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Home Archive for category "Self-Determination"

A Footnote on Secession

Published on October 26, 2017        Author: 

We have had a very rich debate on secession on the blog in recent weeks, and we will have more posts to follow. For my part, I would agree with much of what Jure Vidmar has said in his post this week, with the proviso that I personally don’t think the argument out of comparative constitutionalism necessarily has much purchase – that argument is contextually specific, and what works constitutionally in Canada or in the UK need not be the position in Spain. The ultimate arbiter of the Spanish constitutional order – the Constitutional Tribunal – has (for good or ill) not gone the Quebec Reference path. I agree in particular that international law has little to say on the secession of Catalonia specifically; Kurdistan is a more difficult question (on which a bit more below). What I would like to do in this post, however, is take a step back and reflect more generally on how secession is regulated by international law – and it is indeed regulated, if not wholly so.

It seems to me most useful to conceptualize international law’s regulation of secession in a three part model. First, there are cases where international law explicitly prohibits secession, when it is being effected through the violation of some fundamental norm of international law, such as the prohibition on the use of force or the prohibition on racial discrimination – this was the case, for example, with the Turkish Republic of Northern Cyprus. Such fundamental illegality is an impediment to the achievement of statehood which otherwise satisfies the relevant factual criteria, and thus bounds effectiveness. Crucially, as the ICJ has confirmed in the Kosovo AO, among these norms is NOT the principle of territorial integrity insofar as it does not govern the relationship between the parent state and an internal secessionist movement; that principle is only relevant if a third state assists a secessionist entity, as with Turkey and the TRNC.

Second, there is a middle ground, a zone of tolerance, where international law is neutral towards secession, neither prohibiting it nor creating a right to it. This neutral zone is what is left over from the classical position towards secession in international law, which was essentially that in order to establish itself as a state against the wishes of its parent, the secessionist entity needed to fight – and win – a war of independence against its parent (e.g. the USA, or most of the states of Latin America).

Finally, in the third part, a zone of entitlement, international law creates a right to secession under external self-determination, or perhaps remedial secession. The argument of Serbia and most of its allies in the Kosovo advisory proceedings was essentially that no zone of tolerance existed between prohibition and entitlement; the argument of Kosovo and its supporters that international law at the very least tolerated the declaration of independence/secession. Serbia could also have argued that even if the territorial integrity principle did not generally prohibit non-state actors from declaring independence, it did so here because Kosovo’s independence was as a matter of fact enabled by an unlawful use of force contrary to the Charter by NATO in 1999. Serbia of course deliberately chose not to do so, and for three basic reasons: it did not want to antagonize the NATO powers, as this argument would inevitably do, the Resolution 1244 regime came after the initial use of force and authorized the presence of international forces in Kosovo, and it was highly unlikely that the Court would want to rule on it in the context of the advisory proceedings.

Read the rest of this entry…

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Catalonia: The Way Forward is Comparative Constitutional Rather than International Legal Argument

Published on October 24, 2017        Author: 

On 10 October 2017, Catalonia issued and then immediately suspended its declaration of independence, and urged Spain to negotiate. Spain does not want to negotiate. Rather, it sought clarification as to whether or not Catalonia’s manoeuvre indeed was a declaration of independence. Such clarification was needed, according to Spain, in order to decide on an appropriate response. Subsequently, Spain announced its plan to remove certain political leaders of Catalonia and impose direct rule on the region. The recent situation in Catalonia has already been addressed on this blog (see here and here). What is striking – or perhaps not – is how little international law actually has to say on secession and indeed even on statehood. Statehood is quite simply a politically-created legal status under international law. Catalonia is yet another proof that statehood is a complicated nexus of law and politics which cannot be explained by legal rules alone. International law merely delineates the field for a political game. Just as studying football rules cannot tell us which team is going to win – Barcelona or Real – studying the law of statehood alone cannot tell us how states emerge. We need to see the game played within certain rules. In this post, I will explain the international legal framework that defines the rules of the political game and argue that the game itself may be much more influenced by comparative constitutional rather than international legal argument.

Unilateral secession between Kosovo para 81 and Quebec para 155

In the modern world, new states can only emerge at the expense of the territorial integrity of another state (see here for details). The emergence of a new state is then a political process of overcoming a counterclaim for territorial integrity. Sometimes states will waive such a claim – the United Kingdom was willing to do that with regard to Scotland. Where the parent state does not waive its claim to territorial integrity, an attempt at secession is unilateral.

The international law on unilateral secession is determined by the Kosovo Advisory Opinion para 81 and the Quebec case para 155. It follows from Kosovo para 81 that unilateral declarations of independence are not illegal per se, i.e. merely because they are unilateral, but illegality may be attached to them in situations similar to Northern Cyprus and Southern Rhodesia. This is not the case with Catalonia. Pursuant to Quebec para 155, the ultimate success of unilateral secession depends on recognition by other states. This pronouncement may sound somewhat problematic in light of international legal dogma that recognition must always be declaratory. Where independence follows from a domestic settlement (e.g. had Scotland voted for independence in 2014), recognition indeed plays little role. But the Supreme Court of Canada was quite right that recognition is much more instrumental – even constitutive – where a claim for independence is unilateral.

 

The Kosovo and Quebec doctrines lead us to the conclusion that where the Northern Cyprus or Southern Rhodesia type of illegality is not attached to a declaration of independence, the obligation to withhold recognition under Article 41 ARSIWA does not apply, and pursuant to Quebec para 155 foreign states may grant recognition, taking into account the legality and legitimacy of a claim for independence. This means that foreign states could recognise Catalonia, but they are under no obligation to do so. Read the rest of this entry…

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Secession and Self-determination in Western Europe: The Case of Catalonia

Published on October 18, 2017        Author: 

This presentation is based in part on the Legal Opinion by an International Commission of Legal Experts addressing the question of Catalonia: The Will of the People and Statehood. The Commission was composed of Professors Marc Weller (UK ), John Dugard (South Africa), Richard Falk (USA) and Ana Stanic (Slovenia). Although the Opinion was commissioned by Esquerra Republicana de Catalunya, its findings represent the agreed and independent views of the authors. While based on the Opinion, which will be published in due course, this contribution does not purport to give an authoritative rendering of it, but instead represents the views of the author.

This contribution assesses the claim to statehood of Catalonia, addressing in turn:

  • The criteria for statehood;
  • The legality or otherwise of unilateral declarations of independence;
  • The issue of self-determination;

Objective criteria of Statehood

Catalonia can easily meet the classical, objective criteria for statehood. It has a clearly defined territory of some 32,000 sq km, featuring clearly defined boundaries. Its stable population numbers around 7.5 million, far in excess of many recently independent states in Europe and beyond. It is the most economically viable region when compared to other parts of Spain. Even under autonomy within Spain, Catalonia has exhibited most of the functions of effective government.

Whether Catalonia would in fact exercise fully independent powers of government can only be assessed if and when it decides to implement its declaration of independence, at present suspended in application. Catalonia has generated a substantive transitional law, to apply pending the adoption of a new constitution once independence proceeds. That law would assign all public powers to the new state, including foreign affairs powers (‘capacity to enter into international relations’). Hence, Catalonia is, at least potentially, capable of statehood.

Negative subjective criterion

In addition to the classical, objective criteria, there are negative and positive subjective criteria of statehood. The negative criterion, confirmed by the International Court of Justice in the Kosovo Opinion, demands that statehood must not be tainted by jus cogens violations. There is no suggestion of such conduct by Catalonia in this instance.

First positive subjective criterion: A manifestation of popular will

The positive subjective criteria come in two guises: first, there must be an act of will of the population, and second, that will must be enacted through a declaration of independence.

Any change in the social contract of a political community as dramatic as an act of secession from the established legal order must be based on the will of the people. Ordinarily, this would take the form of a referendum, although in some instances (dissolution of Czechoslovakia), concurrent decisions of the elected national and regional assemblies have been taken to be sufficient.

The international legal requirements for a valid referendum are only emerging. Still, in analogy to emerging standards on democratic governance, at least within Western Europe, it is clear that there must be a free and fair campaign and a transparent and open balloting process. In this instance, any intimidation came from the side of the Spanish government, including arrests, raids and other measures against pro-independence campaigners and officials. Read the rest of this entry…

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Populist International Law? The Suspended Independence and the Normative Value of the Referendum on Catalonia

Published on October 12, 2017        Author: 

In his speech before the Catalan regional parliament on 10 October 2017, the Catalan President Carles Puigdemont suspended a declaration of independence but stated that the referendum of 1st October gave the Catalans a mandate for creating a sovereign state. This post examines whether this assertion is borne out by international law. I submit that neither the Catalans and their leaders nor the central government act in an international law-free zone.

A declaration of independence would not violate international law

The International Court of Justice, in its Kosovo opinion of 2010, found that a unilateral declaration of independence does “not violate general international law” (para. 122) ─ if such a declaration is not “connected with the unlawful use of force or other egregious violations of norms of general international law, in particular those of a peremptory character (jus cogens)” (para. 81; see also paras 84, 119-121 on non-violation). The ICJ in that Opinion inverted the legal question placed before it (which had been whether the declaration of independence was “in accordance with international law” (para. 1)). The Court had also shied away from saying anything meaningful on secession (as opposed to the speech act of declaring independence). In result, the Advisory Opinion came out as a parsimonious if not meagre restatement of the law.

Disproportionate use of force (police and military) is prohibited by international law

However meek, the Kosovo Advisory Opinion is relevant for Catalonia also with regard to the prohibition on the use of force. The Court here said that “unlawful use of force” would taint a declaration of independence and make it violative of international law (para. 81), but did not say when such resort to force would indeed be “unlawful”. Also, the ICJ did not say whose use of force although it probably had the separatists themselves in mind. Read the rest of this entry…

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Can the International Court of Justice Decide on the Chagos Islands Advisory Proceedings without the UK’s Consent?

Published on June 27, 2017        Author:  and

As Marko has noted in this post, last week Thursday, the UN General Assembly adopted a resolution requesting the International Court of Justice provide an advisory opinion on the legality of the separation by the United Kingdom of the Chagos Archipelago from the colony of Mauritius prior to the grant of independence to Mauritius by the UK in 1968. Under Article 96 of the UN Charter, the General Assembly can request from the ICJ an advisory opinion on “any legal question.” However, in the process leading to the adoption of the General Assembly resolution, the UK argued that the question put to the Court is essentially about a bilateral dispute between States, and that it is inappropriate for the ICJ advisory opinion procedure to be used to obtain adjudication of a bilateral dispute between states that have not consented to ICJ jurisdiction over that dispute (see summary of debate here and UK statement here). As Marko noted in his post, the Assembly resolution is drafted so as to try to demonstrate that the matter is not (or not just) a bilateral dispute over sovereignty to the Islands but rather a question of self-determination within the remit of the General Assembly. Undoubtedly, the question of the Court’s competence to render the opinion, and of the appropriateness of doing so will be raised again before the Court. This post focuses on the role of state consent in the Court’s advisory jurisdiction, and explores the previous jurisprudence of the Court on whether it can render an advisory opinion which requires it to pronounce on the obligations of states and in particular to pronounce of disputes between states. A key preliminary question the Court will be faced with in the Chagos Islands advisory opinion is whether it (the ICJ) should, for the first time, exercise its discretion not to give an advisory opinion on the ground that the request offends against the principle requiring consent for international adjudication of inter-state disputes. If it does that, the Court would be following a decision of the Permanent Court of International Justice refusing to give an opinion on such grounds.

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The Consequence of the UN Resolution on Israeli Settlements for the EU:  Stop Trade with Settlements

Published on April 4, 2017        Author: 

The recent UN Security Council Resolution 2334 (2016) reaffirmed that the establishment of Israeli settlements in the occupied Palestinian territory has no legal validity and that Israel’s settlement enterprise is a flagrant violation of international law. The resolution also calls upon all States “to distinguish, in their relevant dealings, between the territory of the State of Israel and the territories occupied since 1967”. This part of the resolution is of great significance with regard to the question of trading with settlements.

While the content of the resolution might seem novel, Secretary of State John Kerry was right to remind us in his landmark speech on the Israeli-Palestinian conflict at the end of 2016 that:

this resolution simply reaffirms statements made by the Security Council on the legality of settlements over several decades. It does not break new ground”. In 1980 UN Security Council Resolution 465 had called upon all States “not to provide Israel with any assistance to be used specifically in connection with settlements in occupied territories.

Trading with settlements offers an economic lifeline that allows the settlement enterprise to survive and develop. This reality and the aforementioned UN Security Council Resolutions make a good case not to trade with settlements. But is the withholding of such settlement trade truly an obligation under international law?

In an earlier piece I argued that there is indeed such an obligation, and the lack of state compliance does not seriously shake the legal foundations of this argument. Just last year in an open letter, 40 legal experts (myself included) called upon the European Parliament, and the office of the High Representative and the Trade Commissioner to stop trade with settlements in compliance with the EU’s international legal obligations. Signatories included two former UN rapporteurs, a former President of the International Law Commission, a former judge on the ICTY, and dozens of professors in international law.

Our main argument was that the EU has the obligation to end trade with Israeli settlements based on the duties of non-recognition and non-assistance. This post will describe the legal argumentation underlying these duties. Read the rest of this entry…

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Ukraine v Russia at the ICJ Hearings on Indication of Provisional Measures: Who Leads?

Published on March 16, 2017        Author: 

From the day Ukraine submitted its case against Russia at the ICJ, one could expect that the case would be extremely politicized and difficult to adjudicate. Oral proceedings on the request for provisional measures held on 6th -9th March 2017 not only demonstrated that parties disagreed on the major points of the dispute, but also revealed that both parties had adopted “alternative facts”, at times making it difficult to grasp if they actually had the same dispute in mind. Ukraine’s position is that Russia violates ICSFT by continuing to support pro-Russian separatist armed groups in eastern Ukraine that engage in the commission of terrorist acts against the civilian population. Ukraine also claims that Russia pursues “policies of cultural erasure and pervasive discrimination” against non-Russian ethnic population in Crimea (see my blog). In its counter-arguments, Russia submits that the supply of weaponry originated from the old Soviet stockpiles inherited by Ukraine as well as the retreating Ukrainian army. Although widespread reports on the human rights situation in Crimea indicate marginalization of non-Russian ethnic population, as do the hundreds of pending individual applications before the ECtHR, Russia maintains that it is fully compliant with CERD and that “the views [of international organizations] on the status of Crimea often prejudge the attitude towards the situation in Crimea itself”.

Oral proceedings provide valuable insights into Russia’s litigation strategy. Russia maintains that there is no factual or legal basis for the ICJ to adjudicate, claiming that the issues between Ukraine and Russia relate to the legality of the use of force, sovereignty, territorial integrity and self-determination and therefore go beyond the jurisdiction of the Court. Russia accused the Ukrainian government of using the Court “to stigmatize a substantial part of the Ukrainian population” in eastern Ukraine as terrorists, and Russia as a “sponsor of terrorism and persecutor”.

Prima facie jurisdiction

The ICJ has to be satisfied on a prima facie basis that its jurisdiction is well founded in order to indicate provisional measures. Read the rest of this entry…

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New EJIL:Live! Interview with Deborah Whitehall on A Rival History of Self-Determination

Published on November 11, 2016        Author: 

In the latest episode of EJIL: Live!, the Associate Editor of the European Journal of International Law, Dr. Guy Fiti Sinclair, speaks with Dr. Deborah Whitehall, Lecturer at Monash University Faculty of Law, about her article titled “A Rival History of Self-Determination”, which appears in EJIL, Volume 27, Issue 3. The article examines Rosa Luxemburg’s views on self-determination. Dr. Whitehall talks about how Luxemburg’s background and biography influenced her views, how those views differed from the orthodox liberal (Wilsonian) and Leninist positions, and what studying Luxemburg can illuminate for international lawyers today.

We welcome comments and reactions to EJIL: Live!

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Trade Agreements, EU Law, and Occupied Territories (2): The General Court Judgment in Frente Polisario v Council and the Protection of Fundamental Rights Abroad

Published on December 11, 2015        Author: 

This is a follow-up to my July post on Action for Annulment Frente Polisario v Council (Case T-512/12), a case before the General Court of the European Union (GC) in which Frente Polisario – the National Liberation Movement for Western Sahara – seeks the Annulment of the EU Council decision adopting the 2010 EU-Morocco Agreement on agricultural, processed agricultural and fisheries products. The GC delivered its judgment yesterday, both recognizing the standing of Frente Polisario and granting the (partial) annulment of the decision, with implications for EU-Morocco relations and for EU external relations law more broadly.

(1) Standing of Frente Polisario under Article 263 TFEU

As regards standing, the most striking aspect of the judgment is that the Court accepted the Frente’s entitlement to plead as a ‘moral person’, with the ‘necessary autonomy’ to challenge a decision of the EU legislator (paras. 50-53), without reference to the sui generis character of Frente Polisario or to the unique situation of Western Sahara. This would seem to open the door for other ‘autonomous entities’, even those with no claim to international legal personality, to challenge EU decisions under Article 263 TFEU.

By the same token, the Court fell short of recognizing the Frente’s legal personality under international law. Read the rest of this entry…

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Trade Agreements, EU Law, and Occupied Territories – A Report on Polisario v Council

Published on July 1, 2015        Author: 

Speaking of occupied territories, an interesting judgment should soon come from the General Court of the European Union (GC) in Action for Annulment Frente Polisario v Council (Case T-512/12), a case with fascinating international law aspects. I attended the hearing last week and think it warrants a report.

Frente Polisario is a national liberation movement (NLM) that claims sovereignty for Western Sahara – the area between Morocco and Mauritania that has been on the UN list of non-self-governing territories since 1963, and in 1975 was the subject of a fairly inconclusive ICJ Opinion. The Frente sees Morocco as an occupying power, and challenges the EU Council decision approving the 2010 EU-Morocco Agreement on agricultural, processed agricultural and fisheries products. Given that the 2010 Agreement is a development of the 2000 EU-Morocco Association Agreement, the decision will have significant implications for the application of the latter agreement, and may thwart negotiations of the so-called “Deep and Comprehensive Free Trade Agreement”.

These agreements are all silent on the question of what constitutes Moroccan territory. However, Frente Polisario claims, de facto Morocco has been applying the 2000 Association Agreement to Western Sahara. If applied the same way, the 2010 Agreement will facilitate the export to the EU of agricultural products grown in Sahrawi land and fish caught in Sahrawi waters. If Morocco’s control of Western Sahara is illegitimate, this would violate the right of the Sahrawi people to self-determination and to permanent sovereignty over their natural resources.

The case raises a number of interesting questions:

Standing of NLMs

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