop self-government, to take due account of the political aspirations

‘to promote the political, economic, social, and educational advancement of

2.3.2 The International Bill of Rights

While the Charter of the United Nations contained several provisions

This Article expressed the idea of ‘popular sovereignty’, that has

As they tried to make sure that the principle of self-determination

1. All peoples have the right of self-determination. By virtue of that right

3. The States Parties to the present Covenant, including those having

With the inclusion of a provision on self-determination in two Human

2.3.3 The African Charter on Human and Peoples’ Rights

Another convention containing a provision on self-determination is the

2. Colonized or oppressed peoples shall have the right to free themselves

2.4.1 The General Assembly

After the adoption of the Charter of the United Nations the

The adoption of General Assembly Resolution 1514 (XV) entitled

While this paragraph seems to grant the right of self-determination to

(1) Emergence as a sovereign independent state;

Because independence was the preferred means of exercising self-

‘Nothing in the foregoing paragraphs shall be construed as authorizing or

As will be seen in the following Chapters, in many cases the principle

‘By virtue of the principle of equal rights and self-determination of peoples

These words, their context as well as the drafting history of this

2.4.2 The International Court of Justice

Whereas the General Assembly Resolutions that have been discussed

‘the subsequent development of international law in regard to non-self-

‘The validity of the principle of self-determination, defined as the need to

After having said this, the Court observed that

This statement has rightly been criticized, because it obviously is a

2.5 Analyzing Self-Determination in the Colonial Context

2.5.1 The People

One of the major shortcomings of the concept of self-determination is

In the period of decolonisation, the United Nations thus seemed to

2.5.2 The Content of Self-Determination