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Scottish Independence and EU Membership: Part I

Published on September 10, 2014        Author: 

Introduction

As the campaigns for and against Scottish independence move into their final rounds of sparring before the vote on 18 September, the question of Scottish membership of the European Union (EU) sits (relatively) quietly in the background. And no wonder: a question which involves the interaction between the complexities of international, EU and domestic law, as well as the vagaries of international politics is a headache for which the average voter has little appetite, and nuanced discussion of which is unlikely to win many votes. Nonetheless, the question of Scottish EU membership is of considerable practical importance if a ‘Yes’ vote is returned and raises very interesting legal issues. (For previous posts on this blog raising some of those issues, see here, here and here).

Due to the complexity (and controversial nature) of the issues involved, my analysis will be split into two posts. This first post sets out the broad position of the campaigns, explores the relationship between international law and EU law, and considers whether there is any merit in the view that an independent Scotland would become a member of the EU automatically (the ‘automatic succession’ argument). It is argued that the automatic succession argument is unpersuasive even as a matter of EU law. The second post will consider the arguments concerning the correct legal basis in the European Treaties for negotiated EU membership, as well as some of the problems involved in the negotiations, the consequences if they fail, and how such issues might come to be considered by the Court of Justice.

The position of those campaigning against Scottish independence is that if Scotland becomes independent, it would not be an EU member state, and would have to reapply to join, possibly languishing at the back of a queue of other applicant states.

The separatist position has been a somewhat movable feast. At one point, the Scottish Government suggested that an independent Scotland would automatically be a member of the EU and some eminent commentators, such as Aidan O’Neill QC, have also sought to defend that outcome (see here). However, the Scottish Government has now disavowed that position, and the White Paper recognises that EU membership would need to be negotiated after all (as does O’Neill, see: here). Nevertheless, it seeks to make the case that such negotiation would be seamless and therefore the risks of not being welcomed with open arms are small. Read the rest of this entry…

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Crimea: Does “The West“ Now Pay the Price for Kosovo?

Published on April 22, 2014        Author: 

There is a lingering sentiment on this blog (see the posts by Nico Krisch and Christian Marxsen) that “the Kosovo issue” has facilitated the blatant violations of international law recently committed by Russia with regard to Crimea (notably the unlawful annexation of that territory), and that “the West’s” behaviour in the Kosovo context now prevents clear condemnations and robust reactions towards these violations. That view has also been espoused elsewhere (see, e.g., Marcelo Kohen, “L’ Ukraine et le respect du droit international”, Le Temps, 13 March 2014 and Bruno Simma, “The West is hypocritical” (interview), Der Spiegel, 7 April 2014). The basic idea is that “the West” now pays the price for Kosovo, and that such a situation was predictable (and has been predicted) by those who now deplore it, and allows them to think (or even to say): “Well, we warned you from the beginning on, and this is now what comes out of it … so we were right”.

In this post, I would like to investigate the soundness of this position. We first have to ask what is meant by “the Kovoso issue”. Actually “Kosovo” refers to two events: not only to the sponsoring of Kosovo’s independence in 2008, but also to the possible unlawfulness of NATO’s military intervention of 1999. Both events were politically linked, and they concerned three different core norms of international law: the prohibition on the use of force, territorial integrity/inviolability of boundaries, and the self-determination of peoples.

In the Crimea crisis, all three norms are again at stake: Russia both relies on its right or even responsibility to intervene with military means to prevent human rights abuses committed against ethnic Russians and Russian citizens (humanitarian type /R2P-type intervention) and on the Crimean (or even Eastern Ukrainian) right to secession based on the right to self-determination whose exercise in Crimea led to a disruption of Ukrainian territorial integrity.

Did Russia abuse these norms? Read the rest of this entry…

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Sense and Nonsense of Territorial Referendums in Ukraine, and Why the 16 March Referendum in Crimea Does Not Justify Crimea’s Alteration of Territorial Status under International Law

Published on April 16, 2014        Author: 

Referendum in Crimea

Yesterday, on 15 April 2014, Ukrainian interim president Turtschinov considered to hold, simultaneously with the presidential elections, a referendum on regional competences in Ukraine. On 8 April 2014, separatists in the Ukrainian region of Donetsk proclaimed that they would hold a referendum on the independence of that Eastern region of Ukraine. Some days before, representatives of the Crimean Tatars announced that they sought to hold a referendum on their political autonomy within Crimea.

On 16 March 2014, the population of Crimea had overwhelmingly voted in favour of joining the Russian Federation. The population was asked to choose between the following alternative: “1) Are you in favour of Crimea joining the Russian Federation as a subject of the Russian Federation?” or “2) Are you in favour of re-establishing the 1992 constitution of the Republic of Crimea and Crimea’s status as a part of Ukraine?” The maintenance of the territorial and status quo was not given as an option in that referendum, and no international observers were admitted. With a voter turnout of 83.1 %, 93 % answered with a “Yes” to the second question, and thus pronounced themselves in favour of joining the Russian Federation.

The spokespersons of the Tatars now declare that their ethnic group had boycotted the referendum of 16 March, and assert that the majority of Tatars would have preferred to stay within Ukraine. Tatars currently form about 10 percent of the Crimean population. Probably hundreds of thousands of Tatars were killed, starved, and were deported from the 1920s to the 1940s under Soviet policy. The new government of Crimea rejects the idea of a politically autonomous territory for the Crimean Tatars but holds that the Tatars can only claim “cultural autonomy”.

The 16 March referendum, and announced further territorial referendums in Ukraine, place in the limelight the problématique of this legal institution. Are not the outcomes of referendums in ethnically mixed units most often ethnically pre-determined? And does not the resort to a referendum lead to ever smaller subgroups which again seek to detach themselves from a larger one? After all, the Ukrainian people, including the Crimean population, had some 20 years ago voted in favour of independence from the Soviet Union. (See on the 1991 referendum in Ukraine Anne Peters, Das Gebietsreferendum im Völkerrecht (Baden-Baden: Nomos 1995), 184-88; specifically on previous Crimean referendums ibid., 190-91, 211-15). That Ukrainian referendum of 1 December 1991 had been at the time widely appreciated as having rung the death knell for the dissolution of the USSR one week later, when the Agreement Establishing the Commonwealth of Independent States of Minsk of 8 December 1991 declared that the Soviet Union had ceased to exist. But even before that date, and later, Crimean politicians had several times (in 1991, 1992, 1994, and so on) planned and sometimes held “polls” on a special status of Crimea.

This post postulates that, as a matter of international customary law, and as a matter of legal consistency and fairness, a free territorial referendum is emerging as a procedural conditio sine qua for any territorial re-apportionment. However, the 16 March referendum was not free and fair, and could not form a basis for the alteration of Crimea’s territorial status. Read the rest of this entry…

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Boyle and Crawford on Scottish Independence

Published on February 12, 2013        Author: 

Last month, Joseph Weiler’s post on Catalonian independence and the European Union triggered a lively discussion here on EJIL!Talk (including Nico Krisch’s reply). Yesterday’s publication by the British government of a legal opinion by Alan Boyle of the University of Edinburgh and James Crawford of the University of Cambridge, entitled ‘Referendum on the Independence of Scotland: International Law Aspects’ has already received extensive news coverage (eg BBC, New York Times, Guardian, FT) and was labelled as ‘incredibly arrogant’ by the Scottish deputy first minister.  In a riposte, the Scottish government accelerated publication of a report on the macroeconomic framework in case of Scotland’s independence. A committee composed of economists, including Nobel prize winners Joseph Stiglitz of Columbia University and Sir James Mirrlees of the University of Cambridge, suggested that if the Scottish people voted for independence in 2014, a formal currency union between UK and Scotland, with a 10 percent Scottish stake in the Bank of England, would be the most likely outcome.  The currency that Scotland would use in the event of independence and Scottish membership in international organisations, most importantly the European Union, have been focal points of the discussion in the lead-up to the referendum.

Read the rest of this entry…

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A Reply to Vahagn Avedian – State Identity, Continuity, and Responsibility: The Ottoman Empire, the Republic of Turkey and the Armenian Genocide

Published on November 13, 2012        Author: 

Pulat Tacar has been Co-Chairperson of the Turkish National Commission for UNESCO (1995–2006), Ambassador of Turkey to UNESCO (1989–1995), Ambassador of Turkey to the European Communities (1984–1987) and to Jakarta (1981–1984). Maxime Gauin is a researcher at the International Strategic Research Organization (USAK, Ankara) and a PhD candidate at the Middle East Technical University. In this post, which summarises their article published in (2012) 23 EJIL 821-835, they respond to the piece by Vahagn Avedian.

The Armenian question is especially sensitive, not least because of the long accumulation of prejudices against Turks, Armenian terrorism in 1973–1991, the Armenian invasion and occupation of western Azerbaijan since 1992, and more recently the virulent anti-Turkish stance of Anders Breivik in his manifesto and the various campaigns or attacks by Armenian nationalists. So, it is better to ease the tensions instead to fuel them.

In this response to Vahagn Avedian’s EJIL article and post, we would like to raise two issues: Is genocide a pertinent concept to define the fate of the Ottoman Armenians during WWI?; and has the Republic of Turkey legal responsibilities for this fate?

The Terms of the Dispute

The term ‘genocide’ is a legal term; it describes a crime specifically defined by the 1948 Genocide Convention and must be addressed accordingly. The existence of the crime of genocide can be legally determined only by the judges of a competent tribunal on the basis of the prescribed legal criteria and after a fair and impartial trial. The Genocide Convention does not allow for convictions on the grounds of genocide by legislatures, scholars, pamphleteers, politicians, or others.

Read the rest of this entry…

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State Identity, Continuity, and Responsibility: The Ottoman Empire, the Republic of Turkey and the Armenian Genocide

Published on November 12, 2012        Author: 

Vahagn Avedian is a PhD candidate in the Department of History, Lund University and Chief Editor of Armenica.org. This post summarises his article which was published in (2012) 23 EJIL 797-820.

The Republic of Turkey’s denial of the Armenian genocide has evolved, abandoning the simple denial of the ever growing facts. The sophistication includes revisionism, reinterpretation of the UN Genocide Convention, but also pleading the discontinuity between the Ottoman Empire and present-day Turkey. This last argument is quite interesting due to its paradoxical nature: if there is a discontinuity, how come Turkey, unlike Germany, is ardently defending its otherwise flawed predecessor? West Germany chose to reinstate its international prestige by condemning the wrongdoings of Nazi Germany and compensating the victims. While condemning the crimes, East Germany refused to accept responsibility to compensate, referring to the discontinuity between the two states. Turkey has chosen to ardently refute it all together. This article aims to elucidate this aspect of the Turkish denial as a deliberate means to evade the issue of compensation. Furthermore, by failing to stop the WWI era massacres and confiscations (which aimed to create a ‘Turkey for Turks’), but more importantly, by continuing the same internationally wrongful acts committed against the Armenian population and other minorities, Turkey made itself responsible for not only its own actions, but also for those of its predecessor, the Young Turk Government. In my article, I show this by applying the norms of existing international law in regard to state identity, continuity, and responsibility on the historical data at hand.

Before we continue, it must be emphasized that I do not limit my analysis to the definition in the UN Genocide Convention and its legal restraints. Instead, I examine the issues from the perspective of internationally wrongful acts more generally.

Turkey as the Continuation of the Ottoman Empire

A first logical step would be to establish the identity of the two Turkish states and possible continuity. Dividing the determining factors into ‘objective’ and ‘subjective’ categories, K. G. Bühler asserts that it is not merely ‘objective’ factors such as substantial part of territory, population, and armed forces, that bear upon state identity and continuity, but ‘subjective’ factors, such as the successor’s claim to continuity and its self-conception, also do matter [State Succession and Membership in International Organizations: Legal Treaties versus Political Pragmatism (2001), at 14]. Recent changes in Europe, especially the dissolution of Soviet Union and Yugoslavia confirm this vision of state identity and continuity. Turkey’s case is quite similar to that of Russia which regarded as the continuation of the Soviet Union. In fact, there are two arbitral rulings: the Ottoman Debt Arbitration and Roselius & Co v. Karsten and the Turkish Republic, which regard Turkey as the continuation of the Ottoman Empire. Read the rest of this entry…

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Scottish Independence and the European Union

Published on October 31, 2012        Author: 

Matthew Happold is Professor of Public International Law at the University of Luxembourg 

Recent events in a number of European States have pushed the issue of secession up the political agenda.  In Catalonia, the ruling Convergencia i Unio party has announced its intention to hold a referendum on Catalan independence if it wins the forthcoming regional elections, despite the Spanish government’s claim that such action would be illegal.  In the United Kingdom, the Westminster and Edinburgh governments have agreed to the holding of an independence referendum in 2014. In neither case, however, does there seem to be a wish to combine independence with an exit from the European Union. The Scottish National Party (SNP), in particular, have long campaigned on the slogan ‘Independence in Europe’, seeking to persuade voters that they can have the best of both worlds: Scottish independence and EU membership.

In recent years, however, the SNP have quietly modified their position.  Instead of arguing that an independent Scotland would automatically be a member of the European Union, it now claims that it is ‘inconceivable’ that it would not become one.  This reflects a hard truth.  Although as a matter of politics, it may seem inconceivable that an independent Scotland -or an independent Catalonia – would not take its place as an EU member; legally there is no automaticity about the matter at all.  Succession to membership of international organisations (which the EU must, for these purposes, be classed as) is governed by international law.  International law provides that membership of international organisations is governed by the rules of each organisation.  And the Treaty on European Union does not provide for succession to membership.

Read the rest of this entry…

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The Newly Independent State of South Sudan – Should We Rethink the Right to Secession?

Published on July 15, 2011        Author: 

It would be remiss of us not to note the birth of South Sudan as the world’s newest State. South Sudan gained independence from the Republic of Sudan last Saturday (9 July) and was admitted to the United Nations yesterday as the 193rd member of the UN. Independence was the result of a referendum held earlier this year in which 99% of the South Sudanese population voted for independence. South Sudan is the second African State (after Eritrea) to split from its parent state after such a referendum (which in both cases have followed a lenghty conflict).  Back in 1964, the Organization of African Unity adopted its famous resolution (see p. 17) in which it:

SOLEMNLY DECLARES that all Member States pledge themselves to respect the borders existing on their achievement of national independence.

That resolution was often interpreted as prioritising the principle of stability of boundaries and of territorial integrity over the right of self determination. Indeed, it has often been used as an argument in favour of the view that the right of external self-determination (i.e a right to secession) does not exist for minority groups or outside the colonial context. On its face though that resolutions does not speak to relationship between the State and its constituent entities but rather to the relationship between States. Nothing in the resolution itself precludes the possibility of changes in those colonial boundaries (either through inter-State adjustments or through the granting of independence by States to particular parts of the State). Having said this, it is nonetheless clear, that the mood – in Africa and elsewhere – was largely to confine the principle of self determination – at least in so far as might confer a right or entitlement to secession – to the colonial or quasi colonial situations (i.e contexts of racist or alien domination). But Sudan (and indeed Eritrea before it) suggest that there might be cases where African states are willing to consider secession (though only when tired out by lenghty wars!). The question then is whether we should rethink the principle of external self determination to allow not just for the possibility of secession but a right  of secession. I would like to draw readers attention to two posts of earlier this year in which the authors do call for this. Read the rest of this entry…

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Let His People Go: Sudan’s Lesson for Secession

Published on January 24, 2011        Author: 

Timothy William Waters, a professor at Indiana University Maurer School of Law, is the author of numerous articles on self-determination.

DAYS before it began voting for independence, Africa’s soon-to-be newest country hosted a modern Pharaoh who, not long ago, sent armies to crush its bid for freedom. In a visit to South Sudan’s capital, Juba, just before the week-long referendum began, Sudan’s President Omar Hassan Al-Bashir vowed to respect the region’s right to form a new country: “We cannot deny the desire and the choice of the people of the south,” said Al-Bashir. “This is their right.”

 Sudan’s leader didn’t always talk this way. His new magnanimity follows decades of grinding, wasting struggle pitting the Arab Muslim-dominated government against Christian and animist southerners, in a bid to control their oil-rich land and impose Islamic law onthem. Millions died; thousands were enslaved.  (Al-Bashir has also been indicted for genocide in Darfur.) Pressure from the United States produced the 2005 agreement that gave the South autonomy and led to this week’s referendum. There have been some violent incidents, but nothing like the slaughter of the past. Mostly voters have calming registered their overwhelming desire for independence. Yet only months ago, experts still feared a return to full-scale war if Sudan’s rulers again hardened their hearts.

 Instead there was Al-Bashir, saying these extraordinary things. Though the causes are complex, Khartoum’s acquiescence has made the difference between war and peace. The diplomatic pressure from the US and African states has all been focused on ensuring Sudan’s government allows the vote to proceed and respects the outcome, rather than reverting to war. This holds an important lesson about the sources of violent conflict within states, and shows that the world needs a radically new approach to secession.

Although Al-Bashir acknowledged southerners’ right to secede, it’s a right most peoples don’t have. Since the Second World War, territorial integrity has been a pillar of our international order: states’ borders can’t be changed without their consent. Even the creative diplomacy leading to the 2005 agreement needed Sudan’s signature.

The problem is all the states that aren’t willing. Preventing interstate wars of conquest is clearly positive, but the belief that fixed frontiers reduce internal violence is more assumed than proven. Challenging borders is thought to open Pandora’s box – but what if borders are the problem? Read the rest of this entry…

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In other news…

Published on February 27, 2009        Author: 

… this time from the department of shameless self-promotion: I’ve just posted on SSRN a draft chapter on the territorial application of the Genocide Convention and state succession in the forthcoming Commentary to the Convention edited by Paola Gaeta and published by OUP. Some of my blogging here was based on that piece, so maybe some of the readers would be interested in it. Comments are welcome.

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