I will start with a short introduction on the topic. After this I will set out the development of self-determination in the colonial context. Despite the fact that self-determination is often associated with decolonization, I will explain that the right of self-determination is also applicable outside the colonial context. In post-colonial situations, the emphasis has mostly been on the internal aspect of self-determination. Although this is a very controversial issue, in my thesis I have argued that there is also a a right of external self-determination outside the colonial context. The central question of my thesis is whether international law allows for a right of external self-determination in the form of unilateral secession as an emergency exit when the internal right of self-determination is breached. The phrase ‘self-determination’ has strong appeal. ‘No other concept is as powerful, visceral, emotional, unruly, as steep in creating aspirations and hopes as self-determination.’ The list of nations and peoples claiming self-determination is endless and unfortunately the list of conflicts in the world that are related to self-determination claims is equally long. Self-determination has been referred to as a fundamental principle of international law and with its inclusion in the International Human Rights Covenants it became a human right. It was first included in the Charter of the United Nations as one of the guiding ‘Purposes and Principles’ of the Organisation, and subsequently it has been proclaimed in numerous international instruments. In a nutshell the right to self-determination gives peoples a free choice which allows them to determine their own destiny. This right can be exercised in a variety of ways, and traditionally a distinction has been made between external and internal self-determination. The external aspect of self-determination developed in the colonial context and resulted in self-determination becoming almost ‘synonymous’ with decolonisation and independence. The internal aspect of self-determination was first advocated by US President Wilson during WWI and refers to the right

of a people to ‘participate in the decision-making processes of the State’.

As stated before, self-determination started out as a political principle, but with it’s inclusion in the UN Charter and the International Human Rights Covenants, it became a legal principle and a human right.

After WWII, the General Assembly started taking a very active stance in the fight against colonialism and adopted numerous resolutions linking self-determination to decolonisation. With the adoption of these resolutions, the General Assembly contributed in an important way to the development of customary rules on self-determination.

GA 1514: Declaration on the Granting of Independence to Colonial Countries and Peoples

GA 1541: Principles which should guide Members in Determining whether or not an obligation exists to transmit the information called for under Article 73e of the Charter (non-self-governing territories)

According to the latter resolution self-determination could be achieved through:

- Emergence as a sovereign independent state;

- Free association with an independent state; or

- Integration with an independent state.

GA 2625: Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among states in Accordance with the Charter of the United Nations.

(adopted unanimously, thus reflecting the view of developing, socialist and Western States ‘instant’ customary law)

The pronouncements of the ICJ on self-determination (in the colonial context) have made an important contribution to the development of the right of self-determination. In a number of cases, the ICJ

confirmed the legal status of these resolutions and helped clarifying the content of the norm.

Advisory Opinion on Western Sahara. According to the ICJ, the principle of self-determination can be defined as ‘the need to pay regard to the freely expressed will of peoples’.

Case concerning East Timor. The Court asserted that the right of peoples to self-determination is one of the essential principles of contemporary international law and that it has an erga omnes character.

Despite the fact that self-determination is a principle of international law and a human right and that it developed into a customary right to decolonisation and independence, the principal problem remains that there is no generally accepted of the right’s holders: Who are ‘the people’? The inhabitants of a defined territorial unit? Colonial peoples? All peoples! See e.g. ‘the South African people’, ‘the Palestinian people’ (GA). This lack of a definition resulted in inconsistent practice, double standards etc. and continues to hamper the effective exercise of this right.

Despite the fact that some have argued that self-determination is only applicable in a colonial context, this is not the case. There have been cases of self-determination outside the colonial context. The end of the

Cold War and subsequent developments in Europe in the early nineties set the stage for a renewed emphasis on the internal aspect of self-determination.

The reunification of Germany was a case of self-determination with a positive response from the international community.

The breakup of the Soviet Union was also an example of peoples exercising their right of self-determination outside the colonial context.

The peoples of the Socialist Federal Republic of Yugoslavia also claimed their right of self-determination which resulted in the dissolution of this federal State.

The EC set up Guidelines on recognition (general criteria for recognizing the new States:

- The free expression of the will of the population concerned, by way of plebiscites or referendums;

- The firm commitment to respect the rule of law, human rights, and the rights of minorities.

Kosovo is the latest example of self-determination outside the colonial context. Kosovo will be dealt later.

As stated before, outside the colonial context the emphasis has been on internal self-determination: the right of all peoples to participate in the expression of the political will within the State (representative government). If we examine the International Human Rights Covenants and the African Charter on Human and Peoples Rights, there is no reason to assume that the right of self-determination was meant to apply in colonial situations only. An overview of the (non- or postcolonial) international instruments on self-determination makes it clear that beyond decolonisation, self-determination became more and more associated with representative government, democracy and human rights. See e.g. the ‘safeguard clause’, that can be found in a number of international instruments:

“[n]othing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government

representing the whole people belonging to the territory without distinction as to race, creed or colour.”

The ICJ discussed the right of self-determination in the Nicaragua case and in the Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory.

The Human Rights Committee has discussed the right of self-determination in General Comment 12 (With regard to paragraph 1 of article 1, States parties should describe the constitutional and political processes which in practice allow the exercise of this right.) and in General Comment 25 on Article 25 of the ICCPR (the right to take part in public affairs, to vote and to be elected). In the State Reports submitted under article 40 of the ICCPR, governments have started to give attention to the ways in which their own population is exercising its right of internal self-determination and the majority of those reports have linked internal self-determination with human rights and democracy.

The CERD has also issued a General Recommendation on self-determination, in which it pointed out that the internal aspect of self-determination is linked with the right to political participation and that discrimination of certain groups within a State would thus violate this right. According to the Committee, self-determination continues to be applicable beyond decolonisation.

The African Commission on Human and Peoples’ Rights also started to give more attention to internal self-determination (see e.g the Guidelines for National Periodic Reports).

However, the question remains: Who are the people? Who are the holders of this right outside the colonial context? The entire population of a territorial unit? The highest constituent units of federal States in the process of dissolution, at least if these units have been formed on an ethnic basis (Soviet Union, Socialist Federal Republic of Yugoslavia). See also the example of Indigenous Peoples

and the numerous territorial autonomy arrangements for ethnic sub-groups in Denmark (Greenland), Norway (Sami), United Kingdom (Scotland and Wales), France (Corsica), Indonesia (Aceh and West-Papua), India (Nagaland), Russia (Tartastan). These examples support an ‘ethnic’ definition of a people.

While outside the colonial context the emphasis has been on internal self-determination, in my thesis I have argued that there is also a right of external self-determination outside the colonial context. Even though I agree that for reasons of stability (international peace and security), the right of self-determination needs to be balanced with the territorial integrity of sovereign States under international law. This implies that outside the colonial context, the emphasis should indeed be on internal self-determination. However, what if a State persistently denies a people the fundamental right of internal self-determination? What if a people does not have a free choice but is repressed and suffers from gross violations of basic human rights, and all possible remedies for a peaceful solution to the conflict have been exhausted? Should that people not be allowed a ‘self-help remedy’ in the form of external self-determination?

This thesis argues that there is indeed a right of external self-determination in the form of unilateral secession. This is not an absolute right, but can only be invoked under strict conditions and should thus be used as a last resort only. Hence the use of the term ‘remedial secession’.

While conventional law remains silent on the issue of secession, I have examined whether a right of remedial secession can be based on customary international law.

The safeguard clause:“[n]othing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or

political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour.”

Numerous authors have pointed out that if this paragraph is read a contrario, it implies that the territorial integrity or political unity of a sovereign and independent State will no longer be protected if it does not conduct itself in compliance with the principle of equal rights and self-determination of peoples and if the government is unrepresentative. In other words, if a State persistently denies a people its right of internal self-determination that State forfeits its right to territorial integrity, and consequently the people may have the remedy of external self-determination, i.e. unilateral secession.is logically admitted”.

There have been several cases in which a right of remedial secession was recognised.

To examine State practice, we can identify a number of failed secessionist attempts outside the colonial context. The international community did not recognize these unilateral declarations of independence. The attempts of Chechnya and Abkhazia failed mainly because were doubts as to whether the self-determination claim was actually supported by a majority of the Chechen/Abkhaz people. Furthermore, it was not a last resort: the Chechens and Abkhazians had been unwilling to negotiate any alternatives short of secession. Thirdly, until the declaration of independence, there had not been any serious violations of human rights.

We can also identify a number of successful secessions outside the colonial context. Bangladesh seceded from Pakistan in 1971. This case is a very good example of remedial secession: denial of internal self-determination, gross violation of human rights (genocide?) and

all local remedies were exhausted. The international community recognised Bangladesh.

Croatia seceded from the Socialist Federal Republic of Yugoslavia in 1991 and this is also an example of remedial secession: denial of internal self-determination, gross violations of human rights (indiscriminate use of force, ethnic cleansing), all local remedies to solve the conflict were exhausted. The international community recognised Croatia.

Kosovo unilaterally declared independence from Serbia in 2008. This case will be discussed separately.

Even though there is no “extensive and virtually uniform” State practice to support a right of remedial secession, the concept of modern custom indicates that a ‘substantial manifestation’ of opinio iuris ‘that a customary rule exists may compensate for a relative lack of practice’. Relevant State and institutional practice shows that there is substantial opinio iuris on the lawfulness of remedial secession in the international community. In addition to the instruments and judicial decisions that were discussed, the reactions of States as regards the secessions of Croatia and Bangladesh are indicative of this opinio iuris. ‘Negative’ State practice can also be taken into account, i.e. the practice of States as regards unilateral secessions that have been unsuccessful, as it serves to clarify the scope of the rule. If both negative and positive State practice is taken together, it becomes clear that while there is no absolute right of unilateral secession under international law, there are certain conditions under which unilateral secession is permitted. On the basis of the substantial opinio iuris regarding the legality of remedial secession and limited but relevant State practice to support such a right, there can be no other conclusion than that the right of remedial secession is de lege lata.

This right of unilateral secession is not an absolute right but meant to be an ‘emergency exit’ for peoples that have been subject to gross violations of fundamental human rights, including the right of (internal) self-determination, and only when negotiations between the parties aimed at finding a peaceful solution to the conflict have been exhausted.

On February 17, 2008 the Assembly of Kosovo issued a Declaration of Independence from Serbia. The reaction of the international community has been mixed. At this moment, 62 States have recognised Kosovo, including 22 EU member States. The Security Council is divided over the issue (Russia againts, China neutral), the EU also and Serbia considers Kosovo’s declaration illegal.

On October 8, 2008, the General Assembly requested an Advisory Opinion from the ICJ. Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?

The first question is whether the Kosovo Albanians are a people, which is a difficult question considering the lack of a generally accepted definition. However, I am of the opinion that the Kosovo Albanians are in fact a people and therefore have the right of self-determination. On the basis of what several experts have identified as the “inherent characteristics” of a “people”, it can be argued that a “people” must at least have an identity that distinguishes it from the rest of the population of a certain territory. Furthermore, the people must also represent a “clear majority” on that territory. It is important to realise that the terms “people” and “minority” may sometimes “overlap”. On the one hand it can be argued that the Kosovo Albanians are distinct from Albanian Albanians and thus they are a people within Serbia, and as such entitled to the right of self-determination. On the other hand it can be argued that the Kosovo Albanians are not distinct from the Albanian Albanians, which would make them a “national” or “ethnic” minority within Serbia and as

such not entitled to the right of self-determination. First of all, it must be noted that the term “minority” suffers from the same lack of clarity as the term “peoples”. There is no generally accepted definition of what constitutes a minority. This considerably weakens the assumption that Kosovo Albanians are an ethnic minority within Serbia, and that minorities do not have the right to self-determination. Second, as stated before, minorities and peoples are not mutually exclusive terms. Thus it can be argued that Kosovo Albanians are both a minority and a people. The difference between an ethnic minority and a people is that national or ethnic minorities usually have a “kin State”. Nevertheless, if a minority has a “collective individuality”, an identity by which it can be distinguished from those living in the “kin State”, it can be considered a “minority-people” and accordingly it has the right to self-determination. Considering the fact that Kosovo Albanians do have an identity by which they can be distinguished from Albanian Albanians it is submitted here that the former are in fact a minority and a people at the same time and that therefore, they have the right of self-determination.

Is there a right of remedial secession based on the right of self-determination for the Kosovo Albanians? Applying the principles of remedial secession outlined above, it is noted that the autonomy of Kosovo was revoked from 1989 onwards (which amounts to a violation of the right to internal self-determination), international crimes were committed, notably in 1998-1999 (albeit by both sides, and possibly even by NATO when bombing Serbia), and the negotiations between Kosovo Albanians and Serbs in Rambouillet failed. Arguably, therefore, in 1999 the conditions for a lawful secession and independence of Kosovo were met.

(Admittedly, one may still wonder whether the Kosovo Albanians are really distinct from the Albanian Albanians, whether independence did not need the support of the sizable Serb minority in Kosovo, and whether the fact that crimes were committed by both sides—some

might even argue that the KLA had initiated a campaign involving the commission of international crimes, to which the Serbian army only responded—should have no bearing on the right to secession).

Yet if we look at the current situation in 2008/9, it is hardly disputed that the Serbian government differs considerably from the Milošević government. It is prepared to guarantee far-reaching autonomy to the province of Kosovo, short of independence; in addition, given the government’s moderation and Serbia’s interconnectedness with the European Union, a repetition of the 1998/99 atrocities appears extremely unlikely. At this moment therefore, the negative conditions relating to human rights and internal self-determination of the Kosovo Albanians, the fulfilment of which may trigger a right to unilateral secession, do not appear to be met.

Security Council Resolution 1244 (interim administration for Kosovo, basis for UNMIK, KFOR until the future status of Kosovo would be determined) is often invoked as an argument to consider Kosovo’s act illegal, because it reaffirmed ‘the commitment of all Member States to the sovereignty and territorial integrity of the Federal Republic of Yugoslavia and the other States of the region, as set out in the Helsinki Final Act and annex 2’. However, the SC in fact undermined the territorial integrity and sovereignty of the FRY by setting up an interim administration under international supervision.

Another point is: what is the meaning of the fact that 62 States have recognised Kosovo so far? Is recognition declaratory or constitutive?

I have argued that self-determination has never simply meant independence. It has meant the free choice of people.

If this right cannot be exercised internally, if a people suffers from gross violations of fundamental human rights and all local remedies to solve the conflict have been exhausted, there is a right of remedial secession under customary international law (modern custom).

The enforcement of the right of Self-Determination urgently needs to be enhanced.

• The Committee of 24 on Decolonisation also non-colonial claims to self-determination (right of petition, advice of SC or GA 0 early warning system to prevent self-determination conflicts from escalating)

• The ICJ (advisory opinions)

• The Human Rights Committee needs to start considering claims under the Optional Protocol.

• States need to agree on a set of Guidelines on Recognition to depoliticise recognition