CHAPTER 9 States and international law: the problems of self- determination, secession and recognition Christopher J. Borgen ’ CHAPTER CONTENTS Introduction International law and statehood International law of self-determination The problem of secession in international law and international relations Conclusion CHAPTER OVERVIEW States are the main actors of international relations and the primary subjects of interna- tional law. Yet, statehood itself is not easy to define. States themselves disagree as to what is oris not a state. This chapter will examine not only statehood as a legal construct but also the relationship between state sovereignty and the self-determination of peoples. To do this, this chapter will focus on the problem of secession. The chapter will start with a discussion ‘of how we describe the characteristics of ‘statehood’. Related to this, it will consider the international law concerning the recognition of states. The chapter then turns to the inter- national law of self-determination and outlines how this political ideal has become a legal concept and howit relates to the territorial integrity of states. Drawing these various strands together, the chapter will then consider how international law approaches the problem of secession. It highlights the majority view that international law does not recognize a right to secession and that it addresses secession as a factual event that may have complex legal192 Parti Topics in international law fh two case studies: the declaration of independ. The chapter will close wit ° ee : Georgia and Russia over South Ossetia, ence by Kosovo and the conflict between Introduction Is there any role for international Jaw in the creation or recognition of states? [Are there objectively defined criteria for statehood? In the world today there are micro-states recognized by all and other entities with large populations barely rec- ognized by any. Compare Nauru and ‘Taiwan. Nauru, a small island in the South Pacific with just over 14,000 citizens and a land area of 13 square miles, is widely recognized as a state and is a member of the United Nations. By contrast, Taiwan, a prosperous political entity with a population of more than 22 million, is recognized by only about twenty states and is not a member of the UN. These two examples show that there can be disagreement as to what isa state and, consequently, as to the total number of states in the world. For example, the United - States recognizes 194 states, but that number includes Kosovo and does not include either South Ossetia or Abkhazia. Russia, for its part, does not recognize Kosovo, "but it does recognize both South Ossetia and Abkhazia. In any case, a useful base- line is the number of UN member states: 192 (at the time of writing). Howevenitis “international systems: states. In order to do this, it will introduce and discuss three concepts related to the creation of new states and the dismembering of existing ones in contemporary international relations; self-determination, secession, and the recognition of states. nd ‘This chapter will frst examine whether there is a tension between the sovereigntY of states and the self-determination of peoples. While many readers may come to this chapter with at least a basic understanding of what is—or is not—a states the definition of self-determination h; though self-determination is a poli as a legal concept its history is rel as been the source of some confusion. Eve" al ideal with deep roots in Western philosophy latively short and its exact outline is ill-defined: ‘Somotce moan rane In part, the clash seems to arise from one| States and international law 193 right (self-determination) favouring ‘peoples’ over states and the other (territorial integrity) favouring existing states over peoples. Secession is the point in which the its sharpest. When should a people be able to dismember a state? As such, thé'topic of secession also _ How international law does—or does not—attempt to regulate secession will be the central question of this chapter. As a means of approaching this complex issue, we will consider the practical problem of the recognition of states. In other words, when there seems to be a successful secession, what is the proper response? May an existing state recognize a new state? Must it? Conversely, is it prohibited from giving such recognition? Can international law even regulate such diplomatic activity? As we shall see in this chapter, because of the high political stakes involved in dis- mantling existing states and the danger this poses to international peace and i the debate still rages over the proper role of international law. Many, if not most inter- “secession as a remedy under international law. The goal of this chapter is to explain the Political ramifications of these two views and to set out the legal justifications for each. International law and statehood Statehood and sovereignty ‘States are the main actor in global politics and are the focus of classic international law. While international law since World War II has increasingly addressed issues 4 d to non-state actors such as individuals, international organizations, and, as see in this chapter, ‘peoples’, this has been in addition to, not instead of, its g state behaviour. Consequentl before considering the law and poli- full and exclusive authority over the territory supreme authority within its territory and had no territory. Westphalia thus codified the doctrine inthe entity emperor, pope, or other decision-maker—is194 Part Ill Topics in international law state became the main actor in the international this concept has been modified somewhat, partic. aman rights, the basic idea that there is a "Zone of privacy above the level of the state. The system (see Chapter 3). Although ularly in the defence of h system still exist As the state became the pinnacle of the international system in the wake of ‘Westphalia, so the goal of many national movements became achieving statehood. Although there is no single text that explains what is required to be a state, the 1933 Convention on the Rights and Duties of States, better known as the Montevideo Convention, sets forth a series of benchmarks that are generally accepted in the international community. An entity that claims to be a state should possess the fol- lowing qualifications: 1. a permanent population; 2. a defined territory; 3. government; and 4, capacity to enter relations with other states. Each of these terms potentially presents its own set of problems. For example, what does it mean for a territory to be ‘defined’? What if the borders of an entity are it dispute, such as the boundary between Niger and Benin in Africa? Does that mea that neither Niger nor Benin are states for not having a defined territory? Or what of the disputes over Israel’s borders? While questions such as these can be the fodder of much political debate and rhetori® international lawyers try to discern principles from state practice. For example, While many states may have border disputes, a border dispute is not the same as question” ing whether or not an entity has any territory. A rule stating otherwise would throw the international system into turmoil as the status of many states would be put int? question. The legal interpretation of these terms is linked to a pragmatic appreciatio”States and international law 195 of what is or is not workable. At the same time, legal principles affect international relations by acting as a litmus test for which entities are or are not states. Professor Martti Koskenniemi, an international lawyer and former diplomat, con- trasts what he calls the egal’ approach’ to sovereignty—in which law exists prior to, and thus regulates, state sovereignty—with the ‘pure fact approach’—i eignty is external to law and thus law must bend to sovereign will, not vi and rational approaches in international relations, in this respect, are akin to ‘pure fact approach’ as they do not make any space for international law in this field because they regard that the question of becoming a state is determined by material conditions and pre-calculated responses of other states in the international system. Under the legal approach, law does play a role in defining the criteria for the emergence and dissolution of states. Many UN instruments and documents use the rhetoric of the legal approach. Koskenniemi, however, argues that sovereignty doctrine is based on neither one nor the other solely, but rather oscillates between the two. For example, the pure fact of occupy- ing a certain territory does not in itself create a state if other states do not accept that this act meets the criteria for statehood (Koskenniemi 2005: 228-31). This leads us to the question of recognition of statehood and its role in interna- tional relations. which sover- versa. Realist Whats the recognition of statehood? ‘a state is the decision by one state to accept that another state has such as, for example, the recognition by France of the establish-196 Partill Topics in international law Although recognition is not a formal requirement of statehood, it is very impo, tant nonetheless. The extent to which a new state is able to participate in the interna. tional community i, in practice, largely determined by the extent ofits relationshin with other states. Such bilateral relationships are based upon mutual recognition However, although under the declaratory view recognition is supposedly apolitical and merely the acceptance of a factual occurrence, no state is required to recognize an entity claiming statchood. The giving or withholding of recognition is an act with significant political ramifications. By recognizing an entity as a state, the recognizing state gives its opinion tha “the entity meets the requirements under international law for statehood. But when an entity is not generally recognized, its position in the international system is put ‘into question, It will have difficulty joining international organizations, such as the WTO, or receiving assistance from international financial institutions, such as the World Bank or the International Monetary Fund. Entities with a contested status may be prevented from joining the UN. Similarly, any country that does not recog- nize a putative state will not accord that entity sovereign immunity. Thus, although "recognition is not a formal requirement of statehood, the lack of recognition—espe- "can significantly narrow the future prospects of an entity claiming statehood. Whether or not one state chooses to recognize another state is, as a matter prac tice, largely a question of politics. While international law provides guidelines for formal sanctions if those guidelines are transgressed, States do face two other risks» though. The first is the reputational harm that may be associated with a question- able recognition or non-recognition. For example, a state that recognizes a separ tist entity that does not really have the characteristics of statehood may be viewed a8 supporting unlawful behaviour and it may find its own moral authority damaged it diplomatic negotiations on related or unrelated issues, -recognition may Box 9.2 Secession versus successionStates and international law 197 ‘The rules of state succession govern the transfer of rights and obligations from . e state to another when ‘one of these evolutionary processes takes place. Secession is iby which a new state can be formed while the rules of succession pertain to of rights and duties in any instance of state formation. (Geinregardstovorhier entities. For example, some have said that Russia’s arguments for recognition of South Ossetia (discussed in Case Study 9.2) could cause it prob- tems in regards to Chechen separatists. Legal arguments are double-edged swords. ‘With the rise of the Westphalian system, states became the most important enti- ties in global political relations. Non-state actors defined primarily by ethnicity, religion, or geography were comparatively marginalized. At times such groups, in secking the fruits the Westphalian system had to offer, sought to become states. In the next section, we will consider the evolving concept of self-determination and how it relates to statehood. We will then turn to the most difficult of political dilem- mas in this regards: the problem of secession. International law of self-determination ‘Self-determination isa concept that sits uneasily within the state- implicitly (and sometimes explicitly) claim that there 7 ives of statchood itself can be trumped by claims of ‘such that a state will lose sovereignty over part of its territory. h ult question, though, we need to consider the law and oric of self-determination.198 Part ll Topics in international law Self-determination: from political rhetoric to legal right |. However, the use of ‘ing’the Fourteen Points’and the Four Principles speeches) made by US President ‘Woodrow Wilson in the closing days of World War T (1918) the term led to more confusion than clarity at Versailles “When the President [Woodrow Wilson] talks of “self-determination” what unit has he in mind? Does he mean a race, a territorial area, or a community?” It was a calamity, [Secretary of State Robert] Lansing thought, that Wilson ever hit on the phrase. It will raise hopes which can never be realized. It will, I fear, cost thousands of lives. In the end it is bound to be discredited, to be called the dream of an idealist who failed to realize the danger until it was too late to check those who attempt to put the principle into force.’ (Macmillan 2002) As exemplified in this quote, Woodrow Wilson’s Secretary of State, Robert Lansing, ‘was prescient in his framing of the issues that would spin forth from the principle of self-determination. Who has a right to self-determination? Who does not? ASamat- ter of right, to what lengths can one go in secking self-determination? Secession? ‘War? These questions plagued the American negotiators after World War I, and would continue to be at issue, to varying degrees, into the twenty-first century. While Woodrow Wilson’s Fourteen Points highlighted the ideal of self- determination, the United Nations Charter re-emphasized the term. In Article 1, para. 2 it states that one of the purposes of the UN is: To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate meas- ures to strengthen universal peace... However, the concept of self-determination was subsequently included in Articl® nt law. Article 1 of these treaties; both of which were concluded in 1966, stat All peoples have the right of self-determit determine their political status development. tion. By virtue of that right they freely and freely pursue their economic, social and culturalStates and internationallaw 199 This ‘legalized’ the concept of self-determination, taking it out of the realm of mere aspiration or rhetoric. However, there was still the question of what the scope of this right would be—who can claim a right to self-determination and what does that right entail? Applying self-determination to international relations: who or what has a right of self-determination? this interpretation was useful fora time, asthe era of decolonization ended, the question of how one should define ‘peoples’ became more contentious. As the Canadian Supreme Court put it in an opinion concerning the legal rami- fications of a possible secession of Quebec, the meaning of ‘peoples’ is “somewhat uncertain’. That is an understatement. At various points in international legal his- -anethnic group. SNTTOT HE. Cetin arias oe “tions could lead to inter-communal strife. Various commentators have attempted to reframe the analysis by defining the idea of ‘the self-determination of peoples’ on non-ethnographic terms. For example, Professor James Crawford of Oxford argues that groups with a right to self-determination include: - 1. colonies; political i ithin existis hose inhabitants scographical areas within existing states, w! ae from any share in the government such that these essentially non-self-governing; and itories or situations where the parties have agreed to apply the200 Partill Topics in international law Applying self-determination to international relations: the territorial integrity of states ‘The territorial integrity of states is ensured in Article 2(4) of the UN Charter which ‘states: All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, rin any other manner inconsistent with the Purposes of the United Nations. Similarly, the Helsinki Final Act also provided for inviolability of borders, although it does allow for border changes if through peaceful means and based on an agree- ment among the parties involved. Related to this is the legal principle uti possidetis juris. Originally used in the decolonization of Latin America in the nineteenth century, uti possidetis meant that former colonies that achieved independence would have the same borders as the boundaries it had as a colony. This principle was subsequently applied in the decolonizations of the twentieth century, and, with greater controversy, to the newly independent states after the end of the Cold War. In this last case, the pre-existing boundaries used were not colonial borders, but the administrative boundaries used within the USSR or Yugoslavia. “consequence. These jurists explain that uti possidetis defines the borders of a "State-at the time of independence. It has no bearing as to whether or not an entity may secede from an existing state. “according to these jurists. maaan: Between the prohibition of the use of force to change borders in the UN Charter and, possibly, the rule of uti possidetis, has secession effectively been declared illegal under international law? The problem of secession in international law and international relations Fer eee Snes Theproxistng sascontimexonsioStates and international law 201 Box 9.3. Secession versus dissolution ‘secession from a state is not the same as the ‘During the Yugoslav War, the European Community established the Arbitration Commis sion of the Peace Conference on Yugoslavia, better known as the ‘Badinter Commission’, to resolve questions of international law that arose from the conflict. According to the Com- mission’ findings, the Socialist Federal Republic of Yugoslavia was already in the process ‘of dissolution at the time fighting began. As such, Croatia and Bosnia had not attempted to secede, they merely proclaimed their sovereignty during a time of the dissolution of ‘Yugoslavia. The USSR's transformation into the newly independent states is another exam- ple of dissolution. By contrast, the conflicts over South Ossetia and Abkhazia (in Georgia), Northern Cyprus, and Transnistria (in Moldova) are considered attempted secessions, as the parent state still exists in each case. The majority view: no right of secession In 1970, the UN General Assembly passed General Assembly Resolution 2625, the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations, better known as the Friendly Relations Declaration.? This spe- cial resolution was passed at the twenty-fifth anniversary of the founding of the United Nations to restate the basic principles of the organization. After defining self-determination in language similar to the ICCPR and the ICESCR, it then BO€s On to state: Nothing in the foregoing, paragraphs shall be construed as authorizing or encourag- ing any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting them- selves in compliance with the principle of equal rights and Self-determination of peo- ples as described above and thus possessed of a government representing the whole People belonging to the territory without distinction as to race, creed or col From the birth of the United Nations, diplomats and jurists emphasized that a “ighPOP SEF determination was not a Tight oF secession’. The drafting committee for the UN Charter noted that ‘the principle [of self-determination] conformed to the Purposes of the UN Charter only insofar as it implied the right of self-government _ of peoples and not the right of secession’ (Cassese 1995: 40).202 Parti Topics in international law By this interpretation, selfdetermination is a right of internal self-determination, “State? This is contrasted with ‘external self-determination’, or the ability to separay, and start a new state. “only colonies havea right to external self-determination. And, of course, a section of , state may separate from and leave a pre-existing state with the consent of that state, National Assembly to assess the A Commission of Experts convened by Quebe legal issues related to a hypothesized secession of the province concluded: For colonial peoples, this choice [over one’s destiny] includes the possibility of inde- pendence; for others, that possibility is precluded, but at the same time it implies the right to one’s own identity, the right to choose and the right to participate: ‘It also, at least for now, stopped being a principle of exclusion (secession) and became one of inclusion; the right to participate. The right now entitles peoples in all states to free, fair and open participation in the democratic process of governance freely chosen by cach State’. Identity and democracy are its two essential components, but not inde- pendence except—according to certain authors who express this view with caution— in the case of an extremely serious and continued denial of the right so defined.* The concern of many experts is that if there was a right to secession, it would cause a downward spiral in the state system. Aggrieved groups within existing states would make realistic (or unrealistic) claims of a right to secession assuming some of those claims were successful, aggrieved groups within newly formed states may then make their own realistic (or unrealistic) claims that they have a right to secession, and so on. Rather than the roughly 190 states that exist today, we would have a world of hundreds, if not thousands, of microstates. The coordina- tion problems would be immense. Nonetheless, one cannot say that international law makes secession illegal. While ‘International law, by contrast, is largely silent regarding secession. However, unde? certain circumstances a secessionist dispute may implicate international law: * when a new entity seeks recognition as a sovereign state (in which case there are rules for recognition or non-recognition); * the establishment of an armed insurgency (in which ea armed conflict); there are the laws of * if there is a threat to international peace and security (which would thus likely become an issue for the UN Security Council);States and international law 203 « if another state intervenes militarily to aid the be a violation of the UN Charter); or separatists (which would likely + if the secessionist group becomes a de facto regime (discussed below). ‘There are also ongoing obligations under international law regarding the monitoring and enforcement of human rights norms. But, according to the mainstream view, out- The reply: the ‘extreme cases’ argument. While the dominant view is that there is no right to secession, some jurists con- tend that in certain circumstances a people do have a tight to ‘remedial’ secession, “which is sometimes referred to as ‘external self-determination’. The argument that self-determination gives a remedy of secession outside the colonial context is highly controversial. Proponents of remedial secession often refer to the Friendly Relations Resolution of the UN General Assembly, described above. As mentioned earlier, the resolution’ excludes secession as a means of forming a sovereign state when the existing state “respects equal rights and the self-determination of peoples. Rather than emphasiz- ing the ban on secession, as the mainstream jurists do, those supporting remedial secession emphasize the caveat that secession is not a remedy only when the exist- ing state respects internal self-determination. This is viewed as implying that when the state does not respect internal self-determination, external self-determination _ “may be an option. This caveat of the Friendly Relations Resolution has been reiter- ated in the 1993 Declaration of the UN World Conference on Human Rights and the General Assembly Declaration on the Occasion of the Fiftieth Anniversary of the UN in 1995 (Tomuschat 2006a: 34-5). This interpretation may have found its way into state practice in re Secession of Quebec, the advisory opinion issued by the Supreme Court of Canada on the issue of secession. The Canadian court found that‘ [a] right to external self-determination (which in this case potentially takes the form of the assertion of a right to unilateral secession) arises only in the most extreme cases and, even then, under carefully defined circumstances . . .*204 Partill Topics in international law 3. there aré'no other effective remedies under either domestic law or Some may also argue that the entity seceding must be a contiguous territory with definable border / , Those arguing in favour of secession as a remedy admit that state practice is ibly from the case of thin but claim support from the case of Bangladesh and pos Kosovo. Secession and state practice Besides the legal issues, as a matter of practice secession is disfavoured by the international community. Aside from instances of decolonization, the only clear _ case since World War II of a secession contested by a pre-existing state that was both successful ‘on the ground’ and was accepted and recognized by a signifi- cant portion of the international community is Bangladesh. (Eritrea may also be considered a successful secession, although some would say that (1) it was only part of Ethiopia due to a UN programme, thus placing it in a different category from separatist projects that well up within the domestic sphere of an estab- lished state and (2) the Ethiopian government ultimately accepted the separa- tion, albeit after a protracted conflict.) We will consider the cases of Kosovo and South Ossetia at the end of this chapter. Diplomatic ss ‘in the field? does not necessarily lead to political legitimacy and the recognition of statehood. This observation can both support that states have been socialized to be structivist international relations would sugge n, as con , or that this is a self-protecting sion against oneself as rationalist international relations scholars would suggest. Regardless of the approach one pursues, we can say that there is a strong overlap between the international law on secession and state behaviour, behaviour in order not to encourage sece: In the next section we will consider the legal and political implications in state recognition.States and international law 205206 Part Ill Topics in international law Lo | with the November 1983 proclamation by what had been the TFSC that the noy, orthern Cyprus (‘TRNC’) was an independent newly named Turkish Republic of Nord Belcaiy Council Resolution 541 (1983) called upon states not to recognize any Cypriot state other than the Republic of Cyprus. Only Turkey has recognized the TRNC and the Security Council called the proclamation ‘invalid’, “in relation to another state. For example, but for Russian assistance, including mil. tary assistance, energy subsidies, and diplomatic cover, the so-called Transnistrian Moldovan Republic (or ‘TMR’), the group seeking to secede from Moldova, would probably not be able to survive as a separate entity. The TMR is not recognized by any other UN member state. Beyond the issue as to whether a state finds it prudent to recognize a new entity as a state, there is the question of whether recognition of a secessionist entity can itself be an illegal act. While some jurists argue that granting recognition of a new state that was formed by an illegal act (usually due to an illegal invasion or occupation) would perpetuate and actually reward that illegal activity, state practice has been mixed in this regard, especially if the illegal act seems irreversible. ‘The question that remains is: i ized? De facto regimes However, while the de facto regime has certain rights and responsibilities, acts by» regimes:through the’ courts of established states; Moreover, if the de facto regime? CO OR (Frowein 1992:States and international law 207 Conclusion Since the Treaty of Westphalia, states have been at the centre of the international system and of classic international law. The concepts of sovereignty and territorial integrity capture important aspects of the characteristics of statehood. Based on th Montevideo Gonvention, a state must have a permanent population, a defined terri- tory, a government, and the ability to enter into international relations. States note the arrival of new states through a process of recognition. The declaratory. view of recognition: holds that recognition is not required for state- hood. If an entity is not recognized, it has little ability to have diplomatic rela- tions, join international organizations, and undertake many activities that are ‘common for states. Self-determination has evolved from being political rhetoric to an international legal right. The right of self-determination may be claimed by a ‘people’, a term which has different meanings in different circumstances. Self-determination allows a people to participate meaningfully in their political system and freely pursue their economic, social, and cultural development. Applying the right of self-determination itself can lead to different results in different contexts. Self-determination for colonized peoples allows for the ability to separate the colony from the colonial state so that the colony may gain independence and become:a sovereign state. For a state as a whole, self-determination means the tight to be free from external interference in its pursuit of its political, economic, and social goals. For communities that are not colonies and within existing states) self-determination’ means ‘internal self-determination’, the pursuit of ease Fights within the existing state. Some argue that in non-colonial cases, may also allow for secession under ‘extreme cases’ and defined circumstances’. This is highly contested. ‘self-determination is not a general right of secession. However, secession ¢ prohibited by international laws it is simply treated ay a fact that may or ‘This chapter has aimed to provide an overview of the most o declared Kosovo's independence from (with a Serb minority) within ‘an autonomous province in 1963208 Parti Topics in international law n of autonomy or independence. In 199g, ce, resulting in Kosovar Albanians sought either a restora y the Serb Government initiated police and military actions in the pro widespread atrociti “police and military. In the aftermath of NATO the UN Security Counci Passed Resolution 1244, which authorized the UN's administration of Kosovo and set out a general framework for resolving the final political and legal status of Kosovo, | intervention, “Self-determination’. For the next nine years, the UN participated in the administration of Kosovo, while political negotiations over the final status of the territory were lar ly inconclusive. fe recogni- nal law. The day after Kosovo's Parliament declared independence, Secretary of State Condoleezza Rice announced that the US recognized Kosovo as an independent state and further explained: The unusual combination of factors found in the Kosovo situation including the context of Yugoslavia's breakup, the history of ethnic cleansing and crimes against Civilians in Kosovo, and the extended period of UN administration—are not found elsewhere and therefore make Kosovo a special case, Kosovo cannot be seen as prec- edent for any other situation in the world today. Even priorto the declaration of independence, Russian Foreign Minister Sergei Lavrov called 2 potential Kosovar secession a ‘subversion of all the foundations of international law, ...2 As of the dependence. time of this writing, sixty-two states have recognized Kosovo's The legal question has come to the forefront as on 8 October 2008, at the request of Serbia, the UN General Assembly by a vote of 77 for, 6 against, and 74 abstaining, asked the International Court of Justice to provide it with an advisory opinion on the question: Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?" United States Recognizes Kosovo as independent State, Statement of Secretary of State Condoleeza Rice, Washington DC (18 February 2008) avaiable online at shttp//wamarenca cu/a rota gpalish/2008/Februry/2008021815025¢bpuh 1263702 hm (waked Foch S093} ‘Paul Reynolds, Lego! Furore over Kosovo Recognition (BBC News 16 February 2008), avaiable online at http ens bbccout/2//eurape/7244538stm> (usted 13 Av 200% odStates and international law 209 Case Study 9.2 South Ossetia Beau, ] Inthe months leading up to Kosovo's declaration, South Ossetia and Abkhazia, two separa- tist enclaves within the former Soviet Republic of Georgia, became more vociferous in their own calls for independence. South Ossetians are ethnically distinct from Georgians and “have comprised semi-autonomous community within Georgia for 700 years. In the Soviet ‘era they were an ‘autonomous region, a status that granted certain limited autonomy sovereignty. Inthe aftermath of the break-up of the Soviet Union, Georgia was recognized interna- tionally as a sovereign state with the same borders that it had as a Union Republic within the USSR. “ence. A civil war erupted and Russia intervened, assisting South Ossetia, Since 1992, South Ossetia has been effectively separated from the rest of Georgia, and Russia has maintained a military presence there. At no point until 2008 did any UN member state recognize South Ossetia as a sovereign state. Over the course of the spring and summer of 2008, tensions once again increased between the Government of Georgia and South Ossetia. There is much controversy over different versions of the events. Russia contends that in the first week of August, Georgia began unprovoked shelling of cities in South Ossetia. Georgia, for its part, maintains that throughout that summer there had been numerous provocations from the South Ossetians, including the use of deadly roadside bombs and other attacks. Russia claimed that the Georgian shelling targeted, among other things, Russian Peacekeepers in the region. The Georgian leadership responded that Russian troops were not targeted but notes that the Russian troops often actively supported South Ossetian forces. What is clear is that on 8 August 2008, the Russian military crossed out of South Ossetia in force and began a military campaign that ranged through much of Georgia, attacking major ports and cities and coming within kilometres of Tbilisi, the Georgian ‘Capital. After a brokered ceasefire, Russian forces returned to their base: 01 4 Russian President Dmitri Medvedev explained Russia’ actions by stating that “sover- ‘eignty is based on the will of the people” and “territorial integrity can be demonstrated | bythe actual facts on the ground’.’ He further explained that Russia was not denying the | principle of territorial integrity as one of the fundamental principles of international law, it recognizing the ‘specific situation’ that itis unlikely that the South Ossetians can .a single state with the Georgians.210 Part ll Topics in international law Foreign Minister Lavrov also stated, regarding Russia's recognition of South Ossetia, that (@s paraphrased in press reports) ‘Georgia’ territorial integrity was destroyed by Geor. gian President Mikhail Saakashvili himself when he decided to order a bombardment of a Peaceful town in South Ossetia last summer’ If we accept the international borders of Georgia at the time of the dissolution of the USSR, then the relevant self-determination unit would be the state of Georgia and the ‘peo ple’ are all the people of Georgia (including South Ossetia and the rest of Georgia). Even if we Were to define the inhabitants of South Ossetia as a separate people, inasmuch as South Ossetia is recognized as part of Georgia, then the traditional view is that self-determination only allows for minority rights within the existing state, not secession from that state. Thus, for Medvedev’s implied argument to be correct, even if South Ossetians are a people for the Purpose of the law of self-determination, one would also have to agree that ‘external self- ‘determination’ or secession can be a remedy in cases besides decolonization. In such a case, the South Ossetians would need to show that they suffer extreme and persistent abuses by the Government in Tbilisi and that there is no other option for resolving this crisis. "Russia Steadfast on Kosovo, 892 Online (17 February 2009), available online at (visited 25 February 2009), Questions 1. How does international law define states? Does this legal definition adequately capture political reality? 2. What is the difference between the recognition of statehood and the recognition of a government? 3. Caninternational law regulate the recognition of states? Can it regulate the recognition of governments? Why or why not? 4. How do self-determination, secession, minority rights, and sovereignty relate to each other? 5. What does it mean to say that self-determination is no longer a political ideal but a legal right? What purposes may be served by ‘legalizing’ self- determination? 6. What may be some of the political or diplomatic consequences of Using the various definitions of ‘people’ for the purposes of self-determination? 7. How can self-determination be defined today? 8. Are secession or any issues related to secession regulated by international law? ifsuch regulation exists, is it effective? 9. Assess the arguments, both legal and political, for and against the concept of ‘remedial’ secession.States and internationallaw 211 140. Does Kosovo meet the legal requirements of statehood? Does Taiwan? 41. What are the strongest arguments in favour of the illegality of the recognition of Kosovar independence? What, by contrast, are the best arguments in favour of the claim that recognition of Kosovo's independence is legal? 42. Howstrong or weak are Medvedev’s and Lavrov's arguments justifying Russian recognition of South Ossetia? 13. Canastate make a legal argument for the recognition of Kosovo but the non- recognition of South Ossetia? Vice versa? Cassese, A. (1995) Self-Determination of Peoples: A Legal Reappraisal (Cambridge: Cambridge University Press). An influential text; Cassese subsequently became a judge on the Interna- tional Court of Justice. Crawford, J. (2006) The Creation of States in International Law, 2nd edn. (Oxford: Oxford University Press). A comprehensive examina- tion not only of how states are created, but of sovereignty and statehood itself Grant, T. D. (1999) The Recognition of States: Law and Practice in Debate and Evolution (Ganta Barbara, CA: Praeger Publishers). A comprehensive analysis of recognition as a ‘matter of political practice and law. ‘Hannum, H. (1996) Autonomy, Sovereignty, and _ Self-Determination: The Accommodation of Conflicting Rights (Philadelphia, Pennsyiva case studies. ) (2008) Secession: Internation- au (Cambridge: Cambridge of uti possidetis and issues in its current application. Lynch, D. (2004) Engaging Eurasia’s Separatist States: Unresolved Conflicts and De Facto States (Washington, DC: United States Insti- tute of Peace Press). Discusses the concept of de facto regimes in the context of the separatist conflicts in Georgia, Moldova, and Azerbaijan. ‘Summers, J. (2007) Peoples and International Law: How NationalismandSelf-Determination Shape a Contemporary Law of Nations (Lei- den: Martinus Nijhoff). A comprehensive history of the evolution of the concept of self-determination. Weller, M. and Metzger, B. (eds. (2008) ser- ting Self-Determination Disputes: Complex Power-Sharing in Theory and Practice (Leiden: Martinus Nijhoff), Presents a variety of case studies in self-determination conflicts with a particular emphasis on power shari conflict resolution mechanism. Wilde, R. (2008) International Territorial ‘Administration: How Trusteeship and the Givilizing Mission Never Went Away (Oxford: Oxford University Press). Looks at the role of trusteeship and international territorial administration in relation to post-conflict _ societies, self determination, and issues of sovereignty. asa212 Part ill Topics in international law org/index.php?sid-438841738&cat-188&t-sub_pages Electronic information sy. tem for International Law (EISIL) page on ‘Slf-Determination’. Includes links to primary sources, websites, and research resources. http://www.esiLorg/index.php?sid=4388417388cat=146t-sub_pages Electronic Information $y. fem for International Law (EISIL) page on Statesand Groups of States’ Includes links to subheading, each of which includes primary sources, websites, and research resources. hhttp://mwwunhchrich/ntml/menu2/izintslthtm The Office of the High Commissioner for Human Rights provides a compilation of documents and news relating to self-determination. http://wwasunmikonline.org/ This site provides information on the mandate and activities of the United Nations Interim Administration Mission in Kosovo, which was established after the 1999 NATO campaign. http://avalon.lawyale.edu/20th_century/wilsonl4asp The Avalon Project of Yale University webpage for the Woodrow Wilson Fourteen Points speech. http://avalon lawyale.edu/20th_century/intam03.asp The Avalon Project webpage for the 1933 Comuention on the Rights and Duties of States, also known as the Montevideo Comvention. http://wwa.un.org/en/members/index shtml UN webpage listing all member states, Visit the Online Resource Centre that accompanies this book 10 access more learning resources www.oxfordtextbooks.co.uk/orc/cali/ Chapter endnotes 1. re Secession of Quebec [1998] 2 SCR 217 3. Thomas M. Franck et al. (2000) “The Ter (Canada) at { 123 (1998), itorial Integrity of Quebec in the Event of the 2. Declaration on Principles of Interna- Attainment of Sovereignty’, in Anne F. Bayefskys Ppeecomcarine Friendly Relations and ed Self Determinaion ie ae I Co-operation among States in Accordance with Quebec and Lessons Learned 241, at Sec. 3.08 the Charter of the United Nations, GA Res, (Kluwer) 2625 (XXV). 4. Secession of Quebec at 123.