Public International Law

国际公法
Chen Weidong
 UIBE, Law School
陈卫东
Lecture 6 States in international law
（国际法上的国家）
 What is States?

 How do an entity be qualified as a State?

 What is self-determination of peoples? And

how do you consider the relationship
between self-determination and Sovereignty
of State?
Questions
 Is Palestine is a State?
 Is Taiwan is a State?
 Is Kosovo is a State?
 Is Islamic State (IS or ISIS ，伊斯兰国 ) a
state?
 How do you consider the similarities and
differences between
Scottish independence referendum and
Crimean Status referendum?
 How do you comment on the ICJ’s opinion that
“general international law contains no applicable
prohibition of declarations of independence.
Accordingly, it concludes that the declaration of
(Kosovo) independence of 17 February 2008 did
not violate general international law”?
 How do you consider the effects of this opinion on
international relations?
 For China: the problem of Taiwan (the Repulic of
China 中华民国 / Chinese Taipei 中华台北 )
The recent practices of self-determination
and independence referendum
 2008 Kosovo declaration of independence
 2014 Scottish independence referendum
 2014 Crimean Status referendum
( the Crimean Status referendum and the declaration of Crimea's
independence on 16 March 2014, Russia claimed the annexation of
Crimea on 18 March 2014)

2017 Catalan independence referendum

(Spanish autonomous community of Catalonia)
2017 Iraqi Kurdistan independence referendum
 Contemporary international law has a wide range of
participants. These include states, international
organisations, regional organisations, non-governmental
organisations, public companies, private companies and
individuals. To these may be added groups engaging in
international terrorism. Not all such entities will constitute
legal persons, although they may act with some degree of
influence upon the international plane.
 International personality is participation plus some form of
community acceptance.
 (Malcolm N. Shaw, International Law, six edition,
Cambridge University Press 2008, p.197.)
 I. The Definition and Conditions of Statehood
II. The Relationship between Statehood and
Membership of International Organazation
(UN)
 III. The Relationship between Statehood and
the Recognition
 IV. The Relationship between Self-
Determination and Territorial Integrity
I. The Definition and Conditions
of Statehood
 States are the most important subjects of international law.
By definition, if an entity amounts to a ‘State’ it has the
potential or ‘capacity’ to avail itself of all of the rights
and to be subject to all of the duties known to the
international system.
 Therefore, it is important to know when an entity qualifies
as a state. Or, in other words, when is an entity entitled to
all of the rights and subject to all of the duties assigned by
international law to ‘states’?
 To produce a satisfactory definition of statehood is not
easy.
 At the beginning of the 20th century, there were some fifty
acknowledged States. By 2017, this number rose to nearly 200 States.
The emergence of so many new States represents one of the major
political developments of the 20th century. It has changed the
character of international law and the practice of international
organisations, and has been one of the more important sources of
international conflict. But the fact that some development is of
importance in international relations does not entail that it is regulated
by international law. Fundamentally, the question is whether
international law is itself, in one of its most important aspects, a
coherent or complete system of law.
 whether, and to what extent, the formation and existence of States is
regulated by international law, and is not simply a ‘matter of fact’.
 The creation of States has long been a
central question in international law.
 The appearance of new States makes the
question still very much debated, and in
terms of a definition it remains very
difficult to understand the ways in which
the new state appear.
 The Criteria for Statehood: Statehood as Effec
tiveness
 The criteria for statehood are of a special character, in that their
application conditions the application of most other international laws.
As a result, existing States have tended to retain for themselves as
much freedom of action with regard to new States as possible. At the
empirical level, the question is whether, given the existence of
international laws determining what ‘States’ are, those rules are
sufficiently certain to be applied in specific cases or have been kept so
uncertain or open to manipulation as not to provide any standards at
all. This question is independent of the point that States may on
occasions recognise as a State an entity that does not come within the
accepted definition of the term. Rather, the question is whether States
can effectively refuse, under cover of the ‘open texture’ of the rules, to
treat entities as States that do in truth qualify as such.
Montevideo Convention on the Rights
and Duties of States 1933
 “The starting point for a discussion of the criteria
of statehood ”
 Article 1 The State as a person of international
law should possess the following qualification:
 (1) a permanent population;
 (2) a defined territory;
 (3) government; and
 (4) capacity to enter into relations with other
states.
Government
 In order for a state to function as a member of the
international community it must have a practical identity on
the international plane- a projection of its existence
internationally. This is the government, which is primarily
responsible for the vindication of , and ensuring compliance
with, the international rights and duties of the state.
 Therefore, It is not surprising that one criterion of statehood
is that a territory should have an effective government. This
executive authority must be effective within the defined
territory and exercise control over the permanent
population.
 However, it does not mean that the ‘government’ must be
entirely dominant within the territory, so long as that it is
capable of controlling the affairs of the ‘state’ in the
international community.
 In addition, some commentators have argued that there is a
further requirement that the government is likely to
become permanent, although there is little support for this
in the practice of states, and even less agreement about
how it would be assessed.
 While it is clear that the criterion of effective government
must be satisfied before a territory can become a state, this
does not mean that an established state loses its statehood
when it ceases to have an effective government.
 There are numerous examples where a government does not
have complete or even substantial control over the territory
but its statehood on the international plane is not in issue, for
example, Syria in 2012-
 Civil war may mean that there is no effective government
over the entire population and territory, but the state per se
continues to exist as a subject of international law with all of
its capacities intact.
 Indeed, during a civil war it may be that a state has
two ‘governments’, each of which is recognised
by (different) other states as being entitled to
represent it.
 In these circumstances, the conduct of
international relations on behalf of the state
becomes complicated.
International Law Conditions for
the Creation of States
 some commentators have argued that the classical
criteria for statehood (the so-called Montevideo
criteria) were essentially based on the principle of
effectiveness.
 The proposition that statehood is a question of fact
derives strong support from the equation of
effectiveness with statehood. It is necessary to
distinguish two possible positions: that there cannot a
priori be any criteria for statehood independent of
effectiveness, and that no such criteria yet exist as a
matter of international law.
 Some researchers commented that it was
clear that the criteria of the Montevideo had
been accepted as the indicia of Statehood
and have now passed into customary
international law.
 However, the question remains whether
these criteria are sufficient for Statehood, as
well as being necessary.
 It is noteworthy that several civil law States
will normally limit evaluation of Statehood
based on ‘the doctrine of the three
elements’. According to this doctrine, a
State requires a territory, a permanent
population and ‘public authority’ or ‘public
power’, but not the capacity to enter into
relations with other States.
 Crawford (the famous professor of international law,
 formerly Director of the Lauterpacht Centre for
International law of Cambridge, presently Judge of
ICJ) goes on to consider other possible conditions
such as ‘permanence’, ‘willingness and ability to
observe international law’, ‘a certain degree of
civilisation’, ‘recognition’, ‘the existence of a legal
order within the state’, ‘legality’. This indicates that
Statehood is a rather more complex legal relationship
than the Montevideo Convention suggests.
 the European Union and Member States’
Guidelines on Recognition of New States in
Eastern Europe and the Soviet Union, and
their Declaration on Yugoslavia appear to
lay down additional criteria for Statehood, or
at least for recognition of Statehood.
 (the guidelines on the recognition of new
States in eastern Europe and in the Soviet
Union)
 However, as illustrated in the extract from Murphy
(Professor of International Law at the George Washington
University ) it is unwise to stress some
‘Western’ notions of Statehood (e.g.
democracy) as if they were accepted
universally.
 Another problem is who is competent to decide whether an
entity has achieved the conditions laid down in the
Montevideo Convention and any additional Statehood criteria.
In this regard, membership of an international organization
may be strong evidence. Yet, the Saharan Arab republic
(Western Sahara) is a member of OAU(The Organisation of
African Unity), although not the United Nations. Palestine is a
member of UNESCO (United Nations Educational, Scientific
and Cultural Organization) and ICC (international Criminal
Court), while not the UN itself.
 Likewise, Switzerland, which undoubtedly was a State
beforehand, only joined the UN in 2002.
 As at October 2017, there are 193 members of the UN
but this excludes Taiwan, the Palestinian Autonomous
Area, Kosovo and Turkish Republic of Northern
Cyprus.
 The most recent member States to be admitted include
Eritrea (28-05-1993, secession from Ethiopia), Serbia
(01-11-00),Timor-Leste(East Timor 27-09-2002),
Montenegro (28-06-2006), South Sudan (14-07-11)
 It seems that Membership of the UN is regarded as a
prize for the new independent states.
 Chinkin and Charlesworth points out in their extract that
Statehood inplies sovereignty. Territorial sovereignty is
one of the main principles of international law, and a core
feature of Statehood. Normally, the State exercises its
monopoly of force throughout its territory. However,
situations exist in which the states is unable to perform the
functions that characterise sovereignty, especially in
situations where internal conflict has paralysed
government action.
 While the presence of a functioning government has been
a criterion for statehood at least since the Montevideo
Convention, the temporary or even long-term absence of a
functioning government does not lead to a deprivation of
Statehood.
 a prime example is Somalia. Somalia has been affected by
internal conflict for the past twenty years, and since 1991,
there has not been a government recognized by all parts of
the Somali territory. While there are provinces within
Somalia that are practically autonomous, Somalia has
never been considered to have lost its Statehood.
 Clearly, there exist many other territorial entities that
are not States as such but which also cannot accurately
be described as ‘merely’ part of an existing State.
 Taiwan, being neither desirous itself of the status of
statehood (it formally still adheres to the “one China”
principle) but in essence operating as a non-state
territorial entity.
 (‘Taiwan would appear to be a non-state territorial entity which is capable
of acting independently in the international scene, but it most probably de
jure part of China’, Malcolm N. Shaw, International Law, six edition,
Cambridge University Press 2008, pp.234-235. )
 A similar opinion to that offered in the US Nationals Case
had been given earlier in the Nationality Decrees in Tunis
and Morocco Case, PCIJ Ser B,(1923) No.4, where the
Court also noted that the ‘extent of the powers of a
protecting State in the territory of a protected State
establishing the Protectorate, and, secondly, upon the
conditions under which the Protectorate has been
recognised by third Powers as against whom there is an
intention to rely on the provisions of these Treaties.’
II. The Relationship between Statehood and
Membership of International Organazation (UN)
 The answer does not necessarily lie in a roll call of the UN or
any other international organization.
 At present, there are 193 members of the UN, but only in 2002 did
Switzerland become a member and there is no doubt that it was a
state before membership. Likewise, a state may be suspended from
the rights of membership of the UN, but it does not necessarily
mean that it was not a state. For example, the position of
Yugoslavia (Serbia & Montenegro) when it was suspended form
the rights of membership between 1992-2000, discussed at length
in the Legality of the Use of Force Cases (2004) and the Case
concerning the Application of the Convention on the Prevention
and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v Serbia & Montenegro) ICJ 2007.
 In other words, membership of the UN is not
synonymous with statehood.
 In fact, at one time, it was not even correct to
say that membership of the UN was a sure
mark of statehood; thus, the Ukraine and
Byelorussia have been members of the UN
since 1945, although both were undeniably
part of the Soviet Union until 1991.
 Necessarily, membership of the United Nations depends on political
considerations as well as legal facts,although it appears to have taken
on a much more important role since the end of the cold war..
 Therefore, the entity known as the Republic of Kosovo is not a
member of the UN, due to Russian opposition, despite being
regarded as a state by 110 other UN members ( neither include
Serbia, Russia, China etc, nor include 4 members which had
withdrawn the recognition ) and being a member of IMF (June 25,
2009)
  The Government of Serbia does not recognise it as a sovereign state, but has begun to
normalise relations with the Government of Kosovo in accordance with the 
Brussels Agreement.
 https://en.wikipedia.org/wiki/International_recognition_of_Kosovo
 It now seems that the admittance of a ‘new’ member
to the UN is to be treated as sign that they have
achieved statehood in international law, although
such status may have arisen prior to admission.
 Recent examples include the cases of North and
South Korea, the former republics of the Soviet
Union, the former Yugoslavia Republic of
Macedonia, Estonia and Lithuania, Timor-leste and
most recently in September 2011, South Sudan.
 Eritrea declared independence from Ethiopia in 24
May 1993, following 30 years of strife with
Ethiopia.
 Timor-Leste was admitted to membership of the
UN in September 2002 and marked the transition
of Ease Timor from a former territory of Indonesia
to independence under UN auspices and South
Sudan is a result of the agreed cession of that
territory from The Sudan following years of
internal strife.
 In December 2012, as a result of European
Union mediated negotiations on Kosovo's status, Serbian Prime
Minister Ivica Dačić agreed to appoint a liaison officer to Kosovo.In
March 2013, Dačić said that while his government would never
recognise Kosovo's independence, "lies were told that Kosovo is ours"
and that Serbia needed to define its "real borders
 In April 2013, Kosovo and Serbia reached an agreement to normalise
relations, and thereby allow both nations to eventually join
the European Union. Under the terms of the agreement, "Belgrade
acknowledged that the government in Pristina exercises administrative
authority over the territory of Kosovo – and that it is prepared to deal
with Pristina as a legitimate governing authority."
 On 17 June 2013 Kosovo and Serbia exchanged liaison officers.
 Consequently, perhaps the best way to look at the role of
UN membership in identifying statehood is to conclude
that membership entails an almost irrebuttable
presumption of statehood, while suspension of
membership rights says nothing of statehood per se.
 Conversely, it remains true that non-membership of the
UN does not necesserily constitute a denial of statehood,
for there may be many reasons why a state chooses or is
forced to stay outside the UN system.
 Of course, some entities may be deliberately
excluded from membership by the UN itself as a
sign that statehood is not accepted- as with the
territory known as the ‘Turkish Republic of
Northern Cyprus’(TRNC) whose alleged
statehood is explicitly denied by Security Council
Resolution 541(1983) and 550(1984) because its
‘independence’ flowed from the illegal invasion of
Northern Cyprus by Turkish troops in 1974.
 In respect of membership of other
international organizations, attendance at
multilateral conferences or participation in
multilateral treaty regimes, each organization
will have its own rules concerning
membership or participation and these may
not even be limited to ‘states’.
 Example: the WTO (EU, Chinese Hong
Kong, Macao, Taipei as the members)
conclusion
 In fact, a brief trawl through the history of the United
Nations reveals just how complex the question ‘What is a
state?’ actually is. If we were to conduct a straw poll of
every existing government (assuming we could agree on
how many there were), we would found that opinions as to
the number of states varied.
 For example, what of Taiwan, the TRNC, the Palestinian
territory and the Republic of Kosovo? This is not
surprising in the political world of international law, but it
does reveal that it is difficult to identify criteria for
statehood that are universally accepted, even in principle.
 Moreover, even if this were possible, each state’s application of those
criteria to the facts of any given case would vary considerably. This
would, in turn, affect the scope of the disputed entity’s rights in
international law.
 If, for example, the UK considered Kosovo to be an independent state
then, in its relations with the UK, Kosovo would have the rights and
duties of a state. If, however, the People’s Republic of China took the
opposite view, then Kosovo would not have the full capacities of
statehood in its relations with China.
 This is the reciprocal and bilateral nature of international law and
it can give rise to several different degrees of personality for the same
territory in respect of its relations with different states.
 These are factors that must be borne in mind in discussion
of the definition of statehood. They do not mean that
questions of statehood are purely subjective which each
established state might answer for itself when a new
candidate is presented. What they do reveals is that states
may pick and choose whether to have full relations with any
other subjects of international law.
 if a territory qualifies as a state according to the criteria, we
can say that is has the legal ability to exercise all of the
rights and duties of a state under international law. It will be
subject to all the general obligations and have all the general
rights of states in international law.
 On the other hand, whether the new state
actually exercises all of capacities on an
individual level with every other states will
depend on whether, in the estimation of
those existing states, it has satisfied the
criteria.
III. The Relationship between
Statehood and the Recognition
 Quesitons:
 the function and value of recognition
 the conditions under which it is granted
 the role of recognition in international law
of State creation
 As far as their relations are concerned, the fact that
State A has recognised State B means that each
accepts the other as entitled to exercise all the
capacities of statehood in international law.
 If State A has recognised a new government in
State B, this means that it will treat the latter as
entitled to represent that State in international law.
 Between two states, then, recognition is a necessary
precondition to full optional bilateral relations, such
as diplomatic representation and treaty agreement.
 Conversely, the lack of diplomatic relations between two
states need not say anything about recognition. This may
be the by-product of a completely different dispute
between the states-as with the lack of diplomatic relations
between Libya and the UK through much of the 1990s
after the Lockerbie bombing.
 On a more general level, there is a debate as to the
effects of recognition on the legal status of the
body being recognised. Essentially, this has
resolved itself into two theories:
 The declaratory theory of recognition
 The constitutive theory of recognition
Declaratory theory
 According to the declaratory theory, the general legal
effects of recognition are limited.
 when an existing state ‘recognises’ a new state, this is said
to be nothing more than an acknowledgment of pre-
existing legal capacity. The act of recognition is not
decisive of the new entity’s claim to statehood, because
that status is conferred by operation of international law. The
international legal personality of a state does not depend on
its recognition by other states. It is conferred by rules of
international law and, whether or not a state or governments
is actually recognised by other states, it is still entitled to the
rights and subject to the general duties of international law.
 In general, this theory accords with
significant, though not uniform,
international practice. For example, the fact
that certain Arab states at one time did not
recognise Israel did not prevent them
making interntional claims against Israel,
and the same is true of North and South
Korea although both are now Members of
the UN.
 Of course, the fact that one state has not recognised another
may have consequences in national law and it may mean
that the non-recognising state is not prepared to enter into
treaties, diplomatic relations or other bilateral arrangements
with the non-recognised body.
 Yet, this is merely an example of the relative nature of the
rights and duties of international law: it does not mean that
the unrecognised body has no international personality.
If the entity satisfies the criteria for statehood or
personality, especially those concerning actual and effective
control, it will be a ‘state’ or ‘government’, irrespective of
recognition.
 According to the declaratory theory of
recognition, the effective body will be
subject to, and be able to claim, the general
duties and rights accorded to a state or
government under international law.
Constitutive theory
 The constitutive theory denies that international
personality is conferred by operation of
international law. On the contrary, the act of
recognition is seen as a necessary precondition
to the existence of the capacities of statehood or
government.
 So, under this theory, if IS is not recognised as a
state, it is not a state; and apparently Eritrea
become a state only when it was recognised as
such by the international community in 1993.
 The practical effect of the constitutive
theory is that if a ‘state’ or ‘government’ is
not recognised by the international
community, it cannot have international
personality. Recognition is said to
‘constitute’ the state or government.
 For example, in the International Registration of Trademark
(Germany) Case (1959) ， a west German national court
rules that a trademark originating in East Germany was not
entitled to protection (under International Conventions of
1883 and 1934) in its territory. The reason was that West
Germany did not recognise the statehood of East Germany.
According to the court, an entity which actually exists does
not thereby become a state in international law without
some form of recognition of its existence.
 In other words, recognition of statehood was essential to
international personality.
 The main strength of the constitutive thoery is that it
highlights the practical point that states are under no
obligation to enter into bilateral relations with any other body
or entity. West Germany did not have to recognise East
Germany and non-recognition did not mean that West
Germany could ignore general rules of international law in
its dealings with East Germany, nor on a proper analysis did
it mean that East Germany was not a state. The Trademark
Case was decided by a national court and was concerned with
the protection by West German law of rights originating in
East Germany and non-recognition of East Germany meant
that such rights would not be protected in West Germany.
 It did not mean that an international court,
applying international law, would find that
West Germany had no international
obligation to protect trademarks originating
in East Germany. In fact, in this case, non-
recognition said nothing about the statehood
of East Germany, merely its status in West
Germany.
 Furthermore, it is clear that the constitutive
theory raises insoluble theoretical and
practical problems. First, there is no doubt
that recognition is a political act, governed
only in part by legal principle. For example,
the USA did not recognise the Soviet
government until 1933, even though it had
been effective within the state for more than
ten years.
 What degree of recognition is required in order to ‘constitute’ a
state?
 Must there be unanimity among the international community
(Palestine and Kosovo), or is it enough that there is a majority, a
substantial minority or just one recognising state?
 Is membership of an international organisation tantamount to
collective recognition and, if so, which organisations?
 What if membership of the organization is suspended?
 Are some states or groups of states ( USA, the EU) more
‘important’ when it comes to recognition?
 These are practical problems that the constitutive theory must
answer, but can not.
 Some commentators have attempted to meet these
criticisms by supposing that there is a ‘duty’ to
recognise once a state or government has fulfilled
the criteria laid down by international law.
 However, not only is it impossible to find any
support for the existence of this ‘duty’ in state
practice, in real terms it is little different from the
declaratory theory. If there really is a legal duty to
recognise, then recognition itself is irrelevant to
international personality.
 As far as constitutive and declaratory theories are
concerned, the latter seems to be more in accord with the
bulk of international practice, although in this regard
significant developments have occurred with the
dissolution of the Soviet and Yugoslavian Federations.
 There is no doubt that the constituent republics of both of
these federal states craved international recognition, both
during and after the break up of their respective
metropolitan countries. This continues still in relation to
Kosovo in its attempts to break away from Serbia.
 This is significant because clearly the authorities in these
territories regarded recognition as important, if only as
means to gain international aid and access to international
institutions. In response to these demands, the European
Community issued Guideline on the Recognition of New
States in Eastern Europe and the Soviet Union and a
Declaration on Yugoslavia. In these, the EC indicated its
approach to the recognition of new states arising out of the
turmoil in eastern Europe.
 What is so interesting about these guidelines is that the
EC put forward requirements for recognition that went
far beyond the conditions of statehood found in the
Montevideo Convention. Thus, recognition was to be
dependent on
 respect for established frontier
 respect for human right
 Guarantees of minority rights
 Acceptance of nuclear non-proliferation
 a commitment to settle disputes peacefully
 This does not necessarily mean that the EC was suggesting
that a territory could not be a state until these conditions
were complied with.
 EC would not treat a territory as a state until such
conditions and concerns were met.
 Even if these Guideline were not meant to reiterate a
constitutive theory of recognition, they are important
because formal recognition of statehood was no longer to
be dependent simply on the fulfilment of the factual
Montevideo conditions, but rather on the quality of the
political and economic life within a territory.
IV. The Relationship between Self-
Determination and Territorial Integrity

 The right of self-determination of peoples is a

cardinal principle in modern international
law (commonly regarded as a jus cogens rule),
binding, as such, on the United Nations as
authoritative interpretation of the Charter's norms.
 It states that a people, based on respect for the
principle of equal rights and fair equality of
opportunity, have the right to freely choose
their sovereignty and international political
status without interference.
 self-determination appears to challenge the
principle of territorial integrity
(or sovereignty) of states
 what is the relationship between self-
determination and territorial integrity?
 With the rapid development of international human rights law
and the establishment of the principle of self-determination of
the people, there is an international argument that the
territorial integrity should be based on the principle of self-
determination and respect for human rights.
 The principle of territorial integrity and the principle of self-
determination of the people do not exist in international law in
different ways or differences in legal order, both of which are
the basic principles of international law and have the status of
jus cogens. The difference between the two is that they have
different emphases.
Self-determination
 The political origins of the modern concept of self-
determination can be traced back to the Declaration of
Independence of the United States of America of 4
July 1776 (which proclaimed that governments derived ‘their just powers
from the consent of the governed’ and that ‘whenever any Form of Government
becomes destructive of these ends, it is the Right of the People to alter or to abolish
it’).

 The principle of self-determination was further

shaped by the leaders of the French Revolution, (whose
doctrine of popular sovereignty, at least initially, required renunciation of
all wars of conquest and contemplated annexation[s] of territory to France
only after plebiscites.)
 The 1941 "Atlantic Charter"
 The 1945 United Nations Charter
 The Declaration on the Granting of Independence to Colonial
Countries and Peoples,
 1970 Declaration on the Principles of International Law concerning
Friendly Relations and Cooperation among Nations in Accordance
with the UN Charter (the "Declaration of Principles of International
Law")
 The above General Assembly resolutions confirm the
concept of the right to self-determination repeatedly, but
do not provide for a clear definition of the strict limits of
rights and obligations
 The 1996 International Covenant on Civil and Political Rights
and the International Covenant on Economic, Social and
Cultural Rights Common Article 1:
 1. All peoples have the right of self-determination. By virtue of that right they
freely determine their political status and freely pursue their economic, social and
cultural development.
 2. All peoples may, for their own ends, freely dispose of their natural wealth and
resources without prejudice to any obligations arising out of international economic
co-operation, based upon the principle of mutual benefit, and international law. In
no case may a people be deprived of its own means of subsistence.
 3. The States Parties to the present Covenant, including those having responsibility
for the administration of Non-Self-Governing and Trust Territories, shall promote
the realization of the right of self-determination, and shall respect that right, in
conformity with the provisions of the Charter of the United Nations.
 The Declaration on the Principle of International
Law concerning the Establishment of Friendly
Relations and Cooperation among States in
accordance with the Charter of the United
Nations, adopted unanimously by the United
Nations General Assembly on 24 October 1970,
provides for a complete definition of the
relationship between the right of peoples to self-
determination and the territorial integrity of States.
 Paragraph 7 (so called ‘savings clausee’)is a vital provision on
the relationship between the self-determination of peoples and
the territorial integrity of States.
 This provision seeks to achieve the balance or unity of the
right of peoples to self-determination and the territorial
integrity of States, which is the focus or key point of the
problem. This rule/statement has been repeatedly reiterated or
emphasized later, the theory and practice of international law
concerning the relationship between the people's right of self-
determination and the territorial integrity of the state are also
inseparable from this crucial rule/statement.
 79. During the eighteenth, nineteenth and early twentieth centuries, there were numerous
instances of declarations of independence, often strenuously opposed by the State from
which independence was being declared. Sometimes a declaration resulted in the
creation of a new State, at others it did not. In no case, however, does the practice of
States as a whole suggest that the act of promulgating the declaration was regarded as
contrary to international law. On the contrary, State practice during this period points
clearly to the conclusion that international law contained no prohibition of declarations
of independence. During the second half of the twentieth century, the international law
of self-determination developed in such a way as to create a right to independence for
the peoples of non-self-governing territories and peoples subject to alien subjugation,
domination and exploitation (cf. Legal Consequences for States of the Continued
Presence of South Africa in Namibia (South West Africa) notwithstanding Security
Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, pp. 31-32, paras.
52-53; East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, p. 102, para.
29; Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory, Advisory Opinion, I.C.J. Reports 2004 (I), pp. 171-172, para. 88). A great
many new States have come into existence as a result of the exercise of this right. There
were, however, also instances of declarations of independence outside this context. The
practice of States in these latter cases does not point to the emergence in international
law of a new rule prohibiting the making of a declaration of independence in such cases.
 80. Several participants in the proceedings before the Court have contended that a prohibition of
unilateral declarations of independence is implicit in the principle of territorial integrity.
 The Court recalls that the principle of territorial integrity is an important part of the international
legal order and is enshrined in the Charter of the United Nations, in particular in Article 2, paragraph
4, which provides that : “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, or in any other
manner inconsistent with the Purposes of the United Nations.”
 In General Assembly resolution 2625 (XXV), entitled “Declaration on Principles of International
Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter
of the United Nations”, which reflects customary international law (Military and Paramilitary
Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment,
I.C.J. Reports 1986, pp. 101-103, paras. 191-193), the General Assembly reiterated “[t]he principle
that States shall refrain in their international relations from the threat or use of force against the
territorial integrity or political independence of any State”. This resolution then enumerated various
obligations incumbent upon States to refrain from violating the territorial integrity of other sovereign
States. In the same vein, the Final Act of the Helsinki Conference on Security and Co-operation in
Europe of 1 August 1975 (the Helsinki Conference) stipulated that “[t]he participating States will
respect the territorial integrity of each of the participating States” (Art. IV). Thus, the scope of the
principle of territorial integrity is confined to the sphere of relations between States.
 81. Several participants have invoked resolutions of the Security Council condemning
particular declarations of independence: see, inter alia, Security Council resolutions 216
(1965) and 217 (1965), concerning Southern Rhodesia; Security Council resolution 541
(1983), concerning northern Cyprus; and Security Council resolution 787 (1992),
concerning the Republika Srpska.
 The Court notes, however, that in all of those instances the Security Council was making
a determination as regards the concrete situation existing at the time that those
declarations of independence were made; the illegality attached to the declarations of
independence thus 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
particular those of a peremptory character (jus cogens). In the context of Kosovo, the
Security Council has never taken this position. The exceptional character of the
resolutions enumerated above appears to the Court to confirm that no general prohibition
against unilateral declarations of independence may be inferred from the practice of the
Security Council.
 82. A number of participants in the present proceedings have claimed, although in
almost every instance only as a secondary argument, that the population of Kosovo
has the right to create an independent State either as a manifestation of a right to self-
determination or pursuant to what they described as a right of “remedial secession” in
the face of the situation in Kosovo.
 The Court has already noted (see paragraph 79 above) that one of the major
developments of international law during the second half of the twentieth century has
been the evolution of the right of self-determination. Whether, outside the context of
non-self-governing territories and peoples subject to alien subjugation, domination
and exploitation, the international law of self-determination confers upon part of the
population of an existing State a right to separate from that State is, however, a
subject on which radically different views were expressed by those taking part in the
proceedings and expressing a position on the question. Similar differences existed
regarding whether international law provides for a right of “remedial secession” and,
if so, in what circumstances. There was also a sharp difference of views as to whether
the circumstances which some participants maintained would give rise to a right of
“remedial secession” were actually present in Kosovo.
 83. The Court considers that it is not necessary to resolve these
questions in the present case. The General Assembly has requested the
Court’s opinion only on whether or not the declaration of
independence is in accordance with international law. Debates
regarding the extent of the right of self-determination and the
existence of any right of “remedial secession”, however, concern the
right to separate from a State. As the Court has already noted (see
paragraphs 49 to 56 above), and as almost all participants agreed, that
issue is beyond the scope of the question posed by the General
Assembly. To answer that question, the Court need only determine
whether the declaration of independence violated either general
international law or the lex specialis created by Security Council
resolution 1244 (1999).
 84. For the reasons already given, the Court considers
that general international law contains no applicable
prohibition of declarations of independence. Accordingly,
it concludes that the declaration of independence of 17
February 2008 did not violate general international law.
Having arrived at that conclusion, the Court now turns to
the legal relevance of Security Council resolution 1244,
adopted on 10 June 1999.
 B. Security Council Resolution 1244 (1999) and the
UNMIK Constitutional Framework Created Thereunder
（ para.85-121 ）
 111. The Court recalls that this question has been a matter of controversy
in the present proceedings. Some participants to the proceedings have
contended that the declaration of independence of 17 February 2008 was a
unilateral attempt to bring to an end the international presence established
by Security Council resolution 1244 (1999), a result which it is said could
only be effectuated by a decision of the Security Council itself. It has also
been argued that a permanent settlement for Kosovo could only be
achieved either by agreement of all parties involved (notably including the
consent of the Republic of Serbia) or by a specific Security Council
resolution endorsing a specific final status for Kosovo, as provided for in
the Guiding Principles of the Contact Group. According to this view, the
unilateral action on the part of the authors of the declaration of
independence cannot be reconciled with Security Council resolution 1244
(1999) and thus constitutes a violation of that resolution.
 112. Other participants have submitted to the Court that Security Council resolution
1244 (1999) did not prevent or exclude the possibility of Kosovo’s independence. They
argued that the resolution only regulates the interim administration of Kosovo, but not
its final or permanent status. In particular, the argument was put forward that Security
Council resolution 1244 (1999) does not create obligations under international law
prohibiting the issuance of a declaration of independence or making it invalid, and does
not make the authors of the declaration of independence its addressees. According to
this position, if the Security Council had wanted to preclude a declaration of
independence, it would have done so in clear and unequivocal terms in the text of the
resolution, as it did in resolution 787 (1992) concerning the Republika Srpska. In
addition, it was argued that the references, in the annexes of Security Council
resolution 1244 (1999), to the Rambouillet accords and thus indirectly to the “will of
the people” (see Chapter 8.3 of the Rambouillet accords) of Kosovo, support the view
that Security Council resolution 1244 (1999) not only did not oppose the declaration of
independence, but indeed contemplated it. Other participants contended that at least
once the negotiating process had been exhausted, Security Council resolution 1244
(1999) was no longer an obstacle to a declaration of independence.
 113. The question whether resolution 1244
(1999) prohibits the authors of the
declaration of 17 February 2008 from
declaring independence from the Republic
of Serbia can only be answered through a
careful reading of this resolution (see paras.
94 et seq.).
 114. First, the Court observes that Security Council resolution 1244 (1999) was essentially
designed to create an interim régime for Kosovo, with a view to channelling the long-term
political process to establish its final status. The resolution did not contain any provision dealing
with the final status of Kosovo or with the conditions for its achievement.
 In this regard the Court notes that contemporaneous practice of the Security Council shows that
in situations where the Security Council has decided to establish restrictive conditions for the
permanent status of a territory, those conditions are specified in the relevant resolution. For
example, although the factual circumstances differed from the situation in Kosovo, only 19 days
after the adoption of resolution 1244 (1999), the Security Council, in its resolution 1251 of 29
June 1999, reaffirmed its position that a “Cyprus settlement must be based on a State of Cyprus
with a single sovereignty and international personality and a single citizenship, with its
independence and territorial integrity safeguarded” (para. 11). The Security Council thus set out
the specific conditions relating to the permanent status of Cyprus. By contrast, under the terms
of resolution 1244 (1999) the Security Council did not reserve for itself the final determination
of the situation in Kosovo and remained silent on the conditions for the final status of Kosovo.
 Resolution 1244 (1999) thus does not preclude the issuance of the declaration of independence
of 17 February 2008 because the two instruments operate on a different level : unlike resolution
1244 (1999), the declaration of independence is an attempt to determine finally the status of
Kosovo.
 115. Secondly, turning to the question of the addressees of Security Council resolution
1244 (1999), as described above (see paragraph 58), it sets out a general framework for
the “deployment in Kosovo, under United Nations auspices, of international civil and
security presences” (para. 5). It is mostly concerned with creating obligations and
authorizations for United Nations Member States as well as for organs of the United
Nations such as the Secretary-General and his Special Representative (see notably paras.
3, 5, 6, 7, 9, 10 and 11 of Security Council resolution 1244 (1999)). The only point at
which resolution 1244 (1999) expressly mentions other actors relates to the Security
Council’s demand, on the one hand, “that the KLA and other armed Kosovo Albanian
groups end immediately all offensive actions and comply with the requirements for
demilitarization” (para. 15) and, on the other hand, for the “full co-operation by all
concerned, including the international security presence, with the International Tribunal
for the former Yugoslavia” (para. 14). There is no indication, in the text of Security
Council resolution 1244 (1999), that the Security Council intended to impose, beyond
that, a specific obligation to act or a prohibition from acting, addressed to such other
actors.
 116. The Court recalls in this regard that it has not been uncommon for the Security Council to make
demands on actors other than United Nations Member States and inter-governmental organizations. More
specifically, a number of Security Council resolutions adopted on the subject of Kosovo prior to Security
Council resolution 1244 (1999) contained demands addressed eo nomine to the Kosovo Albanian leadership.
For example, resolution 1160 (1998) “[c]all[ed] upon the authorities in Belgrade and the leadership of the
Kosovar Albanian community urgently to enter without preconditions into a meaningful dialogue on political
status issues” (resolution 1160 (1998), para. 4; emphasis added). Resolution 1199 (1998) included four
separate demands on the Kosovo Albanian leadership, i.e., improving the humanitarian situation, entering
into a dialogue with the Federal Republic of Yugoslavia, pursuing their goals by peaceful means only, and
co-operating fully with the Prosecutor of the International Criminal Tribunal for the former Yugoslavia
(resolution 1199 (1998), paras. 2, 3, 6 and 13). Resolution 1203 (1998) “[d]emand[ ed] . . . that the Kosovo
Albanian leadership and all other elements of the Kosovo Albanian community comply fully and swiftly
with resolutions 1160 (1998) and 1199 (1998) and co-operate fully with the OSCE Verification Mission in
Kosovo” (resolution 1203 (1998), para. 4). The same resolution also called upon the “Kosovo Albanian
leadership to enter immediately into a meaningful dialogue without preconditions and with international
involvement, and to a clear timetable, leading to an end of the crisis and to a negotiated political solution to
the issue of Kosovo”; demanded that “the Kosovo Albanian leadership and all others concerned respect the
freedom of movement of the OSCE Verification Mission and other international personnel”; “[i]nsist[ed] that
the Kosovo Albanian leadership condemn all terrorist actions”; and demanded that the Kosovo Albanian
leadership “co-operate with international efforts to improve the humanitarian situation and to avert the
impending humanitarian catastrophe” (resolution 1203 (1998), paras. 5, 6, 10 and 11).
 117. Such reference to the Kosovo Albanian leadership or other actors, notwithstanding
the somewhat general reference to “all concerned” (para. 14), is missing from the text of
Security Council resolution 1244 (1999). When interpreting Security Council resolutions,
the Court must establish, on a case-by-case basis, considering all relevant circumstances,
for whom the Security Council intended to create binding legal obligations. The language
used by the resolution may serve as an important indicator in this regard. The approach
taken by the Court with regard to the binding effect of Security Council resolutions in
general is, mutatis mutandis, also relevant here. In this context, the Court recalls its
previous statement that :
 “The language of a resolution of the Security Council should be carefully analysed before
a conclusion can be made as to its binding effect. In view of the nature of the powers
under Article 25, the question whether they have been in fact exercised is to be
determined in each case, having regard to the terms of the resolution to be interpreted, the
discussions leading to it, the Charter provisions invoked and, in general, all
circumstances that might assist in determining the legal consequences of the resolution of
the Security Council.” (Legal Consequences for States of the Continued Presence of
South Africa in Namibia (South West Africa) notwithstanding Security Council
Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 53, para. 114.)
关于 1244 号决议的解释
 118. Bearing this in mind, the Court cannot accept the argument that Security Council
resolution 1244 (1999) contains a prohibition, binding on the authors of the declaration of
independence, against declaring independence; nor can such a prohibition be derived from the
language of the resolution understood in its context and considering its object and purpose. The
language of Security Council resolution 1244 (1999) is at best ambiguous in this regard. The
object and purpose of the resolution, as has been explained in detail (see paragraphs 96 to 100),
is the establishment of an interim administration for Kosovo, without making any definitive
determination on final status issues. The text of the resolution explains that the “main
responsibilities of the international civil presence will include . . . [o]rganizing and overseeing
the development of provisional institutions for democratic and autonomous self-government
pending a political settlement” (para. 11 (c) of the resolution ; emphasis added).
 The phrase “political settlement”, often cited in the present proceedings, does not modify this
conclusion. First, that reference is made within the context of enumerating the responsibilities
of the international civil presence, i.e., the Special Representative of the Secretary-General in
Kosovo and UNMIK, and not of other actors. Secondly, as the diverging views presented to the
Court on this matter illustrate, the term “political settlement” is subject to various
interpretations. The Court therefore concludes that this part of Security Council resolution
1244 (1999) cannot be construed to include a prohibition, addressed in particular to the authors

of the declaration of 17 February 2008, against declaring independence .

 119. The Court accordingly finds that
Security Council resolution 1244 (1999) did
not bar the authors of the declaration of 17
February 2008 from issuing a declaration of
independence from the Republic of Serbia.
Hence, the declaration of independence did
not violate Security Council resolution 1244
(1999).
 120. The Court therefore turns to the question whether the
declaration of independence of 17 February 2008 has
violated the Constitutional Framework established under
the auspices of UNMIK. Chapter 5 of the Constitutional
Framework determines the powers of the Provisional
Institutions of Self-Government of Kosovo. It was argued
by a number of States which participated in the
proceedings before the Court that the promulgation of a
declaration of independence is an act outside the powers of
the Provisional Institutions of Self-Government as set out
in the Constitutional Framework.
 121. The Court has already held, however (see paragraphs 102 to 109
above), that the declaration of independence of 17 February 2008 was
not issued by the Provisional Institutions of Self-Government, nor was
it an act intended to take effect, or actually taking effect, within the
legal order in which those Provisional Institutions operated. It follows
that the authors of the declaration of independence were not bound by
the framework of powers and responsibilities established to govern the
conduct of the Provisional Institutions of Self-Government.
Accordingly, the Court finds that the declaration of independence did
not violate the Constitutional Framework.
 V. GENERAL CONCLUSION
 122. The Court has concluded above that the
adoption of the declaration of independence of 17
February 2008 did not violate general
international law, Security Council resolution
1244 (1999) or the Constitutional Framework.
Consequently the adoption of that declaration did
not violate any applicable rule of international
law.
 International law does not recognize the general
right of a minority of peoples of a State to adopt
unilateral secessions through self-determination;
  International law has neither yet certainly deny or
permit the so-call “right of remedial secession ";
 International law recognizes the legitimacy of the
secession arrangements concluded by the parties
concerned through the mutual agreement on the
voluntary basis or within the framework of the
constitution of the State which is claimed the secession .
 Although international law does not recognize the
general right of unilateral secession of a minority
of people of a State, international law does not
prohibit secession from the recognition and
inheritance system of international law and the
relevant practice of each state. In fact,
international law leaves the issue of unilateral
secession to the countries to make the
determination themselves as domestic affairs.
 If a State takes the action of deterring secession in
accordance with international law and its own consititution
or laws, other states have no right to intervene. It is an urgent
affirmation that the recognition of secession before the
recognition of secession by the home state is an interference
in the internal affairs of the state where the secession takes
place.
 The United Nations never accepted the new state resulting
from the secession until the motherland abandoned its
repressing actions and acknowledged the secession.
 The international community has an obligation not to
recognize the unilateral secession.
 If a state recognizes the secession, the international
community, the relevant international organizations can
freely decide whether to recognize the new state.
 In fact, after the secession from former home state, the
new states can be recognized by the majority of countries
and can also be accepted by international organizations.
 The home state recognizes that the new state of secession
have not only the same legal effect as the recognition of
other States, but also shows that the home state abandons
the efforts to repress the secession and the waiver of
territorial integrity for certain specific issues.
 The right of ‘internal self-determination’ of a nation does not
affect the territorial integrity of a state because it does not
change the territory or jurisdictional region of the existing state.
In contrast, the "right of external self-determination" of a nation
will have a certain impact on the territorial integrity of existing
States.
 For example, the colonial peoples' independence and the
appearance of new state will inevitably lead to a reduction in the
territory of the existed sovereign state. For another example, if a
country's particular region or nation is independent or separated
from its state of origin and incorporated into another state,
territorial changes will also occur. That is, the territory of its
state of origin inevitably would be reduced.
 The impact of colonial independence on the territory of the
former sovereign state have been recognized by modern
international law. Leaving aside political factors, judging
from a legal point of view, territorial changes that are
consistent with the self-determination of peoples under
international law are permitted and should be recognized;
territorial changes (such as the use of force or threat to use
of force) that are not in conformity with the self-
determination of peoples under international law should be
condemned by the international community, even
sanctions, and surely not be accepted.
 Since the modern era, the plebiscites or the
referendum has not only become a democratic
way for some countries to decide on major issues
in their own country (such as territorial ownership,
separation or consolidation of nations, concluding
important treaties, joining in or withdrawing from
major international organizations, etc.), but has
also developed into a common way of determining
the political status of disputed territories.
 As a form of democratic decision, referendums
have been clearly stipulated by the constitution in
some countries, while others have been decided by
the legislature. Therefore, the legitimacy and
validity of any referendum that meets the
requirements of a country's constitution or laws
normally do not arise disputes .
 Generally, it is the referendum that arise disputes
that there is no constitution or legal basis.
 The application of rights of self-determination must be
premised on the fact of massive violations of human rights
or on the basis of the agreement of the home state.
 The national intent embodied in the domestic laws of China:
 The Constitution, the Law on Regional National Autonomy, the Basic
Law of the Hong Kong Special Administrative Region, the Basic Law
of the Macao Special Administrative Region, the Anti- Secession
Law (2005)
 No matter in what kind of region, the division of China's
territory and the pursuit of secession and self-
determination are obviously inconsistent with the
provisions of the constitution and laws of China.
 The suggestions on the relationship between
internal and external self-determination:
 If ‘internal self-determination’ could not be
resolved, it tends to intensify ethnic conflicts and
trigger ‘external self-determination’ (secession).
Therefore, government efforts that promote the
economic and social development and people's
livelihood in minority regions could contribute to
enhance national unity and curb national
disintegration.