Part II Modes of the Creation of States in International Law, Ch.9 Secession
James R Crawford
- Secession — States, independence — Recognition of states — Belligerence — Insurgents and insurrection — Armed conflict, international
Until 1914, secession was the most conspicuous and probably the most common method of the creation of new States. The period 1776 to 1900 saw, amongst other cases, the American War of Independence, the revolution of the former Spanish colonies of South and Central America, the secession of Greece from the Ottoman Empire and of Belgium from the Netherlands. In the period since 1919, new States have been more often created with the consent of the former sovereign, especially in course of decolonization. But attempts at secession—which may be defined as the creation of a State by the use or threat of force without the consent of the former sovereign1—have been frequent and some of these have succeeded, in particular Indonesia, North Korea, North Vietnam, Bangladesh, Guinea-Bissau and Eritrea. In addition, there are the exceptional cases of Israel and a putative Palestinian State; the creation or attempted creation of these States has occurred without the consent of the previous administration and as a result of armed conflict. Many more attempts at secession have failed—for example, Katanga and Biafra—or are still contested—for example, Somaliland and Chechnya.
It bears repeating that the distinction between devolution and secession may be artificial in some circumstances. Elements of forcible seizure and free grant of independence may be combined (as with Indonesia and Eritrea). Other elements—a process of consolidation (as in Vietnam and Korea), the intervention of a group of Great Powers (as in Greece and Belgium) or the dissolution of the predecessor State (as with the former Yugoslavia)—may be present. Nonetheless certain questions arise specifically in relation to secession. In particular the application of the criteria for statehood to situations where (p. 376) statehood is disputed by the previous sovereign; the relation between third State recognition and status; the legality of secession in modern international law, and the legal incidents of the process by which a seceding unit attains international status—these questions require consideration here.2 In the first place the application of the criteria for statehood—and in particular the criterion of independence—to cases of secession must be dealt with.
(1) The relevance of recognition
Politically recognition of secessionist regimes has always been important. Its precise legal effects however require examination. In this context three types of recognition—recognition of statehood on the part of the previous sovereign (‘metropolitan recognition’), recognition of statehood on the part of third States and belligerent recognition—must be distinguished.
(i) Metropolitan recognition
It is clear that if the former sovereign recognizes as a State a local unit exercising actual control over certain territory then that entity is, at least prima facie, a State. The question concerns the status of a de facto entity effectively controlling certain territory, in the absence of metropolitan recognition. As we have seen, there was a conflict in the early doctrine on this point. Pufendorf, arguing from the notion of allegiance to the former sovereign, regarded metropolitan recognition as necessary to statehood: Vattel, on the other hand, took the view that at least in some situations metropolitan recognition was unnecessary.3 The question was not entirely settled by the American War of Independence since References(p. 377) on any view French recognition of the United States of North America was premature (involving a declaration of war against Great Britain)4 and since British recognition in 17825 was not long delayed.
Any doubts that might have remained were settled by the controversy over the independence of the former Spanish colonies in South America. The colonies declared their independence at various times after 1809, and despite fluctuating fortunes maintained that independence against Spain for a considerable time without being accorded any formal recognition.6 By 1822 several of the secessionist regimes were subsisting without any effective Spanish opposition and with relative stability: nonetheless Spain refused to countenance recognition.7 The question of third State recognition was thus squarely raised. In June 1822 President Monroe extended United States recognition of Colombia.8 British recognition of Buenos Ayres followed on 2 February 1825, of Colombia on 18 April 1825, and of Mexico on 28 December 1826.9 In response to Spanish protests, Canning distinguished three ‘descriptions of Recognition’:
3rd. The Recognition de Jure, which professes to decide upon the Title, and thereby to create a Certain Impediment to the Rights of the former Occupant.10
As to the third of these, in his view it was: ‘for the two Contending Parties themselves to settle the Question of Title,—not for third Parties to interfere … The practical question, then, is,—How long should the de facto System of Recognition be maintained, to the Exclusion of the Diplomatic, and when should the latter be adopted?’11 To which, in a later dispatch, the answer was given that:
To continue to call that a possession of Spain, in which all Spanish occupation and power had been actually extinguished and effaced, could render no practical service to (p. 378) the Mother Country;—but it would have risked the peace of the World. For all political communities are responsible to other political communities for their conduct:—that is, they are bound to perform the ordinary international duties, and to afford redress for any violation of the rights of others by their citizens or subjects.
Now, either the Mother Country must have continued responsible for acts over which it could no longer exercise the shadow of a controul; or the Inhabitants of those countries, whose independent political existence was, in fact, established, but to whom the acknowledgment of that independence was denied, must have been placed in a situation in which they were either wholly irresponsible for their actions, or were to be visited for such of those actions as might furnish ground of complaint to other Nations, with the punishment due to Pirates and Outlaws … [N]o other choice remained for Gt. Britain, or for any other Country having intercourse with the Spanish American Provinces but to recognize, in due time, their political existence as States, and thus to bring them within the pale of those rights and duties, which civilized Nations are bound mutually to respect, and are entitled reciprocally to claim from each other.12
Canning’s distinction between de jure and diplomatic recognition and his application of it to the Spanish-American colonies are significant. It has been suggested that his third description of recognition—that relating to the ‘question of right’ between the belligerents—is equivalent to modern de jure recognition,13 but it is clear that this was and is not so: rather this recognition ‘of right’ reflected the then influential principle of legitimacy,14 in a sense the successor to Pufendorf’s principle of allegiance.15 No international legal consequences—at least so far as third States were concerned—were to be deduced from the failure of metropolitan recognition, provided that the local entity was effectively independent, and the military opposition of the metropolitan State had to all intents and purposes ceased. The point was made with even greater clarity by Dr Lushington in 1820:
His own opinion on the subject was, that when colonies had once acquired independence for themselves, it was at the option of other governments either to acknowledge their independence or not, according to the views of policy which they might entertain. It was indeed a matter of pure necessity to make such an acknowledgment on account (p. 379) of the great inconvenience and injustice that would otherwise attend the existence of an unsettled and unrecognized State … [N]either the law of nations, nor any peculiar relations between England and Spain, withheld us from recognizing the independence of South America.16
Canning’s second description of recognition was the equivalent of modern de jure recognition, and it followed from the South American precedents that metropolitan recognition was not a precondition for statehood if effective independence had been achieved.
(ii) Recognition by third States
Although it was established that absence of metropolitan recognition did not preclude statehood, diplomatic recognition by third States was treated as important and indeed seems to have been regarded as constitutive. Canning’s memorandum of 25 March 1825 had a distinctly constitutive aspect, as did his famous boast that he had ‘called the New World into existence to redress the balance of the Old’.17 The memorandum of 1825 had seemed to infer that the existence of a separate ‘political community’ was insufficient and that recognition was required before such a community was brought within the ‘pale of those rights and duties’ involved in international law. In practice the South American States had, however, been regarded as legally responsible for their acts before recognition: indeed all political contacts short of formal recognition were regarded as legitimate and desirable.18 Whatever view of recognition may have been entertained,19 in practice recognition of the South American republics was substantially declaratory of an existing situation.20
A third form of recognition in situations of insurgency or secession was recognition of belligerency. Where a secessionary movement had achieved a certain degree of governmental and military organization, issues of responsibility and the desire to remain neutral in the conflict while maintaining commercial relations with both parties impelled a certain de facto recognition of the situation even though the conflict was continuing. This gradually emerged as a distinct mode of recognition: by virtue of recognition of belligerency third States were entitled to maintain a strict neutrality between the parties to the conflict and the insurgents achieved a separate though temporary status. Recognition of belligerency was established only towards the end of the South American conflict—and then in a situation where full recognition would have been justified.21 It found its most significant application in the American Civil War.22 The position was authoritatively formulated by Wheaton:
Until the revolution is consummated, whilst the civil war involving a contest for the government continues, other States may remain indifferent spectators of the controversy, still continuing to treat the ancient government as sovereign, and the government de facto as a society entitled to the rights of war against its enemy; or may espouse the cause of the party which they believe to have justice on its side. In the first case, the foreign State fulfils all its obligations under the law of nations; and neither party has any right to complain, provided it maintains an impartial neutrality. In the latter, it becomes, of course, the enemy of the party against whom it declares itself, and the ally of the other; and as the positive law of nations makes no distinction, in this respect, between a just and an unjust war, the intervening State becomes entitled to all the rights of war against the opposite party. If the foreign State professes neutrality, it is bound to allow impartially to both belligerent parties the free exercise of those rights which war gives to public enemies against each other; such as the right of blockade, and of capturing contraband enemy’s property. But the exercise of those rights, on the part of the revolting colony or province against the metropolitan country, may be modified by the obligation of treaties previously existing between that country and foreign States.23
Recognition of belligerency became permissible in two situations: where the metropolitan government itself unequivocally treated the insurgents as an organized belligerent force, in particular by exercise of belligerent rights on the (p. 381) high seas;24 or where, in the judgement of other States, the insurgent force had achieved the character of an organized government, capable of carrying on hostilities in accordance with the laws of war and of accepting responsibility for its actions.25 Recognition of belligerency was, however, considered as a form of intervention unless the third State’s interests were materially affected: it tended in practice to be restricted to civil wars fought at least in part on the high seas since the main legal incident of belligerency was the right of both parties to search neutral ships for contraband on the high seas.
For present purposes, belligerent recognition is of peripheral importance, but certain points may be made. In the first place, in secessionary situations belligerent recognition was sometimes used as a substitute for, rather than an intermediate step towards, recognition of the entity in question as a State. This was certainly so with the South American territories, and to some extent with Greece.26
Secondly, even in the absence of recognition of belligerency the insurgents—so long as they maintained a certain degree of territorial and administrative effectiveness—had certain rights. Their ships were not to be treated as pirates, nor were they so far as third States were concerned common criminals.27 On the other hand, third States were not entitled to assist or foment the rebellion—or rather, since war was legally permissible, they had the option of non-intervention or the commission of an act of war against the metropolitan State. The effect of recognition of belligerency was thus threefold: it formalized the legal status of the insurgents; it gave rise to a duty of non-intervention with respect to both parties and it entailed the acceptance of the exercise of belligerent rights by both.
In nineteenth-century international law non-intervention in such cases was an option rather than a duty. It followed that recognition of belligerency was, in a fundamental sense, voluntary, and the obligation of neutrality with respect to both parties entailed by such recognition was self-imposed. Since third States retained the right to make war, neutrality in civil as well as international conflicts remained discretionary. Recognition of belligerency was not a References(p. 382) peremptory institution but a permissible expression of a certain legal relation—neutrality. Only where the metropolitan Government itself unequivocally recognized local belligerency was recognition by third States in any way enjoined. For this reason, neutrality between belligerents could be set aside if there existed, for example, a treaty of alliance or other commitment with the metropolitan State.28 Again, since the legal incidents of recognition of belligerency—and in particular the duty of neutrality vis-à-vis the metropolitan government—were self-imposed, recognition of belligerency could be said to be constitutive.29 Even in its heyday in the nineteenth century, the status of recognition of belligerency in civil war situations was thus precarious.
(2) The traditional test of independence in a secessionary situation
It remains to determine just when third State recognition became permissible; in other words, when the seceding entity qualified as a State. Nineteenth-century practice—apart from cases of intervention to secure independence, such as Belgium and to some extent Greece—established that a seceding territory could properly be recognized as a State if it governed its territory effectively and with sufficient stability, such that there was no real likelihood of the previous sovereign reasserting its position: this could occur because of the latter’s virtual relinquishment of the struggle or its defeat in the field. In a letter to Lieven concerning the prospective Austrian recognition of Greece, Canning formulated the test as follows.
It is to be presumed that when the Austrian Plenipotentiaries speak of the acknowledgement of the Morea and the islands as an independent State, they intend that acknowledgement to be subject to the qualification that such State shall have shown itself substantially capable of maintaining an independent existence, of carrying on a Government of its own, of controlling its own military and naval forces, and of being responsible to other nations for the observance of international laws and the discharge of international duties. These are questions of fact. By acknowledgement we can only acknowledge what is. We have never recognized in Spanish America any State in whose territory the dominion of the mother-country has not been practically extinguished, and which has not established some form of government with which we could treat.30
When a sovereign State, from exhaustion or any other cause, has virtually and substantially abandoned the struggle for supremacy it has no right to complain if a foreign State treat the independence of its former subjects as de facto established; nor can it prolong its sovereignty by a mere paper assertion of right. When on the other hand, the contest is not absolutely or permanently decided, a recognition of the inchoate independence of the insurgents by a foreign State is a hostile act towards the sovereign State …31
The strictness of this position is in marked contrast to the position in the case of States granted independence by the previous sovereign, where a minimal degree of de facto control may be sufficient. This strict view—which was normally applied to particular cases in a cautious and conservative manner—represented the position at the beginning of the twentieth century. It was reaffirmed in the Åland Islands case, described in Chapter 3. Its status in modern international law is discussed in the following section.
The cautious application of the criteria for independence, which was a feature of nineteenth century practice, became much more variegated in the twentieth century. Indeed the question is whether the criteria themselves have remained the same. It will be seen that there is now an important distinction between secession within a metropolitan State and the secession of a self-determination unit and, in particular, of a non-self-governing territory. On the one hand the secession of a self-determination unit, where self-determination is forcibly prevented by the metropolitan State, will normally be reinforced by the principle of self-determination, so that the degree of effectiveness required as a References(p. 384) precondition to recognition will be much less extensive than in the case of secession within a metropolitan State. On the other hand international law has extended its protection of the territorial integrity of States at least so far as external use of force and intervention are concerned—though not to the point of providing a guarantee. The result of these contrasting developments is that there is no longer one single test for secessionary independence.
(1) The secession of a self-determination unit
It is necessary to distinguish between secession in pursuance of and in violation of self-determination. Where the territory in question is a self-determination unit it may be presumed that any secessionary government possesses the general support of the people: secession in such a case, where self-determination is forcibly denied, will be presumed to be in furtherance of, or at least not inconsistent with, the application of self-determination to the territory in question.32 On the other hand, it is possible for a seceding government manifestly to lack general support of the people concerned.
(i) Secession in furtherance of self-determination
State practice since 1945 in relation to secessions of this type has not been entirely consistent. However, in three of the earlier cases of seceding territories, at least some degree of international recognition was extended at a relatively early stage.
The Indonesian situation was the first of these. Indonesian nationalist leaders declared the Republic of Indonesia independent on 17 August 1945: there followed a protracted conflict, military and diplomatic, with the Netherlands before sovereignty was formally transferred on 27 December 1949.33 The events of this period have been described elsewhere.34 What is of interest here is that, although Indonesia was probably not a fully independent State before December 1949, it was accorded a certain—even considerable—legal status during the conflict. It was recognized as a de facto government by the Netherlands itself35 and by a number of other States: in addition several States accorded de jure recognition. The Security Council consistently assumed References(p. 385) jurisdiction with respect to the dispute, basing this in part at least on the status of the Republic, which was permitted to participate in those proceedings as a ‘State’ under Article 32 of the Charter.36
The status of the Democratic Republic of Vietnam (DRVN) after the declaration of independence in 1945 was complicated by the conflicting grants of authority by France to various local governments, and by the claims of both governments to represent Vietnam as a whole. As in the Indonesian case, various States recognized the DRVN: France also extended a somewhat equivocal de facto recognition.37 The DRVN was a participant at the Geneva Conference of 1954 that temporarily partitioned the country. This ‘divided State’ situation and the right to reintegration provided for in the 1954 Agreements, further complicated the situation. Nevertheless, in the events which occurred, the DRVN became a separate State in the territory north of the line of partition: its separate statehood must probably be dated from 1956.
These complicating features were not present in the case of Algeria. The Algerian Republic was proclaimed on 19 September 1958 and after protracted hostilities was granted formal independence by France on 3 July 1962.38 After some hesitation,39 the General Assembly took the matter up in 1960 and 1961, calling upon the parties to negotiate ‘with a view to implementing the right of the Algerian people to self-determination and independence respecting the unity and territorial integrity of Algeria.’40 Algeria had also been recognized, before 3 July 1962, by a certain number of States.41
(p. 386) Two successful secessions taking place in the 1970s may be compared with these earlier cases. The Bangladesh situation has been discussed in Chapter 3. Despite the presence of Indian troops on its territory, its doubtful stability, the refusal of Pakistan’s recognition until 1974 and the probable illegality of Indian intervention, Bangladesh was rather rapidly recognized as a State (although its UN admission had to wait until a settlement with Pakistan). More in point, for present purposes, is the case of Guinea-Bissau. The African Independence Party of Guinea and the Cape Verde Islands was formed in September 1956 by Amilcar Cabral; it took up overt armed resistance in 1963 and by 1970 claimed to have liberated a large part of the country.42 Security Council resolution 322 (1972) recognized the PAIGC as ‘legitimate representative’ of Guinea-Bissau.43 On 26 September 1973 the PAIGC formally proclaimed the independence of Guinea-Bissau. By the end of 1973, it had been recognized by forty States including the Soviet Union, the People’s Republic of China and India.44 General Assembly resolution 3061 (XXVIII) welcomed ‘the recent accession to independence of the people of Guinea-Bissau, thereby creating the sovereign State of the Republic of Guinea-Bissau.’45 General Assembly resolution 3181 (XXVIII) approved ‘the credentials of the representatives of Portugal, on the clear understanding that they represent Portugal as it exists within its frontiers in Europe and that they do not represent the Portuguese-dominated Territories of Angola and Mozambique nor could they represent Guinea-Bissau, which is an independent State.’46 By 31 May 1974 (five weeks after the overthrow of the former Portuguese government) Guinea-Bissau had been recognized by eighty-four States. Its admission to the United Nations was recommended unanimously by the Security Council on 12 August 1974.47 But an Agreement Granting Independence between Portugal and Guinea-Bissau was not concluded until 26 August 1974:48 pursuant to paragraph (i) of that agreement, Portugal extended de jure recognition on 10 September 1974. It is quite clear, and is implicit in the Agreement of 26 August 1974, that Guinea-Bissau was very widely recognized as a State well before its recognition by Portugal. This would not have been so had the traditional criterion for secessionary independence, discussed above, been applied.49
(1) In principle, self-determination is predicated on a free and effective choice by the people of the territory concerned.50 Where such a choice is available, no particular problem arises with respect to secession.
(2) Where, however, the metropolitan State forcibly denies self-determination to the territory in question, this primary option is not available. In such cases the principle of self-determination operates in favour of the statehood of the seceding territory, provided that the seceding government can properly be regarded as representative of the people of the territory. In such a case recognition may be extended even though the independence of the territory is not ‘disputed without rational hope of success’.51
(3) However, the practice in the cases reviewed has not been either unequivocal or consistent52 and it is difficult to accept that the normal requirement of effective government has been entirely displaced. Rather, the criterion in this type of case would appear to be one of qualified effectiveness: the metropolitan government cannot rely on the advantages of incumbency against a liberation movement which is supported by the population and controls substantial territory (e.g., Guinea-Bissau). In such a case the principle of self-determination legitimizes what might otherwise be premature recognition by other States.
(4) It is not clear at what stage during a liberation conflict recognition becomes permissible, a situation which is exacerbated by the decline of neutrality in situations of established civil war. In both Vietnam and Guinea-Bissau there was intervention in favour of both parties to the conflict. Recognition of statehood in such cases seems to have replaced recognition of belligerency, and the notion of reciprocal intervention has been influential.53 It may be that the effect of self-determination on the criteria for secessionary independence is twofold: in situations such as Guinea-Bissau or Algeria, where the insurgents’ control is substantial and their legitimacy or representativeness is acknowledged, self-determination may legitimize recognition that would otherwise be premature. In any event, where a self-determination unit achieves actual independence, recognition may be immediate: the requirements of stability and permanence emphasized in nineteenth-century practice do not seem to apply. Bangladesh, (p. 388) the stability and permanence of which must have remained in question, was rapidly recognized by almost all States.54
(5) These considerations only apply in the case of secessionary movements by a self-determination unit. Different considerations may apply to secessions of fractions of self-determination units.55
(ii) Secession in violation of self-determination
The situation is quite different where the secession occurs in derogation of the principle of self-determination as applied to the territory as a whole. The Rhodesian situation, which is the most significant example of this, has been discussed in Chapter 3. The principle of self-determination does not qualify the operation of the principle of effectiveness in such a case; it operates as a peremptory requirement, suspending statehood until the constitutional and governmental structure of the territory is brought into line with the principle of self-determination.
(2) Secession outside the colonial context56
Although there is no right, under the Constitution or at international law, to unilateral secession … this does not rule out the possibility of an unconstitutional declaration of secession leading to a de facto secession. The ultimate success of such a secession would be dependent on recognition by the international community, which is likely to consider the legality and legitimacy of secession having regard to, amongst other facts, the conduct of Quebec and Canada, in determining whether to grant or withhold recognition. Such recognition, even if granted, would not, however, provide any retroactive justification for the act of secession, either under the Constitution of Canada or at international law.58
It is true that the hostility by all governments to secession in respect of their own territory has sometimes led to language implying that secession might be contrary to international law. In various resolutions relating to both the Katangan and the Rhodesian secessions, the Security Council characterized secession as illegal. For example, SC resolution 169(1961) ‘[s]trongly deprecate[d] the secessionist activities illegally carried out by the provincial administration of Katanga, with the aid of external resources and manned by foreign mercenaries …’ and ‘[d]eclare[d] that all secessionist activities against the Republic of the Congo are contrary to the Loi fondamentale and Security Council decisions and specifically demand[ed] that such activities … cease forthwith.’59 In the case of Southern Rhodesia, from the very first United Nations resolutions referred to the Smith government as an ‘illegal racist minority regime’.60 But this language does not imply the existence of an international law rule prohibiting secession, for the following reasons. First, if the seceding entity is acting illegally under international law, it follows that the entity is a subject of international law, although the main object of the resolutions cited was to deny to the entities in question any international status. Secondly, in the debates on the resolutions there is no reliance on international law rules prohibiting secession;61 rather, reference is made to the internal law References(p. 390) of the metropolitan State.62 Any international concerns associated with secession movements relates to the existence of foreign intervention (as in Katanga) or the existence of a threat to international peace and security (as in Rhodesia). The position is that secession is neither legal nor illegal in international law, but a legally neutral act the consequences of which are regulated internationally. As Lauterpacht pointed out ‘[i]nternational law does not condemn rebellion or secession aiming at the acquisition of independence.’63 This position was affirmed by the International Law Commission in its discussion of the principle of non-recognition of territorial acquisition by illegal force. Article 11 of the Draft Declaration on Rights and Duties of States, which embodied that principle, was amended by limiting it to acquisition ‘by another State’ so as to deal with the case of secession.64
Nonetheless, by comparison with the acceptance of self-determination leading to the independence of colonial territories covered by Chapters XI and XII of the Charter (‘external self-determination’), the practice regarding unilateral secession of non-colonial territories is very different. Since 1945 the international community has been extremely reluctant to accept unilateral secession of parts of independent States if the secession is opposed by the government of that State. In such cases the principle of territorial integrity has been a significant limitation. Since 1945 no State which has been created by unilateral secession has been admitted to the United Nations against the declared wishes of the government of the predecessor State.65 By contrast there are many examples of failed attempts at unilateral secession, including cases where the seceding entity maintained de facto independence for some time.
It is necessary to distinguish unilateral secession of part of a State and the outright dissolution of the predecessor State as a whole. In the latter case there is, by definition, no predecessor State continuing in existence whose consent to any new arrangements can be sought. But the distinction between dissolution of a State and unilateral secession of part of a State may be difficult to draw in particular cases. The dissolution of a State may be initially triggered by the secession or attempted secession of one part of that State. If the process goes beyond that and involves a general withdrawal of all or most of the territories concerned, and no substantial central or federal component remains behind, it (p. 391) may be evident that the predecessor State as a whole has ceased to exist: this was the position generally taken in the case of Yugoslavia. Nonetheless even the successful secession of one part of a State will not normally produce that result.66
Thus the distinction between unilateral secession and dissolution is clear in principle. It is adopted, for example, in the two Vienna Conventions on State Succession.67 The main difference is that in cases of dissolution, no one party is allowed to veto the process. By contrast where the government of the predecessor State maintains its status as such, its assent to secession is necessary, at least unless and until the seceding entity has firmly established control beyond hope of recall. Bangladesh is the only clear case in international practice since 1945. The position stated by the Commission of Jurists appointed by the League of Nations to examine the Åland Islands situation remains true, notwithstanding subsequent developments in the principle of self-determination: ‘Positive international law does not recognise the right of national groups, as such, to separate themselves from the State of which they form a part by the simple expression of a wish.’68
(i) Cases of secession or dismemberment post-1945
Since 1945, the only new States emerging from situations which were not formally recognised as colonial, i.e. as covered by Chapters XI or XII of the Charter, have been:
• Senegal (1960);
• Singapore (1965);
• Bangladesh (1971);
• the three Baltic States: Latvia, Lithuania, Estonia (all 1991);
• the eleven successor States of the former Soviet Union: Armenia, Azerbaijan, Belarus, Georgia, Kazakhstan, Kirgizstan, Moldova, Tajikistan, Turkmenistan, Ukraine, Uzbekistan (all 1991);
• the five successor States of the former Yugoslavia: Slovenia, Macedonia, Croatia, Bosnia-Herzegovina, Federal Republic of Yugoslavia (Serbia and Montenegro) (1991–2);
• Czech Republic and Slovakia (1993); and
• Eritrea (1993).
Senegal emerged from the dissolution of the Mali Federation, a federal arrangement formed between it and Soudan. Under the French Constitution of 1958, the former colonies of Senegal and Soudan became ‘autonomous States’ within the French Community. Subsequently, it was agreed that the Mali Federation would be established, and Senegal and Soudan agreed to join it. Under the Constitution of the Mali Federation of 17 January 1959, its constituent units were regarded as ‘sovereign’, as was the Federation itself. Shortly after the Federation was inaugurated, serious difficulties arose between Senegal and Soudan and on 20 August 1960 Senegal purported to withdraw. This was initially opposed by Soudan but was accepted on 22 September 1960 when Soudan asserted its independence outside the French Community under the name of Mali. The situation was described in different terms by different members of the Security Council when it considered the applications for United Nations membership by Senegal and Mali on 28 September 1960. But it was common ground that the two entities had resolved their differences, that each had achieved separate independence, and that the Federation of Mali had thereby ceased to exist.69
it has been agreed by the parties hereto that fresh arrangements should be made for the order and good government of the territories comprised in Malaysia by the separation of Singapore from Malaysia upon which Singapore shall become an independent and sovereign state and nation separate from and independent of Malaysia and so recognized by the Government of Malaysia.70
(p. 393) Pursuant to this agreement, Singapore separated from Malaysia, which retained its international identity and United Nations membership. Singapore was forthwith admitted unopposed to the United Nations.71
The case of Bangladesh was described in some detail in Chapter 3. Despite the military defeat of Pakistan (complete by December 1971), Bangladesh was not admitted to the United Nations until 1974. This was shortly after its recognition by Pakistan, which occurred on 2 February 1974, although it had before then been individually recognized by many States.72
Different views can be held as to whether in the circumstances of 1970, the people of East Bengal had a right of self-determination, whether this was a case of ‘remedial secession’ or whether the acceptance of its secession following the withdrawal of the Pakistan Army after the ceasefire of 16 December 1971 merely produced a fait accompli, which in the circumstances other States had no alternative but to accept. Under the criteria enunciated in GA resolution 1541(XV), East Bengal clearly qualified as a non-self-governing territory in 1971, after the election result had been cancelled and the territory placed under a repressive military rule from Islamabad. But the fact is that it was not designated as such a territory at the time nor treated as one by the General Assembly. On the other hand despite the violence of the military response to UDI, the large numbers of dead and displaced persons, and the sympathy for the position of East Bengal thereby generated, no State other than India was prepared to recognize Bangladesh prior to the surrender of the Pakistan forces in East Bengal in December 1971. GA resolution 2793 (XXVI) made no mention of the right of self-determination, and the Security Council took no action at all until after 16 December 1971, when it called for the withdrawal of ‘all armed forces to their respective territories’, with emphasis on the ‘western theatre’.73 By that stage the ‘eastern theatre’, that is, East Bengal, had finally fallen outside the control of Pakistan.
(d) The Baltic States
The Baltic States were separate States during the inter-war period and were members of the League of Nations. They were, however, occupied and annexed by the Soviet Union in 1940 in circumstances involving the use of force and duress. There was little express recognition on the part of third States of the (p. 394) extinction of the Baltic States, and this was a relevant factor when those States sought to regain their independence in the changed circumstances of the Soviet Union after 1990.
• Lithuania declared its independence on 11 March 1990. In January 1991 it resisted a half-hearted attempt on the part of Soviet Interior Ministry troops to force it to withdraw its UDI. In an ensuing referendum in February 1991, 90.47 per cent of valid votes cast favoured independence from the Soviet Union.
• In Estonia, after several transitional measures and a March 1991 referendum in which 77.83 per cent of valid votes cast supported independence, the Supreme Soviet declared independence on 20 August 1991. By this stage it had become clear that a hard-line coup attempt in Moscow had failed.
• In Latvia, a referendum in March 1991 showed 73.68 per cent of valid votes cast in favour of independence. The Latvian Supreme Soviet declared independence on 21 August 1991.
On 6 September 1991, the State Council of the Soviet Union voted unanimously to recognize the independence of the Baltic States. On 12 September 1991, the Security Council without dissent recommended their admission to the United Nations. Speaking after the adoption of the resolution, the President of the Security Council stated:
The independence of the [Baltic States] was restored peacefully, by means of dialogue, with the consent of the parties concerned, and in accordance with the wishes and aspirations of the three peoples. We can only welcome this development, which obviously represents progress in respecting the principles of the Charter of the United Nations and in attaining its objectives.74
The twin emphasis on restoration of independence and on the ‘consent of the parties concerned’ was clearly significant. The Security Council did not consider the applications for recognition made by the Baltic States until 12 September 1991, six days after the Soviet Union had agreed to recognize them. Thus the position of the Soviet authorities was treated as highly significant even in a case of suppressed independence. Individual Member States emphasized that, since the independence of the Baltic States had been unlawfully suppressed, they had the right of self-determination. But this was seen not as a (p. 395) right of unilateral secession, rather as a right ‘to resolve their future status through free negotiation with the Soviet authorities in a way which takes proper account of the legitimate rights and interests of the parties concerned.’75
(e) Successor States to the USSR
The eleven successor States of the former Soviet Union achieved independence by a form of break-away from the Soviet Union, a process that soon acquired the support of all twelve constituent republics, including the Russian Federation. The position of the Russian Federation was crucial since, despite initial uncertainty and some discontinuity of government personnel with the former Soviet Union, it was rapidly recognized as continuing the latter’s legal personality, both by the other constituent republics76 and by the United Nations.77 At the same time the Russian Federation accepted the emergence to independence of the other republics and supported their applications for United Nations membership. Moldova, Kazakhstan, Kirgizstan, Tajikistan, Turkmenistan and Uzbekistan were admitted to the United Nations on 2 March 1992, as were Armenia and Azerbaijan (despite the fact that they were then at war over Nagorny-Kharabakh). Ukraine and Belarus were original Members of the United Nations, a position they retained after independence. On 31 July, Georgia became the last of the former Soviet republics to be admitted to the United Nations, having also been the last to apply (on 6 May 1992). In all cases, admission to the United Nations was unopposed.
(f) Successor States to the SFRY
The successor States of the former Yugoslavia came into existence through a complex and violent process, beginning in late 1990 and reaching a certain, by (p. 396) no means complete, conclusion at the time of the Dayton-Paris Peace Agreement of 14 December 1995.78 A breakdown in the constitutional arrangements occurred in May 1991, when the normal rotation arrangements for the federal presidency were rejected by the Government of Serbia. On 25 June 1991, following earlier plebiscites, Slovenia and Croatia declared their independence and civil war broke out; by this stage the Yugoslav National Army was effectively in Serb hands. By an agreement signed at Brioni on 7 July 1991, the two constituent republics suspended their declarations of independence for three months. In the absence of any agreement on the restructuring of the federation, those declarations were, however, renewed on 8 October 1991, and further armed conflict occurred in Croatia and Bosnia (which declared its ‘sovereignty’ on 15 October 1991). Macedonia adopted a new constitution proclaiming its independence, following a referendum, on 17 November 1991. Through seizing control of the Yugoslav National Army and by other means, Serbia and Montenegro sought to maintain the territorial integrity of Yugoslavia, and they claimed legal continuity with the former Yugoslavia. In their view, the other four constituent Republics were in secession from Yugoslavia.
The international response to the Yugoslav crisis was largely articulated through the Conference on Yugoslavia established on 27 August 1991 by the European Communities. The Conference on Yugoslavia established an Arbitration Commission presided over by Robert Badinter, President of the French Constitutional Court, to advise it on legal issues in relation to the crisis. In its Opinion No 1 of 29 November 1991, the Commission expressed the view that the situation in Yugoslavia was one involving the dissolution of the Federal Republic and the consequent emergence of its constituent republics as independent States, although that process was not yet complete.79 The underlying rationale of Opinion No 1 was that, in the absence of a reconstituted federal government that represented the population of Yugoslavia as a whole, there was no government that had the authority to seek to prevent the separation of the constituent republics, and that such separation would lead References(p. 397) inevitably to the disappearance of the Socialist Federal Republic itself. The Commission did not use the phrase ‘self-determination’: rather its focus was on the breakdown of the federal arrangements for power sharing, arrangements that involved the representation of the constituent republics as such, and in a context where the breakdown of the federal system was accompanied by widespread ethnically motivated violence and displacement of persons (‘ethnic cleansing’).
Following Opinion No 1, the European Community issued Guidelines on Recognition of New States in Eastern Europe and the Soviet Union, and an associated Declaration on Yugoslavia, both dated 16 December 1991. The Guidelines on Recognition referred to ‘the principles of the Helsinki Act and the Charter of Paris, in particular the principle of self-determination’, as well as to ‘the normal standards of international practice [on recognition of new States] and the political realities in each case.’ They laid down various preconditions for recognition of new States in Eastern Europe and the Soviet Union, including respect for minority rights and maintenance of existing boundaries. The Declaration on Yugoslavia invited the constituent republics to apply for recognition on the basis laid down in the Guidelines, and all except Serbia-Montenegro did so. On 11 January 1992, the Arbitration Commission gave opinions considering each of these four applications.
The case of Slovenia was the least problematic. There had been no military action for many months, and the Government of Slovenia securely controlled its territory. The Arbitration Commission found that Slovenia fully satisfied the criteria for recognition. The Member States of the European Union extended recognition on 15 January 1992.80
even if the Constitutional Law in question does sometimes fall short of the obligations assumed by Croatia when it accepted the Draft Convention of 4 November 1991, it References(p. 398) nonetheless satisfies the requirements of general international law regarding the protection of minorities. Article 6(e) in particular is consistent with the fundamental principle of international law whereby all human beings are entitled to recognition, in the national context, of their membership of the ethnic, religious or language group of their choice.81
Macedonia, like Slovenia, substantially controlled its territory by December 1991; the Arbitration Commission held that it satisfied each of the requirements in the Guidelines. Macedonia had adopted a constitutional amendment providing that it ‘has no territorial claim on neighbouring States’, and the Commission held that: ‘the Republic of Macedonia has, moreover, renounced all territorial claims of any kind in unambiguous statements binding in international law; that the use of the name “Macedonia” cannot therefore imply any territorial claim against another State.’82 Greece was, however, not prepared to agree to the recognition of Macedonia under that title, and recognition by Members of the European Union did not occur until 16 December 1993, well after Macedonia had been admitted to the United Nations under the title ‘The Former Yugoslav Republic of Macedonia’.
Bosnia-Herzegovina was a still more difficult case, given the large Serbian minority and its strong military opposition to separation. At no stage did the Bosnian federal authorities control more than a fraction of the territory of the republic. Nonetheless ‘sovereignty’ was proclaimed on 15 October 1991. On 11 January 1992 the Arbitration Commission noted the disagreement between the various ethnic groups in the republic as to its future and concluded ‘that the will of the peoples of Bosnia-Hercegovina to constitute the SRBH as a sovereign and independent State cannot be held to have been fully established.’ On 29 February to 1 March 1992 a referendum was held, which was boycotted by the Bosnian Serb population but that resulted in a 63 per cent vote of the total electorate in favour of independence, which was declared on 3 March 1992. The Members of the European Community recognized the independence of Bosnia-Herzegovina on 6 April 1992.83
Serbia and Montenegro, under the name of the Federal Republic of Yugoslavia, adopted a new constitution on 27 April 1992, which maintained References(p. 399) its claim to continuity with the Socialist Federal Republic but excluded from its scope the other four Republics. At the same time it announced that it was:
disposée à respecter pleinement les droits et les intérêts des républiques yougoslaves qui ont déclaré leur indépendance. La reconnaissance des États nouvellement constitués interviendra une fois qu’auront été reglées les questions en suspens actuellement en cours de négociation dans le cadre de la Conférence sur la Yougoslavie.84
In the case of Bosnia-Herzegovina, recognition by the Federal Republic of Yugoslavia did not occur until signature of the Peace Agreement in December 1995.
None of the constituent republics was admitted to the United Nations prior to the adoption by Serbia-Montenegro of its new Constitution and to its declaration of 27 April 1992, which both clearly implied renunciation of any territorial claim to the territory of the other republics. Slovenia, Croatia and Bosnia-Herzegovina were admitted to the United Nations on 22 May 1992. Macedonia was admitted on 8 April 1993. The United Nations took the view that Serbia and Montenegro was not entitled to participate as a United Nations Member on the basis of continuity with the membership of the former Yugoslavia, and the matter of UN membership was not resolved until 2000.85 In other words, the United Nations proceeded on the basis that the former Yugoslavia had been dismembered.86
2. The dissolution of a State means that it no longer has legal personality, something which has major repercussions in international law. It therefore calls for the greatest caution.
The Commission finds that the existence of a federal State, which is made up of a number of separate entities, is seriously compromised when a majority of these entities, embracing a greater part of the territory and population, constitute themselves as sovereign States with the result that federal authority may no longer be effectively exercised.
By the same token, while recognition of a State by other States has only declarative value, such recognition, along with membership of international organizations, bears witness to these States’ conviction that the political entity so recognized is a reality and confers on it certain rights and obligations under international law.
After reviewing developments, including adoption of its new Constitution by Serbia-Montenegro on 27 April 1992 and the admission of three of the other References(p. 400) former Republics to the United Nations, it concluded that the process of dissolution of the Socialist Federal Republic of Yugoslavia ‘is now complete and that the SFRY no longer exists’.87
A General Framework Agreement for Peace in Bosnia and Herzegovina was initialled at Dayton, Ohio on 21 November 1995, and came into force upon its signature by the parties in Paris on 14 December 1995. It established a new federal constitution for Bosnia and Herzegovina, and sought to guarantee the territorial integrity of Bosnia and Herzegovina, both as against the Federal Republic of Yugoslavia and in relation to the two constituent entities of Bosnia and Herzegovina (the Federation of Bosnia and Herzegovina and Republika Srpska).88
Questions of international status in relation to Yugoslavia since 1991 have focused on the constituent republics, which were treated from an early stage not as entities seceding from a functioning State but as the product of the dissolution of a State the majority of whose territories and people, faced with violent attempts to hold the State together by one of its ethnic groups, wished to separate. This emphasis on the constituent republics as such, at a time when the State was in a process of dissolution, had a series of important consequences. In particular, it meant that international recognition was limited to the four republics. There was no correlative acceptance that any groups within the constituent republics had any right to secede. Nor was such a right recognized to any other territorial entities within the former Yugoslavia, including for example the autonomous area of Kosovo.
The appropriateness of the international response to the Yugoslav crisis continues to be debated. In particular the early recognition of Croatia and Bosnia-Herzegovina by member States of the European Union remains controversial,89 as too the unduly delayed recognition of Macedonia. The Arbitration Commission has been criticised for advocating, inter alia, notions about protection of minorities which go well beyond current international law, and for failing to take into account standard criteria for independence based on effective control of territory.90
(p. 401) In assessing the relevance or otherwise of the Yugoslav case to whether there is a right of unilateral secession, a number of points must be borne in mind. First, the Arbitration Commission, which provided the underlying legal rationale for the positions taken by the Members of the European Community and eventually by most Members of the United Nations, proceeded on the basis that the ‘process of breaking up’ of the Yugoslav Federation was a matter of fact, and that the emergence to independence of the constituent republics was a consequence of that fact. Secondly, it did not articulate any prior right to independence on the part of the constituent republics (although the Yugoslav Constitution of 1974 did purport to guarantee such a right to the six ‘nations’ it treated as indigenous to Yugoslavia). In particular the Commission did not rely on any right of self-determination of the constituent republics, as distinct from the continued proper functioning of federal organs in which those republics should have been directly represented.91 Thirdly, the situation was strongly affected by the following facts: (1) four of the six republics, containing a substantial majority of the population, were attempting to break away; (2) the constitutional order under which the constituent republics themselves ‘participate[d] in the exercise of political power within the framework of institutions common to the Federation’92 had completely broken down, and (3) Yugoslavia was undergoing large-scale and unrelenting ethnic conflict involving war crimes and crimes against humanity, in which, it was believed, the then leadership of the FRY was complicit.
In each of these respects, the way in which the Yugoslavian situation was handled provides no precedent for the extension of any international legal right to secede in the case of the constituent units of federal States. Early recognition of the successor States was based on the conclusion that as a matter of political fact the former Yugoslavia was dissolving, that this process was irreversible and that the so-called ‘federal authorities’ were in fact an emanation of Serbia-Montenegro and had no title to represent the former Yugoslavia as a whole. Even then, the successor States were not admitted to the United Nations until after Yugoslavia (Serbia/Montenegro) had reconstituted itself as a new entity under a constitution which excluded the other four former republics and had announced its preparedness in principle to recognise them.93
References(p. 402) (g) Czechoslovakia
The separation of the Czech Republic and Slovakia was a straightforwardly consensual process at the level of the governments and parliaments concerned. The two constituent republics became separate States after an agreement between them dissolving the Czechoslovak Federation. Dissolution was achieved by parliamentary action under a Constitutional Act of 1992, rather than by a secession referendum as provided for in the Constitutional Act of 1991. By the time agreed upon as the date for independence (1 January 1993), most of the arrangements for the dissolution of the Federation had been worked out by agreement between the two governments and ratified by the Federal Assembly, although certain other changes (including minor exchanges of territory) were subsequently agreed to. On 31 December 1992, the State of Czechoslovakia ceased to exist. The two new States were subsequently admitted unopposed to the United Nations.94
Eritrea was an Italian colony administered by Great Britain after 1941, initially as a belligerent occupant, subsequently pursuant to the provisions of the Italian Peace Treaty of 1947. It was federated with Ethiopia under UN auspices in 1952. In 1962 the federal arrangement was abolished unilaterally by Ethiopia, without reaction from the United Nations. The Eritrean Peoples Liberation Front (EPLF) fought for many years to gain independence without achieving any international recognition. In 1991 that movement assisted an Ethiopian movement (EPRDF) in defeating the forces of the military regime under Menghistu Haile Mariam, who later fled to Zimbabwe. The Transitional Government of Ethiopia, which emerged after this military victory, accepted that the people of Eritrea had a right of self-determination. A plebiscite was held under UN auspices in April 1993, resulting in a 99.8 per cent vote for independence. General Assembly resolution 47/114 of 16 December 1992 had established an observer mission for that purpose, on the basis that ‘the authorities directly concerned have registered their commitment to respect the results of the referendum in Eritrea.’ Eritrea was admitted to the United Nations with the support of the Transitional Government of Ethiopia, and without opposition.95 None of the United Nations resolutions concerning (p. 403) Eritrea since 1952 referred to self-determination, though the agreement between the Transitional Government and the EPLF described the situation as involving self-determination.96
(ii) Unsuccessful attempts at secession
Since 1945 there have been numerous attempts unilaterally to secede by groups or territories within independent States. The cases include, for example:
• Tibet (China);
• Katanga (Congo);
• Biafra (Nigeria);
• Kashmir (India);
• East Punjab (India);
• The Karen and Shan States (Burma);
• Turkish Federated State of Cyprus (Cyprus);
• Tamil Elam (Sri Lanka);
• South Sudan (Sudan);
• Somaliland (Somalia);
• Bougainville (Papua New Guinea);
• Kurdistan (Iraq/Turkey);
• Republika Srpska (Bosnia/Herzegovina);
• Chechnya (Russian Federation);
• Kosovo (Serbia-Montenegro);
• Abkhazia (Georgia);
• South Ossetia (Georgia);
• Anjouan (the Islamic Republic of the Comoros);
• Gaugauzia (Moldova);
• Nagorny-Kharabakh (Azerbaijan);
• Democratic Republic of Yemen (Yemen).
In many other cases support for secession has existed in a territory but has not risen to the level of a unilateral declaration of independence. Where the government of the State in question has maintained its opposition to the secession, such attempts have gained virtually no international support or recognition, and this has been true even when other humanitarian aspects of the situations have triggered widespread concern and action. For example, the situation of the Kurds in Northern Iraq was a matter of international concern and triggered action by the Security Council under Chapter VII of the Charter (p. 404) and by individual States by way of humanitarian intervention, both military and civil. But the operations in Northern Iraq, including the ‘no-fly’ zones policed by some western States, were explicitly carried out on the basis of the territorial integrity of Iraq, and this despite continued Iraqi repression of the Kurds and the stringent United Nations response to most other aspects of Iraqi policy.97
It is sufficient to refer only to a few of the cases of attempted unilateral secession by groups or territories within independent States.
The Faroes are a Danish territory under Home Rule. Unlike Greenland they were never treated as a colonial territory after 1945.98 But in a referendum on 14 September 1946 the electorate by a very narrow majority of valid votes cast favoured secession over autonomy, and this was followed by a parliamentary vote on 18 September 1946 in favour of secession. The Danish Government rejected unilateralism, and on 24 September 1946 the King, acting on the advice of the Danish Government, intervened, dissolving the Parliament and calling a general election (which was won by the Home Rule party). Following negotiations a new arrangement for Home Rule was ratified by the Danish Parliament and took effect on 1 April 1948. The Home Rule arrangements have evolved since but have remained stable. There was at no stage any international recognition of the Faroes as independent nor any international reaction to the unprecedented intervention by the King on 24 September 1946.99
The situation in the former Belgian Congo at independence in 1960 was discussed in Chapter 2. A secessionist regime in the province of Katanga, under the leadership of Moise Tshombe and with a considerable degree of external support, declared its independence eleven days after the Congo itself became independent. The secession was not ended until 21 January 1963: during that time the Katangan Government was considerably more stable than the central government of the Congo, though that stability was somewhat factitious, given substantial external involvement, and the revenues of the Union Miniére.100
(p. 405) Despite its claim to self-determination, Katanga was recognized by no State.101 Although the United Nations Force in the Congo was formally impartial as to the outcome of internal conflicts, its mandate included the promotion of the territorial integrity of the entire Congo,102 and in fact it was instrumental in ending the secession.103
It is not necessary … to express an opinion as to which article or articles of the Charter were the basis for the resolutions of the Security Council, but it can be said that the operations of ONUC did not include a use of armed force against a State which the Security Council, under Article 39, determined to have committed an act of aggression or to have breached the peace. The armed forces which were utilized in the Congo were not authorized to take military action against any State. The operation did not involve ‘preventive or enforcement measures’ against any State under Chapter VII and therefore did not constitute ‘action’ as that term is used in Article 11.104
Thus Katanga was at no time a ‘State’ for the purposes of the Charter.105
References(p. 406) (c) Biafra
In the Biafran situation the same conclusion must be reached. The secession of Biafra was declared on 30 May 1967106 and terminated on 12 January 1970.107 Biafra received less substantial external support than Katanga: it was an indigenous secession with some claims to self-determination in the political sense.108 Again unlike the Katangan case there was no substantial United Nations involvement, although the OAU was a strong supporter of the central government.109 Five States recognized Biafra unconditionally, although none of these established diplomatic relations with it.110 The vast majority of States adjudged that Biafra did not qualify for recognition as a State: indeed, there was no case even of belligerent recognition in the civil war.111 Once again it must be the case that Biafra was not a State.112
1. The Commission considers that international law as it currently stands does not spell out all the implications of the right to self-determination. However, it is well References(p. 407) established that, whatever the circumstances, the right to self-determination must not involve changes to existing frontiers at the time of independence (uti possidetis juris) except where the States concerned agree otherwise.
2. Where there are one or more groups within a State constituting one or more ethnic, religious or language communities, they have the right to recognition of their identity under international law. As the Commission emphasized in its Opinion No. 1 … the—now peremptory—norms of international law require States to ensure respect for the rights of minorities. This requirement applies to all the Republics vis-à-vis the minorities on their territory. The Serbian population in Bosnia-Hercegovina and Croatia must therefore be afforded every right accorded to minorities under international conventions as well as national and international guarantees consistent with the principles of international law and the provisions of Chapter II of the Draft Convention of 4 November 1991, which has been accepted by these Republics.
3. Article 1 of the two 1966 International Covenants on Human Rights establishes that the principle of the right to self-determination serves to safeguard human rights. By virtue of that right every individual may choose to belong to whatever ethnic, religious or language community he or she wishes. In the Commission’s view one possible consequence of this principle might be for the members of the Serbian population in Bosnia-Hercegovina and Croatia to be recognized under agreements between the Republics as having the nationality of their choice, with all the rights and obligations which that entails with respect to the States concerned.113
The Commission treated the Serbian population as a ‘minority’ and denied that they had any right to form an independent State. On the other hand, it did not deny the right of self-determination at the internal level, with the consequence, first, that ‘every individual may choose to belong to whatever ethnic, religious or language community he or she wishes’, and, secondly, that they might possibly have the right to adopt the nationality of their choice, under agreements to be concluded between the various republics. In the result, external self-determination was denied to Republika Srpska, a position expressly confirmed in the Dayton Agreement.114
So too has it been denied to the lesser territorial units that had held a special constitutional status within the former SFRY—in particular the autonomous (p. 408) region of Kosovo. Kosovo (like the Vojvodina) was an autonomous region within the Republic of Serbia; it had nearly 2 million inhabitants of whom nearly ninety per cent were ethnic Albanians. Its substantial autonomy was unilaterally terminated by the Serbian Government in 1990, and there followed a substantial measure of repression. The Albanian leadership of Kosovo declared its independence in October 1991, but this was recognized only by Albania. More than one sixth of the population of Kosovo fled abroad, and a worsening of the humanitarian situation and of human rights abuses led in 1999 to increased international concern. Armed intervention by NATO Member States resulted in the withdrawal of Serbian authorities, and in June 1999 the Security Council authorized an international civil administration in the territory.115 However, Kosovo’s legal position remains that of an autonomous area under international administration: the territorial integrity of Serbia and Montenegro has so far been preserved and Kosovo is not (or not yet) a State.116
Before 1990 the Chechen and Ingush peoples were united in the autonomous republic of Chechen-Ingushetia, a constituent republic of the Russian Soviet Federated Socialist Republic. On 2 November 1991, Chechnya purportedly declared its independence from the Russian Federation, the USSR and also Ingushetia, the other region constituting the former autonomous republic of Chechen-Ingushetia.117 After a brief skirmish with Russian troops, Chechnya was largely left to its own devices; its government maintained effective control over the republic.118 In December 1994, the Russian Army made a large-scale attempt to suppress the separatist movement, which was unsuccessful.119 A cease-fire was agreed on 27 May 1996 between the Russian Federation and the Chechen Republic; a Joint Declaration, signed on 25 August 1996 at Khasavyurt, referred (p. 409) to ‘the universally recognised right of nations to self-determination’ and provided for an agreement on mutual relations ‘according to the universally accepted principles and norms of international law’ to be reached by 31 December 2001.120 Meanwhile Chechen forces re-captured Grozny, the territorial capital. Elections conducted in January 1997 were judged free and fair by OSCE and Council of Europe observers, and a new Chechen government took office in February 1997.121 But despite Russian military defeat and withdrawal and the instatement of a representative local administration, there was no international recognition of the independence of Chechnya.122 Following serious lapses in public order in Chechnya and incursions by Chechen groups into Daghestan (a neighbouring constituent republic of the Russian Federation), Russian forces in autumn 1999 started a second major operation against the Chechen separatists. This resulted in the capture of Grozny and, at length, the subjection of most of the territory of Chechnya to Russian Army control, though still contested by Chechen guerrillas who continued to oppose by violence an indigenous administration supported by Russia. There was much criticism of Russian conduct in Chechnya on grounds of the use of disproportionate force, violations of international humanitarian law and breach of arms control agreements.123 But it has been accepted that the conflict in Chechnya is an internal armed conflict, and that the principle of territorial integrity applies. For example, the French Foreign Minister said on 9 January 1995:
La Tchétchénie fait partie de la Fédération de Russie. Le respect du principe de souveraineté et d’intégrité territoriale est une des règles de base de la vie internationale. Mais les Etats membres de la OSCE ont pris des engagements et sont reconnus un droit de regard mutuel sur ce qui se passe à l’intérieur de leurs propres territoires nationaux.124
The British Government stated that:
the exercise of the right [of self-determination] must also take into account questions such as what constitutes a separate people and respect for the principle [of] territorial (p. 410) integrity of the unitary state. In the case of Chechnya no country has recognised President Dudayev’s unilateral declaration of independence, but we have repeatedly called on the Russians to work for a political solution which would allow the Chechen people to express their identity within the framework of the Russian Federation.125
The United States Government said that:
We support the sovereignty and territorial integrity of the Russian Federation … We oppose attempts to alter international boundaries by force, whether in the form of aggression by one state against another or in the form of armed secessionist movements such as the one led by Dzhokhar Dudayev. That is why we have said that we regard Chechnya as a matter which the Russian Government and the people of Chechnya will have to resolve together peacefully by political means … [A]lthough Chechnya is an integral part of the Russian Federation, Moscow should limit any use of force to a minimum, and respect human rights …126
The international organizations seized of humanitarian issues in Chechnya took similar positions. For example, the UN Committee on the Elimination of Racial Discrimination indicated that ‘international law has not recognized a general right of peoples to unilaterally declare secession from a State’ and that ‘fragmentation of States may be detrimental to the protection of human rights as well as to the preservation of peace and security.’127
Thus even though other governments qualified the Chechens as a ‘people’, and even though this people was subject to violations of human rights and humanitarian law on a large scale, the principle of territorial integrity has been respected and reaffirmed.128
Quebec was a French colony which was ceded to Great Britain in 1763.129 It became one of the four initial provinces of Canada at confederation in 1863, but thereafter (and despite a major contribution to Canadian public life) many French-speaking Quebeckers were concerned at the risk of being submerged by English Canada. Since its formation in 1968, the Parti quebecois has had independence from Canada as its main aim, and for much of that time it has been in government in Quebec. Independence referenda were conducted by the Province in 1980 and 1995. The defeat of the 1995 referendum by a few thousand votes raised concern in Canada as a whole as to the impact and consequences for the nation of an eventual ‘yes’ vote. Accordingly the federal Government in 1966 asked the Supreme Court of Canada for an advisory opinion on three questions relating to the ‘unilateral secession’ of Quebec. The second question concerned international law issues. The Court was asked:
Does international law give the National Assembly, legislature or government of Quebec the right to effect the secession of Quebec from Canada unilaterally? In this regard, is there a right to self determination under international law that would give the National Assembly, legislature or government of Quebec the right to effect the secession of Quebec from Canada unilaterally?
We have also considered whether a positive legal entitlement to secession exists under international law in the factual circumstances contemplated by Question 1, i.e., a clear democratic expression of support on a clear question for Quebec secession. Some of those who supported an affirmative answer to this question did so on the basis of the recognized right to self-determination that belongs to all ‘peoples’. Although much of the Quebec population certainly shares many of the characteristics of a people, it is not necessary to decide the ‘people’ issue because, whatever may be the correct determination of this issue in the context of Quebec, a right to secession only arises under the principle of self-determination of peoples at international law where ‘a people’ is governed as part of a colonial empire; where ‘a people’ is subject to alien subjugation, domination or exploitation; and possibly where ‘a people’ is denied any meaningful exercise of its right to self-determination within the state of which it forms a part. In other circumstances, peoples are expected to achieve self-determination within the framework of their existing state. A state whose government represents the whole of the people or peoples resident within its territory, on a basis of equality and without discrimination, and respects the principles of self-determination in its internal References(p. 412) arrangements, is entitled to maintain its territorial integrity under international law and to have that territorial integrity recognized by other states. Quebec does not meet the threshold of a colonial people or an oppressed people, nor can it be suggested that Quebecers have been denied meaningful access to government to pursue their political, economic, cultural and social development. In the circumstances, the National Assembly, the legislature or the government of Quebec do not enjoy a right at international law to effect the secession of Quebec from Canada unilaterally.130
The astute balance achieved by the Court in its unanimous opinion—no right of unilateral secession either under constitutional or international law, but a constitutional right to negotiate independence in the event of a clear affirmative answer to a clear question about secession—did much to clarify the situation and to reduce tension.131 The constitutional right to negotiate terms of separation has seemed to reduce the likelihood of separation altogether.132
Indeed the Parliament of Canada sought to take matters further. In 2000 it adopted an Act to clarify the terms of the right to negotiate.133 The Clarity Act, so called, provides that the House of Commons shall consider the text of any future referendum question ‘relating to the proposed secession of [a] province’, in order to determine ‘whether the question is clear’ (s 1(1)) and ‘shall take into account’ the size of the majority in the referendum, percentage of voter participation, and ‘any other matters or circumstances it considers to be relevant’ (s 2(2)).134 Whether this attempt to make clarity doubly clear was worthwhile remains to be seen.
Somaliland was a British protectorate that became independent on 26 June 1960 and 4 days later joined the former Trust Territory of Italian Somaliland (p. 413) under an Act of Union. The different colonial traditions combined with tribal differences, and the Act of Union of 1960 proved difficult to implement. The English common law and the Indian Penal Code were in force in Somaliland; the Italian Code continued in the south. Economic differences also existed and were exacerbated by a lack of infrastructure connecting the regions.136 Though measures were taken to address these problems, including a UN Consultative Commission for Integration, distinctions between the parts of the country remained.137 The appearance of hundreds of thousands of refugees in the north after the war of 1977 to 1978 with Ethiopia over the Ogaden worsened north-south relations, and the eventual decision by the Government to seize Issaq lands and transfer these to refugees triggered a northern resistance, the Somali National Movement (SNM).138 Some 50,000 Issaq civilians were estimated to have been killed during the civil war.139 A much larger number fled to Ethiopia or were internally displaced.140
1. The country which gained its independence from the United Kingdom of Great Britain and Northern Ireland on 26th June 1960 and was known as the Somaliland Protectorate and which joined Somalia on 1st July 1960 so as to form the Somali Republic and then regained its independence by the Declaration of the Conference of References(p. 414) the Somaliland communities held in Burao between 27th April 1991 and 15th May 1991 shall hereby and in accordance with this Constitution become a sovereign and independent country known as ‘The Republic of Somaliland’.
The territory of the Republic is defined as ‘the same area as that of the former Somaliland Protectorate’.144
[T]he Tribunal did not consider whether the fluid situation it described (even if relatively stable by Somali standards), might change so as to expose Ms Jama to a real chance that she would suffer serious harm by reason of her clan membership … [T]he Republic of Somaliland in 1997 had rejected the so-called Sodere agreement which called for the reunification of Somalia. It was under pressure from other Somali factions to renounce its bid for secession. In these circumstances, bearing in mind that the relative stability in north-west Somalia involved ‘continuing skirmishes’ between clan fighters, it might have been thought that the prevailing conditions were not guaranteed to continue unchanged.149
References(p. 415) Throughout the period since the declaration of independence, Somaliland officials have made clear their position that the territory is not part of Somalia and have rejected proposals for a single government over the entire territory of Somalia.150 According to the UN Secretary-General, Somaliland ‘has maintained a high degree of autonomy’ at least since 1996.151 But no third State has recognized the independence of Somaliland, despite a wide range of contacts and visits. The Court of Auditors of the European Communities assessed a decision by the Commission to appropriate aid to restore customs and tariff institutions at the port of Berbera in Somaliland in the following terms: ‘The Commission should have been more cautious before committing itself to revenue-generating projects under the present conditions as Somaliland, where the port is located, has not been internationally recognised as an autonomous State.’152 While expressing no view on the Somaliland claim to independence, the UN Secretary-General has indicated the need for an ‘expanded United Nations role’ in ‘assisting in the effort to address the issue of Somaliland.’153
(iii) Summary of post-1945 practice
To summarize, outside the colonial context, the principle of self-determination is not recognized as giving rise to unilateral rights of secession by parts of independent States. Self-determination outside the colonial context is primarily a process by which the peoples of the various States determine their future through constitutional processes without external interference. Faced with an expressed desire of part of its people to secede, it is for the government of the State to decide how to respond, for example by insisting that any change be carried out in accordance with constitutional processes. In fact no new State formed since 1945 outside the colonial context has been admitted to the United Nations over the opposition of the predecessor State.
State practice since 1945 shows the extreme reluctance of States to recognize or accept unilateral secession outside the colonial context. That practice has not changed since 1989, despite the emergence during that period of twenty-three new States. On the contrary, the practice has been powerfully reinforced. Of the new States which have emerged since 1945 outside the context of decolonization, only one case may be classified as a successful secession in the sense described above, viz Bangladesh. The indications are that the United Nations did not treat the emergence of Bangladesh as a case of self-determination despite good grounds for doing so, but rather as a fait accompli achieved as a (p. 416) result of foreign military assistance in special circumstances. The violence and repression engaged in by the Pakistan military made reunification unthinkable, and in effect legitimized the creation of the new State. In all other cases which might otherwise be classified as unilateral secession (Senegal, Singapore, the Baltic States and Eritrea) the consent of the relevant parties was given before independence was externally recognized as accomplished, and the process was accordingly not unilateral.154 The key feature in the cases of Senegal, Singapore and Eritrea was that separation was expressly agreed to by the parties directly concerned. With the Baltic States, the essential rationale was the recovery of independence forcibly suppressed,155 but even so, considerable importance was attached to the indication of consent given by the State Council of the Soviet Union.
A second group of cases involved States in Eastern and Central Europe immediately after the collapse of communism (Soviet Union, Yugoslavia, Czechoslovakia).156 With the exception of Yugoslavia, the emergence of the constituent units of these States took place on a basis of agreement by those concerned, and international recognition followed upon that agreement. The position of Yugoslavia was different, but the articulated basis for the European and international response to the outbreak of violence and armed conflict in Yugoslavia was that this was inevitably producing the dissolution of Yugoslavia as a matter of fact. Neither the European Union nor the United Nations proclaimed that the peoples of Yugoslavia had a prior right to secede by virtue of the principle of self-determination. On the contrary the emergence of the constituent republics was treated as a consequence of the dissolution of Yugoslavia, and early international recognition was seen (rightly or wrongly) as a way of containing the violence and limiting the issues to be resolved.
By contrast, attempts at unilateral secession continue to occur. Where the government of the State has maintained its opposition to the unilateral secession such attempts have gained virtually no international support or (p. 417) recognition, and this has been true even when other humanitarian aspects of the situation have triggered widespread concern and action. The strongest example of this is Somaliland, which has maintained its de facto independence for a considerable period in face of opposition and eventual disintegration of the central authorities. In a sense the absence of a recognizable government at national level has hindered the authorities in Somaliland in their quest for independence. There has been no effective government in Mogadishu to deal with on the subject of, or even to acquiesce in, the independence of Somaliland, and third States have not taken any initiative to press the matter to a conclusion, as was done in the former Yugoslavia. The notion of a de facto regime has been pressed to its ultimate—and Somaliland is not yet a State.
Thus there is a common pattern of international responses to unilateral secession and threats of such secession in the non-colonial context, a pattern which has normative significance. This may be summarized as follows:
(1) There is strong international reluctance to support unilateral secession or separation, and there is no recognition of a unilateral right to secede based merely on a majority vote of the population of a given sub-division or territory. In principle, self-determination for peoples or groups within the State is to be achieved by participation in its constitutional system, and on the basis of respect for its territorial integrity.
(2) In many cases referenda conducted in territories wishing to secede have returned very substantial majorities in favour (in the range of 65–99%). But even in cases where there is a strong and continued call for independence, it is a matter for the government of the State concerned to consider how to respond.
(3) Even in the context of separate colonial territories, unilateral secession was the exception. Self-determination was in the first instance a matter for the colonial authority to implement; only if it was blocked by the colonial authority did the United Nations support unilateral secession. Outside the colonial context, the United Nations is extremely reluctant to admit a seceding entity to membership against the wishes of the government of the State from which it has purported to secede. There is no case since 1945 where it has done so. Where the parent State agrees to allow a territory to separate and become independent, the terms on which separation is agreed between the parties concerned will be respected, whether it involves continued association with that State (Faroes) or emergence to independence (Eritrea). If independence is achieved under such an agreement, rapid admission to the United Nations will follow. But where the government of the State concerned has maintained its opposition to an attempted unilateral secession, such secession has in modern practice attracted virtually no international support or recognition.
(p. 418) (4) This pattern is reflected in the so-called ‘safeguard’ clause to the Friendly Relations Declaration of 1970, as restated by the 1993 Declaration of the Vienna World Conference on Human Rights (set out in Chapter 3). In accordance with this formula, a State whose government represents the whole people of its territory on a basis of equality complies with the principle of self-determination in respect of all of its people and is entitled to the protection of its territorial integrity. The people of such a State exercise the right of self-determination through their participation in the governmental system of the State on a basis of equality. The correlative is that a State which is governed democratically and respects the human rights of all its people is entitled to respect for its territorial integrity.
(5) These propositions apply to secession movements within independent States, even in cases where the State itself may be in the process of dissolution. However, there is a distinction between cases of unilateral secession and dissolution. If it becomes clear that the process of dissolution of the State as a whole is irreversible, the consent of the government of the predecessor State may cease to be required for the separation of its constituent parts. In such a case that government will itself be in the process of dissolution, and may have ceased to represent the former State. But there is a strong presumption against dissolution, and the only case of successful separation under these circumstances is that of the constituent republics of the former Yugoslavia.157
(6) There is a distinct issue of internal self-determination, in the sense of the recognition of cultural identity and internal self-government for different groups or peoples within the State. But these developments do not affect the established rules and practices with respect to self-determination and the territorial integrity of States. They lend no support to the view that peoples within independent States have a unilateral right to secede.
Certain incidents of secession in modern international law also require at least brief consideration.
(1) Belligerency and insurgency in secession struggles
The role of the institution of belligerent recognition in nineteenth-century civil wars has been briefly discussed earlier in this chapter. It was an (p. 419) intermediate legal status, involving some legal capacity, but not equivalent to statehood. Other legal incidents of civil wars—the laws of war, intervention and the like—were at least notionally attached to recognition of belligerency, which was thus in theory a relatively monolithic and identifiable form of regulation. But this is no longer true, if it ever was. Recognition of belligerency assumed the existence of relatively stable territorial units contesting the war. Most civil wars in the modern period have been conducted as less centralized, less territorial guerrilla wars.158 Even when civil war has been conducted from a more or less coherent territorial base, the unwillingness of metropolitan or central governments to accord insurgents any form of status, and the political delicacy of third State recognition of belligerency, have operated to internalize even prolonged civil wars.159 There was no clear twentieth century case of recognition of belligerency: the result, it has been persuasively argued, has been the desuetude of recognition of belligerency.160 Other candidates such as ‘recognition of insurgency’ have failed to establish themselves in practice or doctrine.161 Instead, recognition of insurgents as the government (as in Spain) or as a new State (as in Biafra) has effectively replaced belligerent recognition—despite the prematurity of recognition in most cases.162 Intervention on behalf of both parties—whether or not under the cover of recognition—has become a common phenomenon in civil wars of all types.163
If international law is effectively to regulate civil conflict, it must do so by regulating specific problems rather than through the medium of some more general legal status such as belligerency. Fortunately these problems are to a large extent outside the scope of this study, but some brief reference to the more important issues follows.
Under the old law of belligerent status, the laws of war applied to civil conflict when belligerency was recognized; before that point, the treatment of rebel forces in accordance with those rules, if it occurred, was a concession of the central government. With the decline of belligerency the problem of the application of general standards of conduct of war to civil wars has proved troublesome. Common Article 3 of the 1949 Geneva Conventions of the Laws of War provides for the application of certain minimum standards ‘in the case of armed conflict not of an international character’.164 Since secessionist regimes are ex hypothesi not signatories to the convention, the application of Article 3 has met with difficulties in practice:165 moreover, its operation is limited to persons taking no active part in the hostilities. The status of combatants in a civil war is thus left to the limited mercy of the customary law and the discretion of the metropolitan government.166 However, attempts have been made to extend the international laws of war (as distinct from the minimum protection of Common Article 3) to civil conflict. Article I(4) of Protocol I additional to the Geneva Conventions, relating to the Protection of Victims of International Armed Conflicts (1977), extends the notion of international armed conflict to include ‘armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination.’167 International criminal tribunals have also extended the scope of application of international humanitarian law in civil conflict—without reference to Article I(4) of Protocol I.168 In the Wall Advisory Opinion, the International Court confirmed that international humanitarian law is applicable to the Israel-Palestine conflict, but did so on grounds relating to the participation of Egypt and Jordan in the 1967 War, References(p. 421) which resulted in the occupation by Israel of Gaza, the West Bank and the Old City of Jerusalem.169
(3) Military and civil aid to seceding regimes
The question of legality of intervention in aid or opposition to a revolutionary or secessionary force is highly controversial. There is little agreement on a satisfactory and comprehensive regulation of intervention, but once again the matter is largely outside the scope of this study. The argument that, exceptionally, aid or intervention is permissible to liberation movements in self-determination territories has been referred to already. In all sorts of conflicts the lawfulness of providing food aid is coming to be recognized, even though this may involve dealing with breakaway regimes.170
In a situation of secession, an effective territorial entity can subsist for a lengthy period of time without any or with only a provisional legal status. If the entity subsequently establishes itself as a State, questions of commencement, continuity and responsibility arise. These issues are discussed in Chapter 15.
The creation of the State of Israel in 1948 to 1949 presents a perplexing and important instance of international legal arguments adduced for and against the existence of States, initially Israel, subsequently Palestine. On the whole, neither side in the controversy has taken the position that the creation of the State of Israel was merely a question of fact,171 and the State of Palestine has not yet become a fact as distinct from an aspiration. Complex legal arguments have been presented for a variety of positions, and these arguments retain their relevance in the more recent literature on the Middle East conflict.172
(p. 422) Palestine was in 1914 an undivided part of the Ottoman Empire without separate status. It was occupied by British troops in 1917 and came to be disposed of as part of the post-war settlement. The difficulty in achieving such a settlement was that, by 1917, Britain had incurred conflicting obligations with respect to Palestine. In an exchange of notes with France in 1916 (referred to as the Sykes-Picot Agreement) it had been agreed that Britain and France would recognize an independent Arab State or confederation in the area, and arrangements had been made for division of influence and protection.173 On the other hand, in a letter of 2 November 1917 Lord Balfour had stated, on behalf of the British War Cabinet, that:
His Majesty’s Government view with favour the establishment in Palestine of a national home for the Jewish people, and will use their best endeavours to facilitate the achievement of this object, it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country.174
In the event the latter, a somewhat ambiguous domestic political statement,175 took priority over the former, and the Balfour Declaration was eventually incorporated in the Mandate for Palestine.
(i) The Mandate for Palestine
to entrust, by application of the provisions of Article 22, the administration of Palestine, within such boundaries as may be determined by the Principal Allied Powers, to a Mandatory to be selected by the said Powers. The Mandatory will be responsible for putting into effect the declaration originally made on the 2nd November 1917, by (p. 423) the British Government, and adopted by the other Allied Powers, in favour of the establishment in Palestine of a national home for the Jewish people, it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country.176
La Turquie déclare renoncer à tous droits et titres, de quelque nature que ce soit, sur ou concernant les territoires situés au dela des frontières prévues par le présent Traité et sur les îles autres que celles sur lesquelles la souveraineté lui est reconnue par ledit Traité, le sort de ces territoires et îles étant réglé ou à régler par les intéressés …178
The Treaty of Lausanne made no reference either to Article 22 of the Covenant or to the Balfour Declaration.
The Mandate made special provision for the division of Palestine. By an amendment to the Mandate approved in November 1922, Britain was authorized to divide the territory into two, and to limit the application of the Balfour Declaration to the area to the west, excluding what was then referred to as Transjordan.179 As described in the Palestine Order-in-Council of 1 September 1922, Transjordan consisted of ‘all territory lying to the east of a line drawn from a point two miles west of the town of Aqaba on the Gulf of that name up the centre of the Wadi Araba, Dead Sea and River Jordan to its junction with the Yarmuk: hence up the centre of that river to the Syrian frontier.’ Self-determination for the residents of Transjordan was achieved in stages, beginning with a Treaty between Great Britain and the Emir Abdullah of 20 February 1928,180 and culminating in a Treaty of Alliance of 22 March 1946 References(p. 424) that marked the full independence of Jordan.181 Although various links existed between Jordan and the Occupied Territories (not limited to the period 1949 to 1967 when Jordan administered the West Bank), the effect of the separation was that issues of self-determination in respect of Palestine properly so called, that is, the area west of the 1922 line, had thereafter to be separately resolved. The 1994 Peace Treaty between Israel and Jordan confirms that the western boundary of Jordan is the line laid down in 1922, but left other issues to be resolved as part of the Permanent Status Negotiations.182
(ii) The abandonment of the Mandate and its aftermath
On 18 February 1947 the British Foreign Secretary announced that Britain was referring the question of Palestine to the United Nations, and that Britain would withdraw its administration by 1 August 1948.183 On 29 November 1947, the General Assembly, by a vote of thirty-three (France, USA, USSR) to thirteen (including all the Arab States) with ten abstentions (China, UK, Yugoslavia), adopted resolution 181(II), incorporating a plan for the partition of Palestine into two States (Arab and Jewish), economic union between them and the internationalization of Jerusalem.184 The Mandate was to terminate upon British withdrawal, and in any case not later than 1 August 1948.185 The Zionist League declared its acceptance of the partition plan, but it was rejected by the Arab States and organizations. The Security Council failed to take the enforcement measures requested by the Assembly in resolution 181 (II),186 and various alternative plans were mooted.187 On 14 May 1948 the Assembly at its Second Special Session appointed a United Nations Mediator in Palestine, inter alia, to ‘promote a peaceful adjustment of the future situation of Palestine’, and relieved the Special Commission for Palestine—which, under resolution 181 (II) had been intended to take over the administration of Palestine prior to the establishment of the two partition States—of its (p. 425) responsibilities.188 On the same day a ‘Provisional State Council’ proclaimed the independence of Israel.189 Ten minutes later the United States accorded it unqualified recognition.190 The Mandate terminated at midnight with the formal British withdrawal. On 15 May 1948 the armed forces of surrounding Arab States invaded Palestine. Ceasefire agreements were signed in 1949 between the various belligerents,191 and Israel was shortly thereafter admitted to the United Nations.192 The territory under Israeli control at the ceasefire was considerably more extensive than its proposed territory under the partition resolution. The remaining territory of pre-1948 Palestine was occupied by Jordan (the West Bank, East Jerusalem) and Egypt (the Gaza Strip). This occupation lasted until 1967, when, as a result of the Six Day War, Israel occupied those territories.193
In terms of these events, questions arise both with respect to the State of Israel and an existing or putative Palestinian State. The two require separate treatment and will be discussed in turn.
As to Israel, many different legal positions have been taken. First, it is arguable that the Mandate for Palestine was null and void because of its inconsistency with Article 22 of the Covenant. But proponents of this view194 have not been very clear as to the consequences of the nullity of the Mandate, and some indeed have tended to argue as if its nullity made no legal difference to the events of 1947 to 1949.195 But the existence of Jews as a separate group in Palestine had its basis in the Mandate, which incorporated the Balfour (p. 426) Declaration and authorized the Mandatory to establish a Jewish National Home in Palestine. If the Mandate was invalid, then the notion of a Jewish ‘nation’ in Palestine was illegitimate, and that the principle of self-determination, applied to the Mandates by Article 22, would only have concerned the Arab majority resident in the territory. On this basis the creation of Israel would have been an outright violation of self-determination, quite apart from the legitimacy of the terms of partition themselves.196 A further consequence would presumably be the invalidity of resolution 181 (II).
Assuming that the Mandate was valid, a second possible view is that British abandonment of Palestine and the termination of the Mandate left Palestine as terra nullius open to occupation by any State, existing or to be created. This was one justification given for the Arab invasion after 15 May 1948.197
But thirdly, assuming the territory was not terra nullius, it is arguable that the General Assembly resolution constituted a binding arrangement for the future of the territory. This view was taken by the Soviet Union198 and by the United Nations Secretary-General.199 A consequence of this argument, presumably, would be that Israel was only legitimately created with respect to its partition territory but that, on the other hand, immediate recognition of Israel was justified.
Fourthly, it is arguable that, although the partition resolution was not binding it constituted a valid legal authorization to the parties concerned to take steps to achieve the purposes of the resolution; that in establishing Israel the Provisional Government acted on that authorization and that Israel was accordingly legitimately created, at least with respect to its partition territory.200
References(p. 427) Fifthly, it is arguable that the Partition Resolution, although it was not otherwise complied with, effectively partitioned Palestine into two self-determination units, one for each of the peoples, Israeli and Palestinian; so that the independence of Israel with respect to its partition territory was an expression of its separate self-determination as to the area allocated to it in the resolution. The consequence of this argument would presumably be to legitimize the immediate recognition of Israel, despite doubts as to its effectiveness or stability at that time.
Sixthly, assuming that Palestine in 1948 remained a single undivided self-determination unit, it is arguable that the creation of Israel occurred through secession from ‘Palestine’ as a whole. But even so, it may be that the secession of Israel was not a violation of self-determination, because of the provisions of the Mandate recognising the ‘Jewish national home’, and the relative population of Jews and Arabs in Palestine at the time.201 On that view, the criterion for statehood would be the normal rules of effectiveness and stability. Arguably the immediate recognition of Israel was premature, but the prematurity would have been cured by subsequent events, and in particular by the effective establishment of the State of Israel within its ceasefire territory. But another view is that the secession was a violation of self-determination by a minority of the whole population of Palestine. In such a case, either rigorous criteria of permanence and stability should have been applied, or it might even have been the case that the rule precluding recognition of States brought into existence in violation of self-determination applied, so that Israel was not a State at all, and was accordingly illegally recognized and improperly admitted to the United Nations.202
It must first of all be noted that some of the arguments outlined above assume the existence of rules which have only been established in international law since 1948. The principle of the intertemporal law requires that events occurring at a particular period be judged by the law applicable at that time. Arguments which rely on legal developments not accepted at the time—for example, the principle that self-determination is an overriding criterion of statehood, permitting early recognition of self-determination movements, and precluding the statehood of any entity created in violation of self-determination—may therefore be misplaced. Nonetheless there is value in assessing the case of (p. 428) Israel in accordance with the present rules relating to the acquisition of statehood and territorial status, since in 1948 those rules were already emerging, and since the definitive formulation of a particular rule may well await a situation requiring its application.
A second preliminary observation is that the principle of self-determination, in its application to Palestine, is not one of these doubtful or later-developed rules. It has been argued that since self-determination was not a general rule or principle of international law in 1920 or in 1948, it can have had no application to Palestine at either period.203 But the Covenant and (subject to one point) the Mandate specifically applied the principle of self-determination to the territory of Palestine. This position was, at least by implication, reaffirmed by Article 80 of the Charter.204 Palestine in 1948 constituted a self-determination unit in international law.
(i) The validity of the Mandate for Palestine
The validity of the Palestine Mandate has been challenged on three distinct grounds: as a violation of the right to self-determination or of the ‘sovereignty’ of the existing inhabitants of Palestine; as a violation of the sovereignty of Turkey and as a violation of Article 22 of the Covenant. The underlying difficulty with each of these arguments is the explicit recognition of the Jewish people’s right to form a homeland in Palestine pursuant to the Balfour Declaration, a statement never consented to by the Ottoman Empire but nonetheless incorporated into the Mandate. In effect the Mandate constituted a trust over the same territory, the beneficiaries of which were two distinct and predictably antagonistic peoples.
If this constituted a violation of the rights of the existing (overwhelmingly Arab) population of Palestine,205 the difficulty is that the people of Palestine were not then ‘sovereign’ with respect to their territory;206 nor were they, prior to the Mandate, a subject of international law. There was in 1920 no general right of self-determination in international law. At the Versailles Conference, (p. 429) that principle was applied by way of exception to mandated territories207 but it did not apply independently of Article 22 of the Covenant.
If it is argued that because Turkey failed to ratify the Treaty of Sèvres, which incorporated both the Covenant and the Balfour Declaration, but instead merely relinquished title in general terms, the application of the Balfour Declaration to Palestine was in some way unlawful,208 the response is that Article 16 of the Treaty of Lausanne implied Turkish recognition of the Palestine Mandate, which had already been publicly approved by the Council.
A third ground of objection is more substantial. Article 22 of the Covenant expressly provided, as a basic principle, that ‘the well-being and development of such peoples [i.e. the inhabitants of the territories concerned] form[ed] a sacred trust of civilization …’, and it is clear that this language referred to the actual inhabitants of mandated territories. This was especially so in the case of ‘certain communities formerly belonging to the Turkish Empire’: only the Arab inhabitants of Palestine fitted this description.209 The provision for an entirely distinct introduced population of Palestine, contrary to the interests and the wishes of its existing inhabitants, thus contradicted Article 22,210 however imprecise the language of that Article.
But if the incorporation of the Balfour Declaration in the Mandate contradicted both the political rights of the inhabitants and the terms of Article 22 itself, it is also clear that the League, confronted with this position, approved the Mandate and affirmed its validity throughout, and this position was affirmed in turn by Article 80 of the Charter.211 This is an insuperable barrier to arguing that the Mandate was invalid as a matter of international law. Indeed, by analogy with termination of mandate and trusteeship agreements, it is probably the case that the approval of the Mandate by the appropriate body had ‘definitive legal effect’, so that no other body could question its validity.212 Certainly the Permanent Court in the Mavrommatis case showed no inclination to do so, although the Mandate was the basis for its jurisdiction in the case,213 References(p. 430) and even though it is settled that the Court should raise and consider, independently of the parties, any relevant objections to its jurisdiction.214 Thus despite its inconsistency with Article 22, the Mandate for Palestine was valid; at any rate it was validated by the general practice of the members of the League, acquiesced in by those other States who were ‘interested’ in terms of Article 16 of the Treaty of Lausanne.215
(ii) Validity and legal effects of the Partition Resolution
Three views of the validity and legal effects of GA resolution 181(II) are possible. It might have been ultra vires; it might have been only a recommendation or it might have constituted a valid and effective disposition of Palestine, at least to the extent of authorizing those concerned to implement it.
The view that the resolution was ultra vires216 derives from a general implication as to the dispositive powers of the General Assembly. However, even earlier practice suggested that United Nations organs can make binding dispositions of territory in appropriate circumstances, pursuant to a delegation of power from States concerned or otherwise. This view has been twice reaffirmed, in the context of the Mandate system, by the International Court in the Status Opinion217 and the Namibia Opinion.218 There is no basis for treating the resolution as ultra vires.219
Indeed, in one respect at least it is clear that the resolution had definitive legal effect. A Mandatory could not by its own unilateral act resile from its responsibilities. Since the demise of the League any alteration in the basis for administration of a mandate has been held to require the approval of the General Assembly.220 Britain relinquished the Mandate at midnight on 14–15 References(p. 431) May 1948; its action was legally effective by virtue of the Assembly’s approval in resolution 181(II).
The vexed question is, however, the status of the substantive provisions of that Resolution, in particular the partition plan. It was responsibly argued at the time that the resolution was binding by virtue of the Assembly’s own authority with respect to Mandates and of the referral of the Mandatory. Certainly, if the Mandatory and the Assembly had together determined upon the future disposition of the territory, that determination would have been legally effective (at least if it did not manifestly violate the essential conditions of the Mandate). Alternatively, the Assembly might have acquired sole dispositive authority over the Mandate, for example in the event of a valid revocation for material breach.221
But it is clear that neither of these conditions was fulfilled. In the first place, although Britain’s unilateral abandonment of the Mandate might, in other circumstances, have constituted a material breach, it was necessary also that the Assembly act upon that breach by revoking the Mandate. This it did not do; on the contrary it affirmed the British decision to withdraw. But there was no concurrence between the Mandatory and the Assembly as to the future disposition of the territory,222 nor was there any agreed intent to adopt the partition plan as anything else than a recommendation to the parties concerned.223 The conclusion must be that the partition plan, though valid, was intended as no more than a recommendation.224
This conclusion is reinforced by the history of the resolution after 29 November 1947. Both the Security Council225 and the United Kingdom226 refused to enforce the partition plan, and various alternative schemes were References(p. 432) mooted. By 14 May 1948 it was clear that resolution 181 (II) could not be implemented, and resolution 186 (S-2) terminated the functions of the United Nations Commission on Palestine, appointing instead Folke Bernadotte as Mediator. The latter took the view that his function was not simply to implement the Partition Resolution but to attempt to find a proper and acceptable solution to the conflict, whether or not consistent with the resolution.227 By 14 May 1948 the Assembly itself had, in effect, abandoned the partition plan as a whole.228
(iii) The creation of Israel (1948–9)
It follows that, although the Israeli Declaration of Independence partly relied upon resolution 181 (II), Israel was not created either pursuant to an authoritative disposition of the territory, or to a valid and subsisting authorization.229 But even if resolution 181 (II) had constituted such a disposition or authorization, it would have been difficult to argue that the creation of Israel occurred in compliance with it. At the time of the ceasefire Israel extended over substantially greater territory than that accorded it by the Partition Resolution. It was not created in the manner there laid down, and it did not comply with the prescribed conditions for protection of minorities, etc. Neither the Arab States (which attacked Israel) nor the Arab inhabitants of Palestine attempted to implement the resolution. No Arab State was created, nor was any effective regime for Jerusalem established. Israel was created without the consent of any previous sovereign and without complying with any valid act of disposition.
If Palestine in 1948 had become terra nullius, the creation of Israel would have been a case of original occupation. However, it is clear that this was not so. The category terra nullius applies only in limited circumstances, and does not apply to any territory inhabited by an organized population.230 If Palestine had become terra nullius on 15 May, the invasion by the surrounding Arab States References(p. 433) might arguably have been justified, but this view was not shared by the Security Council231 or by commentators.232
Secession would thus appear to be the appropriate mode, and the question then becomes at what time Israel qualified as a seceding State in accordance with the criteria for secessionary independence discussed in this chapter. In applying these criteria Palestine should be regarded as a single self-determination unit. Resolution 181(II) did not purport to divide Palestine into distinct self-determination units, and even had it done so, Israel was not created within such a unit but on more extensive territory. The partition resolution merely recommended what was considered to be a legitimate mode of self-determination for Palestine as a whole.
The criterion for secessionary independence is thus not the ‘qualified effectiveness’ test applied to secession of a self-determination unit, but rather the stricter test of stable and effective government of territory. Israel must be considered to have met that standard by 24 February 1949, when the Egyptian-Israeli Armistice Agreement was signed. It is clear that this stricter criterion was applied by individual States233 and by the United Nations in admitting Israel to membership.234 United States recognition was correspondingly premature.235
(p. 434) This conclusion assumes that the principle of self-determination was not an obstacle to the statehood of Israel. If its creation had involved a violation of self-determination, it is arguable, applying the Rhodesian precedent ex post facto, that Israel should not have been recognized as a State at all. But at that time self-determination was not sufficiently well established as a principle of general international law to constitute a criterion for statehood, especially an overriding or peremptory criterion. And in any event, given the social and political situation in Palestine by that time, it was arguable that partition and the creation of two States was consistent with the principle of self-determination as applied to Palestine as a whole.236 Certainly the General Assembly proceeded on that basis in adopting the Partition Resolution.
It must be concluded that Israel was effectively and lawfully established as a State by secession from Palestine in the period 1948 to 1949.237 Its original territory was its armistice territory, not the partition territory.
(3) The creation of the State of Palestine (1988-)238
If what has been said about the events of 1948 to 1949 is accepted, then Israel seceded from the mandated territory of Palestine, leaving its remaining territory subject still to the principles of the mandate. The mandate was certainly References(p. 435) not terminated by the dissolution of the League of Nations.239 Probably it was not terminated either by Britain’s withdrawal in May 1948 or by the secession of Israel. The Partition Resolution only approved its termination on the assumption that the whole of Palestine (apart from Jerusalem) would become part of the envisaged Arab and Jewish States, but this did not happen. The Balfour Declaration had been accepted as incorporated in the Mandate, and the Jewish people accordingly had a right of self-determination in respect of post-1922 Palestine as a whole. But so too did the Palestinian people. Israel could be regarded as an expression of the principle of self-determination for the Jewish people of Palestine as at 1948, even though the Partition Resolution had not been implemented. But there was no equivalent expression for the Palestinian population. The implementation of their right to self-determination has been, from a legal as well as a political point of view, the key element in the conflict since then.
Self-determination, while it may and often does lead to statehood, is not the same thing as statehood. Yet it has been argued that the strong correlation between the two concepts, the evident desire of the Palestinians of the Occupied Territories for their own State, and the recalcitrance of Israel in recognizing their right of self-determination (a refusal associated with a policy of ‘creeping expropriation’ through the creation of further settlements in the Occupied Territories) taken together justify a form of ‘prefiguring’ of Palestinian statehood. If statehood is not just a question of fact, and if the rights of the Palestinian people are denied, why should not international law treat them as having that which they are entitled to have, their own State? Such thinking underlay the ‘declaration of independence’ made by the Palestinian National Council in 1988, on the basis of which the independence of Palestine was recognised by a numerical majority of United Nations Members. It underlies claims made now that the agreements between Israel and Palestine since 1993 have in effect acknowledged the international existence of Palestine, which could be nothing but a State.
In November 1988, the Palestinian National Council in response to the uprising in the occupied territories known as the intifada proclaimed ‘the establishment of the State of Palestine on our Palestinian territory with its capital Holy Jerusalem’.240 This Declaration was quite widely recognized by States although often in equivocal terms. In turn the General Assembly by resolution 43/177 of 15 December 1988 (adopted by 104-2 (Israel, USA) with 36 abstentions) References(p. 436) ‘acknowledge[d] the proclamation of the State of Palestine by the Palestine National Council on 15 November 1988’, described that Declaration as being ‘in line with General Assembly resolution 181(II) and in exercise of the inalienable rights of the Palestinian people’, and affirmed ‘the need to enable the Palestinian people to exercise their sovereignty over their territory occupied since 1967’. In addition it decided that:
the designation ‘Palestine’ should be used in place of the designation ‘Palestine Liberation Organization’ in the United Nations system, without prejudice to the observer status and functions of the Palestine Liberation Organization within the United Nations system, in conformity with relevant United Nations resolutions and practice …
No attempt was made, however, to recommend United Nations membership for Palestine.
According to its proponents,241 Palestinian statehood in the period after 1988 is based on three propositions. First, having regard to the classical ‘four elements constituent of a State’, Palestine, under the provisional government of the Palestine Liberation Organization (PLO), is already a State in international law: ‘all four characteristics have been satisfied by the newly proclaimed independent state of Palestine’.242 Secondly, the General Assembly, whether as the successor to the League of Nations with respect to the mandate system or by virtue of the authority it exercised under the Partition resolution, had the authority to recognize the new State, and in its resolution 43/177 has ‘essentially’ done so, such recognition ‘being constitutive, definitive, and universally determinative’.243 Thirdly, other States, and in particular Israel and the United States, are bound to accept the new State, either because the international status of the Palestinian people had already been ‘provisionally recognized’ in Article 22 of the League of Nations Covenant, a position preserved by Article 80 of the Charter, or in the case of Israel because its acceptance of the Partition Resolution was a ‘condition for its admission’ to the United Nations.244 These arguments call for a number of observations.
First and foremost is the misconceived reliance on the Montevideo Convention formula as criteria for statehood. It is odd to see the Montevideo (p. 437) definition, which looks to the ostensibly separate elements of territory, permanent population, government and the capacity to enter into relations with other States, minutely examined in order to argue that a particular entity fits within those criteria when it self-evidently does not. Applying the Montevideo Convention in accordance with its terms, Palestine before 1993 could not possibly have constituted a State. Its whole territory was occupied by Israel which functioned as a government there and claimed the right to do so until further agreement. The PLO had never functioned as a government there and lacked the means to do so, given strong Israeli opposition. It is true that the Palestine National Council commands the allegiance of the overwhelming majority of the Palestinian residents of the occupied territories. But the Montevideo Convention treats statehood essentially as an existing state of affairs, as a matter of fact. As a matter of fact, despite the allegiance of the people, neither the PLO nor the Palestine National Council have been in a position to exercise governmental powers within the Occupied Territories. That they may have a right to do so—or, more accurately, that the Palestinian people may have a right that they do so—is beside the point. No doubt the Montevideo formula was drawn up at a time when the principle of self-determination was not generally recognised in international law, and when the implications of the nascent rule prohibiting the use of force between States had not been worked out. That makes it even odder to debate the statehood of entities such as Palestine in terms of the Convention’s hackneyed formula.
Rather—as argued in Chapters 2 and 3 above—it is preferable to focus on the notion of State independence as a prerequisite for statehood. Essentially that notion embodies two elements: the existence of an organized community on a particular territory, exclusively or substantially exercising self-governing power, and the absence of the exercise by another State, and of the right of another State to exercise, self-governing powers over that territory.245 From this perspective, the proposition that the absence of clearly delimited boundaries is not a prerequisite to statehood is axiomatic. Boundaries are the consequence of territory. But territory, in the context of statehood, is not ‘something owned’: it is the basis in space for the organized community which is the State. No doubt before 1993 the PLO directly and indirectly exercised great influence within the occupied territories, and commanded the general allegiance of its population. But this fell far short of what is required in terms of the first criterion, the existence of an organized self-governing community. It is true that Israel’s governmental power and (p. 438) authority over the Occupied Territories did not amount, for the most part, to a claim of sovereignty. According to relevant Security Council resolutions, moreover, such a claim of sovereignty must not be recognised. There is a substantial international consensus that the Palestinian people are entitled to form a State (subject to guarantees as to the security of the other States in the region). But none of this affects the point that, at least before 1993, they did not actually do so, under the generally accepted criterion of State independence.246
There are other conceptions of statehood under which different results might be reached. The most obvious alternative is the constitutive theory of recognition. According to this view an entity is a State if it is recognized as such by ‘other States’. But as demonstrated in Chapter 1, the difficulty is that the constitutive theory leads to extreme subjectivity in the notion of the State, effectively destroying that which it seeks to define. There is no rule that majority recognition (outside the framework of admission to the United Nations) is binding on third States. Before 1993, Palestine was recognized as a State by over a hundred States, but it has never commanded anything like the level of quasi-unanimous support that would be required to establish a particular rule of international law to the effect that Palestine is a State.247 In the absence of such a ‘particular’ rule, the constitutive theory leads inevitably to the proposition that another State is not bound to treat an entity as a State if it has not recognized it. Since the crucial actors here are the United States and Israel, which did not and still do not recognize Palestine as a State, the theory leads nowhere. In any event, there are compelling reasons for rejecting the constitutive theory, as seen in Chapter 1.
The second alternative would be to seek to take advantage of developments in international law—reviewed in Chapter 3—which have modified the conception of statehood from that implied by the Montevideo formula. Under these developments, the notion of entitlement or disentitlement to be regarded as a State have been influential, at least in cases where the rules invoked are regarded as peremptory norms. Entities which would have otherwise qualified as a State may not do so because their creation is substantially illegitimate. Palestine involves the converse problem, that of an entity which is not sufficiently effective to be regarded as independent, but whose people is entitled to self-determination, i.e. to elect to form their own References(p. 439) State.248 In such cases, should international law treat as having been done that which ought to be done?
It should be stressed that we are not dealing with the situation of the suppression of States which were once incontestably established as such (the Baltic States between 1941 and 1990; Kuwait during Iraqi occupation in 1990). The question is rather the establishment of a new State on territory over which other States have claims of one kind or another. On this issue the practice is limited. In the case of some former Portuguese territories in Africa (Guinea-Bissau is the best example) the view was taken that the National Liberation Organisation’s extensive de facto control over large parts of the relevant territory, and the apparent inevitability of its success, combined with the principle of self-determination, meant that the entity became a State in circumstances in which recognition would otherwise have been premature. Although the legal arguments in favour of premature statehood were often not set out or were poorly articulated, the importance of the principle of self-determination in such cases seems to have been that it disentitled the former sovereign to rely on its authority over the territory. On the other hand it is significant that in each of these cases the liberation organisation did have a significant degree of control in the territory, such that its victory could reasonably be said to be imminent. Moreover, the issue presented was one of a simple yes/no kind—independence for the territory in question or the continuation of colonial rule. There was no question of any subsisting claim by the colonial power, or by any other State, to significant parts of the territory in question.
The situation in Namibia provides an instructive contrast. There, notwithstanding the undoubted entitlement of the people of Namibia to self-determination, as declared by the International Court in the Namibia Opinion,249 and despite the fact that the relevant liberation organization, SWAPO, had a high degree of allegiance and a fluctuating degree of control, there was no attempt to treat Namibia as already a State. Instead action was taken to bring about its independence, and in the meantime to seek to protect the rights of the people through other means (e.g., the resolution of the United Nations Committee for Namibia on Permanent Sovereignty over its Natural Resources). In this situation the References(p. 440) modalities of achieving independence were of great importance, and were arduously negotiated.250
Thus although a majority of States seems to have taken the view, however inarticulately, that a further step beyond the Guinea-Bissau situation could be taken in the case of Palestine, a significant minority of States opposed that step. The continuing reservations held about the status of Palestine were reflected in the practice of international organizations and in the actions of individual States. For example, on 12 May 1989 the 42nd World Health Assembly deferred consideration of the application of Palestine for admission as a member of the World Health Organization.251 Similarly the Executive Board of UNESCO deferred consideration of a Palestinian application for membership of UNESCO, while adopting measures to ensure that Palestine had the fullest possible opportunity (short of membership) of participation in the work of UNESCO.252
Due to the uncertainty within the international community as to the existence or the non-existence of a State of Palestine and as long as the issue has not been settled in an appropriate framework, the Swiss Government, in its capacity as depositary … is not in a position to decide whether this communication can be considered as an instrument of accession in the sense of the relevant provisions of the Conventions and their additional Protocols … The unilateral declaration of application of the four Geneva Conventions and of the additional Protocol I made on 7 June 1982 by the Palestine Liberation Organization remains valid.253
Supporters of Palestinian statehood on the basis of the 1988 Declaration place particular stress on General Assembly resolution 43/177. The authority of the (p. 441) General Assembly is invoked in support of the statehood of Palestine,254 and this on three distinct grounds.
The first is based on the ‘provisional recognition’ given to the sovereignty of the nations subject to ‘A’ class mandates under Article 22 of the Covenant. That provisional recognition would be a right of peoples saved or reserved by Article 80 of the United Nations Charter. But the fact is that, with the exception of Iraq, the ‘provisional recognition’ given by Article 22 did not amount to much. In practice ‘A’ Class mandates were subject to the normal mandatory regime, and it was not argued that the status of the territories concerned was that of independent States. In this context the distinction between ‘State’ and ‘nation’ is crucial: certain ‘peoples’ or ‘nations’ were recognized by Article 22 as having rights of a relatively immediate kind, but these did not as yet amount to statehood.
The second element supporting General Assembly authority is said to arise from the General Assembly’s position as the successor to the League of Nations with respect to the mandate system.255 But there was no direct succession between the League of Nations and the United Nations in this or in other respects, and this lack of succession was deliberate. Thus the International Court in 1950256 and again in 1971257 supported the exercise by the United Nations of authority with respect to mandates on the basis of arguments that did not depend on a rule of succession. Moreover, although the General Assembly acquired power through these means to revoke the mandate for South West Africa, that power was not of a general discretionary or governing kind; it was more in the nature of a declaratory power exercised on behalf of the international community in a situation where no State had sovereignty over the territory concerned.258 The legal consequences for States as set out in the Namibia Opinion were in a substantial part due to the operation of Security Council resolutions pursuant to Article 25 of the Charter. No doubt there are important implications for the status of Palestine in these arguments. But they stop far short of the proposition that the General Assembly can recognise Palestine as a State, with an effect that is ‘constitutive, definitive, and universally determinative’.259
References(p. 442) (iv) The position of dissenting or opposing States
Finally, it is said that both the United States and Israel are bound to accept the status of Palestine as a new State. So far as the United States is concerned, the principal ground for the argument is based upon the ‘provisional recognition’ by Article 22 of the League of Nations Covenant of the status of the nations under A class Mandates, a position preserved in Article 80 of the Charter.260 Of course the United States was not a party to the Covenant, and it is an interesting question whether Article 80 can have had the effect of preserving treaty rights as against States not parties to the relevant treaties. But the better view is, anyway, that Article 80 simply did not address this issue. It was concerned with preserving the existing rights of ‘peoples’ and the ‘provisional recognition’ of the peoples under A class mandates before 1945 was not sufficient already to constitute them as States, however significant a pointer it may have been as to their future.
So far as Israel is concerned, the argument that it is bound is principally based, it seems, upon the proposition that Israel’s acceptance of the partition resolution was ‘a condition for its admission’ to the United Nations.261 But as we have seen, although the relevant Jewish organizations did accept the Partition Resolution when it was first adopted, the Resolution was not accepted by the Arab League, and faced with this situation it was not insisted on by the competent organs of the United Nations. Instead war broke out, leading to a ceasefire within quite different boundaries. Israel was not admitted to the United Nations on the basis of a division of territory which reflected the Partition Resolution. But even if it had been, that would not have entailed the existence of a Palestinian State on the remaining territory, in the absence of any actual administration on behalf of the Palestinian population with claims to independence.
(v) The road to Palestinian statehood since 1993262
The question is whether any different conclusion follows in respect of the period since 1993, when there has been some transfer of territorial control by Israel to an Interim Administration, pursuant to agreements between Israel and the PLO. That process is far from complete and it continues to meet (p. 443) obstacles from both sides. However, it has been said to be a sufficient basis for supporting the existence of a Palestinian State, either immediately263 or pursuant to a further declaration of independence.264
It is unnecessary for present purposes to describe in detail the framework resulting from agreements that constitute the ‘Oslo process’. Apart from anything else, the agreements are remarkably unforthcoming on issues of status, no doubt because of fundamental disagreements between the parties. The principal agreements so far concluded are as follows:
• Exchange of correspondence (Arafat-Rabin), 9 September 1993.265
• Israel-Palestine Liberation Organization, Declaration of Principles on Interim Self-Government Arrangements, 13 September 1993.266
• Israel-Palestine Liberation Organization, Agreement on the Gaza Strip and the Jericho Area, 4 May 1994.267
• Israel-Palestine Liberation Organization, Agreement on Preparatory Powers and Responsibilities, 29 August 1994.268
• Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, 28 September 1995.269
• Note for the Record (Ross-Netanyahu-Arafat), 17 January 1997.270
• Israel-Palestine Liberation Organization, Protocol concerning the Redeployment in Hebron, Jerusalem, 17 January 1997.271
• Israel-Palestine Liberation Organization, Wye River Memorandum, 23 October 1998.272
The sequence began with a real step forward. In an exchange of letters, the PLO recognized Israel’s right to exist, and committed itself to a negotiated settlement of ‘all outstanding issues relating to permanent status’; in return, Israel recognized the PLO ‘as the representative of the Palestinian people’ and therefore as the principal interlocutor in that process. The subsequent partial withdrawals of Israel from civil administration of the Palestinian population of the occupied territory is also significant. But the limited character of that withdrawal can be seen, for example, from the jurisdiction of the Palestinian Interim Self-Government Authority, which covers: ‘West Bank and Gaza Strip territory, except for issues that will be negotiated in the permanent status (p. 444) negotiations: Jerusalem, settlements, military locations, and Israelis.’273 Thus a jurisdiction defined apparently in normal territorial terms is for practical purposes redefined as a jurisdiction over Palestinians (and visitors). In this way the agenda of the permanent status negotiations becomes a series of exclusions from Palestinian self-government in the interim period. Apart from Jerusalem itself, the exclusion of substantive powers in the field of foreign relations is particularly important.274 There are also repeated commitments by both sides not to ‘initiate or take any step that will change the status of the West Bank and the Gaza Strip in accordance with the Interim Agreement.’275
This is unpromising in terms of providing a substantial base of autonomous local self-government on which to found a claim to Palestinian statehood. The PLO of course is a national liberation organization, widely recognized as such, and is the external representative of the Palestinian people.276 The people of Palestine (i.e. of the remaining territories of the Mandate for Palestine) have a right of self-determination, a position noted by the International Court in its advisory opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory.277 There is thus a non-State legal entity recognized as represented by a national liberation movement. This explains the ‘capacity’ of the PLO to perform various acts, to enter into treaties, to bear rights and assume obligations. But these are not things which in modern international law only States can do. On the other hand the Palestinian Authority is an interim local government body with restricted powers; it is not identical with the PLO, even though there is an overlapping composition, and Israel has carefully reserved to itself ‘the powers and responsibilities not transferred to the Council’.278 Thus, according to one analysis:
Under the interim arrangements … Palestine may best be described as a transitional association between the PA and the PLO. The PLO, which has been recognized to References(p. 445) possess an independent international personality as representative of the Palestinian people, has been delegated the power to act on behalf of the PA in the international arena with regard to specific substantive areas. Nevertheless, the PA’s constituent organs … form a local government with largely municipal functions and, with regard to those functions, they are independent of the PLO … Moreover, the powers withheld from the PLO by the DOP—i.e. the authority to conclude international agreements (with parties other than Israel) that affect the status or security of the OPT—are held by Israel, not by the PA. The PA is consequently in a position of subordination to both the PLO and Israel. Further, the current arrangements have elicited the support of the Palestinian population only insofar as they are transitional.279
a unilateral declaration by the Palestinian Authority on the establishment of a Palestinian state, prior to the achievement of a Final Status Agreement, would constitute a substantive and fundamental violation of the Interim Agreement. In the event of such a violation, the Government would consider itself entitled to take all necessary steps, including the application of Israeli rule, law and administration to settlement areas and security areas in Judea, Samaria and Gaza, as it sees fit. Israel reiterates its position, in accordance with the agreement of the PA, that the Final Status must be the result of free negotiations between the parties without the implementation of unilateral steps which will change the status of the area.280
This characteristically emphatic statement is not without its own internal uncertainties. One party to an agreement has no unilateral right to decide, definitively, that the other is in ‘substantive and fundamental violation’—although it may be clear that that is so. And is there a suggestion, in the final sentence, that it lies in the hands of the Palestinian Authority, which controls (some of) the territory of a self-determination unit, to implement ‘unilateral steps which will change the status of the area’?
the control requirement has been relaxed in international practice when the putative state was seen to have a right to statehood and where there was not a competing entity seeking statehood in the same territory … An entity does not lack the quality of statehood … if it agrees to let another state handle its external relations … [Moreover, the] PLO did not cede all foreign relations to Israel … Whether or not Palestine is a state is not a question for Israel to decide. That determination turns on objective criteria, with recognition by states providing significant evidence as to whether these criteria are met … Applying these criteria, Palestine has a plausible claim to statehood because it controls territory and has the capacity to engage in international relations.281
The argument is unsatisfactory. If a new unilateral declaration is thought necessary by some within the PLO, on what basis was that of 1988 insufficient? It is inaccurate to say that the PLO ‘ceded’ foreign relations power to Israel, but its representative capacity did not and still does not depend on the Palestinian Authority’s control over Palestine. To say that ‘Palestine … controls territory and has the capacity to engage in international relations’ is a complete elision; the use of the term ‘Palestine’ implies a refusal to face the existing situation as expressed in the agreements themselves.
The essential point is that a process of negotiation towards identified and acceptable ends is still, however precariously, in place. That being so, it misrepresents the reality of the situation to claim that one party already has that for which it is striving. It may also be counterproductive. Analysing the structure of the agreements suggests why the position of the PLO has been separated from that of the Palestinian Authority, and why the agenda of the future negotiations is precisely mirrored in a reservation of the authority of the existing entities. If freedom once conferred cannot be revoked, that is a reason not to confer it, or to do so in as disaggregated and fragile a way as possible. Thus the agreements bear the signs of the underlying structural difficulty, which—for the time being at least—unilateral action can only exacerbate.
Thus far international law has distinguished between the right to self-determination and the actual achievement of statehood, and for good reason. Even the exercise of external self-determination need not result in independence; there are other options. Moreover, it is one thing for a people, acting (p. 447) through the appropriate procedures, to choose independence, and another for the representatives of the people actually to assume responsibility for the international relations of the territory as well as for its internal government. In cases where it is clear that an entity will achieve independence within a very short time, it may be convenient to deal with the new authorities on the footing that they are virtually independent, i.e. on the basis of the maxim nasciturus pro jam natus habetur (see Chapter 15). But even when it is quite clear that a new State will come into existence on a particular day—as it was, for example, with the dissolution of Czechoslovakia and its replacement by the Czech Republic and Slovakia at the end of 1992—nonetheless the old State continues to exist until the appointed hour, and the international law of State succession proceeds on the assumption of an orderly transfer of authority and not its piecemeal anticipation.282
Whatever the case when the new State is only a few days or weeks away, and where no obstacle to the event can be conceived, the position is different when there are many uncertainties about the outcome, and when the agreement (and above all, the action) of involved participants, States and non-States, is necessary. Thus provisions in multilateral treaties prescribing that new entities be created—for example, the principality of Albania between 1913 and 1919, the Free City of Fiume in 1919 or the Free City of Trieste between 1947 and 1954—have not been regarded as self-executing. Those treaties may have contained authorizations and even requirements as to action to be taken, and they were not more: they did not actually constitute the entities whose existence they prescribed.
It can be argued that the position is different when the requirement in favour of the statehood of a given territory is imposed by general international law, and in particular by a peremptory norm such as the right to self-determination. But in the situation where State structures have not yet been created in fact, and where serious issues remain to be resolved about the constitution and boundaries of the putative State, its obligations towards minorities on its territory and the question of commitments to respect the rights of neighbouring States, statehood should not be regarded as existing already, as it were, by operation of law.
Nonetheless this may not be the whole story. There may come a point where international law may be justified in regarding as done that which ought to have been done, if the reason it has not been done is the serious default of one party and if the consequence of its not being done is serious prejudice to References(p. 448) another. The principle that a State cannot rely on its own wrongful conduct to avoid the consequences of its international obligations is capable of novel applications, and circumstances can be imagined where the international community would be entitled to treat a new State as existing on a given territory, notwithstanding the facts.
However, it seems clear that this possibility does not yet apply in the case of Palestine. In agreements welcomed by the General Assembly, the PLO has expressly accepted that an important agenda of issues remains to be resolved through permanent status negotiations. For its part, the General Assembly has stated that it has ‘a permanent responsibility towards the question of Palestine until the question is resolved in all its aspects in a satisfactory manner in accordance with international legitimacy.’283 Both parties have agreed that unilateral action must not be taken in the meantime to change the status quo;284 this is equally the position reached by the International Court in the Wall Advisory Opinion.285 But the point is to change the status quo in favour of a comprehensive settlement accepted by all parties concerned—a situation that seems as remote as ever.286
1 Cf Marek, Identity and Continuity, 62. This work does not discuss the issue of revolutionary or forcible change of government within a State, as to which see Petersen, Recognition of Governments Roth, Governmental Illegitimacy in International Law; Fox and Roth (eds), Democratic Governance and International Law.
2 There is now a considerable literature. For works before 1985, see bibliography in Haverland, 10 Enc PIL (1987) 384, 388–9. More recent works include Brilmayer (1991) 16 Yale JIL 177; Franck in Brölmann and Lefeber (eds), Peoples and Minorities in International Law, 5; Murswiek (1993) 31 AdV 307; Musgrave, Self-Determination and National Minorities, 180–210; Buchanan in Moore (ed), National Self-Determination and Secession, 14; Crawford (1998) 69 BY 85, reprinted in Selected Essays, 199; Orentlicher (1998) 23 Yale JIL 1; Moore (2000) 13 Can JL & Jur 225; Crawford in Alston (ed), People’s Rights, 7, 47–66; Tancredi, La Secessione nel Diritto Internazionale; Knopp, Diversity and Self-Determination in International Law, 40–1, 53–65, 77–80, 179–86; Raic, Statehood and the Law of Self-Determination, 308–97; Dahlitz,Secession and International Law; Macedo and Buchanan (eds), 45 Nomos; Kohen (ed), Secession: International Law Perspectives. Buchanan, Secession, addresses moral and constitutional issues. See also Bartkus, The Dynamic of Secession, who attempts ‘a general explanation for the occurrence of the phenomenon’. For judicial discussion of secession see Reference re Secession of Quebec  2 SCR 217, 161 DLR (4th) 385, 37 ILM 1340 (SCC).
5 Preliminary Articles of Peace, Paris, 30 November 1782, 48 CTS 225; Definitive Peace Treaty, Paris, 3 September 1783: ibid, 489, pursuant to an Act to enable His Majesty to conclude a peace or truce with certain colonies in North America therein mentioned 1782 (22 Geo III c46). The Netherlands extended recognition in a Treaty of Amity and Commerce, The Hague, 8 October 1782: ibid, 135: 48 CTS 137.
6 See Smith, GB & LN, vol I, 115–20; McNair, Law Officers Opinions, vol II, 327–37; Moore, 1 Digest 74–84; Paxson, The Independence of the South American Republics; Webster, Britain and the Independence of Latin America 1812–1830; Bethell (ed), The Independence of Latin America; Rodriguez, The Independence of Spanish America.
14 Before the Congress at Aix-la-Chapelle in 1818, there was a distinct possibility of European intervention to secure Spanish sovereignty in South America. By the combined efforts of the United States and Great Britain this was avoided, but fear of intervention was the major factor behind the Monroe Doctrine of 1822. See generally Webster, Britain and the Independence of Latin America, I, 14–15; Oppenheim (8th edn), vol I, 313–19, (9th edn), vol I, 449–50; Moore, 6 Digest 373–9, 401–4.
18 Christopher Robinson reported on 6 Feb 1817 (Smith, GB & LN, vol I, 268–70) that it was ‘allowable for any Nation … to maintain public relations with Countries in the situation of the Insurgent Provinces, after a certain Time. But it will be a Question of general expediency, when and under what, Modifications, that right should be asserted’. The flags of the various seceding States were also recognized for commercial purposes, and vessels flying those flags were not treated as piratical (cf Monroe, 19 Jan 1816, 3 BFSP 119; Smith, GB & LN, vol I, 271–5). Consuls were appointed; and, of course, seceding territories were not treated as terra nullius: Moore, 1 Digest 43–5. Lushington accurately stated that, ‘mercantile concerns were conducted as if we had recognized the independence of South America’.
19 It may be that the point did not trouble contemporary statesmen: cf Canning to Stuart, 1 Dec 1825: ‘I … continue to think this mode of Recognition better calculated for the advantage and dignity of the State to be recognized than any form of words distinctly expressing Recognition … because the assumed Independence is therein admitted, not created …’ (Webster, Britain and the Independence of Latin America, I, 292).
20 See Harcourt’s distinction between recognition and intervention: Letters by Historicus on some Questions of International Law (1863), 6; cf ibid, 4 where the status of revolted subjects is said to be ‘a question of mixed law and fact’.
21 For the development of the notion of belligerent rights see Smith, GB & LN, vol I, 265–81. US recognition of belligerency was effected by a neutrality proclamation of 1 Sept 1815: Moore, 1 Digest 171–2. British recognition was effected by an Order-in-Council of 12 July 1819: Smith, GB & LN, vol I, 276.
22 Ibid, 302, 322–5; McNair II, 358–65; Moore, 1 Digest 184–93.
24 The US proclamation of a blockade of the Confederate States was regarded by Britain as justifying recognition of belligerency: this view was upheld, by implication, in the Alabama Arbitration (1872): 1 Moore IA 653. See also Oglesby, Internal War and the Search for Normative Order, vi–vii; Smith v Stewart (1869) 2 Am ILC 66, 68.
26 Dana in a note to §23 of Wheaton’s 8th edn gave as the first of the tests of belligerency ‘the existence of a de facto political organization of the insurgents, sufficient in character, population and resources, to constitute it, if left to itself, a State among the nations, reasonably capable of discharging the duties of a State …’ It was thus, in his view, ‘a quasi political recognition’.
30 40 BFSP 1216, 4 Sept 1826; reaffirmed ibid, 1222. Cf the Marquis of Landsdown, 10 Parl Deb NS col 974, 15 Mar 1824, cited Paxson, Independence of South American Republics, 224. The Earl of Liverpool, for the Government, agreed that ‘there could be no right [to recognize] while the contest was actually going on … so long as the struggle in arms continued undecided’ (ibid, col 999). But the timing of the actual decision, he asserted, was peculiarly a matter for the Government. In August 1823 the US had also declined to recognize or aid the Greeks, pleading the constitutional incapacity of the President to declare war on Turkey and the fact that Greek independence was not yet ‘undisputed, or disputed without any rational prospect of success’, 11 BFSP 300 (Adams). In an opinion of 6 June 1844, Dodson advised that ‘in December 1830 … the course of events had shown that the separation between Belgium and Holland consequent on the Revolution in the former country would be final …’ However, the ‘independent political existence of Belgium had not … at that time assumed any definite shape’. It was, in his view, impossible to determine whether Britain had recognized Belgium as at 6 August 1831: Smith, GB & LN, vol I, 245–7. The same strict test was applied by the British government to the Confederacy: e.g., Russell to Mason, 2 Aug 1862: 55 BFSP 733, cited Lauterpacht, Recognition, 17. See also Wright in Falk, (ed), The International Law of Civil War, 30–109.
33 Round Table Conference Agreement, 2 Nov 1949: 69 UNTS 200. The agreement refers to the ‘Government of the Republic of Indonesia’ (cf Art 1). For the Linggadjati Agreement of 25 March 1947, see Taylor, Indonesian Independence and the United Nations (1960), Appendix 3. For the Renville Agreement of 17 Jan 1948 see ibid, Appendix 4.
34 See also Rajan, The United Nations and Domestic Jurisdiction, 139–51; Hyde (1949) 49 Col LR 955; Sastroamidjojo and Delson, ibid, 344; Verzijl, International Law, vol II, 82–5; Jessup, Birth of Nations, 43–92.
37 149 BFSP 657. Further on divided Vietnam see Chapter 10.
38 Whiteman, 2 Digest 133–4, pursuant to the Evian Agreements of 13 Mar 1962 (1962), 66 RGDIP 686. Pt III of the Agreements would appear itself to have recognized Algerian statehood (‘A défaut d’accord sur ces procédures, chacun des deux États pourra saisir directement la Cour international de justice’). See generally Bedjaoui, Law and the Algerian Revolution; O’Ballance, The Algerian Insurrection 1954–1962; Gordon, The Passing of French Algeria; Fraleigh in Falk, (ed), The International Law of Civil War, 179; Yakemtchouk, L’A frique er droit international, 36–40; Belkherroubi, La Naissance et la reconnaissance de la République Algérienne; and the notes by Charpentier, Flory and Touscoz in AFDI 1954–63.
39 The question of Algeria was deleted from the agenda in 1955: GA res 909 (X), 25 Nov 1955 (adopted without vote). In 1957 two innocuous and uncontroversial resolutions were accepted: GA resns 1012 (XI), 1184 (XII). In 1958 a considerably stronger draft resolution failed to be adopted (35-18:28): UN Ybk 1958, 79–82.
41 Twenty-nine States recognized Algeria by April 1961: Bedjaoui, Law and the Algerian Revolution, 112–38. Belkherroubi, La naissance, 85–98 argues that the creation of Algeria was a case of secession rather than devolution, and that the Evian Accords were an international agreement between France and the GPRA, a belligerent government with a degree of international personality. Cf Zorgbibe, La guerre civile, 136–40, who is critical.
49 Cf Rousseau (1974) 78 RGDIP 1166, 1168–9. But see the rather equivocal statements about recognition in US Digest 1973, 17; ibid, 1974, 8–9, 14; (1976) 12 Rbdi 334;  Italian YIL 299.
52 E.g., in the Vietnamese situation, both for ideological reasons and because of the factors enumerated above. Another possible situation to which the traditional criteria were applied was that of Tibet in 1951, although it may be doubted whether Tibet was a self-determination unit or whether an indigenous government ever exercised more control or authority than that traditionally accorded to Tibet as an autonomous area. On Tibet see Chapter 7.
55 This was the case with North Korea and East Germany, although in both the ‘divided State’ situation was a complicating factor: see Chapter 10. For the attempted secession of Anguilla see Chapter 14.
56 Various unsuccessful attempts have been made, inspired by notions of monarchical or democratic legitimacy, to outlaw revolutions aimed at changes of government within a State: see Marek, Identity and Continuity, 51–5. These have taken the form of refusal of recognition rather than denial of the effectiveness of the new government, and it remains true that, in the matter of governments, international law looks to ‘de facto sovereignty and complete governmental control’, rather than to ‘illegitimacy or irregularity of origin’: Tinoco Arbitration (1923) 1 RIAA 369, 381 (Taft CJ); Roth, Government Illegitimacy.
62 Elias in ch 6 (‘The legality of illegal regimes in Africa’) of his Africa and the Development of International Law discusses only the legal position of revolutionary governments, and makes no reference to secession. Cf Bennouna, Le Consentement, 60–3.
67 Vienna Convention on Succession of States in Respect of Treaties, 23 August 1978, 17 ILM 1488, 1946 UNTS 3 (entered into force 6 November 1996) Arts 34, 35; Vienna Convention on Succession of States in Respect of State Property, Archives and Debts, 8 April 1983, 22 ILM 306, A/Conf.117/14 (not yet in force), Arts 17, 18.
68 LNOJ, Sp Supp 3 (1920), 5; see Chapter 2.
70 See Government of Malaysia-Government of Singapore, Agreement Relating to the Separation of Singapore from Malaysia as an Independent and Sovereign State, 7 August 1965 (entered into force 9 August 1965), 563 UNTS 89. On Singapore see Turnbull, A History of Singapore 1819–1988 (2nd edn); Ramcharan, Forging a Singaporean Statehood 1965–1995; Lau, A Moment of Anguish: Singapore in Malaysia and the Politics of Disengagement.
73 See SC res 307 (1971), 21 December 1971; India-Pakistan, Agreement on Bilateral Relations, Simla, 3 July 1972, 11 ILM 954. On Bangladesh see further Chapter 3.
74 SCOR, S/PV/3007, 12 Sep 1991 (Merimée (France)). See Security Council resns 709–11, 12 September 1991; Committee on Admission of New Members, Report, S/23021, 11 September 1991. On the Baltic States see Yakemtchouk (1991) 37 AFDI 259; Pullat (1991) 2 Finnish YBIL 512; Rich (1993) 4 EJIL 36; Cassese, Self-determination, 258–64.
76 On 8 December 1991 the presidents of Belarus, the Russian Federation and Ukraine signed an Agreement establishing the Commonwealth of Independent States (CIS), declaring in the preamble that ‘the Union of Soviet Socialist Republics as a subject of international law and as a geopolitical reality no longer exists’: (1992) 31 ILM 143. This Agreement was modified by a Protocol of Alma Ata of 21 December 1991, signed by 11 of the Republics (but not by Georgia): ibid, 147. An accompanying ‘Decision’ by the Council of the CIS (ibid, 151) recorded the agreement of the CIS to ‘support Russia’s continuance of the membership of the Union of Soviet Socialist Republics in the United Nations, including permanent membership of the Security Council, and other international organizations’. By letter of 24 December 1991, President Yeltsin informed the UN Secretary-General of the view of Russia and the other republics: see (1992) 31 ILM 138. On the dissolution of the Soviet Union see Bothe (1992) 96 RGDIP 811; Rich (1993) 4 EJIL 36; Mullerson (1993) 42 ICLQ 473; Czaplinski (1993) 26 Rbdi 374; Juviler (1993) 3 Trans L & Cont Pr 71; Scharf (1995) 28 Cornell ILJ 29.
77 No resolution was passed. The USSR seat was taken up without objection by the Russian Federation following President Yeltsin’s letter of 24 December 1991: see Scharf (1995) 28 Cornell ILJ 29, 46–7.
78 See further Chapter 12. On the Yugoslav crisis see, e.g., Pellet (1992) 38 AFDI 220; Bieber (1992) 86 Proc ASIL 374; Blum (1992) 86 AJIL 830; Bothe (1992) 96 RGDIP 811; Charpentier (1992) 96 RGDIP 343; Czaplinski (1993) 26 Rbdi 374; Müllerson (1993) 42 ICLQ 473; Rich (1993) 4 EJIL 36; Eastwood (1993) 3 Duke JCIL 299; Burdeau and Stern (eds), Dissolution, Continuation et Succession en Europe de l’Est; Craven (1995) 15 Aust YBIL 1; Craven (1995) 66 BYIL 333; Scharf (1995) 28 Cornell ILJ 29; Gray (1996) 67 BYIL 155; Stern (ed), Le Statut des États Issus de l’ex-Yougoslavie à l’ONU; Weller (1991) 86 AJIL 596.
81 See Conference on Yugoslavia, Arbitration Commission, Opinion No 5, 11 January 1992: 92 ILR 188; Conference on Yugoslavia, Arbitration Commission, Observations on Croatian Constitutional Law, 4 July 1992: 92 ILR 209, 211.
87 See Conference on Yugoslavia, Arbitration Commission, Opinion No 8, 4 July 1992: 92 ILR 199, 201, 202. For the issues of continuity and extinction of the SFRY/FRY see further Chapter 17.
89 See Grant, Recognition, 169–98; Hilpold (1993) 31 AdV 387; Zipfel (1996) 2 Mezinárodni vztahy 54; Hille, Völkerrechtliche Probleme der Staatenanerkennung bei den ehemaligen jugoslawischen Teilrepubliken; Crawford (1996) 48 World Politics 482; Kherad (1997) 101 RGDIP 663; Rauschning in Götz (ed), Liber amicorum Günther Jaenicke, 375; Zeitler, Deutschlands Rolle bei der völkerrechtlichen Annerkennung der Republik Kroatien unter besonderer Berucksichtigung des deutschen Außenministers Genscher.
93 This is not to say that the principle of self-determination had no consequences internally, for example in terms of the recognition of the identity of ethnic, religious and linguistic communities within the State (Conference on Yugoslavia, Arbitration Commission, Opinion No 2, 11 January 1992: 92 ILR 167, 168–9; Observations on Croatian Constitutional Law, 4 July 1992, 92 ILR 209, 211).
94 See: Czech and Slovak Federal Republic, Constitutional Act No 541/1992 on the Division of Property, 13 November 1992; Czech and Slovak Federal Republic, Constitutional Act No 542/1992 on the Extinction of the Czech and Slovak Federal Republic, 25 November 1992. See further Malenovsky, (1993) 39 AFDI 305. For an account of the political background see Young, The Breakup of Czechoslovakia (1994).
97 See SC resns 686, 2 March 1991; 687, 3 April 1991; 688, 5 April 1991; 949, 15 October 1994. Each of these resolutions explicitly affirmed Iraq’s territorial integrity. The same is true of SC resolutions following the 2003 military intervention by the United States and certain allies: SC resns 1483, 22 May 2003; 1490, 3 July 2003; 1500, 14 August 2003; 1511, 16 October 2003; 1546, 8 June 2004; 1557, 12 August 2004.
101 Cf Lemarchand (1962) 56 Am Pol Sc R 404. SC res 169, 24 Nov 1961 (9-0:2), inter alia, deplored ‘all armed action in opposition to the authority of the Government of the Republic of the Congo, specifically secessionist activities and armed action now being carried on by the Provincial Administration of Katanga with the aid of external resources and foreign mercenaries, and completely reject[ed] the claim that Katanga is a “sovereign independent nation”.’
104 ICJ Rep 1962 p 151, 177. Judges Spiropoulos (ibid, 180), Spender (ibid, 182), and Morelli (ibid, 224–5) expressed no opinion. Judge Koretsky, dissenting (ibid, 267–72), was more equivocal. Only Judge Moreno Quintana expressly disagreed: he regarded the Katangan regime as ‘a belligerent community recognized under international law as possessing a legal personality’ (ibid, 246). Judge Bustamante, dissenting (ibid, 297 ff) thought that, although ‘the new tutelary functions of the United Nations in respect of new States’ might well be intra vires, they were not contemplated by the Charter as expenses.
105 In the pleadings in the Expenses Case, only a few governments even indirectly adverted to the problem. Upper Volta was critical of what it regarded as a denial of self-determination (Pleadings, 123). South Africa regarded ONUC as an intervention in the domestic jurisdiction of the Congo, and an uncontemplated maintenance of the artificial unity of a State (ibid, 265–6; cf Evensen’s reply, ibid, 358). Denmark referred to ‘the local regime in Katanga’ as ‘revolting provincial authorities’ (ibid, 160).
108 E.g., Statement of French Council of Ministers, 31 July 1968: Kirk-Greene, Crisis and Conflict in Nigeria, vol II, 245–6, 329–31; Cronje, The World and Nigeria, 194–6. See also Post (1968) 44 Int Aff 26; Calogeropoulos-Stratis, Le Droit des peuples à disposer d’eux-mêmes 342–8; Nayar (1975) 10 Texas ILJ 321.
110 The most significant of these recognitions (Tanzania) was extended for moral and humanitarian reasons rather than in the conviction that Biafra was a State: Grant (2000) 36 Stan JIL 221, 245–6; Kirk-Greene, Crisis and Conflict in Nigeria, vol II, 202–11; and Nyerere’s remarkable ‘Memorandum on Biafra’s Case’, 4 Sept 1969: ibid, 429–39. The others were Zambia, Ivory Coast, Gabon and Haiti: Stremlau, The International Politics of the Nigerian Civil War, 1967–1970, 127, 141.
112 See also Panter-Brick (1968) 44 Int Aff 254; Adaramola (1970) 4 Nigerian LJ 76; Ijalaye, (1971) 65 AJ 551; Elias (1971) 5 Nigerian LJ 1; but see Nwogugu (1974) 14 Indian JIL 13; Okeke, Controversial Subjects of Contemporary International Law, 165.
114 Bosnia and Herzegovina-Croatia-Yugoslavia, General Framework Agreement for Peace in Bosnia and Herzegovina with Annexes, Paris, 14 December 1995 (entered into force), (1996) 35 ILM 75. The Agreement and its annexes sought to guarantee the territorial integrity of Bosnia and Herzegovina against secession or dismemberment.
116 See SC res 1244, preamble, ‘Reaffirming the commitment of all Member States to the sovereignty and territorial integrity of the Federal Republic of Yugoslavia’; annex 2, para 8, calling for ‘a political process towards establishment of an interim political framework agreement providing for substantial self-government for Kosovo, taking full account of … the principles of sovereignty and territorial integrity of the Federal Republic of Yugoslavia.’
117 The declaration was not put to a referendum. On 6 June 1992, activists also declared Ingushetia a sovereign repubic. This was unceremoniously crushed by troops of the Russian Interior Ministry in November and Ingushetia was placed under direct rule from Moscow. On 10 December 1992, Ingushetia was made a republic of the Russian Federation. See Yakemtchouk (1993) 39 AFDI 393, 424–6.
118 Ibid, 426.
119 See Dunlop, Russia Confronts Chechnya: Roots of a Separatist Conflict; Grant (1998) 9 Finn Ybk 145; Leivan, Chechnya: Tombstone of Russian Power. See also Tappe (1995) 34 Col JTL 255; Gazzini (1996) 17 HRLJ 93; Gall and de Waal, Chechnya: A Small Victorious War; Ahrens (2004) 42 Col JTL 575.
120 Joint Declaration and Principles for Determining the Fundamentals for Mutual Relations between the Russian Federation and the Chechen Republic, 31 August 1996: reprinted in Curran, Hill and Kostritsyna, The Search for Peace in Chechnya, 208.
123 In particular the Treaty on Conventional Armed Forces in Europe, Paris, 19 Nov 1990, 30 ILM 1, Art V: see, e.g., NATO Parliamentary Assembly, res 292, Political Committee, 15 Nov 1999, para 10(e). See also E/CN.4/1995/176, para 594, E/CN.4/1996/177, para 371; E/CN.4/1996/13.
128 Equally the attempted secessions of Abkhazia and Anjouan were rejected as derogating from the territorial integrity of the States of which they form part. On Abkhazia, see the UK position, S/3488, 5–6 (1995); and SC res 971, 12 January 1995, para 4 and earlier resolutions (SC resns 937, 21 July 1994; 934, 30 June 1994; 906, 25 March 1994; 896, 31 January 1994; 892, 22 December 1993; 881, 4 November 1993; 876, 19 October 1993; 858, 24 August 1993; 854, 6 August 1993; 849, 9 July 1993): calling for a political settlement ‘respecting fully the sovereignty and territorial integrity of the Republic of Georgia’. Respecting Anjouan, the Council of Ministers of the OAU ‘urged the leaders of the countries of the region … to take all necessary measures so as to ensure … that the unity, sovereignty and territorial integrity of the Republic of the Comoros would be safeguarded’: CM/Dec. 405 (LXVIII), para 6 (4–7 June 1998, Ouagadougu Council of Ministers Session). See also Statement of Hamada Madi Bolero (Comoros), Framework Agreement signed at Fomboni, 17 February 2001, drafted ‘with respect for national unity and territorial integrity,’ 8 May 2002, GAOR, A/S-27/PV.2, pp 7–8.
132 The history and politics of the matter have been addressed in an extensive literature: see, e.g., Jacobs, Quebec and the Struggle over Sovereignty; Williams, International Legal Effects of Secession by Quebec; Côte and Johnston, If Québec Goes … The Real Cost of Separation; Freeman and Grady, Dividing the House: Planning for a Canada Without Quebec; Young, The Secession of Quebec and the Future of Canada.
134 The Act has been criticized: e.g., Turp in Dahlitz (ed), Secession and International Law, 167, 172–5; and prompted the Quebec legislature to adopt its own version, an Act Respecting the Exercise of the Fundamental Rights and Prerogatives of the Québec People and the Québec State, Statutes of Québec, 2000, c 46.
135 See Kreijen, State failure, 66–73; Carroll & Rajagopal (1992) 8 Am UJILP 653; Kibble (2001) 15 Int Rel 5; Reno, Somalia and Survival in the Shadow of the Global Economy (Queen Elizabeth House Working Papers 100, 2003).
141 The facts are recited in Republic of Somalia v Woodhouse Drake & Carey (Suisse) SA  QB 54, 56–7 (Hobhouse J). See also letter of 19 March 2004 of German Foreign Ministry (Bürgerservice, Gz: 040-209 06/2), indicating that legal documents originating in Somalia cannot be recognized in Germany because of ‘collapsed State structures’; and judgment of 5 January 2004, 4 UE 1308/99.A (Hesse Administrative Court, Frankfurt), indicating that there exists no ‘State or State-like power’ in central or southern Somalia.
143 See S/2001/963, 11 October 2001; Gordon, (1999) 1 U Penn JCL 528, 575–83. See also http://www.somalilandforum.com/somaliland/constitution/revised_constitution.htm.
145 Hagi-Salad v Ashcroft, 359 F 3d 1044, 1046 (8th Cir 2004, Loken CJ). The establishment and maintenance of regular public institutions is noted in detail in the judgment of 30 October 2003, 4 UE 4952/96.A (Hesse Administrative Court, Kassel). But compare the position taken by the Federal Administrative Court (Germany) that Somaliland did not meet the threshold for effective control necessary to impute responsibility to the Somaliland government: ‘differences between the clans supporting the “government” in the West and the clans, predominant in the East rejecting the authority of the government, means that there is no police and administration, which can provide a valid State monopoly on violence in the entire region of the Republic of Somaliland.’ Decision of 15 April 1997, 9 C 15.97, 104 BverwGE 254, 258 (1997).
148 Judgment of 30 October 2003, 4 UE 4952/96.A (Hesse Administrative Court, Kassel). The Court indicated that the continuing border dispute between Somaliland and Puntland did not qualify the status of Somaliland.
149 Ministry of Immigration & Multicultural Affairs v Jama  FCA 1680 (para 29). To similar effect Ministry of Immigration & Multicultural Affairs v Haji Ibrahim  HCA 55, 204 CLR 1, 36 (Gleeson CJ).
154 In each of these cases the territory concerned had been either an independent State or a separate colonial territory to which the principle of self-determination had expressly applied. In each case the exercise of self-determination had either misfired (Senegal, Singapore) or been suppressed (Baltic States, Eritrea). But the pattern is incomplete and selective: the separate colonial territory of Somaliland has not been treated in the same way.
155 This is one of the only cases since 1989 in which the rationale for admission to the United Nations was expressly spelled out by the Security Council at the time it recommended admission to the United Nations. The President of the Council stated, ‘The independence of the [Baltic States] was restored peacefully, by means of dialogue, with the consent of the parties concerned, and in accordance with the wishes and aspirations of the three peoples’: SCOR, S/PV/3007, 12 September 1991 (Mr Merimée (Fr); S/23021, 11 September 1991. In nearly all other cases the recommendation for admission was made in purely formal terms.
157 Apart from Somaliland, contrast the unsuccessful claims by constituent islands of the Comorian Republic to have formed new States in circumstances of substantial breakdown of the federal government: (1997) 101 RGDIP 1029; Report of the Secretary-General: Emergency economic assistance to the Comoros, 21 June 2000, A/55/92, paras 7–12. See also Chapter 14.
162 Recognition of insurgents as a government of a new State occurred for example in the Algerian, Indonesian and Guinea-Bissau conflicts. Other forms of recognition of groups (National Liberation Movements and the like) attempting to seize control of particular territory have evolved in practice. On national liberation movements see Klein (1976) 36 ZfV 618; Verhoeven, Reconnaissance, 140–67, Ronzitti, Le guerre di liberazione nazionale e il diritto internazionale; Bennouna, Le consentement, 159–70; Fisher (1975) 3 Syracuse JILC 221; Lazarus  AFDI 173; Shaw (1983) 5 Liverpool LR 19; Cassese, International Law in a Divided World, 90–9; Wilson, International Law and the Use of Force by National Liberation Movements, 117–23, 138–46; Roth, Governmental Illegitimacy in International Law, 227–34.
165 Greenspan, The Modern Law of Land Warfare, 619–27; Umozurike (1971) 11 Indian JIL 205; Rubin (1972) 21 ICLQ 472; Zorgbibe, La guerre civile, 178–201; Moir, The Law of Internal Armed Conflict, 67–88; Zegveld, The Accountability of Armed Opposition Groups in International Law, 9–18.
166 See also Nurick and Barrett (1946) 40 AJ 563; Baxter (1951) 28 BY 323, 333–8; Bierzanek ‘Le statut juridique’ in Ibler (ed), Mélanges Andrassy, 54; Abi-Saab (1972) 3 Annales d’Études Internationales 93; Lopez (1994) 69 NYULR 916, 933–5; Berman (2004) 43 Col JTL 1, 20.
167 1125 UNTS 3 (8 June 1977). See Forsythe (1975) 69 AJ 77; Sandoz, Swinarski, Zimmermann (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 1949, 71–3; Green (1997) 3 ILSAJICL 493; Greenwood in Durham and McCormack (eds), The Changing Face of Conflict and the Efficacy of International Humanitarian Law; Berman (2004) 43 Col JTL 1, 21–2; Cullen (2005) 183 Military LR 66.
170 See ‘Guiding Principles on the Right to Humanitarian Assistance’ (1993) 33 IRRC 519; and Additional Protocol I, Art 40, discussed in Sandoz, Swinarski and Zimmermann (eds), Commentary on the Additional Protocols, 816–29.
172 See, e.g., Alexander (1951) 4 ICLQ 423; Cattan, Palestine, The Arabs and Israel; Feinberg, Arab Jurist’s Approach; Cattan, Palestine and International Law; Martin, Le Conflit Israëlo-Arab; Moore (ed), The Arab-Israeli Conflict. See also Kassim (1980) 9 Denver JILP 1; Collins (1980) 12 Case Western Reserve JIL 137; Mallison and Mallison (1984) 1 Palestinian YBIL 36; Curtis (1991) 32 Harv ILJ 457; Falk and Weston (1992) 33 Harv ILJ 191. Dajani (1997) 26 Denver JILP 27; Imseis (2003) 44 Harv JIL 65; Grossman (2001) 50 ICLQ 849; Weiner (1999) 23 Fordham ILJ 230; Klieman, Compromising Palestine.
175 Feinberg, Arab Jurist’s Approach, 22–5 (but cf his earlier view in MooreDigest, vol I, 68–9 (1948)); Cattan, Palestine and International Law, 11–21 (who nevertheless argues for the invalidity of the Declaration); Rosenne (1968) 33 Law & Contemporary Problems 44.
176 113 BFSP 652 (10 August 1920). Article 96 further provided that ‘The terms of the mandates in respect of the above territories will be formulated by the Principal Allied Powers and submitted to the Council of the League of Nations for approval.’ By Article 97 Turkey agreed to accept such decisions.
177 See LNOJ vol 3, No 8 Pt II (August 1922) 798–802, 817–25. The only dispute related to Art 14 (the Holy Places): there was also some discussion of procedure. For the text of the Mandate see ibid, 1007.
182 Israel-Jordan Treaty of Peace, Arava/Araba Crossing Point, 26 Oct 1994, 34 ILM 43 (1995). See Al Madfai, Jordan, The United States and the Middle East Peace Process 1974–1991; Lukacs, Israel, Jordan and the Peace Process; Weiner (1999) 23 Fordham ILJ 230; Klein (2002) 9 ILSA JICL 211.
187 E.g., the United States argued for a time in favour of a temporary UN Trusteeship over Palestine: ibid, 166–7 (271st mtg, 19 March 1948), a proposal described by the Jewish Agency as an ‘amazing reversal’: ibid, 169.
188 GA res 186 (S-2), 14 May 1948 (adopted 31-7:16). The only reference to GA res 181(II) was in Part III, effectively terminating the Palestine Commission’s responsibilities under that resolution.
189 Proclamation of Independence of the State of Israel, 14 May 1948: Laws of the State of Israel I, 3; Bentwich, Israel, 206–8. The Provisional Government regarded itself as acting ‘by virtue of the natural and historic right of the Jewish people and of the Resolution of the General Assembly of the United Nations’.
191 Armistice Agreements were signed with Egypt, 24 February 1949, 49 UNTS 252; Lebanon, 23 March 1949, 49 UNTS 288; Jordan, 3 April 1949, 49 UNTS 304, and Syria, 20 July 1949, 49 UNTS 328. See Rosenne, Israel’s Armistice Agreements with the Arab States; Bar-Yaacov, The Israel-Syrian Armistice.
193 See especially Playfair (ed), International Law and the Administration of Occupied Territories, and for a range of other views on the status of the occupied territories, Blum (1968) 3 Israel LR 279; Lauterpacht (1952) 6 ICLQ 513; Cattan, Palestine and International Law, 78–82; Roberts (1990) 84 AJ 44. Israel regards itself as belligerent occupant of territories captured since 1949, apart from Jerusalem: Military Prosecutor v Bakhis (1968) 47 ILR 484, a position confirmed by the International Court in the Wall Advisory Opinion: ICJ Rep 2004 p 136, 166–67 (paras 74–8).
197 The Arab States referred to the ‘vacuum created by the termination of the mandate and the failure to replace it by any legally constituted authority’: S/745 (1948). Cf The Fjeld (Alexandria Prize Court, 1950) 17 ILR 345, 347; Martin, Le Conflit israelo-arabe, 41–4.
198 See for example the USSR view as enunciated during the admission debates:‘The State of Israel has been created and exists in accordance with a resolution passed in the General Assembly on 29 November 1947. It is therefore incorrect to assert that its territory is not defined. Its territory is clearly defined by an international decision of the United Nations …’ SCOR, 3rd yr, 383rd mtg (2 December 1948) 22; reaffirmed, 384th mtg (15 December 1948) 20–1. Israel also described the resolution as ‘the only internationally valid adjudication on the question of the future government of Palestine’: GAOR 3rd yr, supp 11, Annex I, 24; A/648 (1948). Cf the reference to the resolution as a ‘document having validity under international law’ in AG of Israel v El-Turani (Haifa D Ct, 1951; aff’d S Ct, 1952) 18 ILR 164, 167: ‘The State of Israel … includes at least the territories allocated to it under the UN decision …’
200 Alexander (1951) 4 ILQ 423, 427–8 describes the resolution as an ‘assignment of the territory by the UN, though the procedure prescribed was disregarded.’ Cf the more guarded position of Lauterpacht, Jerusalem and the Holy Places, 16. The Jewish Agency argued that, although the resolution was originally only a recommendation, steps taken to implement it had converted it into a binding arrangement, citing the case of Trieste: SCOR 262nd mtg, 5 March 1948, 11–12.
201 On 1 May 1948, Jews constituted about 42% of the population of Palestine: they were allocated 56% of its area, including the barren area of the Negev: Elaraby (1968) Law and Contemporary Problems 102.
202 Cattan, Palestine and International Law; Seminar of Arab Jurists (1967) in Moore, 383; El-Farra (1968) 33 Law and Contemporary Problems 68–70; contra Feinberg, Arab Jurist’s Approach, in Moore, 436.
204 Article 80, the so-called ‘conservatory clause’ was ‘laboriously negotiated’ at the San Francisco Conference: see 17 UNCIO 312. Various Egyptian and Syrian proposals, though expressed in general terms, related to the Palestine situation. A Syrian amendment limited the rights of ‘peoples’ under Art 80 to peoples in the territories concerned; this was criticized as seriously weakening ‘certain rights’ and defeated (5–26): 10 UNCIO 487, 610–11.
207 Calogeropoulos Stratis, Le Droit des Peuples à disposer d’Eux-mêmes, 86–8, and see Chapter 12.
210 Wright, Mandates under the League, 62, 232; but cf Bentwich, The Mandates System, 42–7 esp 43: ‘The Insertion of the provisions regarding the national home in Palestine merely widens the scope of the [Mandate] and does not affect the fundamental principles of the system as a whole …’ See also Rigo Sureda, The Evolution of the Right of Self-Determination, 126–8.
212 Cf Northern Cameroons Case, ICJ Rep 1963 p 15, analysed in Chapter 12.
214 Cf Eastern Carelia Opinion, PCIJ ser B no 5 (1923); South West Africa Cases (Second Phase), ICJ Rep 1966 p 6. In the Mavrommatis Case, Judge Moore, dissenting, described a mandate as ‘in a sense a legislative act of the Council’: PCIJ ser A no 2, 69.
215 Cf Wright, Mandates under the League of Nations, 12: ‘However justified the Arab protest against the Balfour Declaration and the British Mandate may have been in 1919, the issues had become moot before 1947 because the legality of the conditions they established had been recognized by most states including the Arab states, for many years and had been confirmed in the … Charter (Article 80)’. See also Rosenne (1968) 48–9. In 1946 the Arab League seems to have accepted both the position of Britain as Mandatory and the propriety of reference of the problem to the UN: see USFR 1946/VII, 635–6.
219 Kelsen, The Law of the United Nations, 195–7; MartinLe Conflict israelo-arabe, 50–1; Feinberg, Arab Jurist’s Approach, 25–7 and in Moore, 434–50. Cf Wright, Mandates under the League of Nations, 15: ‘In view of the Arab acceptance of the original partition proposal, of the general recognition of Israel as a State, and of its membership in the UN since May 1949, an objection to partition as such is probably not legally valid in 1968.’
222 Prior to 14 May 1948 the UK position was somewhat equivocal. On 12 December 1947, Foreign Minister Bevin referred to the impending ‘transfer of power to the UN’ (i.e. on 15 May): 445 HC Deb col 1389; and to the ‘UN decision’ on partition: ibid, col 1396. On 18 February 1948 he referred to the question of the Holy Places as being ‘in the hands of the UN’: 447 HC Deb col 1150. But on 10 June 1948 the Under-Secretary of State (Mayhew) stated that the argument that Resolution 181 was binding could not ‘possibly be maintained’: 451 HC Deb col 2667.
224 Eagleton (1948) 42 AJIL 397; Elaraby, Law and Contemporary Problems, 102–3; Wright, Mandates under the League, 14–15; Lauterpacht, Jerusalem and the Holy Places, 20–1; Martin, Le Conflict israelo-arabe, 52–5. This view was also, it seems, that of the Arab States: GAOR, 2nd Sp Sess, 1st Comm, 22–3 (1948), cited by Halderman (1968) 53 Law & Contemporary Problems 78, 86.
226 Cf Bevin, 445 HC Deb col 1396 (12 December 1947): ‘HMG are not going to oppose the UN decision. The decision has been taken … We have no intention of opposing that decision, but we cannot ourselves undertake, either individually or collectively in association with others, to impose that decision by force …’.
227 Cattan, Palestine and International Law, 75–6. This view was also tacitly accepted by the Security Council, which relieved the then Acting Mediator of any further responsibilities under Council resolutions upon the conclusion of the Armistice Agreements: SC res 73 (1949), 11 August 1949 (9-0:2 Ukraine, USSR).
228 More recently, it has been inferred that res 181(II) might still have some continuing effect. Thus GA res 43/177 of 15 December 1988 recalled the resolution and noted ‘the proclamation of the State of Palestine by the Palestine National Council in line with General Assembly resolution 181 (II) and in exercise of the inalienable rights of the Palestinian people.’ GA res 48/158D, 20 December 1993, para 5 (c) stipulated that the permanent status negotiations should guarantee ‘arrangements for peace and security of all States in the region, including those named in resolution 181 (II) of 29 November 1947, within secure and internationally recognized boundaries.’ Thus the resolution continues to wield a certain influence.
230 Western Sahara Advisory Opinion, ICJ Rep 1975 p 12, 31–2, and see Chapter 6.
231 The Security Council repeatedly called upon the parties to accept a ceasefire and withdraw to their pre-war positions, a view inconsistent with the proposition that Palestine was then terra nullius.
233 Cf Bevin, 451 HC Deb col 2144 (9 June 1948): ‘HMG do not consider that the recommendations voted by the General Assembly on 29 Nov 1947, can be invoked as imposing a legal obligation to recognize the Jewish State set up on 14 May. The resolution of 29 November instructed the UN Commission from the further exercise of its responsibilities. In these circumstances HMG will judge the Jewish State’s case for recognition on its own merits according to the normal criterion of international law.’ Cf ibid, col 2667 (10 June 1948).
234 The various positions were reflected in the Council debates on Israel’s application for admission. At its meeting on 2 December 1948, Jessup emphasized the de facto considerations: SCOR 3rd yr 383rd mtg (2 December 1948) 10–22. Malik repeated the Soviet view of the binding nature of res 181. On 15 December 1948 the British delegate referred to ‘the obvious fact that the Jewish State is now in process of formation, and that it will continue to exist. At the same time, it must be admitted that the frontiers of the Jewish State are at present quite unsettled … in large and important areas …’:ibid, 384th mtg, 14–15. The French approach was similar, although the doubt related to timing rather than substance: ‘the existence of the State of Israel can now no longer be seriously challenged. As a result of the de facto situation … some time or other—and perhaps very soon—the State of Israel will have to be admitted to the UN’: ibid, 385th/386th mtgs (17 December 1948) 16. The Canadian delegate agreed: ibid, 24–5. A French proposal for deferral for a month was rejected (6-0:5): ibid, 35, as also a British proposal for deferral sine die (4-0:7): ibid, 34, and a Belgian proposal for referral to the International Court (2-0:9): ibid, 36–7. The draft resolution recommending admission was rejected: 5-1:5. At a later meeting, however, the British delegate referred only to issues relating to Israeli compliance with UN resolutions: 4th yr, 414th mtg (4 March 1949) 2–3. The French position was also much clearer: ‘now that the State of Israel is in existence, it feels that that State fulfils the obligations of the Charter and shows every sign of being a peace-loving State’: 413th mtg (3 March 1949) 8. The Council recommended admission 9-1 (Egypt):1 (UK).
235 In deciding upon immediate recognition, President Truman overrode State Department advice based on a legal opinion of 13 May 1948 by the legal adviser, EA Gross, which stated that, prior to the establishment of a stable and effective government, recognition constituted ‘an unwarranted interference in the affairs of the previously existing state’: cited by Snetsinger, Truman, the Jewish Vote and the Creation of Israel, 108–9, 181. Cf Brown (1948) 42 AJ 620. Soviet recognition was extended on 17 May 1948.
237 The UN Mediator, Bernadotte, thought that Israel was securely established in September 1948: see Carnegie Endowment for International Peace, Israel and the United Nations, 88. In two cases, the Prize Court of Alexandria held Egyptian seizure of cargoes shortly after the termination of the Mandate justified by the belligerency existing between Egypt and Israel despite Egypt’s non-recognition of Israel: The Fjeld (1950) 17 ILR 345; The Flying Trader (1950) 17 ILR 440. Israeli courts were, of course, bound by the Declaration of Independence to regard 15 May 1948 as the beginning of the existence of Israel: Ziv v Gubernik (S Ct, 1948), aff’d el Kharbutli v Minister of Defence (S Ct, 1949) 15 ILR 7. See also AB v MB (Tel Aviv DCt, 1951); Oseri v Oseri (Tel Aviv DCt, 1952) 17 ILR 110 (nationality).
238 See the overview in Efrat Ungar v Palestine Liberation Organization, 402 F 3d 274, 284–9 (2005); and see also Boyle (1987–8) 4 Pal Ybk 15; Salmon (1988) 34 AFDI 37; Flory (1989) 93 RGDIP 385; Geesteranus (1989) 2 Leiden JIL 79; Prince (1989) 25 Stanford JIL 681; Salmon (1989) 5 Pal Ybk 48; Gowlland-Debbas (1990) 61 BY 135; Howley (1990) 8 Dick JIL 348; Lapidoth and Calvo-Goller (1992) 96 RGDIP 777; Bockel, (1994) 40 AFDI 261; Guarino, La questione della Palestina nel diritto internationale; McDowall, The Palestinians: The Road to Nationhood; Bockel (1995) 41 AFDI 32; Calvo-Goller (1995) 41 AFDI 53; Mouton (1996) 100 RGDIP 951; Dajani (1997) 26 Denver JIL & Pol 27; Bishara (1999) 28 J Pal Stud 5; Crawford in Goodwin-Gill (ed), The Reality of International Law, 95.
241 See, e.g., Boyle (1988) 7 Scandinavian Journal of Development Alternatives 25; Boyle (1990) 1 EJIL 301; and the response by Crawford (1990) 1 EJIL 307. See also Lapidoth and Colvo-Goller (1992) 96 RGDIP 777.
243 Ibid, 303. Boyle has, however, already stated that the Palestine National Council’s Declaration of Independence was ‘definitive, determinative and irreversible’: ibid, 303.
244 Ibid, 304.
248 Self-determination may involve other outcomes than independence: see GA res 1541 (XV), Principle V. But in the case of Palestine such options are excluded. For example earlier ideas of ‘confederation’ with Jordan were set aside: see King Hussein’s speech of 31 July 1988, in Institute for Palestinian Studies, The Palestinian-Israeli Peace Agreement: A Documentary Record, 262.
250 Schmidt-Jortzig (1991) 34 German YBIL 413; Sinjela (1993) 1 African YBIL 13, and see further Chapter 12.
254 Boyle (1990) 1 EJIL 302–3. Earlier resolutions had been expressed in terms of ‘the right to national independence’ as a consequence of self-determination. See, e.g., GA res 3236 (XXIV), 22 November 1974 (adopted by 89-8: 37) reaffirming ‘the inalienable rights of the Palestinian people in Palestine, including: (a) The right to self-determination without external interference; (b) The right to national independence and sovereignty’.
258 As noted by Brownlie, Principles (6th edn) 164–5. See further Chapter 12.
261 Ibid, 304.
262 On the status of Palestine in the post-1993 period are Dajani (1997) 26 Denver JILP 27; Shehadeh, From Occupation to Interim Accords. See also Cassese, Self-determination of Peoples, 230–48; Cassese (1993) 4 EJIL 564; Bockel (1994) 40 AFDI 261; Colvo-Goller (1995) 41 AFDI 53; Sayigh (1995) 24 J Pal Stvd 5; Mackinney (1994) 18 Seattle ULR 93; Schulman (1993) 7 Emory ILR 793; Ben Achour (1994) 98 RGDIP 337: Lustick (1997) 30 Cornell ILJ 741; Silverburg (1998) 6 Tulsa JCIL 21; Beres (1999) 17 Dickinson JIL 229; Weiner (1999) 23 Fordham ILJ 230; Husseini (2003) 26 Fordham ILJ 500.
264 For example, such a declaration was foreshadowed for 4 May 1999, the end of the five-year transitional period defined in Article V of the 1993 Declaration of Principles on Interim Self-Government Arrangements.
273 Agreed Minutes to the Declaration of Principles on Interim Self-Government Arrangements, B, Art IV: (1993) 32 ILM 1542; repeated with further elaboration in Art XVII of the Art 17 of the Interim Agreement on the West Bank and the Gaza Strip, 28 September 1995, which states that ‘[i]n accordance with the Declaration of Principles, the jurisdiction of the Council will cover West Bank and Gaza Strip territory as a single territorial unit, except for: (a) issues that will be negotiated in the permanent status negotiations: Jerusalem, settlements, specified military locations, Palestinian refugees, borders, foreign relations and Israelis.’
277 ‘As regards the principle of the right of peoples to self-determination, the Court observes that the existence of a “Palestinian people” is no longer in issue’: Wall Advisory Opinion, ICJ Rep 2004 p 136, 182–3 (para 118).
282 There was in fact very little anticipation of the separation in the case of Czechoslovakia: even a month before, everyone was proceeding on the basis of the ‘diplomatic unity’ of Czechoslovakia. Cf Case concerning the Gabcíkovo-Nagymaros Project, ICJ Rep 1997 p 3.
286 In September 2005, pursuant to a Revised Disengagement Plan of 6 June 2004 (available at http://www.mfa.gov.il/MFA/Peace+Process/Reference+Documents/Revised+Disengagement+Plan+6-June-2004.htm), Israel evacuated its military forces and settlers from the Gaza Strip. The evacuation did not end all incidents of occupation in Gaza, as Israel retains control over the frontiers, airspace, and maritime zone. Under international humanitarian law, occupation of territory is a temporary phenomenon and, as a general matter, an occupant can withdraw from territory including by way of partial withdrawal. However Israel’s obligations with respect to the Occupied Palestinian Territory do not arise exclusively under the law of occupation but under specific agreements as well as under general international law. Moreover it is not for Israel to declare, expressly or by inference, the independence of Palestine on part only of its territory, and a fortiori where substantial control continues to be exercised over that territory. In accordance with the arguments set out above, the Occupied Palestinian Territory constitutes a single self-determination unit, not to be divided without the consent of the inhabitants: see Wall Case, Written Statement, Jordan (30 January 2004) 89–90, para 5.134; Written Statement, Malaysia, 42–43, para 115. Thus the better view is that the partial withdrawal has no legal significance and that the status of the Occupied Palestinian Territory remains unchanged pending a comprehensive settlement.