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Home Archive for category "Self-Determination"

Part II: The Partition of the Chagos Archipelago and the Haunting Spectre of the South West Africa Cases

Published on September 21, 2018        Author: 
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[Part II of a two-part post]

When consent has been vitiated

One of the most challenging aspects of partition is proving that its representatives’ consent was vitiated due to duress. In nearly all cases of partition duress, coercion, and even fraud has been alleged by one of the parties. In other words, their consent to the loss of territory was not freely given.

In Ireland, it was argued that the threat of force was employed during the negotiation of the Anglo-Irish Treaty in 1921 to ensure the Irish delegation accepted the option of dominion status against that of a republic (A. Carty, Was Ireland Conquered, 1996, p. 84). It was also alleged that the delegation’s consent to the partition was brought about by deceit because of assurances given to them that primary importance would be given by a Boundary Commission to the ‘wishes of the inhabitants’ in the redrawing of the boundary between Northern Ireland and the Irish Free State when, in fact, the UK never had any intention of interfering with the integrity of the six counties (A. Carty, Was Ireland Conquered, 1996, pp. 135-140).

In British India, it was argued that Mountbatten held a ‘metaphorical gun’ to Mohammad Ali Jinnah’s head when he ‘consented’ to a ‘moth-eaten Pakistan’ that he had spent his whole career opposing. Mountbatten even admitted that he ‘drove the old man quite mad’ by insisting that the logic of partition, if applied to India, must equally apply to the provinces of the Punjab and Bengal (quoted in M. Zafrulla Khan, The Agony of Pakistan, 1974, p. 47). Nehru agreed with Sardar Patel that ‘it might be possible to frighten Mr. Jinnah into cooperation because of the shortness of time available before partition must be completed’ (M. Zafrulla Khan, The Agony of Pakistan, 1974, p. 47). Read the rest of this entry…

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Part I: The Partition of the Chagos Archipelago and the Haunting Spectre of the South West Africa Cases

Published on September 20, 2018        Author: 
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[Part I of a two-part post] 

The advisory proceedings concerning the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 are over, but an opinion that answers the legal questions raised in the request could have consequences well beyond the Indian Ocean.

Earlier this month, Stephen Allen contributed a post on the self-determination arguments made in relation to the first question asked of the court. Like Allen, I have taken sides in my scholarly work, although unlike Allen, I have argued that self-determination emerged as a customary norm of international law before 1970. As I argued in my article on the arbitration (2010-2015) between the UK and Mauritius (published in volume 19 of The Max Planck Yearbook of United Nations Law, 2016, pp. 419-468), the emergence of a norm prohibiting partition in the decolonization context would have outlawed the division of the archipelago before independence in 1968, unless it could be shown that Mauritius consented to the separation.

In this post, I argue that the legal arguments raised by the Applicants in the South West Africa Cases could be of direct relevance to the opinion, because although the ICJ refused to address the merits, the cases spanned a period of time (1960-1966) that is germane to any contemporary assessment of the legality of the decision to partition the Chagos Archipelago in 1965. While the Applicants did not reference the Colonial Declaration (GAR 1514 (XV) (1960) in their pleadings, they nevertheless argued that international law in the 1960s prohibited partition, demonstrating that there were principles of law at stake that proscribed the non-consensual division of territory.

What remains missing is an authoritative opinion from the world court. Read the rest of this entry…

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The Oral Hearings in ‘Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965’

Published on September 11, 2018        Author: 
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The oral hearings in the advisory proceedings concerning the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 took place at the ICJ last week. Readers will recall the two questions posed by the General Assembly in its request for an Advisory Opinion (Resolution 71/292) and the procedural and propriety issues raised by this case, as discussed by Marko, Dapo and Antonios – here, here and here. A host of States – and the African Union – participated in the proceedings and their voluminous written and oral statements/comments will surely keep interested scholars busy for a long time to come. In this post, I will try to restrict myself to the task of offering a few initial comments on the self-determination arguments made in relation to the first question (essentially, was the decolonization of Mauritius lawfully completed when it acceded to independence in 1968, following the detachment of the Chagos Archipelago?). For this purpose, I will focus on the claims made by the UK and Mauritius for the sake of brevity, and not because I agree with the UK’s contention that Mauritius is the ‘de facto claimant’ in this case (Transcript p. 36).

When approaching the claims and counter-claims concerning the Chagos Archipelago – or the British Indian Ocean Territory (‘BIOT’) – it is worth bearing in mind at least two important considerations. First, the UK is clearly on the wrong side of history as far as both the creation and maintenance of the BIOT are concerned. Secondly, the closest comparable case in the ICJ’s jurisprudence, the Western Sahara Advisory Opinion, is different in one key respect. The Western Sahara Opinion was sought while the General Assembly was actively engaged in a fraught and flawed attempt at decolonization and it was delivered when the crisis was still unfolding. In contrast, in the present proceedings, the ICJ has been invited to answer questions which not only require it to establish the legal significance of events which occurred largely between 1965-1968 but also to assess their present consequences. Undoubtedly, this is a difficult task and we shall have to wait and see whether the Court responds positively to the Request or whether it adopts a more non-committal approach, as it did in its Kosovo Advisory Opinion.

Self-determination and Customary International Law

The UK argued that the right of self-determination had not crystallized as a norm of customary international law (CIL) by either 1965 or 1968 (e.g. Transcript, p. 48). Specifically, it denied that the Colonial Declaration (GAR 1514 (XV)(1960)) generated any binding legal obligations as far as Mauritius’ decolonization was concerned. The 1960 Declaration proclaimed the core right – that ‘all peoples have the right to self-determination’ (para. 2) – while stating that: ‘Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the [UN] Charter’ (para. 6). The UK claimed that the right of self-determination only acquired CIL status with the adoption of the Declaration on Friendly Relations (GAR 2625 (XXV)(1970). It relied on voting records, and the statements made, by State representatives, in the context of the development and adoption of these, and other, resolutions (and contemporaneous academic opinions) in support of its preferred interpretation. Read the rest of this entry…

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The IACtHR Advisory Opinion: one step forward or two steps back for LGBTI rights in Costa Rica?

Published on February 27, 2018        Author: 
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On 9th January 2018, the IACtHR issued Advisory Opinion No. 24 on gender identity, equality and non-discrimination for same-sex couples, a ground-breaking decision for the advancement of LGBTI rights in the Americas. However, the adverse effect it had on the recent presidential elections in Costa Rica may jeopardise this achievement.

The Advisory Opinion was requested by Costa Rica in 2016. the IACtHR was called to clarify the interpretation and scope of several articles of the American Convention on Human Rights (ACHR) in relation to the following questions:

  1. Considering that gender identity is a protected category within the American Convention, does the state have an obligation to recognise and facilitate the change of name of individuals in accordance with their own gender identity?
  2. If so, is the judicial procedure for the change of name, instead of an administrative one, contrary to the American Convention?
  3. According to the American Convention, is the current Costa Rican judicial procedure for the change of name not applicable to individuals who wish to change their name based on their gender identity? Should they rather be given the possibility of resorting to a free, fast and accessible administrative procedure?
  4. Considering the duty not to discriminate on the basis sexual orientation, should the State recognize all patrimonial rights deriving from a same-sex relationship?
  5. If so, is it necessary for the State to establish a legal institution regulating the legal status of same-sex couples, and to recognise all patrimonial rights stemming from such relationships?

In response to the first three questions, the IACtHR recalled its jurisprudence on the matter (e.g. Atala Riffo and Daughters v Chile and Duque v Colombia) and strongly confirmed that sexual orientation and gender identity are protected categories under the American Convention. Read the rest of this entry…

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Western Sahara before the CJEU

Published on January 11, 2018        Author: 
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Just a quick heads-up to our readers that yesterday Advocate General Wathelet of the Court of Justice of the EU delivered his opinion in Case C‑266/16, Western Sahara Campaign UK, The Queen v Commissioners for Her Majesty’s Revenue and Customs, Secretary of State for  Environment, Food and Rural Affairs. This is a very important opinion, dealing with numerous issues of international law, above all the principle of self-determination; the AG concluded that the Fisheries Agreement between Morocco and the EU was invalid because it was in violation of self-determination, as the Agreement applied to the territory and waters of Western Sahara. This is the first time that a request was made under the preliminary ruling procedure for a review of validity of international agreements concluded by the EU and their implementing acts. In that regard, the AG concluded that it was possible to rely in such proceedings on the rules of international law which are binding on the EU, where their content is unconditional and sufficiently precise and where their nature and broad logic do not preclude judicial review of the contested act. These conditions were in the AG’s view satisfied here. In addition to self-determination, the AG also examines the principle of permanent sovereignty over natural resources and the law of occupation, including the capacity of the occupying power to concluded treaties for the occupied territory.

The AG’s opinion is rich and rigorously argued – obviously it remains to be seen whether the Court will follow it. I would only add that the opinion and the case concern the validity of the Agreement from the perspective of the internal legal order of the EU, which then incorporates (other) rules of international law. But one could also look at the validity question purely from the perspective of general international law, and the rule set out in Art. 53 VCLT. In that regard, the necessary implication of the AG’s analysis seems to me to be that the Agreement was void ab initio and in toto as it conflicted with a peremptory norm of international law, the right to self-determination. For background on the UK litigation from which this case arose, see this post by David Hart QC on the UK Human Rights Blog. For analysis of the earlier Polisario litigation before EU courts, see here.

 

 

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A Footnote on Secession

Published on October 26, 2017        Author: 
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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: 
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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: 
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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: 
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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
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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.

Read the rest of this entry…

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