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Jure Vidmar
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13
EUBORDERS WORKING PAPER SERIES
The Limits of Democratic

Decision Making
in Territorial Matters
Jure Vidmar
Maastricht University
Jure Vidmar
The Limits of Democratic Decision Making in Territorial Matters
Euborders Working Paper 13

September 2017
About the author

Jure Vidmar is Professor of Public International Law, Maastricht University, the Netherlands.
Email: jure.vidmar@maastrichtuniversity.nl
Euborders Working Papers are part of the “Borders, sovereignty and self-determination” research
project, which is coordinated by the Institut Barcelona d’Estudis Internacionals (IBEI), the Leuven
Centre for Global Governance Studies (University of Leuven) and the Centre on Constitutional
Change (CCC, Edinburgh).
Euborders Working Papers ask how the new European multi-level scenario influences politics and
policy in contemporary Europe. They explore and discuss how the variable geographies of Europe-
an borders may affect the issue of sovereignty and national self-determination.
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Abstract
Groups claiming self-determination usually interpret this international human right

as if it were an absolute entitlement, i.e. a right to secession. Conversely, states trying
to counter secession usually interpret territorial integrity as if it were an absolute
entitlement of states. But nether right or entitlement is absolute. Self-determination
will be, in most circumstances, consummated internally, in the form of autonomy and
self-government. At the same time, the principle of territorial integrity does not make
secession illegal. International law is quite simply neutral on the question of unilateral
secession: there is no entitlement to independence, but at the same time there is no
prohibition of declarations of independence or even independence referendums. This
is the case even where declarations of independence are extraconstitutional. Unilateral
declarations of independence are rarely successful, however. A unilateral path to
independence is therefore not illegal under international law, but it is politically very
unlikely. This is because the international legal neutrality pertaining to secession puts
the burden of changing the territorial status quo on the independence-seeking entity. In
the absence of agreement with the parent state, the success of the independence claim
is then pushed to the realm of international recognition.
Keywords: Self-determination, territorial integrity, independence referendums, secession,

EU membership.
The Limits of Democratic Decision Making in Territorial Matters | Working Paper 13
The Limits of Democratic Decision Making

in Territorial Matters
I. Introduction
In March 2014, Crimea voted on whether to separate from Ukraine and its integration
with Russia.1 In September 2014, Scotland voted against independence from the Unit-
ed Kingdom (UK).2 In June 2016, the UK voted to exit the European Union.3 Referen-
dums are often seen as a magic tool of democracy that ought to solve territorial claims
justly–in accordance with the will of the people. However, territorial referendums are
rarely a panacea. The theoretical ideal of solving territorial claims in accordance with
the will of the people clashes with the international legal framework governing the ter-
ritorial integrity of states, and opens a set of questions regarding the modalities of the
expression of the will of the people.
This paper explains the legal restraints on the exercise of the right of self-determination,
independence referendums, and state creation. It demonstrates that on territorial is-
sues, the will of the people decides only very rarely. Self-determination is limited by
the principle of territorial integrity.4 The clash between self-determination and ter-
ritorial integrity, however, creates a zone of legal neutrality in which declarations of
independence are not illegal, only unlikely to be successful. The zone of legal neutrality,
nevertheless, has its outer boundaries. The paper also addresses the legal challenges of
secession within the EU and “secession” from the EU.5 It concludes that any change in
legal status requires negotiations rather than unilateral action. It may well be that com-
parative constitutional law rather than international law could provide more guidelines
in this regard.
1
ee ‘Crimea referendum: Voters “back Russia union”,’ BBC News (16 March 2014), at http://www.bbc.
S
com/news/world-europe-26606097.
2
See ‘Scottish referendum: Scotland votes ‘No’ to independence’, BBC News (19 September 2014), at
http://www.bbc.com/news/uk-scotland-29270441.
3
See ‘Brexit: Europe Stunned by UK Leave Vote’, BBC News (24 June 2016), at http://www.bbc.co.uk/
news/uk-politics-eu-referendum-36616018.
4
Cf. M Keating, ‘States, Sovereignty, Borders and Self-Determination in Europe’.
5
Cf. N Levrat, ‘The Right to National Self-Determination within the EU: A Legal Investigation’.
1
II. The will of the people
On 16 March 2014, Crimea held a referendum on its future legal status. Reportedly,
the choice to join Russia was supported by an overwhelming 95.5 percent of all votes
cast, with 83 percent turnout.6 On 17 March 2014, the Crimean parliament declared
independence and applied to integrate with Russia.7 The Russian parliament confirmed
this in a vote, thus absorbing Crimea after a few days of putative independence.8 When
effectively annexing Crimea, President Vladimir Putin quoted the United States’ posi-
tion on the situation of Kosovo: “Declarations of independence may, and often do, vio-
late domestic legislation. However, this does not make them violations of international
law.”9 At this point, President Putin continued:
They wrote this, disseminated it all over the world, had everyone agree and now
they are outraged. Over what? The actions of Crimean people completely fit in with
these instructions, as it were. For some reason, things that Kosovo Albanians …
were permitted to do, Russians, Ukrainians and Crimean Tatars in Crimea are not
allowed. Again, one wonders why.10
Russia opposed Kosovo’s declaration of independence.11 Independence of Kosovo is

also determinately opposed by, inter alia, China, India, Brazil, and South Africa.12 In
contrast, the US, the UK, Germany, and France actively supported the declaration issued
6
ee ‘Crimea referendum: Voters “back Russia union”’, BBC News (16 March 2014), at http://www.bbc.
S
com/news/world-europe-26606097.
7
See ‘Crimean parliament formally applies to join Russia’, BBC News (17 March 2014), at http://www.
bbc.com/news/world-europe-26609667.
8
See ‘Ukraine: Putin signs Crimea annexation’, BBC News (21 March 2014), at http://www.bbc.com/
news/world-europe-26686949.
9
See ‘Address by the President of the Russian Federation’, Kremlin (18 March 2014), at http://en.kre-
mlin.ru/events/president/news/20603.
10
Ibid.
11
Consider the following statement given by the representative of Russia in the UN Security Coun-
cil after Kosovo’s declaration of independence: “The Russian Federation continues to recognize the
Republic of Serbia within its internationally recognized borders. The 17 February declaration by the
local assembly of the Serbian province of Kosovo is a blatant breach of the norms and principles of
international law—above all of the Charter of the United Nations−which undermines the foundations
of the system of international relations. That illegal act is an open violation of the Republic of Ser-
bia’s sovereignty, the high-level Contact Group accords, Kosovo’s Constitutional Framework, Security
Council resolution 1244 (1999)−which is the basic document for the Kosovo settlement−and other re-
levant decisions of the Security Council.” UN Security Council Official Records, 63rd Session, 5839th
meeting at 6, UN Doc S/PV.5839 (18 February 2008).
12
For a full list see ‘Who Recognized Kosova as an Independent State’, at http://www.kosovothanksyou.com.
2
by Kosovo.13 The roles seem to be inverted. Does this indicate double standards, or is
it rather that the two situations are different in law and fact? How are declarations of
independence regulated in international law? What should be the role of democratic
decision making in territorial matters?
1. International legal neutrality
In 1975, Judge Dillard of the International Court of Justice (ICJ) wrote in his Sep-
arate Opinion in the Western Sahara Advisory Opinion, that it was “for the people
to determine the destiny of a territory, not for a territory to determine the destiny of
the people.”14 This may sound like a reasonable proposition but it needs to be properly
qualified. Indeed, writing in 1956, Ivor Jennings no less famously pronounced that the
right of self-determination looked like a very reasonable idea: let the people decide, yet
the people cannot decide before someone decides who the people is.15
Self-determination is a legal right, codified by human rights treaties, in the common

Article 1 of the International Convention of Civil and Political Rights (ICCPR) and
the International Convention on Economic, Social, and Cultural Rights (ICESCR).16
It also forms a part of customary international law, but claims for self-determination
are nevertheless often utopian and even emotional. The language of democracy and
democratic decision making can be dangerous if absolute legal entitlements are claimed
on their basis. The democratic ideal of the will of the people needs to be contextualised
properly within the applicable norms of international law. In the context of Crimea,
President Putin used the rhetoric of a champion of democracy and self-determination.
The principle of self-determination, indeed, has a long history of rhetorical uto-
pia and misuse in realpolitik. Its two conceptual fathers, Woodrow Wilson and
Vladimir Lenin, could not look more different, but they both proved that there was
13
I bid.
14
Western Sahara Advisory Opinion, ICJ, Advisory Opinion (16 October 1975), Separate Opinion of
Judge Dillard, at 122.
15
I Jennings, The Approach to Self-Government (Cambridge, CUP: 1956) at 55. See also Keating, supra
note 4.
16
International Covenant on Civil and Political Rights (ICCPR) (1966) & International Covenant on
Economic, Social and Cultural Rights (ICESCR) (1966), Article 1.
3
a great discrepancy between the utopian conceptualisations of self-determination

and its realistic application.17
As a theorist, Lenin wrote that peoples had the right to determine their future legal
status democratically and even possessed the right to secession,18 but in practice he vig-
orously defended the ceding of Belarussian and Ukrainian territories to Germany, and
subsequently adopted the policy of systematic denial of self-determination to Soviet
peoples.19 Professor Wilson was writing that the will of the people was the superior
international norm,20 but the same President Wilson invaded Haiti.21 His insistence
on holding territorial referendums after World War I proved to be no perfect solution;
the referendums created wrong expectations and left many groups disillusioned.22 Sub-
sequently, the maxim “let the people decide” was grossly abused when it served as an
excuse for territorial annexations by Nazi Germany and fascist Italy.23
Self-determination has always been a concept that worked better rhetorically than
practically. Crimea is not the first instance where ballot was (mis)used to redraw bound-
aries. The repeating history of self-determination proves that international law simply
cannot accommodate the will of the people as a superior, absolute principle that trumps
all other principles.24 How exactly are the will of the people and self-determination
accommodated in international law? After all, sometimes it does happen that the legal
status of a territory changes. How is this done under international law?
2. Overcoming a counterclaim to territorial integrity
Claims for independence usually mean a clash between the right of self-determination
and the principle of states’ territorial integrity. Those claiming independence speak of
17
or a thorough analysis see VI Lenin, Questions of National Policy and Proletarian Internationalism
F
(Moscow: Foreign Languages Publishing House, year of publication unknown) at 135. ‘President
Woodrow Wilson’s Fourteen Points’, Yale Law School, The Avalon Project. D Raič, Statehood and
the Law of Self-Determination (The Hague: Kluwer Law International, 2002) at 186. A Cassese,
Self-Determination of Peoples: A Legal Reappraisal (Cambridge: CUP, 1995) at 19.
18
See Lenin, supra note 17, at 135.
19
See Raič, supra note 17, at 186.
20
See Cassese, supra note 17, at 19.
21
I bid.
22
Cf Raič, supra note 17, at 185.
23
I bid. at 194.
24
See Keating, supra note 4.
4
self-determination as if it were an absolute right of peoples, while governments who try

to counter secession see territorial integrity as an absolute right of states. Neither right
is absolute. As Robert McCorquodale puts it:
[T]he right of self-determination is not an absolute right without any limitations.

Its purpose is not directly to protect the personal or physical integrity of individuals
or groups as is the purpose of the absolute rights and, unlike the absolute rights,
the exercise of this right can involve major structural and institutional changes to a
State and must affect, often significantly, most groups and individuals in that State
and beyond that State. Therefore, the nature of the right does require some limita-
tions to be implied on its exercise.25
International law is neutral on the question of secession: it is not prohibited, but neither
is it an entitlement. As argued by the Supreme Court of Canada in the Quebec case:
Although there is no right, under the Constitution or at international law, to unilater-

al secession, that is secession without negotiation on the basis just discussed, this does
not rule out the possibility of an unconstitutional declaration of secession leading to a
de facto secession. The ultimate success of such a secession would be dependent on
recognition by the international community, which is likely to consider the legality
and legitimacy of secession having regard to, amongst other facts, the conduct of
Quebec and Canada, in determining whether to grant or withhold recognition.26
This means that independence is not a positive right or normative entitlement, but
at the same time the Quebec case also affirms that international law does not prohibit
unilateral declarations of independence.27 International law is simply neutral on this
matter. The consequence of this neutrality is, however, that the burden of shifting the
territorial status quo lies on the independence-seeking entity. This is what makes seces-
sion unlikely to succeed, but it does not make it illegal.
In the Quebec case, the Supreme Court of Canada also reasoned that a democratic de-
cision in favour of secession, at best, creates an obligation on both sides to negotiate the
future legal status of the territory28 but this is still not an entitlement to secession and
25
McCorquodale, ‘Self-Determination: A Human Rights Approach’ (1994) 43 ICLQ 857, 875-76.
R
26
Reference re Secession of Quebec [1998] 2 SCR 217 (The Supreme Court of Canada) [hereinafter:
the Quebec case], para 155.
27
I bid.
28
I bid. at 91.
5
there is still no pre-determined outcome. The central government does not enter into
such negotiations with an obligation to determine the technicalities of secession. Ne-
gotiations could also lead to a new internal status for the territory, and a higher level of
autonomy and self-government. The UK government was clearly committed to accept-
ing the outcome of the independence referendum in Scotland even if it were in favour
of independence.29 This commitment goes beyond what is required by international law,
and Scotland does not have any implications for Crimea. The principles of democratic
decision making do not create a right to independence.
The principle of territorial integrity is reaffirmed in the Declaration on Principles of

International Law which is generally seen as being reflective of a customary rule of
international law:
Nothing in the foregoing paragraphs [on self-determination] shall be construed as

authorizing or encouraging any action which would dismember or impair, totally
or in part, the territorial integrity or political unity of sovereign and independent
States conducting themselves in compliance with the principle of equal rights and
self-determination of peoples as described above and thus possessed of a govern-
ment representing the whole people belonging to the territory without distinction
as to race, creed or colour.30
Some writers have interpreted this provision as a foundation of the so-called remedial
secession doctrine.31 In this interpretation, the principle of territorial integrity applies
only to states with a “government representing the whole people belonging to the terri-
tory without distinction as to race, creed or colour.”32 There is little support for such an
interpretation in state practice. Following the reasoning of the Supreme Court of Can-
ada in the Quebec case,33 the most realistic perception of “remedial secession”’ is probably
that it is not a positive entitlement. The right to self-determination is never a right to
29
ee ‘Agreement between the United Kingdom Government and the Scottish Government on a re-
S
ferendum on independence for Scotland’ (15 October 2012), at http://www.scotland.gov.uk/About/
Government/concordats/Referendum-on-independence (last accessed on 30 October 2013).
30
See ‘Declaration on Principles of International Law concerning Friendly Relations and Co-operation
among States in accordance with the Charter of the United Nations’, GA Res 25/2625, Annex, Principle V.
31
For an overview see A Tancredi, ‘A Normative ‘due process’ in the Creation of States Through Seces-
sion’ in M Kohen (ed.), Secession: International Law Perspectives (CUP, Cambridge 2006), at 176.
32
See supra note 30.
33
See supra note 26.
6
secession, not even where a people is suffering oppression. But where such remedial
grounds do exist, foreign states may be more willing to grant recognition.34 This remains
their policy choice; states are never under an obligation to grant recognition.
3. State creation as a political process that creates legal status
State creation is a political process, deliberation, and negotiation. However, any intro-
ductory lecture or textbook on the international law of statehood usually starts with the
statehood criteria. These are elaborated in the Montevideo Convention on the Rights
and Duties of States and are said to have acquired the status of customary international
law: (i) a permanent population, (ii) a defined territory; (iii) government; and (iv) the
capacity to enter into relations with other states.35
The problem is that these criteria merely describe a state, or most states, but are not a
legal definition of a state. States do not emerge automatically and self-evidently when
these criteria are met. The criteria are too inclusive and too exclusive at the same time.
Sometimes entities, such as Somaliland,36 meet them, but are not states; and some-
times states do not meet them, but nevertheless emerge as states, such as Croatia and
Bosnia-Herzegovina in 1992.37 Most states look more or less as described in Article 1
of the Montevideo Convention, but the criteria are not a particularly useful tool if one
tries to decide what the legal status of Kosovo is, why Bosnia-Herzegovina was a state
in 1992, and what the legal status of Kosovo is today.
State-creation needs to be explained in another manner, not as an exercise in meeting the

statehood criteria. The answer lies in the principle of territorial integrity. Somaliland is claim-
ing independence in a part of the territory which is considered to be Somalia.38 Somalia
has been entirely ineffective for more than two decades, but still exists in law, at least as
a legal fiction.39 As long as it does exist in law, it is presumed that Somalia is protected
34
Shaw, ‘Peoples, Territorialism and Boundaries’ (1997) 8 EJIL 478, at 483.
M
35
Convention on Rights and Duties of States (1933) art 1, 165 LNTS 19 [hereinafter Montevideo
Convention].
36
See J Crawford, The Creation of States in International Law (2nd edn., Oxford: OUP, 2006) at
415–17. Ibid. at 398.
37
I bid. at 398.
38
See J Vidmar, Democratic Statehood in International Law: The Emergence of New States in post-
Cold War Practice (Oxford: Hart, 2013) at 62.
39
I bid.
7
by the principle of territorial integrity and before Somalia’s presumption of territorial

integrity is overcome, Somaliland will not emerge as an independent state–regardless
of whether it meets the Montevideo criteria–as there cannot be two overlapping states
in a single territory. Kosovo has a similar problem to Serbia,40 but Bosnia-Herzegovina
in 1992 did not, because at the time it had become universally accepted that its par-
ent state, the Socialist Federal Republic of Yugoslavia (SFRY), had ceased to exist.41
There was no competing counter-claim to territorial integrity and Bosnia-Herzegovina
emerged as a new state.42
Prior to the 2014 referendum on independence in Scotland, the UK waived its claim to
territorial integrity and Scotland would become an independent state, had there been a
yes vote.43 Spain, on the other hand, opposes any independence attempts by Catalonia.44
The counterclaim to territorial integrity is applicable and it is unlikely Catalonia would
emerge as an independent state in such circumstances.
Rather than trying to explain state creation with a set of four descriptive criteria, it is
more plausible to define state creation as a process of overcoming a counter-claim to
territorial integrity. In fact, not only the creation of a new state, but any alteration of
the legal status of a territory is a political process in which a counterclaim to territo-
rial integrity needs to be overcome. In international affairs, one cannot explain every
phenomenon simply by interpreting the rules of the game. Basketball also has its rules,
but these rules do not tell us which team will win the game. It is the highest scoring
team who wins and its points only count when played by the rules. Similarly, the law of
statehood determines the rules of the process of state creation but states are created in
a political game played within these rules. The law of statehood alone does not tell us
how states emerge. State creation is an eminently political process which creates a new
legal status by overcoming the hurdle of territorial integrity.
40
ee UN Security Council Official Records, 63rd Session, 5839th meeting at 4-5, UN Doc S/PV.5839
S
(18 February 2008).
41
J Vidmar, ‘Territorial Integrity and the Law of Statehood’, 44 George Washington International Law
Review (2012) 101, at 132.
42
I bid.
43
See ‘Agreement between the United Kingdom Government and the Scottish Government on a refe-
rendum on independence for Scotland’ (15 October 2012), at http://www.scotland.gov.uk/About/Go-
vernment/concordats/Referendum-on-independence. See also S Tierney, ‘Referendums in the United
Kingdom and the European Union: Challenging Federalism?’.
44
See ‘Catalonia vote: 80% back independence – officials’, BBC News (10 November 2014), at http://
www.bbc.com/news/world-europe-29982960.
8
4. Modes of removing a counterclaim to territorial integrity
International law accepts different ways of overcoming a counterclaim to territorial in-

tegrity. These can also be called “modes of state creation.” The easiest is that the parent
state gives its consent to independence and thus waives the claim to territorial integrity.
The situation is then clear and there is no doubt that a new state has emerged.45 Anoth-
er mode is a dissolution of the parent state where the predecessor state no longer exists.
Since there is no state, there is no claim to territorial integrity, and the constitutive units
of the dissolved state become states themselves. A good example is Czechoslovakia
where both constitutive units emerged as new states. Again, this was a political process
involving the political elites of both republics of Czechoslovakia. A dissolution is not
always as friendly and clear-cut as Czechoslovakia was.
Yugoslavia and the Soviet Union were also examples of this mode of state creation, but
these situations were more complicated than in Czechoslovakia. A thorough discus-
sion of these events would fall beyond the scope of this paper.46 Suffice to say that the
international community as a whole accepted that the former socialist federations no
longer existed, its international legal personality was dissolved, and in the absence of
any competing authority, their former constitutive republics stepped into the multiple
new shoes of legal personality and territorial sovereignty.47
Where a parent state either agrees to independence, or ceases to exist, independence

becomes much more feasible. There is no counterclaim to territorial integrity and new
states then need to fill the gap of sovereignty over a territory. In other situations, the
parent state continues in existence and continues to oppose any aspirations for inde-
pendence of its subunits. Any attempt at secession is then unilateral. Where a declara-
tion of independence is unilateral, it is issued in the zone of international legal neutral-
ity.48 The Supreme Court of Canada held in the Quebec case that a unilateral declaration
of independence could be made effective through recognition by foreign states49 yet,
foreign states are very rarely willing to grant widespread recognition to an entity uni-
laterally claiming independence. In the post-World War II era, only Bangladesh and
Kosovo have received a significant number of recognitions on the basis of a unilateral
45
ee Vidmar, supra note 38, at 710–16.
S
46
For more see ibid at 719– 23.
47
I bid.
48
See supra note 26.
49
I bid.
9
claim50 and even there exceptional–“remedial”–circumstances were claimed.51 It is also

of note that Kosovo has not been universally recognised and neither had Bangladesh
before Pakistan extended its recognition.52
5. Delimitation
In the process of decolonisation, it was accepted that the principle of uti possidetis was
applicable. According to the Chamber of the ICJ in the Frontier Dispute case:
The essence of the principle lies in its primary aim of securing respect for the ter-
ritorial boundaries at the moment when independence is achieved. Such territorial
boundaries might be no more than delimitations between different administrative
divisions of colonies all subject to the same sovereign. In that case, the application
of the principle of uti possidetis resulted in administrative boundaries being trans-
formed into international frontiers in the full sense of the term.53
The uti possidetis principle has been heavily criticised, as it confined international bor-
ders along the lines of arbitrarily-drawn colonial boundaries.54 Arguably, uti possidetis
solved the Ivor Jennings dilemma and decided who the people is and did so on the basis
of territoriality.55 While the right of self-determination nominally applies to peoples, its
application was primarily territorial, at least in the process of decolonisation.
The principle of uti possidetis because controversial again when the Baditer Commis-
sion applied it in the territory of the Socialist Federal Republic of Yugoslavia (SFRY).56
Criticism came from two sides: (i) doctrinally, the principle of uti possidetis should
not be applicable outside of colonialism, and (ii) practically, the Badinter Commission
upgraded the arbitrary internal boundaries to the status of international borders.57 In
reality, the internal boundaries in the SFRY were not as arbitrary as most colonial
50
ee Crawford, supra note 36, at 393.
S
51
I bid. See also Vidmar, supra note 38, at 162–66.
52
I bid. See also supra note 12.
53
Case Concerning the Frontier Dispute (Burkina Faso/Mali), ICJ Rep 1986, 566, para 23.
54
S Ratner, ‘Drawing a Better Line: Uti Possidetis and the Borders of New States’ (1996) 90 AJIL 590, at 595.
55
See supra note 15.
56
The Badinter Commission, Opinion 3 (11 January 1992), 479.
57
See generally T Bartoš, ‘Uti possidetis. Quo Vadis?’ (1997) 18 AUST YBIL 37.
10
boundaries had been and had a strong historic pedigree.58 When new states are created,
the latest internal boundary arrangement will serve as default presumption for the new
international delimitation.59
An “upgrade” of internal boundaries to international borders can be problematic be-

cause internal boundaries are not established for the same purposes as international
borders. Indeed, “[t]he core functional distinction between international borders and
internal administrative boundaries lies in a critical antinomy: governments establish
interstate boundaries to separate states and peoples, while they establish or recognize
internal boundaries to unify and effectively govern a polity.”60 For this reason internal
administrative boundaries are not necessarily capable of determining the territory of a
potentially independent state.61
While it is true that internal boundaries are not established for the same purpose as in-
ternational borders are, one also needs to take into account that not all internal bound-
aries have been established for the same purposes and they may also have different
origins. As Shaw notes:
In some cases [internal boundaries] are of relatively little importance; in others, such
as is the case with federal states, they are of considerable significance. In many in-
stances, such administrative borders have been changed by central government in a
deliberate attempt to strengthen central control and weaken the growth of local pow-
er centres. In other cases, borders may have been shifted for more general reasons of
promoting national unity or simply as a result of local pressures. In some states, such
administrative borders can only be changed with the consent of the local province or
state (in the subordinate sense) or unit. In some cases, internal lines are clear and of
long standing. In others, they may be confused, of varying types and inconsistent.62
While some internal boundaries may be established for purely administrative purposes,
others have a strong historical basis and even delimit self-determination units. Not all
internal boundaries are merely administrative lines, reminiscent of colonial delimita-
tion. The internal organisation of a multiethnic state, composed of delimited subunits,
58
ee Vidmar, supra note 38, at 225–29.
S
59
See S Lalonde, ‘Québec’s Boundaries in the Event of Secession’ (2003) 7 Macquarie LJ 129.
60
Ratner, supra note 54, at 602.
61
I bid.
62
Shaw, supra note 31, at 489.
11
may be an arrangement for the exercise of the right of self-determination internally.63

Federalism is one such possibility, although this is not always the case.
Moreover, the historical roots of an internal boundary do not necessarily constitute a

self-determination unit. Borders between English counties have a long history64 but
the population of Oxfordshire, for example, clearly does not constitute a people for the
purpose of the right of self-determination. On the other hand, the internal boundary
between England and Scotland is not merely administrative. Not only does it have a
strong historical pedigree, there is also no doubt that the right of self-determination is
applicable to the Scottish people and that Scotland is a self-determination unit.65 In
the case of the independence of Scotland, the international border of this state would
be easy to ascertain.66
For some internal boundaries it is rather difficult to imagine how they could become
international borders. The hypothetical creation of an independent state of Oxfordshire,
circumscribed by its present internal boundary of an English county, would be remi-
niscent of uti possidetis applied in the context of decolonisation. It is very unlikely that
Oxfordshire would ever become an independent state. In some other situations, a claim
for an “upgrade” of other internal boundaries to international borders may be much
more plausible. Scotland’s claim for an elevation of its internal boundary with England
to the status of an international border could hardly be compared to the process of de-
colonisation and of uti possidetis. The question is what makes Scotland-type boundaries
different from Oxfordshire-type boundaries and, consequently, which internal bounda-
ries are potentially capable of becoming international borders.
As the right of self-determination is very important for a plausible independence claim,

the answer needs to be sought in its context. Arguably, a group of people to whom the
right of self-determination does not apply cannot make a plausible claim for secession
63
I bid.
64
For more on the background on English counties see A Vision of Britain through Time, at <http://
www.visionofbritain.org.uk/types/level_page.jsp?unit_level=4>.
65
Consider the following argument: “Scotland is a curious example of a sub-state national society in that, on
the one hand, it is a former nation-state, indeed one of the oldest in Europe, but on the other, it is difficult
to attribute points of clear objective distinction in terms of language, religion or ethnicity between Scotland
and England … Scotland’s claim to societal discreteness is, therefore, largely based upon the historical deve-
lopment of indigenous institutions of civic and public life which emerged when Scotland was an indepen-
dent state and which, to some extent, survived the Union of Parliaments with England in 1707.” S Tierney,
Constitutional Law and National Pluralism (OUP, Oxford 2006) 71.
12
from their parent state, and it is unlikely that their claim would trigger a political pro-
cess possibly leading toward independence. As follows from the wording of the right of
self-determination, this right only applies to peoples.67 A claim for elevating internal
boundaries to international borders will be much more plausible where such boundaries
delimit a self-determination unit (i.e., a territory populated by a distinct people), which
is separate from either the rest of a parent-state or from other self-determination units
within a parent-state.
While in colonialism, uti possidetis territorially defined peoples, it is arguable that in

noncolonial situations we have a combination of both approaches: peoples and terri-
tories. The identity of a separate people identifies a self-determination unit, while that
unit is delimited by a preexisting internal boundary arrangement. Naturally, the borders
of the new state will not be entirely fair and they will not create mono-ethnic nation
states without any ethnic, linguistic, or religious minorities. But virtually no existing
boundaries in the world do that; mono-ethnic nation states do not exist in practice. For
better or worse, a mono-ethnic nation state without any minorities should not be set as
standard where new states are created and delimited. As states with precise and entirely
just boundaries do not exist in practice, why are new states sometimes held to a higher
standard?68
III. Territorial illegality and the concept of the state
Thus far, it has been argued that states emerge in a political process and in the zone of
international legal neutrality without there being an entitlement to or prohibition of
unilateral secession. This section considers the circumstances in which secession does
lead to territorial illegality. In turn, the concept of the state will be explained to under-
stand the legal framework regulating the emergence of new states and the exercise of
the right of self-determination.
67
I nternational Covenant on Civil and Political Rights (ICCPR) and International Covenant on Eco-
nomic, Social and Cultural Rights (ICESCR), Article 1.
68
Cf. P Radan, ‘Post-Secession International Borders: A Critical Analysis of the Opinions of the Badin-
ter Arbitration Commission’ (2000) 24 MELB UNI LR 50.
13
1. Illegality of declarations of independence
International law is neutral with regard to the unilateral character of a declaration of

independence, but this does not mean it is neutral in all circumstances. In the Kosovo
Advisory Opinion, the ICJ made the following very powerful pronouncement:
[T]he illegality attached to [some other] declarations of independence […]

stemmed not from the unilateral character of these declarations as such, but from
the fact that they were, or would have been, connected with the unlawful use of
force or other egregious violations of norms of general international law, in particu-
lar those of a peremptory character (jus cogens).69
The ICJ here establishes a clear distinction between those declarations of independence
that are merely unilateral and those that are illegal due to a breach of a particularly
strong norm of international law. Historically, illegal declarations of independence were
issued by Southern Rhodesia, the South African Homeland States, and Northern Cy-
prus.70 These declarations were not only unilateral, but also backed by foreign military
force, or issued in pursuance of racial discrimination which is what made them illegal.
More recently, Crimea also issued one of those declarations of independence where
international law was not neutral. The declaration was marked by illegality not because
Ukraine did not agree or because it was against the Constitution of Ukraine; the ille-
gality stems from Russia’s military involvement.71
69
ccordance with International Law of the Unilateral Declaration of Independence in Respect of
A
Kosovo (Request for Advisory Opinion), Advisory Opinion of 22 July 2010, ICJ Rep 2010, para 81.
70
For collective responses in these situations see (Northern Cyprus): SC Res 541 (18 November 1983),
Southern Rhodesia): GA Res 1747 (XVI) (27 June 1962), SC Res 202 (6 May 1965), GA Res 2022
(XX) (5 November 1965), GA Res 2024 (XX) (11 November 1965), SC Res 216 (12 November 1965),
SC Res 217 (20 November 1965), SC Res 277 (18 March 1970); (the South African Homelands):
GA Res 2671F (8 December 1970), GA Res 2775 (29 November 1971), GA Res 31/6A (26 October
1976), GA Res 402 (22 December 1976), GA Res 407 (25 May 1977), GA Res 32/105 N (14 De-
cember 1977), GA Res 34/93 G (12 December 1979), GA Res 37/43 (3 December 1982), GA Res
37/69A (9 December 1982).
71
N Krisch, ‘Crimea and the Limits of International Law’, EJIL Talk! (10 March 2014), at http://www.
ejiltalk.org/crimea-and-the-limits-of-international-law/; A Sari, ‘Ukraine Insta-Symposium: When
does the Breach of a Status of Forces Agreement amount to an Act of Aggression? The Case of Ukrai-
ne and the Black Sea Fleet SOFA’, Opinio Juris (6 March 2014), at www.opiniojuris.org/2014/03/06/
ukraine-insta-symposium-breach-status-forces-agreement-amount-act-aggression-case-ukraine-
black-sea-fleet-sofa/
14
Under Article 41 of ILC Articles on State Responsibility, all states need to withhold
recognition of such a situation.72 This is an obligation owed erga omnes, that is, toward
everyone in the international community. Foreign states are now under the obligation
to withhold recognition of the shift of territorial sovereignty over Crimea. This territory
may well be incorporated into Russia in fact, but it is not in law. Law and fact, however,
do not always overlap and the law of statehood can resort to a legal fiction. Earlier, it
was argued that Somalia exists as a legal fiction. Somewhat similarly, a legal fiction is
also that Crimea is still a part of Ukraine.
Such precedents exist in international law and the closest analogy is Northern Cyprus.
Formally, Northern Cyprus claims that it is an independent state, but it functions as a
puppet state of Turkey.73 The rest of the world sees Northern Cyprus as a part of Cyprus
and the state is even an EU member as a whole.74 Just like in Cyprus, there will likely
be a long-term discrepancy between law and fact in Crimea.75
As an illegal occupying power, Russia even has some duties under international law in
the administration of Crimea when it comes to the so-called private rights.76 Despite
the territorial illegality, in Crimea people are still born and people still die, they get mar-
ried and they get divorced, and they conclude property transaction agreements. In other
words, life goes on, and Russian authorities now have the duty to perform administra-
tive tasks, such as issuing birth, death, and marriage certificates, divorce orders, and up-
date the land books.77 Any effective authority, no matter how illegal, has an obligation
under international law to administer the territory in these aspects of social life. This
was affirmed even by the ICJ in the Namibia Advisory Opinion.78 These responsibilities
72
I nternational Law Commission (ILC) Articles on Responsibility of States for Internationally Wron-
gful Acts, Article 41 (UN Doc A/RES/56/83, 28 January 2002) [hereinafter: ILC Articles on State
Responsibility].
73
See Raič, supra note 17, at 151–58.
74
See European Union: Cyprus, available at http://europa.eu/about-eu/countries/member-countries/
cyprus/index_en.htm.
75
Cf supra notes 8 and 9.
76
Cf E Milano, Unlawful Territorial Situations in International Law (Leiden: Nijhoff, 2006) at 141.
77
See, e.g. S Talmon, ‘The Duty Not to “Recognize as Lawful” a Situation Crated by the Illgegal Use of
Force or Other Serious Breaches of a Jus Cogens Obligation: An Obligation without Real Substance?,
in C Tomuschat and J-M Thouvenin, The Fundamental Rules of the International Legal Order (Lei-
den, Nijhoff, 2006) 99, at 117.
78
Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West
Africa) notwithstanding Security Council Resolution 276 (1970), ICJ Rep 1971, at 16 (The Namibia
Advisory Opinion).
15
that Russia now has in Crimea, however, in no way “cure” the underlying territorial
illegality: that is, the shift in territorial sovereignty by an outside use of force.
2. Conceptualizing the state
The process of state creation cannot be explained adequately without clarifying the
concept of the state in international law. It has been pointed out above that the Mon-
tevideo criteria for statehood have proved to be inadequate in practice and have neither
statehood-creating nor statehood-denying effects. The criteria are nevertheless widely
considered to form a part of customary international law.79 Norms of customary inter-
national law, however, need to be precisely that–legal norms. As such, they need to be
prescriptive, not merely a descriptive account of how more or less all states look like,
more or less. The fundamental question that arises here is what the legal status of state-
hood is in international law.
Historically, some theorists saw states as natural persons, comparable to humans in a

municipal legal order.80 Others have pointed out, however, that states are not “naturally
born” creatures but rather legally-created entities.81 As such, their legal status is com-
parable to that of corporations rather than humans in a municipal system. A state has
its natural component, of course: a territory. The Montevideo requirement for a defined
territory presumes that legal status rather than any natural fact needs to be determined
here. When a person is born, that person exists naturally regardless of whether or not
their birth certificate is ever issued. If it is not, the person may encounter severe legal
problems, but this person nevertheless exists physically. It is different with states. The
question is not whether or not a territory exists but rather what the territory’s legal
status is. Statehood is that legal status. Where competing claims exist (e.g., Kosovo),82
the legal status can be contested and even ambiguous. However, even in municipal law,
legal status can sometimes be ambiguous and international lawyers should accept that
in some borderline examples statehood cannot be objectivized and may be clarified only
after a period of time.
79
Dixon, R McCorquodale and S Williams, Cases and Materials in International Law, (OUP:
M
Oxford, 2011) at 158.
80
G Jellinek, Allgemeine Staatslehre (2nd edn, O. Häring, Berlin 1905) at 17.
81
H Lauterpacht, Recognition in International Law (CUP: Cambridge, 1948) at 38.
82
See supra note 40.
16
As states are not naturally born creatures, it remains to be answered where states are
grounded in international law. If one is not prepared to accept the natural or even met-
aphysic theories of statehood, this status needs to be based on the sources of interna-
tional law, as enumerated in Article 38(1), ICJ Statute. Sometimes, states are created by
international treaties (e.g., Austria) and83 in other examples, the existence of a state is
accepted by other states in a less explicit way, but in practice they clearly indicate that
they are accepting a certain entity as a separate state. The approach is evidently the same
as for the formation of rules of customary international law which requires a uniform
(although not universal) state practice and opinio juris.84 Statehood is quite simply le-
gal status under customary international law. Statehood criteria is not customary; it is
statehood itself.
While recognition of states is not a constitutive act,85 it can be indicative of state prac-
tice and opinio juris. Even those writers who defend the declaratory theory of recogni-
tion admit that universal or near universal recognition could have the effects of collec-
tive state creation.86 Indeed, (near) universal recognition would be indicative of uniform
state practice and opinio juris that a certain entity exists as a state in customary interna-
tional law. At the same time, recognition is only one mode of expression of state practice
and opinio juris. There are examples where states refused to recognise but nevertheless
treated an entity as a state.87
IV. Secession and the EU
Some recent developments have raised the problem of secession from an EU member
state and “secession” from the EU. Three questions will be considered in turn: (i) Can
the new state continue as an EU member if it secedes from an EU member state?; (ii)
What happens with EU citizenship rights in a case of secession within the EU?; (iii)
What happens with EU citizenship rights in a case of “secession” from the EU?
83
ee ‘Staatsvertrag betreffend die Wiederherstellung eines unabhängigen und demokratischen Öste-
S
rreich, The Official Gazette of the Republic of Austria’ (30 July 1955), at https://www.ris.bka.gv.at/
Dokumente/BgblPdf/1955_152_0/1955_152_0.pdf
84
See Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of Ame-
rica), ICJ, Judgment of 27 June 1986), para 188.
85
See Dixon, McCorquodale and Williams, supra note 79, at 158.
86
Crawford, supra note 36, at 501.
87
See M Craven, ‘What’s in a Name? The Former Yugoslav Republic of Macedonia and Issues of State-
hood’, (1995) 16 Australian Yearbook of International Law 199 at 199–200.
17
1. Secession and EU membership
Prior to the Scottish independence referendum, Professors Alan Boyle and James
Crawford drafted an expert opinion in which they argued that an independent Scotland
would become a new state (without an automatic EU membership), while the rump UK
would continue the UK’s present international personality, including EU membership.88
This argument is doctrinally sound. Unlike in the case of dissolution (e.g., SFRY),89 it
is inherent to secession that the rump state continues its international personality, while
the seceded entity becomes a new person in international law.
While new states do not begin with an entirely clean slate and may inherit the obliga-
tions arising under customary international law as well as the predecessor’s obligations
under international treaties of humanitarian and human rights character, it is generally
accepted that there is no automatic accession to treaties of an institutional character.90
This would apply to the Treaty on European Union (TEU) and the Treaty on the Func-
tioning of the European Union (TFEU). Even if the entity is already an EU territory
as a part of a larger state, it does not automatically become an EU member state in its
own right upon independence.
New states join the EU pursuant to Article 49 TEU, which in its core parts provides that:
Any European State […] may apply to become a member of the Union […] The
conditions of admission […] shall be the subject of an agreement between the
Member States and the applicant State. This agreement shall be submitted for rat-
ification by all the contracting States in accordance with their respective constitu-
tional requirements.91
The EU admission process requires unanimity which means that each existing mem-
ber state can veto any EU expansion. It is arguable that in a case of secession from an
88
ee Referendum on the Independence of Scotland – International Law Aspects (Opinion drafted by
S
Alan Boyle and James Crawford) (2013) [hereinafter: The Boyle/Crawford Report], Part V, at https://
www.gov.uk/government/uploads/system/uploads/attachment_data/file/79408/Annex_A.pdf
89
Cf. supra note 41.
90
See A Rasulov, ‘Revisiting State Succession to Humanitarian Treaties: Is There a Case for Automati-
city?, 14 EJIL (2003) 141. See also The Boyle/Crawford Report, paras 134–142.
91
Treaty on European Union (TEU), Article 49 (emphasis added).
18
EU member state, the new state could perhaps bypass Article 49. Unlike “regular” new
members, an entity seceding from an EU member state has already been an EU terri-
tory and, as such, subjected to EU law. This argument certainly does have some merit
and cannot be dismissed prima facie. Changes would nevertheless need to be made to
the TEU and TFEU to reflect the fact that the EU had a new member and that one of
the members had become a smaller state. This could be done by treaty revision pursuant
to Article 48 TEU.
Article 48 TEU provides that, “the Government of any Member State, the European
Parliament or the Commission may submit to the Council proposals for the amend-
ment of the Treaties.”92 It is arguable that any EU member state could propose a treaty
revision to reflect that one EU member state has split into two EU member states. The
new state could thus stay in the EU rather than join it. The appeal of the Article 48
procedure for the new state is exactly in that it means staying in the EU rather than
joining it anew. However, Article 48 further provides that, “[t]he amendments shall
enter into force after being ratified by all the Member States in accordance with their
respective constitutional requirements.”93 Even Article 48 requires unanimity and the
mighty sword of the veto power remains in place.
As the UK accepted the Scottish vote whatever the outcome, it was not to be expected
that it would try to obstruct Scotland’s EU membership. This might not be the case
where a new state emerged against the wishes of its parent state. Even if Catalonia were
to become independent without reaching a political agreement with Spain, Catalonia
could still face Spanish veto if it sought EU membership. However, if a political agree-
ment with Spain were reached, it would be, in principle, legally possible for Catalonia to
stay in the EU via Article 48 (treaty revision) rather than Article 49 (new membership).
2. “Secession” from the EU
Since 2009, TEU gives EU member states the specific right to exit the EU. Article
50(1) provides: “Any Member State may decide to withdraw from the Union in ac-
cordance with its own constitutional requirements.”94 TEU specifies the right to exit
92
EU, Article 48(2).
T
93
I bid., Article 48(4).
94
TEU, Article 50(1).
19
in rather general terms. It refers to a member state which “decides to exit” but does not
specify how such a decision is to be made domestically. Article 50 TEU further stipu-
lates for a period of time in which the exact modalities and the future relationship are
to be negotiated between the EU and the exiting state. In this context, Article 50(3)
TEU provides that the “Treaties shall cease to apply to the State in question from the
date of entry into force of the withdrawal agreement or, failing that, two years after the
notification referred to in paragraph 2, unless the European Council, in agreement with
the Member State concerned, unanimously decides to extend this period.”95
In other words, Article 50 provides for legal automaticity and a withdrawal cannot be
prevented by a failure of negotiations. In this respect, EU law is now different from most
domestic legal systems and allows for a unilateral withdrawal of one of its constitutive
units. EU law, however, does not specify any procedural requirements for a legitimate
exit decision, nor does it regulate the legal consequences of an exit for certain categories
of EU citizens. Furthermore, the only precedent for an EU exit is that of Greenland
and differed crucially from the UK’s experience, as Greenland is a Danish territory, not
an independent state. It was only a self-governing territory within an EU member state
which left the Union, not a member state as a whole, and the residents of Greenland
remained EU citizens by virtue of their Danish nationality.
On 29 March 2017, the United Kingdom (UK) triggered the mechanism to exit the
EU pursuant to Article 50 TEU. In her letter to the President of the European Council,
Donald Tusk, UK Prime Minister Theresa May stated: “On 23 June last year [2016], the
people of the United Kingdom voted to leave the European Union.” Formally speaking,
the referendum was not legally binding and it was policy choice rather than legal obli-
gation to trigger Article 50. As such, Brexit is an unchartered territory and Article 50
foresees political negotiations rather than legal certainty.
Pursuant to Article 20 TFEU, EU citizenship is derived from citizenship of a member

state.96 This means that EU citizenship rights will be lost for UK citizens and, at the same
time, EU citizenship will no longer generate any free movement rights in the UK. A sim-
ilar effect could be achieved, however, through a Swiss-like set of agreements between the
UK and EU member states.97 But this again remains in the realm of political negotiations.
95
I bid. Article 50(2).
96
Treaty on the Functioning of the European Union (TFEU), Article 20.
97
For a detailed analysis see J Vidmar and C Eggett, Brexit: Is everything going to change in law, so
that very little would change in fact?, EJIL Talk (27 June 2016), at https://www.ejiltalk.org/author/
jvidmarandceggett/
20
V. Conclusion
There is no right to secession in international law. The right of self-determination is not

an absolute entitlement, not even where “remedial” grounds for secession may well ex-
ist. Self-determination is limited by the principle of territorial integrity of states. State
creation is a process of overcoming a competing claim to territorial integrity. This pro-
cess is political in nature and may or may not lead to the creation of the legal status of
statehood under customary international law. A democratic expression of the will of the
people at an independence referendum, at best, creates the obligation on both sides to
negotiate a future legal status of the territory but there should be no presumption that
such negotiations need to lead to independence. The outcome could well be a higher
level of autonomy.
Even if an entity secedes from an EU member state, that entity does not automatically
become an EU member state in its own right. Even if the newly independent state of
this kind were able to avoid the standard admission procedure of Article 49 TEU, it
would still be subjected to the treaty revision procedure of Article 48 TEU. And Article
48, just like Article 49, foresees decision making by unanimity. In other words, “Route
48” and “Route 49” toward EU membership both contain the veto hurdle. Even if Cat-
alonia, for instance, managed to emerge without reaching a political agreement with its
parent state, it could still face Spanish veto should it seek EU membership.
The unilateral path to independence is virtually never successful in contemporary prac-

tice. The reason for this is political rather than legal. International law does not prohibit
unilateral secession. But neither does international law make unilateral secession an
entitlement. In other words, international law does not grant peoples or their territories
a right to independence: international law is neutral on the question of unilateral seces-
sion. The legal neutrality, however, makes the territorial status quo a default setting. The
independence-seeking entity has the burden of shifting the territorial status quo with
political means and since there is no legal entitlement to this effect, shifting the terri-
torial status quo is a very difficult job: not illegal, but nevertheless politically difficult to
accomplish.
Some comparative constitutional developments may be more significant than inter-

national legal regulation. As noted in the Quebec case, in a constitutional democracy
the will of the people in favour of independence cannot be ignored. It is arguable that
the central government at least has the duty to negotiate, but so does the independ-
ence-seeking side which needs to be prepared to compromise. Neither international law
nor comparative constitutional practice define or interpret the will of the people as an
absolute entitlement when it comes to decision making on territorial matters.
21
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suppose it isn’t respectable to run away, is it?”
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“You must.”
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“Mother and father are away for the week-end.”
“Really, I’d much rather not.”
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near to the further end.
“You’re coming back, Cathie. Don’t be silly.... You must ...”
Catherine held herself passionately erect. The signal lights
winked from red to green.
“It’s no good your trying to persuade me, Helen.... I’m not coming.
I wouldn’t enter the same house with that man.... No, no, no, no, I’m
not coming.”
The train came in to the platform.
“Cathie!”
“No, no! ... I’m not coming, I tell you....” She opened the door of a
third-class compartment and entered.
“You’ll wish you hadn’t done this, Cathie.”
“Never.”
The train slid away into the night and Helen was left standing on
the platform. She had a swift impulse to jump into the tail-end of the
now quickly-moving train and go with Cathie to the next station. But
the train was moving too rapidly for her to attempt this manœuvre in
safety. And behind her stood George a little bewildered (he had
followed her slowly down the steps).
“What’s all the fuss about?” he queried suspiciously.
“Nothing,” replied Helen. Then, as they walked together along the
platform, “You’ll have to tell the man we gave up our tickets before.”
As they hurried along the Bockley High Street the clock on the
Carnegie library chimed the three-quarters....
At Liverpool Street, Catherine discovered that the waiting-room
did not keep open throughout the night for the benefit of girls who
have run away from home. There was a man at the door inspecting
tickets. Catherine was struck by a brilliant notion. There is an all-
night hourly service of trains from Liverpool Street to Bockley, the
same train proceeding backwards and forwards. She went to the
booking-office and purchased a return ticket to Bockley (sixpence).
She had a good sixpennyworth, for the next five hours she spent in
the corner seat of a third-class compartment. About two a.m. she fell
asleep, and when she awoke the train was jerking to a standstill at
Upton Rising. The clock said twenty minutes past six. Evidently the
train had undergone a change while she had slept. All those dark
hours it had paraded the inner suburbs, but now it had become a
thing of greater consequence: it was the first early morning train to
Chingford. At the tiny Forest town Catherine left it, paying excess
fare on the journey from Bockley. Dawn came as she was tramping
the muddy paths of Epping Forest. She had no idea where she was
going. The main thing was to get the time over. About eight o’clock
she returned to Chingford, purchased some notepaper and
envelopes, and went into the post-office. On the desk provided for
composing telegrams she wrote a letter accepting the situation of
pianist at the Royal Cinema, Upton Rising. That done, and the letter
stamped and posted, she felt calmer than she had been for some
time. Then came hunger. She had a glass of milk (threepence) at a
dairy and two of yesterday’s buns (a penny each) from a
confectioner’s. Out of five and sevenpence half-penny and two
penny stamps she had now left four shillings and a half-penny and
one penny stamp, plus a third-class return half from Bockley to
Liverpool Street.
She persisted in being joyous. This was to be an adventure, and
she was to enter into the spirit of it. She took her buns to the top of
Yardley Hill in order that she might imagine herself picnicking. She
lay down on the damp grass eating, and told herself she was
enjoying herself immensely. She admired the loveliness of the view
with all the consciousness of a well-trained tourist. She refused to be
melancholy. She discovered hundreds of excuses for feeling happy
which would never have occurred to her if she had been feeling
happy. As she was descending the hill after her meal it commenced
to rain. She tried to see beauty in the rain. The grey sky and the
sodden leaves, the squelch of her heels in the mud, the bare trees
swathed in slanting rain, these, she decided, were infinitely
preferable to Kitchener Road.... Nevertheless she would have to find
lodgings.
She decided to seek them in Upton Rising.
CHAPTER V
DISILLUSIONMENTS
§1
GIFFORD ROAD, Upton Rising, seemed to be composed of various
architectural remnants which had been left over from other streets.
No. 14 was a dour, gloomy-looking edifice built of a stone-work that
showed up in lurid prominence the particular form of eczema from
which it suffered. The front garden was large, with evidences of
decayed respectability, including a broken-down five-barred gate and
the remains of a lawn. The wooden erection at the side of the house
may once have been a coach-shed.... A flight of stone steps, much
chipped and scarred, led up to a massive front door, but the usual
entrance was clearly the small door underneath the steps, which
generally stood ajar.... In the basement window appeared the
“apartments” card and the ubiquitously respectable aspidistra plant.
Cats of all sizes and colours haunted the long, lank grass of the front
garden, and at the back there was a noisy, unkempt chicken-run.
Inside the tiny basement sitting-room Catherine tried to feel at
home. The dried grasses and bric-à-brac on the mantelpiece did
remind her somewhat of the front room at Kitchener Road, but the
old faded photographs of the landlady’s relatives, most of them
mercifully obscure, made her feel strange and foreign. A stuffed
canary under a glass shroud surmounted the sideboard, and
Catherine decided mentally that after she had been here awhile she
would remove it to a less conspicuous position. A dull piety brooded
over the room: there were floridly decorated texts on the walls, “I am
the Bread of Life” over the doorway, and “Trust in the Lord” by the
fireplace. The small bookshelf contained bound volumes of The
Quiver and various missionary society reports, as well as several
antiquated volumes, of which Jessica’s First Prayer was one,
presented to the landlady, as the flyleaf showed, by a certain Sunday
school in South London. A couple of pictures above the mantelpiece
represented the Resurrection and the Ascension, and in these there
was a prolific display of white-winged angels and stone slabs and
halos like dinner-plates. On a November afternoon the effect of all
this was distinctly chilly.
And under the cushions of the sofa there were many, many
copies of Sunday newspapers, both ancient and modern.
Mrs. Carbass was a woman of cheerful respectability. She
accepted Catherine as a lodger without any payment in advance. At
first she was doubtful, but the production of the letter offering
Catherine the situation at the Upton Rising Royal Cinema overruled
her misgivings. She was apparently an occasional patron of this
place of amusement.
“Sometimes I goes,” she remarked. “Of a Sat’d’y night, gener’ly....
In the ninepennies,” she added, as if excusing herself.
Catherine lived very quietly and economically during her first few
weeks at Gifford Road. She had to. Her earnings did not allow her
much margin after she had paid Mrs. Carbass. Out of this margin
she had to buy all kinds of things she had not counted on—chiefly
changes of clothing, and ranging down to small but by no means
negligible articles such as wool for darning and a toothbrush. She
decided to have no communication whatever with her father, though
at first she had considered whether she would not write to him to ask
him to send her all the property that was her own. Finally she
decided against this, thinking that she would not care to let him
imagine she was in need of anything. Sometimes the fear came to
her that he would find her out: he could easily discover her address
by enquiring at the Cinema. At times the fear became a definite
expectation, and on rare occasions the expectation developed into
what was perilously near to a hope. Often in the streets she met
people who knew her, and to these she never mentioned either her
father or her attitude towards him. Most people in Kitchener Road
knew or guessed what had happened: it did not cause much of a
sensation, for worse things were common enough in Kitchener
Road.... Kitchener Road was quite blasé of domestic estrangements.
Whenever Catherine was asked how she was getting on she replied,
“Oh, quite nicely, thanks,” and would not pursue the subject.
At the Cinema she found work easy but not particularly
interesting. She was annoyed to find herself agreeing with her father
that the Upton Rising Royal Cinema was “third-rate.” It was a tawdry
building with an exterior of white stucco (now peeling off in great
scabs), and an interior into which the light of day never penetrated. A
huge commissionaire with tremendously large feet, attired in the sort
of uniform Rupert of Hentzau wears on the stage, paced up and
down in front of the entrance, calling unmelodiously: “Nah showin’
gran’ star progrem two, four, six, nine an’ a shillin’ this way children a
penny the side daw ...” all in a single breath. For this trying
performance he was paid the sum of sixteen shillings a week. Inside
the building a couple of heavily powdered, heavily rouged, heavily
scented girls fluttered about with electric torches. There was no
orchestra, save on Saturday nights, when a violinist appeared in a
shabby dress suit and played the Barcarolle from “Tales of Hoffman,”
and similar selections. The rest of the time Catherine was free to
play what she pleased, with but a general reservation that the music
should be appropriate to the pictures shown.
On Saturday mornings there was a children’s matinée, and that
was nothing but pandemonium let loose. Screams, hooting, cheers,
whistlings, yells and cries of all kinds.... On Saturday evenings the
audience was select, save in the front seats near the piano. In the
pale glare of the film all faces were white and tense. The flutter of the
cinematograph went on, hour after hour. The piano tinkled feebly
through the haze of cigarette smoke. Here and there the beam of an
electric torch pierced the gloom like a searchlight. The sudden
lighting of a match was like a pause of semi-consciousness in the
middle of a dream....
And at eleven, when bedroom lights were blinking in all the
residential roads of Upton Rising, Catherine passed out into the cool
night air. Her fingers were tired; sometimes her head was aching.
To pass along the Ridgeway now did not always mean thinking of
things that had happened there....
§2
For three months she played the piano at the Upton Rising Royal
Cinema; then she applied for and was appointed to a similar position
at the Victoria Theatre, Bockley. The salary was better and the hours
were not so arduous.... And yet she was becoming strangely restless
and dissatisfied. All through her life she had had a craving for
incident, for excitements, for things to happen to her. The feeling that
she was doing something almost epically magnificent in living on her
own whilst not yet out of her teens gave her an enthusiasm which
made bearable the dull monotony of life in Gifford Road. It was this
enthusiasm which enabled her joyously to do domestic things such
as making her bed every morning, darning stockings, cleaning boots,
etc., things that normally she loathed. For the first few months of her
independence everything was transfigured by the drama of her
position. The thought would occur to her constantly in trams and
omnibuses when she noticed someone looking at her: “How little you
know of me by looking at me! You cannot see into my mind and
know how firm and inflexible I am. You don’t know what a big thing I
am doing.”
Reaction came.
It interested Catherine to picture various meetings with her father
and to invent conversations between them in which she should be
unquestionably the winner. The ideal dialogue, she had decided after
much reflection, would be:
her father (stopping her in the street). Catherine!
she (haughtily). I beg your pardon!
her father (tearfully). Oh, don’t be so cruel, Cathie—why don’t
you come back?
she. I am not aware that I am being cruel.
her father. You are being horribly cruel (passionately). Oh,
Cathie, Cathie, come back! I give in about your going out to work, I
give in about anything you like, only do come back, do, do come!
she (coldly). Please don’t make a scene.... I am perfectly
comfortable where I am and have no desire to make any alteration in
my arrangements.
her father. Oh, Cathie, Cathie, you’re breaking my heart! I’ve
been lonely, oh, so lonely ever since——
she (kindly but firmly). I’m sorry, but I cannot stay to carry on a
conversation like this. You turned me out of your house when you
chose: it is for me to come back when I choose, if I choose.... I bear
you no ill-will.... I must be going. Please leave go of my arm....
That would be magnificent. She was sure she was not in the least
callous or hard-hearted, yet it pleased her to think that her father was
lonely without her. One of her dreams was to be passionately loved
by a great man, and to have to explain to him “kindly but firmly” that
she desired only friendship....
One day she did meet her father.
She walked into a third-class compartment at Bockley Station
and there he was, sitting in the far corner! Worse still, the
compartment was full, saving the seat immediately opposite to him.
There is a tunnel soon after leaving the station and the trains are not
lighted. In the sheltering darkness Catherine felt herself growing hot
and uncomfortable. What was she to do? She thought of her ideal
conversation, and remembered that in it he was supposed to lead
off. But if he did not lead off? She wished she had devised a
dialogue in which she had given herself the lead. Yet it would be
absurd to sit there opposite to him without a word. She decided she
would pretend not to see him. She was carrying a music-case, and
as the train was nearing the end of the tunnel she fished out a piece
of music and placed it in front of her face like a newspaper. When
the train emerged into daylight she discovered that it was a volume
of scales and arpeggios, and that she was holding it the wrong way
up. The situation was absurd. Yet she decided to keep up the
semblance of being engrossed in harmonic and melodic minors.
After a while she stole a glance over the top of her music. It was
risky, but her curiosity was too strong for her.
She saw nothing but the back page of the Daily Telegraph. It was
strange, because he never read in trains. It was one of his fads. He
believed it injurious to the eyes. (Many and many a time he had
lectured her on the subject.)
Obviously then he was trying to avoid seeing her, just as she was
trying to avoid seeing him. The situation was almost farcical.... There
seemed to be little opening for that ideal dialogue of hers. She
wished he would lean forward and tap her knee and say:
“Catherine!”
Then she could drop her music, look startled, and follow up with:
“I beg your pardon!”
Unfortunately he appeared to have no artistic sense of what was
required of him.
It was by the merest chance that at a certain moment when she
looked over the top of the scales and arpeggios he also looked up
from his Daily Telegraph. Their eyes met. Catherine blushed, but it
was not visible behind her music. He just stared. If they had both
been quick enough they might have looked away and let the crisis
pass. Unfortunately each second as it passed made them regard
each other more unflinchingly. The train ground round the curve into
Bethnal Green Station. Catherine was waiting for him to say
something. At last the pause was becoming so tense that she had to
break it. She said the very first thing that entered her head. It was:
“Hullo!”
Then ensued the following conversation.
“Good-morning, Catherine ... going up to the City, I suppose?”
“Yes. Are you?”
“Yes. I’m going to see some friends at Ealing. Bus from Liverpool
Street.”
“Oh, I go by tube to Oxford Circus. I’m seeing if they’ve got some
music I ordered.”
“Don’t suppose they’ll have it ... very slack, these big London
firms....”
Pause.
“Getting on all right?”
“Oh, fine, thanks.”
“I heard you’d got a place at the Royal Cinema.”
“Oh, I soon left that ... I’m on at the Victoria Theatre now. Much
better job.”
“Good ... like the work, I suppose?”
“Rather!”
Pause.
“Nasty weather we’re having.”
“Yes—for April.”
Pause again. At Liverpool Street they were the first to leave the
compartment.
“You’ll excuse my rushing off,” she said, “but I must be quick. The
shop closes at one on a Saturday.”
“Certainly,” he murmured. Then he offered his hand. She took it
and said “Good-bye” charmingly. A minute later and she was leaning
up against the wall of the tube subway in a state bordering upon
physical exhaustion. The interview had been so unlike anything she
had in her wildest dreams anticipated. Its casualness, its sheer
uneventfulness almost took away her breath. She had pictured him
pleading, expostulating, remonstrating, blustering, perhaps making a
scene. She had been prepared for agonized entreaties, tearful
supplications. Instead of which he had said: “Nasty weather we’re
having.”
And she had replied: “Yes—for April.”
As for the ideal dialogue——
§3
There was another surprise in store for Catherine.
In the front row of the stalls at the Bockley Victoria Theatre she
saw George Trant. She was only a few feet away from him in the
orchestra, and it was inevitable that he should notice her.
Now if Catherine had been asked if she would ever have
anything to do with George Trant again, she would have said “No”
very decisively. She had made up her mind about that long ago. If he
ever spoke to her she had decided to snub him unmercifully.
But George Trant stood up and waved to her.
“I say, Cathie!” he said.
And Catherine looked up and said, quite naturally, “Hullo,
George.”
It was a revelation to her. What had she said it for? What was the
matter with her? A fit of self-disgust made her decide that at any rate
she would not continue a conversation with him. But curiously
enough George did not address her again that evening. She wished
he would. She wanted to snub him. She wanted to let him see how
firm and inflexible she was. She wanted to let herself see it also.
§4
At Gifford Road, in the little bedroom, Catherine’s dissatisfaction
reached culminating point. Life was monotonous. The humdrum
passage of day after day mocked her in a way she could not exactly
define. She wanted to be swept into the maelstrom of big events.
Nothing had yet come her way that was big enough to satisfy her
soul’s craving. Things that might have developed dramatically
insisted on being merely common-place. Even the fire of her musical
ambition was beginning to burn low. Things in her life which had at
first seemed tremendous were even now in the short perspective of
a few months beginning to lose glamour. She thought of those dark
days, not a year back, when the idea of saying “hullo” to George
Trant would have seemed blasphemy. She thought of those June
evenings when she had paced up and down the Ridgeway in the
spattered moonlight, revelling in the morbid ecstasy of calling to
mind what had happened there. All along she had been an epicure in
emotions. She loved to picture herself placed in circumstances of
intense drama. She almost enjoyed the disappointment and passion
that George Trant had roused in her, because such feelings were at
the time new to her. Yet even in her deepest gloom something within
herself whispered: “This is nothing. You are not really in love with
George Trant. You are just vaguely sentimental, that’s all. You’re just
testing and collecting emotions as a philatelist collects stamps. It’s a
sort of scientific curiosity. Wait till the real thing comes and you’ll lose
the nerve for experimenting....” Yet the episode of George Trant had
stirred just sufficient feeling in Catherine to make her apprehensive
of similar situations in the future....
Now, as she undressed in the attic-bedroom in Gifford Road, life
seemed colourless. The idea of refusing to speak to George Trant
because of what had happened less than a year ago struck her as
childish. She was glad she had spoken to him. It would have been
silly to dignify their absurd encounter by attempting magnificence.
Catherine decided that she had acted very sensibly. Yet she was
dissatisfied. She had built up ideals—the ideals of the melodrama—
and now they were crumbling at the first touch of cold sense. She
had imagined herself being pitifully knocked about by fate and
destiny and other things she believed in, and now she was beginning
to realize with some disappointment that she had scarcely been
knocked about at all. It was a very vague dissatisfaction, but a very
intense one for all that.
“Oh, Lord, I want something, and I’m hanged if I know what it is....
Only I’m tired of living in a groove. I want to try the big risks. I’m not a
stick-in-the-mud....”
She herself could not have said whether this ran through her
mind in the guise of a prayer or an exclamation. But perhaps it did
not especially matter. “I guess when you want a thing,” she had once
enunciated, “you pray for it without intending to. In fact you can’t
want anything without praying for it every minute of the time you feel
you’re wanting it.... As for putting it into words and kneeling down at
bedtime, I should say that makes no difference....”
But she did not know what she wanted, except that it was to be
exciting and full of interest....
She fell asleep gazing vacantly at a framed lithograph on the
opposite wall which a shaft of moonlight capriciously illumined. It was
a picture of Tennyson reading his In Memoriam to Queen Victoria,
the poet, long-haired and impassioned, in an appropriately humble
position before his sovereign....
§5
The following morning a typewritten letter waited her arrival in the
basement sitting-room. It bore on the flap the seal of a business firm
in London, and Catherine opened it without in the least guessing its
contents.
It began:
my dear cathie,
You will excuse my writing to you, but this is really nothing but a
business letter. I found your address by enquiry at the theatre box-
office: the method is somewhat irregular, but I hope you will forgive
me.
What I want to say is this——
Catherine glanced down the typewritten script and saw the
signature at the bottom. It was George Trant. Her face a little
flushed, she read on:
The Upton Rising Conservative Club, of which I am a member, is
giving a concert on May 2nd, in aid of the local hospitals. A friend of
mine (and a fellow-member) was so impressed by your playing this
evening that he suggested I should ask you to play a pianoforte solo
at our projected concert. I cordially agree with his idea, and hope you
will be able to accept. I enclose a draft of the musical programme so
that you may realize that we are having some really “star” artists
down. Bernard Hollins, for instance, has sung at the Queen’s Hall.
Please write back immediately in acceptance and let me know the
name of the piece you propose to play, so that the programmes can
go to press immediately. Excuse haste, as I must catch the 11.30
post.
Yours sincerely,
george trant.
Catherine re-read the letter twice before she commenced to
criticize it keenly. Her keen criticism resulted in the following
deductions. To begin with:
This was some subtle cunning of his to entrap her. He was clever
enough to devise it.... What had she played last evening at the
Bockley Victoria Theatre that could have “impressed” anybody so
much? The show had been a third-rate revue, the music of which
was both mediocre and childishly simple. The piano was bad. She
had played, if anything, not so well as usual. The piano was, for the
most part, drowned in the orchestra. Moreover, there were scores of
pianoforte players in the district who would have been eager to
appear on such a distinguished programme as the one he had sent.
It was absurd to pick her out. She had no musical degree, had never
played at a big concert in her life. The other artists might even object
to her inclusion if they knew who she was. In any case, no astute
concert-organizer would risk putting her in. She was well-known, and
scores of people would say, as soon as they saw her on the
platform: “Why, that’s the red-haired girl who plays the piano at the
theatre.”
Catherine came to the definite conclusion that the letter was
thoroughly “fishy.”
Yet she wrote back saying:
dear george,
Thanks for letter and invitation, which I am pleased to accept. My
piece will be Liszt’s Concert Study in A flat, unless you think it too
classical, in which case I can play a Polischinelle by Rachmaninov.
Yours sincerely,
catherine weston.
Catherine thought: If I can make use of George Trant to further
my ambitions, why shouldn’t I? If this leads to anything in the way of
bettering my earnings or getting engagements to play at concerts, it
will be no more than what George Trant owes me. And if this is
merely a trap laid for me, we’ll see who’s the more astute this time.
In any case it should lead to some interesting situations, and it will at
least vary the monotony of life....
It suddenly struck her that perhaps her father would come and
hear her play. The possibility opened up wild speculations. Her
dramatic interest pictured him rising from his seat in the middle of the
Concert Study in A flat, and crying with arm uplifted—“God!—My
daughter!”
Or perhaps he would sob loudly and bury his head in his hands.
Yet, remembering their meeting in the railway carriage, she knew
he would do nothing of the sort....
... The audience would sit spell-bound as the Concert Study rang
out its concluding chords. As the last whispered echo died on the air
the whole building would ring with shouts of tumultuous applause.
Those nearest the front would swarm on to the platform, seizing her
hand in congratulation. A buzz of conversation would go round,
startled, awe-stricken conversation: “Who is that red-haired girl?—
Who is she?—Plays at the theatre?—Oh, surely not. Impossible!”
They would demand an encore. She would play Chopin’s Study,
“Poland is Lost.”
And the Bockley and District Advertiser would foam at the
headline with: “Musical Discovery at Upton Rising. Masterful playing
by local pianiste....”
No, no, all that was absurd....
The audience would listen in bored silence punctuated only by
the “scrooping” of chairs. She would probably tie her hands up in
some of the arpeggios. There would be desultory, unenthusiastic
clapping of hands at the finish. She would be asked for no encore.
Somebody might say: “I fancy I’ve seen that girl at the theatre. She
leads the orchestra.” And the Bockley and District Advertiser would
say with frigid politeness: “Miss Catherine Weston gave a tasteful
rendering of Liszt’s Concert Study in A flat....” Or, if they had used
the word “tasteful” previously, they would say “excellent” or “spirited”
or “vivid.”
“I suppose I’m getting cynical,” she thought, as she mercilessly
tore to pieces her ideal imaginations.
Yet she was very joyous that morning.
Life was going to begin for her. If events didn’t carry her with
them she was just going to stand in their way and make them. If not
followed, she would pursue. Life, life, her soul cried, and life was
mightily interesting. There came a silver April shower, and in her
ecstasy she took off her hat and braved both the slanting rain and
the conventional respectability of Upton Rising. Then came the sun,
warm and drying, and her hair shone like a halo of pure flame.... She
made herself rather foolishly conspicuous....
CHAPTER VI
CRESCENDO
§1
LONG hours she practised on the Chappell grand in the room over
Burlington’s Music Emporium. The Concert Study in A flat began to
take shape and cohesion. April swept out of its teens into its
twenties, and posters appeared on the hoardings outside the Upton
Rising Public Hall announcing a “Grand Evening Concert.” Her name
was in small blue type immediately above the ticket prices. The rest
of the programme was not quite the same as the rough draft that
George had sent her. It was curious, but the best-known people had
been cut out.... Bernard Hollins, for instance, who had sung at the
Queen’s Hall. Those who remained to fill the caste were all people of
merely local repute, and Catherine ceased to have misgivings that
her performance would be mediocre compared with theirs.
One unfortunate coincidence seemed likely to disturb the
success of the evening. In the very afternoon of the same day
Razounov, the famous Russian pianist, was playing at the
Hippodrome. Razounov did not often come to Bockley, and when he
did he drew a large audience. It seemed probable that many who
went to hear him in the afternoon would not care for a Grand
Evening Concert on top of it....
Already the bills outside the Hippodrome were advertising
Razounov in letters two feet high.
§2
The “Grand Evening Concert” was a tame, spiritless affair.
Catherine’s pianoforte solo was introduced at the commencement to
tide over that difficult period during which the local élite (feeling it
somewhat beneath their status to appear punctually at the
advertised time) were shuffling and fussing into the reserved front
seats. Her appearance on the platform was greeted with a few
desultory claps. The piano (grand only architecturally) was placed
wrongly; the sound-board was not raised, and it appeared to be
nobody’s business to raise it for her. She played amidst a jangle of
discordant noises: the rustle of paper bags and silk dresses, the
clatter of an overturned chair, the sibilant murmur of several score
incandescent gas lamps. All through there was the buzz of
conversation, and if she looked up from the keyboard she could see
the gangways full of late-comers streaming to their seats, standing
up to take off their cloaks, making frantic signals to others for whom
they had kept seats vacant, passing round bags of sweets, bending
down to put their hats under the seat, diving acrobatically into
obscure pockets to find coppers for the programme girls, doing
anything, in fact, except listen to her playing. Somehow this careless,
good-humoured indifference gave her vast confidence. She felt not
the least trace of nervousness, and she played perhaps better than
she had ever done before. She had even time to think of subsidiary
matters. A naked incandescent light lit up the keyboard from the side
nearest the rear of the platform, and she deliberately tossed her
head at such an angle that the red cloud of her hair should lie in the
direct line of vision between a large part of the audience and the
incandescent light. She knew the effect of that. At intervals, too, she
bent her head low to the keyboard for intricate treble eccentricities.
She crossed her hands whenever possible, and flung them about
with wild abandon. It would be absurd to say she forgot her
audience; on the contrary, she was remembering her audience the
whole time that she was playing. And during the six or seven
minutes that Liszt’s Concert Study in A flat lasted, her mind was
registering vague regrets. She regretted that nobody had thought to
raise the sound-board for her. She regretted the omission of all those
little stylish affectations which in the first thrill of appearing on the
platform she had forgotten all about. She had not polished her hands

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Territorial Status in International Law

The Limits of Democratic

Euborders Working Paper 13

About the author

Groups claiming self-determination usually interpret this international human right

Keywords: Self-determination, territorial integrity, independence referendums, secession,

The Limits of Democratic Decision Making

II. The will of the people

Russia opposed Kosovo’s declaration of independence.11 Independence of Kosovo is

1. International legal neutrality

Self-determination is a legal right, codified by human rights treaties, in the common

a great discrepancy between the utopian conceptualisations of self-determination

2. Overcoming a counterclaim to territorial integrity

self-determination as if it were an absolute right of peoples, while governments who try

[T]he right of self-determination is not an absolute right without any limitations.

Although there is no right, under the Constitution or at international law, to unilater-

The principle of territorial integrity is reaffirmed in the Declaration on Principles of

Nothing in the foregoing paragraphs [on self-determination] shall be construed as

3. State creation as a political process that creates legal status

State-creation needs to be explained in another manner, not as an exercise in meeting the

by the principle of territorial integrity and before Somalia’s presumption of territorial

4. Modes of removing a counterclaim to territorial integrity

International law accepts different ways of overcoming a counterclaim to territorial in-

Where a parent state either agrees to independence, or ceases to exist, independence

claim50 and even there exceptional–“remedial”–circumstances were claimed.51 It is also

An “upgrade” of internal boundaries to international borders can be problematic be-

may be an arrangement for the exercise of the right of self-determination internally.63

Moreover, the historical roots of an internal boundary do not necessarily constitute a

As the right of self-determination is very important for a plausible independence claim,

While in colonialism, uti possidetis territorially defined peoples, it is arguable that in

III. Territorial illegality and the concept of the state

1. Illegality of declarations of independence

International law is neutral with regard to the unilateral character of a declaration of

[T]he illegality attached to [some other] declarations of independence […]

2. Conceptualizing the state

Historically, some theorists saw states as natural persons, comparable to humans in a

IV. Secession and the EU

1. Secession and EU membership

2. “Secession” from the EU

Pursuant to Article 20 TFEU, EU citizenship is derived from citizenship of a member

There is no right to secession in international law. The right of self-determination is not

The unilateral path to independence is virtually never successful in contemporary prac-

Some comparative constitutional developments may be more significant than inter-

T Bartoš, ‘Uti possidetis. Quo Vadis?’ (1997) 18 Australian Yearbook of International

A Cassese, Self-Determination of Peoples: A Legal Reappraisal (Cambridge: CUP,

G Jellinek, Allgemeine Staatslehre (2nd edn, O. Häring, Berlin 1905).

I Jennings, The Approach to Self-Government (Cambridge, CUP: 1956).

M Keating, ‘States, Sovereignty, Borders and Self-Determination in Europe’.

S Lalonde, ‘Québec’s Boundaries in the Event of Secession’ (2003) 7 Macquarie Law

H Lauterpacht, Recognition in International Law (CUP: Cambridge, 1948).

VI Lenin, Questions of National Policy and Proletarian Internationalism (Moscow:

R McCorquodale, ‘Self-Determination: A Human Rights Approach’ (1994) 43 Inter-

E Milano, Unlawful Territorial Situations in International Law (Leiden: Nijhoff, 2006).

P Radan, ‘Post-Secession International Borders: A Critical Analysis of the Opinions of

A Rasulov, ‘Revisiting State Succession to Humanitarian Treaties: Is There a Case for

M Shaw, ‘Peoples, Territorialism and Boundaries’ (1997) 8 European Journal of Inter-

A Tancredi, ‘A Normative ‘due process’ in the Creation of States Through Secession’ in

S Tierney, Constitutional Law and National Pluralism (OUP, Oxford 2006).

J Vidmar, Democratic Statehood in International Law: The Emergence of New States

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