Monday, March 3, 2008

Secession in International Law

This is a part of Dr Sam Vaknin article about Independent Kosova

The new state of Kosovo has been immediately recognized by the USA, Germany, and other major European powers. The Canadian Supreme Court made clear in its ruling in the Quebec case in 1998 that the status of statehood is not conditioned upon such recognition, but that (p. 289):

"...(T)he viability of a would-be state in the international community depends, as a practical matter, upon recognition by other states."

The constitutional law of some federal states provides for a mechanism of orderly secession. The constitutions of both the late USSR and SFRY (Yugoslavia, 1974) incorporated such provisions. In other cases - the USA, Canada, and the United Kingdom come to mind - the supreme echelons of the judicial system had to step in and rule regarding the right to secession, its procedures, and mechanisms.

Again, facts on the ground determine international legitimacy. As early as 1877, in the wake of the bloodiest secessionist war of all time, the American Civil War (1861-5), the Supreme Court of the USA wrote (in William vs. Bruffy):

"The validity of (the secessionists') acts, both against the parent State and its citizens and subjects, depends entirely upon its ultimate success. If it fail (sic) to establish itself permanently, all such acts perish with it. If it succeed (sic), and become recognized, its acts from the commencement of its existence are upheld as those of an independent nation."

In "The Creation of States in International Law" (Clarendon Press, 2nd ed., 2006), James Crawford suggests that there is no internationally recognized right to secede and that secession is a "legally neutral act". Not so. As Aleksandar Pavkovic observes in his book (with contributions by Peter Radan), "Creating New States - Theory and Practice of Secession" (Ashgate, 2007), the universal legal right to self-determination encompasses the universal legal right to secede.

The Albanians in Kosovo are a "people" according to the Decisions of the Badinter Commission. But, though, they occupy a well-defined and demarcated territory, their land is within the borders of an existing State. In this strict sense, their unilateral secession does set a precedent: it goes against the territorial definition of a people as embedded in the United Nations Charter and subsequent Conventions.

Still, the general drift of international law (for instance, as interpreted by Canada's Supreme Court) is to allow that a State can be composed of several "peoples" and that its cultural-ethnic constituents have a right to self-determination. This seems to uphold the 19th century concept of a homogenous nation-state over the French model (of a civil State of all its citizens, regardless of ethnicity or religious creed).

Pavkovic contends that, according to principle 5 of the United Nations' General Assembly's Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance With the Charter of the United Nations, the right to territorial integrity overrides the right to self-determination.

Thus, if a State is made up of several "peoples", its right to maintain itself intact and to avoid being dismembered or impaired is paramount and prevails over the right of its constituent peoples to secede. But, the right to territorial integrity is limited to States:

"(C)onducting themselves in compliance with the principle of equal rights and self-determination of peoples ... and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed, or colour."

The words "as to race, creed, or colour" in the text supra have been replaced with the words "of any kind" (in the 1995 Declaration on the Occasion of the Fiftieth Anniversary of the United Nations).

Yugoslavia under Milosevic failed this test in its treatment of the Albanian minority within its borders. They were relegated to second-class citizenship, derided, blatantly and discriminated against in every turn. Thus, according to principle 5, the Kosovars had a clear right to unilaterally secede.

As early as 1972, an International Commission of Jurists wrote in a report titled "The Events in East Pakistan, 1971":

"(T)his principle (of territorial integrity) is subject to the requirement that the government does comply with the principle of equal rights and does represent the whole people without distinction. If one of the constituent peoples of a state is denied equal rights and is discriminated against ... their full right of self-determination will revive." (p. 46)

A quarter of a century later, Canada's Supreme Court concurred (Quebec, 1998):

"(T)he international law right to self-determination only generates, at best, a right to external self-determination in situations ... where a definable group is denied meaningful access to government to pursue their political, economic, social, and cultural development."

In his seminal tome, "Self-Determination of Peoples: A Legal Appraisal" (Cambridge University Press, 19950, Antonio Cassese neatly sums up this exception to the right to territorial integrity enjoyed by States:

"(W)hen the central authorities of a sovereign State persistently refuse to grant participatory rights to a religious or racial group, grossly and systematically trample upon their fundamental rights, and deny the possibility of reaching a peaceful settlement within the framework of the State structure ... A racial or religious group may secede ... once it is clear that all attempts to achieve internal self-determination have failed or are destined to fail." (p. 119-120)

Read the whole article here


Kae said...

Did the Badinter Commission really recognize the Kosovars as "a people" ? I thought it had refused to examine their application.

Besides, I would like to know according to what principe Resolution 1244, which only recognized the "territorial integrity" of the so-called "Federal Republic of Yugoslavia", supposedly applied to Serbia after the latter's demise.
Was it an obligation to "recognize" Serbia in its stolen borders, or a questionable political choice?

Albiqete said...

Well, Kea I'm still reading the Badinter Commission report and presently cannot give you an accurate answer.
But I know this when the Badinter report was formulated Kosovo issue was not on the International radar.
As for 1244 “Territorial integrity” issue was thought that after the death of Yugoslavia Serbia will cease its stubborn demand to keep Kosova.
Beside that not forget the Russian pressure at the time. Lavrov was the representative of Russia’s at the UN at that time. Watch Charlie Rose website for one of Lavrovs interviews and probably you will get some answers.
NATO alliance was reluctant to introduce ground troops or USA internal political pressure to end the war

Kae said...

Да ли разумете и српски?