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‘Remedial secession as right of self-determination: The cases of Kosovo and Abkhazia’

Tanita Pechalova

ANR: 940463

SNR: 1273121

A thesis submitted in partial fulfilment of the requirements for the degree of Masters in

International and European Law awarded by the Tilburg University Law School

Tilburg, the Netherlands

June 2017

Supervisors:

Anna K. Meijknecht

Natasha Stamenkovikj

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Table of Contents

ACKNOWLEDGEMENT .......................................................................................................... 4

ABSTRACT ................................................................................................................................ 5

ABBREVIATION ....................................................................................................................... 6

SECTION I ................................................................................................................................. 7

1. INTRODUCTION ............................................................................................................................ 7

2. THE PURPOSE OF THE THESIS ..................................................................................................... 10

3. CENTRAL QUESTIONS................................................................................................................ 11

i. Is it possible to ascertain a legal principle of remedial secession from customary

international law after the cases of Kosovo and Abkhazia? ......................................................... 11

ii. What do the case of Abkhazia contribute to the concept of remedial secession? ................. 11

SUB-QUESTIONS ................................................................................................................................ 11

i. To what extent does the right to self-determination encompass the right to secession? ...... 11

ii. What does the right of self-determination entail from the Kosovo case’s perspective? ....... 11

4. METHODOLOGY, SCOPE AND OBJECTIVES OF THE THESIS ......................................................... 11

5. STRUCTURE ............................................................................................................................... 13

SECTION II ............................................................................................................................. 14

CHAPTER I: THE LEGAL FRAMEWORK OF SELF-DETERMINATION .......................... 14

1. SELF-DETERMINATION FROM DECOLONIZATION PERIOD TOWARDS CONTEMPORARY CONCEPT

15

2. SELF-DETERMINATION BEYOND DECOLONIZATION PERIOD. CONTEMPORARY MEANING ........ 19

3. CONTENT/SCOPE OF SELF-DETERMINATION IN CONTEMPORARY VIEW .................................... 20

3.1. What does external self-determination in its contemporary meaning amount to? ............ 20

3.2. Scope and content of internal self- determination ............................................................ 20

3.3. Subject of internal self-determination ............................................................................... 22

3.4. Denial of the right to internal self-determination ............................................................. 24

3.5. Ways of exercising self-determination externally ............................................................. 25

4. THE BLURRED LINE BETWEEN DISSOLUTION AND SECESSION ................................................... 26

5. DEFINITION OF SECESSION ........................................................................................................ 26

6. SELF-DETERMINATION INCLUDES SECESSION ........................................................................... 28

6.1. Declaration on Friendly relations .................................................................................... 28

7. TERRITORIAL INTEGRITY AND SELF-DETERMINATION .............................................................. 28

8. APPLICABILITY OF TERRITORIAL INTEGRITY REGARDING SELF-DETERMINATION .................... 28

9. TRACE REMEDIAL SECESSION INTO SELF-DETERMINATION ...................................................... 31

9.1. QUEBEC AND AALAND ISLANDS CASES AND THEIR CONTRIBUTIONS ................................... 33

9.2. IS REMEDIAL SECESSION ALLOWED UNDER SPECIFIC CIRCUMSTANCES? .............................. 34

10. Who is entitled to the right of secession as a remedial right against gross human rights

violations? ..................................................................................................................................... 35

10.1 . Who are the people entitled? .......................................................................................... 36

10.2. Does it include minorities? ........................................................................................... 38

11. LEGALITY OF SECESSION ...................................................................................................... 38

12. CONCLUSION .............................................................................................................. 39

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SECTION III ............................................................................................................................ 41

CHAPTER II: THE KOSOVO ADVISORY OPINION ........................................................... 41

1. FACTUAL BACKGROUND ........................................................................................................... 41

2. KOSOVO ADVISORY OPINION ................................................................................................... 42

3. THE IMPORTANCE OF KOSOVO ADVISORY OPINION ................................................................. 43

4. LEGAL ANALYSIS OF THE KOSOVO ADVISORY OPINION ........................................................... 45

4.1. Legality of the declaration of independence ..................................................................... 45

4.2. The Constitutional framework of the Provisional Self-governance .................................. 46

4.3. The legal status of the authors of the declaration ............................................................. 47

4.4. Is the secessionist attempt in accordance with international law provisions? ................. 48

5. SEPARATE OPINIONS OF JUDGES ................................................................................................ 51

5.1. Judge Trindade ................................................................................................................. 51

5.2. Judge Yusuf ....................................................................................................................... 52

5.3. Judge Karoma ................................................................................................................... 54

5.4. Judge Simma ..................................................................................................................... 56

6. CONCLUSION ................................................................................................................. 56

SECTION IV ............................................................................................................................ 59

CHAPTER III: REMEDIAL SECESSION IN THE CASE OF ABKHAZIA ........................... 59

1. INTRODUCTION .......................................................................................................................... 59

1.2. Historical overview ........................................................................................................... 59

2. A POSSIBLE ANALOGY WITH KOSOVO CASE ............................................................................. 60

3. THE APPLICATION OF THE LEGAL FRAMEWORK OF SECESSION ................................................. 62

3.2. People/peoplehood ............................................................................................................ 63

3.3. Oppression/segregation and gross human rights violations ............................................. 64

3.4. A denial of internal self-determination, exclusion from participation in the political life

and exhausted all possibilities to resolve the issue peacefully ..................................................... 65

3.5. Sub-conclusion .................................................................................................................. 66

4. EXTERNAL INTERVENTION AND PROCEDURAL RULES .............................................................. 67

5. CONCLUSION ............................................................................................................................. 71

SECTION V ............................................................................................................................. 73

GENERAL CONCLUSION ...................................................................................................... 73

SECTION VI ............................................................................................................................ 78

BIBLIOGRAPHY .................................................................................................................................. 78

STATEMENT OF INTEGRITY ............................................................................................................... 86

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Acknowledgement

This thesis was a long journey which I begin without realizing it. This was my first serious research

in my academic practice, which I completed thanks to the guidelines and support I received through the

year. I would like to express my deep sense of gratitude to my supervisor ass. prof. Anna Meijcknecht

for her support, encouragements and advices which guided me through the whole journey. Thank you

for your professionalism! Your dedication inspired me! I could not ask for better guidelines and

encouragement. I am very grateful to Evgeni for the constant support and that you did not stop believing

in me, even when I was in doubt! I am grateful that life gave me Ines, Marta and Rati with who for

better and worst we were all together. Without you girls everything would had been different!

На първо място искам да благодаря на моята майка! Цял живот ще ти бъда благодарна, че

ми помогна да осъществя тази моя мечта! Благодаря ти за вярата, куража и за съвети, които

ми даваше! Без теб и твоята подкрепа, аз нямаше да успея!

Посвещавам тази дипломна работа на теб!

To my mother

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Abstract

The essence of the present research is to examine whether remedial secession exists as legal

entitlement of people, subject to oppression. This question seems more than urgent in the

context of many instances of secessionist conflicts. Although, to differ from one another, they

demonstrate the need to redefine some legal concepts and to search for new notions in the

sphere of international law. Until now there are some judicial decisions which add value and

question the possibility of a future establishment of remedial secession as legal entitlement.

Nevertheless, international law remains reluctant to define one, regardless of state and judicial

practice. All of the above defines why remedial secession is so widely debated nowadays. That

leads to the main purpose of the present research: to trace remedial secession based on the

practice and the judicial decisions. Remedial secession should be examined from a broader

perspective, which requires analysis based on the international legal framework in conjunction

with the practice. The international legal framework of self-determination provides

considerable evidence that there is room left for future emergence of remedial secession. The

focus will be on two striking episodes of secessionist conflicts and their aftermath, including

the controversial advisory opinion of the International Court of Justice. Based on this approach,

the paper will outline the striking features with the aim to demonstrate why this concept is so

widely debated. Whether there is enough legal and practical evidence to trace remedial

secession will be a leading intention through the whole research. This will demonstrate how

remedial secession continues to fluctuate between the legal and political spheres of life.

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Abbreviation

(ACHPR) African Charter on Human and Peoples’ Rights, adopted in 1981

(EJM) Europäisches Journal für Minderheitenfragen

(FRD) Friendly Relation Declaration

(ICCPR) International Covenant on Civil and Political Rights

(ICESCR) International Covenant on Economic, Social and Cultural Rights

(ICJ) International Court of Justice

(KAO) Kosovo Advisory Opinion

(LNOJ) League of Nations Official Journal

(LJIL) Leiden Journal of International Law

(OAS) Organization of American States

(OAU) Organization of African Unity

(OSCE) Organization for security and Co-operation in Europe

(OUP) Oxford University Press

(PISG) Provisional Institution for self- government

(UN) The United Nations

(UNGA Res.) United Nations General Assembly Resolution

(UNMIG) The United Nations Observer Mission in Georgia in 1993

(UNMIK) The United Nations Mission in Kosovo

(UNSC Res.) The United Nations Security Council Resolution

(VCLT) Vienna Convention on the Law of Treaties of 1969

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“In the essence, the right of self-determination means that individuals and peoples should be

in control of their destinies and should be able to live out their identities, whether within the

boundaries of existing States or through independence.” Alfred de Zeyas1

Section I

1. Introduction

The dissolution of the Socialist Federal Republic of Yugoslavia (SFRY) in the early 1990s

occurred as a cause of the wars on the Balkans and is a crucial phenomenon for many reasons.

It is important for international law, not only because of the mass atrocities which happened

there, but also because of the subsequent separation of states and the respective reactions of the

great powers. It dissolved into six separate countries and two provinces Kosovo and Vojvodina

which remained autonomous within Serbia. Even though Kosovo was granted with expanded

rights for self-government and autonomy, a revocation of its autonomy by the Serbian

government resulted in an ethnic conflict in Kosovo.2 As a consequence, the oppression by the

Serbian Government led to the war between Kosovo and Serbia. This resulted in Kosovo’s

secession and its unilateral declaration of independence which were achieved through the

intervention of NATO and the UN. A few months after the controversial Kosovo case, Russia

signed decrees of recognition for South Ossetia’s and Abkhazia’s independence.3

NATO’s bombing campaign in Serbia and Kosovo4, the large amount of crimes committed by

Kosovars against ethnic Serbs and other minorities and the unilateral declaration of

1 UN General Assembly, Report - A/69/272 Promotion of a democratic and equitable international order an interim

report of the Independent Expert on the promotion of a democratic and equitable international order, Alfred-

Maurice de Zayas, submitted in accordance with Assembly resolution 68/175.

2 Christian Axboe Nielsen, 'The Kosovo precedent and the rhetorical deployment of former Yugoslav analogies

in the cases of Abkhazia and South Ossetia ' [2009] Vol 9(9:1-2 edn) Southeast European and Black Sea

Studies 174 171-189, p. 171-174 for further overview of the historical background; 3 Bruno Coppieters (2012) Conflict resolution after the 2008 Georgia–Russia War: The Taiwan and Kosovo

models as tools for mobilization and comparison, Nationalities Papers, 40:5, 677-701, p. 680, the author claims

that Russia when recognizing the two regions as independent used moral and legal arguments similar to those

used by the countries which recognized Kosovo unilateral declaration of independence in 2008. 4 Christian Axboe Nielsen, 'The Kosovo precedent and the rhetorical deployment of former Yugoslav analogies

in the cases of Abkhazia and South Ossetia ' [2009] Vol 9(9:1-2 edn) Southeast European and Black Sea

Studies 174 171-189, p. 173;

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independence of Kosovo that followed, brought up the question of self- determination and the

legality of such unilateral acts of determination. Especially in a context of such gross violations,

the usage of the term “remedial secession” seems more than adequate. But international law

still remains reluctant to define a right to remedial secession and to ascertain it as a legal

principle.

The controversial aspect of the Kosovo case derives from the fact that an internal issue was for

the first time recognized as international. Moreover, the UN legalized to alter territorial

integrity for the sake of prosecuted population. Further tension was added in 2010 when the

International Court of Justice issued its advisory opinion5, requested by the General Assembly

of the UN (UNGA), which stated that the unilateral declaration of independence did not violate

any rules of international law. This advisory opinion was crucial because it did not add

straightforward new value of the notion of remedial secession, but more questioned its power

by the uncertain features of the advisory opinion. The ambiguous advisory opinion was also

used as a pretext by Russia in justifying its actions regarding South Ossetia and Abkhazia. This

only confirmed the exceptionality of the Kosovo case. Even though, the court disregarded the

legality of the unilateral act6, Kosovo has been recognized as independent by a number of

states, excluding Serbia, Georgia and Russia. However, the external recognition of Kosovo

cannot fulfil the Kosovars’ expectation to finally be considered as a separate state from Serbia.

Neither has Kosovo been accepted in the United Nations or European Union. Kosovo’s

unilateral secession, which was described as sui generis7 exception of the existing practice,

could lead to a solid base to claim the existence right of remedial secession.

5Accordance with International law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory

Opinion, I.C.J. Report 2010, p.403, para.122; 6Accordance with International law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory

Opinion, I.C.J. Report 2010, p.403, para.81, The Courts “the illegality attached to the declarations of

independence thus stemmed not from the unilateral character of these declarations as such, but from the fact that

they were, or would have been, 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). (…)” 7Christian Axboe Nielsen, 'The Kosovo precedent and the rhetorical deployment of former Yugoslav analogies in

the cases of Abkhazia and South Ossetia ' [2009] Vol 9(9:1-2 edn) Southeast European and Black Sea Studies 174

171-189, page. 174; the author notes the fact that the States which recognized Kosovo as a State, describe it as

unique “sui generis”. As the author Ch. Nielsen refers to the words of EU Enlargement Commissioner Olli Rehn-

and that should not be interpreted as precedent (Rehn 2007); Ch. Pippan, 'The International Court of Justice’s

advisory opinion on Kosovo’s declaration of independence: an exercise in the art of silence' [2010] 3-4(9:1-2

edn) EJM 154, the author refers as well to the sui generis right to “remedial secession” if certain conditions are

satisfied.

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Series of tensions during the Soviet period between the Georgian government on one side and

the Abkhazia on the other, emerged in secessionist ethnic conflict.8 Historical injustices, the

democratization processes under the perestroika in the 1980s and the subsequent dissolution

of the Soviet Union led to the continuous struggle for ethnic determination of the population in

the region of Abkhazia within Georgia.9 This secessionist conflict provides different aspects

on the debate about self-determination and whether the right of remedial self-determination is

applicable in the case of Abkhazia. An involvement of Russia during the whole conflict, led to

the even more urgent questioning of remedial secession as a concept. The following unilateral

recognition of Abkhazia by Russia10 demands to trace the link between self-determination and

recognition. Further attention will be drawn on whether recognition is a possible solution or

deterioration of secession.

Both the cases of Kosovo and Abkhazia concern one fundamental concept of the international

public law: self-determination as unilateral secession as methods of achieving statehood and

recognition. Through the attempts for ethnic determination in Kosovo and Abkhazia, the

research will try to outline whether the right of self- determination includes a general right of

unilateral secession and whether it is possible to evoke the doctrine of remedial secession after

these cases. Both cases draw specific attention to the paradigm of statehood recognition,

unilateral self-determination, and questions the possibility to ascertain the concept of remedial

secession on the legal arena of customary international law.

8 Bruno Coppieters, Europeanization and conflict resolution, case study from the European periphery. Academia

press 2004, p. 191 Chapter 5 The Georgian-Abkhaz conflict, the author goes back to the second half of the

nineteen century when a dissolution of the Transcaucasian Soviet Federated Socialist Republic created three union

republics: Azerbaijan Georgia and Armenia. An established subordinate relation between Abkhazia and Georgia

under the Soviet Structures, the destalinization in 1950s and the unsuccessful reforms led to protests and tension

between Georgia and Abkhazia in 1970s, according to the author. The democratization policies under Gorbachov,

the Georgian proclamation of independence in 19991 and the change in the political power in Georgia worsen the

relation between Abkhazia and Georgia. See Benedikt Harzl, Nationalism and Politics of the Past: The cases of

Kosovo and Abkhazia, Martinus Nijhoff publishers, Review of Central and East European Law 36 (2011) 53-77,

p. 70 for further elaborations. See also Chapter III of the present research, page 43-45; 9Bruno Coppieters, Europeanization and conflict resolution, case study from the European periphery. Academia

press 2004, Page 175-177; See also Svante E. Cornell Religion as a factor in Caucasian conflicts, Civil Wars,

(1998), 1:3, 46-64, p. 51, the author elaborates that perestroika “exacerbated” the existing tensions and was seen

as a change to revive the claim for independence by Abkhazians; See Bruno Coppieters The politicization and

securitization of ethnicity: The case of the Southern Caucasus, Civil Wars, (2001), 4:4, 73-94, see p. 74-77 the

author traces to define whether this conflict can be seen as inter-states or intra-state. The author elaborates on the

effects of the dissolution of Soviet Union, which according to him was caused by the increasing ethnic tension

and the economic disintegration after the elections of Zvian Gamasakhurdia for a president of Georgia. 10 Bruno Coppieters Conflict resolution after the 2008 Georgia–Russia War: The Taiwan and Kosovo models as

tools for mobilization and comparison, Nationalities Papers, (2012), 40:5, 677-701, p. 690-691, the author

elaborates that Russia used just-cause principle to justify its act by stating that independence is the only way to

prevent human rights abuses.

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2. The purpose of the thesis

On one hand, the purpose of the research is first to examine the case of Kosovo and the

advisory opinion given by the International Court of Justice regarding its unilateral declaration

of independence and how these events contribute to the development of the notion of self-

determination. The focus will be on two main issues: whether self-determination includes

secession and whether it can amount to unilateral secession. The issue of self-determination is

two dimensional: internal and external self-determination and including the issue of possible

claim of secession from an already existing state.

More tension was put on that notion after the Kosovo Advisory opinion was given, which

provides interesting insights regarding the external self-determination as a possible outcome in

situations of unilateral declaration of independence and how it contributes to the development

of the notion of self-determination. The advisory opinion is uncertain not only because of the

ambiguous actions taken by the Court in evaluating its jurisdiction, discretion and in

reformulating the question, but also because it remains reluctant to give a precise answer to the

crucial notions of self-determination and remedial secession in the Kosovo context. However,

there are some elements of the Advisory opinion which are contributing to conclude that some

value is added to these notions, even though not explicitly mentioned. This will be evaluated

in order to provide insights that, even though the opinion is too vague and narrow in some

points, it can be considered as contributing to the notion of remedial secession.

My intention is, by taking the idea of secession as external self-determination which might

include unilateral secession as a manner of determination of political structure, status and

sovereignty, to examine the case of Abkhazia. The unilateral secession has two perspectives-

as a right of self- determination of people, and as a remedial right- a last resort of serious

violations. Therefore, first I will examine the legal value and nature of the multi-layered notion

of self-determination, upon which I will try to analyse secession as last resort in the Kosovo

case and if it possible to ascertain a legal principle of remedial secession. The case of Abkhazia

will be a further focus in the present research and whether it adds value to the notion of remedial

secession in its aftermath.

Based all of the above, the research will conclude whether the cases of Kosovo and Abkhazia

amount to enough state practice and whether that state practice demonstrates the need and

States’ to define a legal concept of remedial secession, from customary law.

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3. Central Questions

i. Is it possible to ascertain a legal principle of remedial secession from customary

international law after the cases of Kosovo and Abkhazia?

ii. What do the case of Abkhazia contribute to the concept of remedial secession?

Sub-questions

i. To what extent does the right to self-determination encompass the right to secession?

ii. What does the right of self-determination entail from the Kosovo case’s perspective?

4. Methodology, scope and objectives of the thesis

The first sub-question will be explored theoretically in order to provide a legal framework

upon which to scrutinize the cases of Kosovo and Abkhazia. Hence, a descriptive analysis of

the nature and value of the principles of self-determination will be applicable here. The

framework will outline the development of self- determination as a principle toward its

establishment as a right of determination. The legal framework requires a brief historical

evaluation of this establishment as a principle from the decolonization period. Self-

determination from legal perspective is closely related to the principle of territorial integrity,

thus will make legal analysis. Therefore, the structure of self-determination from

decolonization period and how it is developed through time will including primary sources of

international law.

Self-determination holds two important issues11: first i) who has the right of self-

determination, and second ii) regarding the claim of secession from already existing state. For

the sake of this research paper, the first will be analysed briefly, and the focus will be on the

second issue. This will logically introduce the question of unilateral secession, due to its close

relation with territorial integrity. In such circumstances I will try to give an answer the question

whether the unilateral secession consists of elements of remedial right of secession as a last

resort.

This requires to elaborate the case of Kosovo from the historical background towards self-

determination from the perspective of the Kosovo advisory opinion given in 2010.

In the first chapter the focus will be on primary sources of international public law12 and

11 Jan Klabbers, International law (Cambridge University Press 2013) 117 Chapter VI- Self- determination; 12 Article 38 (1) (a), Statute of the International Court of Justice (1945), UNGA-Res. 2625, UN Charter, Helsinki

Final Act, ICCPR, Vienna Declaration, Rambouillete Accords;

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academic literature, so to examine the nature and the legal framework of self-determination. In

this context I will examine whether it encompasses a unilateral secession and whether it can be

considered as a part of the right of self- determination of groups of people from existing states.

Thus, the focus will be on external self-determination from the perspective of secession. I will

describe the development of the right to Self-determination since the First World War by

introducing the following issues:

I) Who has the right of self- determination in international law?

II) Does the right to self-determination encompass the claim of secession from an existing

state?

III) The concept of unilateral secession

IV) The notion of remedial secession in the context of mass atrocities

The second chapter will focus on the Kosovo advisory opinion given by the International Court

of Justice for the unilateral declaration of independence of Kosovo. I will make a legal analysis

of the advisory opinion and the subsequent separate judges’ opinions on the advisory opinion.

Then will outline whether the advisory opinion adds new value and insights and whether is

influencing on the international legal order. Then a relevant connection between the Kosovo

case after the advisory opinion and the case of secession of Abkhazia will be drawn.

The third chapter is focused on the case of Abkhazia and the attempt of secession. It requires

to outline the historical background of the case, and to do a brief analogue whether it can be

considered similar to the Kosovo case. This will outline whether Kosovo was used solely as

justification to support political interests by recognizing Abkhazia as independent state by

Russia. Whether a new value to the notion of remedial secession is added after Abkhazian case

will be a central question. Based on all of the above, the paper will search for an answer if it is

possible to define these cases as enough state practice to ascertain a legal principle of remedial

secession.

Therefore, in the analysis of these concepts, the cases of Kosovo and Abkhazia will play a

major role in the tracing of the right of remedial secession. This leads to the second central

question of the research- how these cases contribute to the concept of remedial secession, which

is a case-oriented study, which is why I will apply a qualitative research. I will use these cases

as a guideline in order to provide an answer to the question if a remedial right of secession can

be recognized as general principle of public international law.

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5. Structure

The purpose is on the basis of the cases of Kosovo and Abkhazia to ascertain the legal

notions and to elaborate whether these cases add new value to the concept of remedial

secession. Therefore, the research will focus on two main questions and two sub-questions.

The idea behind the central questions is to examine how remedial secession is emerging,

providing answers from legal aspect and political aspect of this concept. The substantive body

will be separated as following: first chapter will provide the framework of the development of

self-determination, where I will determine the general principles of international law and

whether the emergence of a right of (remedial) secession can be traced. The second chapter

will be focused on the practice including the advisory opinion given by the International Court

of Justice regarding the unilateral independence of Kosovo and its contribution to the idea of

remedial secession. The third chapter will focus on the case of Abkhazia and whether it is

adding value to the development of the notion of remedial secession. The first central question

is the legal one, which answer will conclude the whole research, while the second one is more

political which will be applicable in Chapter III.

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Section II

CHAPTER I: THE LEGAL FRAMEWORK OF SELF-

DETERMINATION

Abstract

The main purpose of this chapter is to trace remedial secession on the basis of the evolution of

self-determination. Thus, I will first elaborate the development of the right to self-

determination by briefly describing the pre-WWII era conception of self-determination and

subsequently, by focusing more on the contemporary post-WWII understanding in its internal

and external form. The main focus will be on whether self-determination is valid in the post

decolonization period; who the bearers of the right to determination are and whether there is

a legal concept of secession. On this surface I will try to trace remedial secession in a context

of gross violations.

Self-determination as concept was widely elaborated and examined by many scholars13 of

international public law. Its development can be outlined prior to the World War I, in the

American and French Revolution14, in ethnic nationalism and in the conceptions of Lenin15 and

Wilson16 who elaborate self-determination as in the concepts of democracy and nationality. As

Ryngaert and Griffon17 note, Wilson for the first time links the right of a people to “participate

13Many authors are scrutinizing the development of self-determination. In this point I will refer mainly to J.

Crawford (2006), S.Driest (2013), D.Raic (2002), H.Hannum, E.Brewer, Buchheit as authors which are

elaborating this concept. 14Simone Driest- Remedial secession; A right to external self-determination as a remedy to serious injustices?

2013, Schools of Human Rights Research Series, Volume 61, page 14; H Hannum, 'Rethinking of self-

determination page' [2011] Vol 34(1) Virginia Journal of International Law,3; D. Raic (2002); Crawford (2006) 15 Simone Driest, Ibid. page 15: Lenin’s conception (in his “Theses on the Socialist Revolution and the Right of

Nations to Self-determination from 1916 and Soviet Declaration) elaborates the right to self-determination more

as general condition of liberation; as right to nations as victims of oppression or subjugation, and which want to

break away from such an oppression. His view is related to the creation of new state and implies a right to secession

according to the author. Lenin believes that this right should be used in order to spread the socialist revolution and

to create universal socialist community. 16 Ibid. Simone Driest, page 15, the author takes the view that self-determination can be connected to the division

of different ethnic groups in the world, which was called nation, and they will be the grounds of establishing

statehood. This theory embraces the view that the individual can achieve self-realization only through the nation.

See also Shaw- International Law (Cambridge University Press 2008, Sixth Edition) page 251; D Raic, Statehood

& the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002) 189); 17 Cedric Ryngaert and Christine Griffioen, 'The relevance of the right to self-determination in the Kosovo Matte:

in partial response to the Agora Papers' [2009] 1(1) Oxford University Press 547

15

in the decision-making process within a State”, which according to Raic18 is purely an internal

form of self-determination. Another important contribution was brought in the Aaland Island

case, where self-determination was described as a “principle of justice and of liberty”19 and it

was acknowledged as a possible exceptional solution and as a last resort to secession, when no

alternative is provided.20 Some authors elaborate the view that self-determination goes through

different stages21 of evolution. However, a more noticeable development to the right to self-

determination happens after the WWII and the establishment of UN Charter in 1945 which I

will elaborate elsewhere in this chapter. Self-determination as a legal notion is widely

connected to the question of achieving independence. Firstly, it was perceived as an external

form of determination22 in the decolonization period, which was purely a right of peoples under

colonial oppression. Subsequently, its evolution continues in emerging as a form of internal

and external self-determination. While many international documents23 provide valuable

insights regarding self-determination, they also give rise to the question of secession and in

“exceptional circumstances”24 to remedial secession. Therefore, before going into depth in the

contemporary meaning of self-determination and tracing secession, self-determination will be

described in the decolonization context.

1. Self-determination from decolonization period towards contemporary concept

In the wake of the end of WWII, a need for new international organization to maintain

peace25 in the post-war time led to the creation of the United Nations and the subsequent

18David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002) 237

describes the form of internal self-determination as: “(…) mode of implementation of political self-determination

which denotes a right of a people to participate (a right to have a say) in the decision-making process of the

State”. Also refer as “right of participation”. However, the W. Wison contribution but fails to universalize self-

determination by not including it in the League of Nations Covenant according to Shaw 2008, page. 225). 19 The Aaland Islands Question, examined by two groups of experts of the League of Nations, Report presented

to the Council of the League by the Commission of Rapporteurs, League of Nations Doc. B.7.21/68/106 (1921)

at 27, Shaw- International Law (Cambridge University Press 2008, Sixth Edition) page 251, elaborates that the

case demonstrates that the principle of self-determination was purely a political concept, then legal rule of

international law. 20 Simone Driest- Remedial secession; A right to external self-determination as a remedy to serious injustices?

2013, Schools of Human Rights Research Series, Volume 61, page 26, By referring to the Report of the

International Committee of Rapporteurs, 16 April 1921, Council Document paras 22-23, the author notes that this

case is crucial not so much for the establishment of self-determination as principle, but for the acknowledgement

of remedial secession as possible remedy of last resort when no alternative is provided. Or to add more on what

Driest add for SD from Aland case 21 Ibid. page 26 22 Antonio Cassese, Self-determination of people (Cambridge University Press 1995) 72; 23 ICCPR, ICESCR, FRD, Helsinki Final Act, Vienna Declaration; Supreme Court of Canada; 24 Canadian Supreme Court refers to exceptional circumstances” when a right to secession may arise. Find It

exactly 25 Article 1(2) of UN Charter “(…) to develop friendly relations among nations based on respect for the principle

of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal

peace (…)”

16

proclamation of the UN Charter (1945). In the Charter, self-determination is mentioned twice:

in article 1(2) which states that among the main purposes of the UN is to maintain friendly

relations respecting the principles of equality and self-determination of people.26 A crucial

point worth noticing is the reference of “people” in article 1 (2) and article 55 of the Charter.

Although Crawford27 argues that there is an implicit proclamation of the general right of self-

determination, we can observe from the narrow view of the UN Charter that self-determination

was not defined as a legal principle. Nevertheless, the subsequent resolutions adopted by the

UN General Assembly are providing the necessary clarification and some new insights,

defining the principle of self-determination as a right of colonizing entities.28

The UN General Assembly adopted Resolution 1514 in 1960 (so called “Declaration on

granting independence to Colonial Countries and Peoples”29) which is imposing that “all

peoples”30 are the subject of self-determination and who have the right of self-determination

which denial is to be considered as contrary to the Charter. Hence, the bearers of the right of

self-determination are considered as subject31 of domination, exploitation and rejection32 of

fundamental human rights. This resolution associates the application of self-determination to

the free determination of political status and economic development.33 This, according to Burak

Cop34 is an important step and a sign for the subsequent development of the ICCPR in view of

26 UN Charter, article 1(2) “To develop friendly relations among nations based on respect for the principle of

equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal

peace;”; 27 James Crawford, The creation of new states in international law. Oxford University Press 2007, p. 114; 28 The evolution of self-determination as right is connected to Chapter XI and XII from UN Charter, as

Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002) p. 131describes

as the background of the evolution of self-determination as legal right. The territorial applicability of self-

determination is interconnected with what was established under the Charter: Non-self-governing territories and

trust territories28. A further effort of General Assembly to ascertain authority over these territories, led to adoption

of number of resolutions, including the UNGA Resolution 1514 from 1960 on the Granting of Independence to

Colonial Countries and Peoples (Declaration on Colonial Independence), Resolution 1541 defining the three

options for self-determination and Declaration 2625 on Friendly relations from 1970. This move of the UN, Raic

describes as important shift happens in the view of, “gradual development of Non-Self-Governing territories”

towards “immediately granted independence”28. 29 Which demonstrates a move towards immediate “end of colonialism in all its manifestations”29 and proclaims

that “immediate steps shall be taken, in Trust and Non-Self-Governing Territories or all territories which have

not yet attained independence (…)”29 which defines the territorial jurisdiction of the declaration. 30 Ibid. supra note 2; 31 Therefore, Resolution 1514 refers to people who are under foreign domination as its name refers and defines

oppression. 32 As confirmed also in Res. 1514 note 5, Namibia case, p.31, note 73; Res. 2625 note 5. Principle V (from Raic

page 146); 33 A closer look on the resolution, will notice that in supra note 5 it refers to freely application of self-determination

and free determination of political status. 34Burak Cop and Dogan Eymirlioglu, 'The right of self-determination in international law towards 40th

anniversary of the adoption of ICCPR and ICESCR' [2015] 1(1) Perceptions 118;

17

self-determination. It is considered to be a “move”35 from a principle towards a “right to self-

determination”.36 The final goal of self-determination is to cease armed actions or repressions

and to “exercise complete independence”37, hence “all colonial territories have the right of

independence”38. In the decolonization aspect, self-determination is elaborated in the form of

an external39 rather than internal manifestation.

UNGA Resolution 1541 from the same year confirms that self-determination refers only to

colonial territories, which are separate from the metropolitan state.40 Its most valuable

contribution is the elaboration of the three possible ways41 to achieve self-determination in its

external form in the context of decolonization.42 The three types of achieving self-governing

territories are:

“Emergence as a sovereign independent State;

Free association with an independent State;

or Integration with an independent state.”43

Thus, it can be argued that achieving independence is the main goal of external determination,

and that self-determination was primarily referring to colonial territories. This limits the

application of self-determination rejecting the possibility of “a permanent right of self-

35 David Raic, Statehood and the law of self-determination, Volume 43, Kluwer Law International 2008, page

215-217, As the author elaborates a number of resolution were adopted under the title of “the right of peoples and

nations to self-determination” as UN Res. 637 (A/B/C) from 1952 regarding recognize and promote the realization

of right to self-determination, UN Res. 742 (VIII) from 1953 regarding the guiding factors in determining whether

a territory is within the scope of Chapter XI UN Charter. Resolution 1188 (XII) from 1957, etc. D. Raic notices

that the character of the right to self-determination under customary international law is visible even prior to Res.

1514. And that Res. 1514 in fact demonstrates an existing rule of customary law. As he notes under supra note

200, that there are many resolutions adopted post 1960 which also prove the existence of right to self-

determination.

36 Ibid. and as supra note 6 of Res. 1514 makes reference, the principle of equality and territorial integrity which

are limitations and leading in non-interference in internal affairs and the respect of sovereign rights of all people 37 Ibid. supra note 5; 38 Hurst Hannum, 'Rethinking of self-determination page' [2011] Vol 34(1) Virginia Journal of International

Law,12; 39 David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002) page

227-228, “external” self-determination in colonial situations is the only relevant form. 40 The phrase “metropolitan state” is used by James Crawford, The creation of new states in international

law (Oxford University Press 2007) 285This is in contrary to the elaboration of Hurst Hannum, Ibid. where the

author argues that this does not refer to a possibility one territory to be home to more than one group of people.

Therefore, peoples are linked to territories and considered as its nation. See Hurst Hannum, 'Rethinking of self-

determination page' [2011] Vol 34(1) Virginia Journal of International Law,13 for further elaborations; 41 UN Res. 1541, Principle VI; 42 First the resolution defines that it refers only to territories known to be from colonial type according to UN Res.

1541, Principle I 43 UN Res. 1541, Principle VI;

18

determination”44, and defining it more as of “temporal nature” which operates only in specific

situations45 and only until self-government and independence is achieved. The resolution

provides implicitly that a leading principle is the free will of peoples regarding their political

and economic development, or also called “the principle of free choice”46 for their political

status.47 It also confirms that the main goal is to achieve independence, and once that is

achieved, the right of self-determination can be completed.48

The development of self-determination was widely influenced by some advisory opinions of

the International Court of Justice, which were scrutinized by many scholars.49 In a nutshell,

the case of Namibia defines the three main points in the concept of self-determination: it applies

to peoples subject to colonial rule, it refers to its external form and it applies to the people as a

whole.50 The case of Western Sahara confirms the view of free determination of political status

“by their own freely expressed will”.51And as Driest notes the court deliberates self-

determination as legal principle in the context of decolonization and that it was perceived as

legal entitlement. This entitlement according to Raic was explicitly qualified by States

(referring to Spain in the case of Western Sahara) as a norm of “jus cogens”.52 In the former

case Raic notices that the “entitlement to respect the right to self-determination is erga

44 Ibid. page 227 David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law

International 2002) 189 the author elaborates that in the light of decolonization period, the concept of self-

determination develops into positive right of oppressed territories, which have the right freely to determine the

achieving of “self-government” through emerge, integration or association. The bearer of the right to self-

determination is mainly the peoples under colonial oppression. 45 David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002) 226,

Chapter 6 the post-colonial era: internal and external self-determination; 46 Ibid. page 212 in accordance to principle VII of Resolution 1541; 47 Ibid. page 219; 48 According to principle II of Resolution 1541 and to Resolute 1514; 49 See David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law

International 2002) p.103,145, 218-219 East Timor; Shaw- Sahara case 236-237, 254, East Timor case 1068 and

1078, Namibia- 1219, Simone Driest- Remedial secession; A right to external self-determination as a remedy to

serious injustices? 2013, Schools of Human Rights Research Series, Volume 61, Chapter II; 50 Legal Consequences or States in the Continued Presence of South Africa in Namibia (South West Africa)

notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p.16; See

Cassese p. 72, ICJ Reports 1971, para .52 51 Western Sahara case, ICJ Reports 1975, p.12, note 73, David Raic, Statehood & the Law of Self-

Determination (Vol 43 edn, Kluwer Law International 2002) page. 132; See also Shaw International law,

Cambridge press, 6th edition, 2008, page 254 and S Simone Driest, Remedial secession, A right to external self-

determination as a remedy to serious injustices? (Volume 61, School of human rights research series 2013) 34

chapter II; 52 David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002) p. 218

referring to Spain, Western Sahara ICJ, pp. 206-208; Algeria pp. 497-500; this stance is also defended by S Simone

Driest- Remedial secession; A right to external self-determination as a remedy to serious injustices? 2013, Schools

of Human Rights Research Series, Volume 61, p. 34-35;

19

omnes”53 and this is a step further in the evolution of self-determination.54 Also in that case it

states that this right of self-determination is a core principle of contemporary international

law.55

2. Self-determination beyond decolonization period. Contemporary meaning56

Abstract

As it was highlighted above, self-determination was widely perceived in its external form of

application in the decolonization period. However, on one hand the contemporary evolution of

self-determination continues its development, while on the other hand it is emerging as two-

dimensional. In the context above self-determination was primarily expressed externally, but

the contemporary meaning encompasses internal form57as well. As Raic rightly emphasizes,

this internal mode must be understand as another method of exercising self-determination, and

not as different rights of self-determination.58 Although a brief overview of the internal form of

self-determination will be applied here, the primary focus will be on external self-

determination in its contemporary modes of application.

53 David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002) page

145, East Timor case, Judgement of ICJ Reports 1995, p. 102, note 241; See Simone Driest- Remedial secession;

A right to external self-determination as a remedy to serious injustices? 2013, Schools of Human Rights Research

Series, Volume 61, page 35 note 101 for what is erga omnes: character of a norm indicates that the norm concerned

applies to the international community as a whole and that all states can be said to have a legal interest in its

protection. Barcelona Traction? 54 Erga omnes obligation according to the Barcelona Traction case of 1970 these are the obligations concerning

all states and are directed to the international community. The concept impose that these obligations are for the

interest of the whole community. From Latin means “towards all” according to Oxford reference:

http://www.oxfordhandbooks.com/view/10.1093/law/9780199640133.001.0001/law-9780199640133-e-24 ; On

the other side and jus cogens refers to norms from which no derogation is permitted according to Vienna

Convention on the Law of Treaties of 1969 (VCLT); For further elaborations on these concepts see Erika De Wet,

Jus Cogens and Obligations Erga Omnes (January 15, 2013). Dinah Shelton (Ed), The Oxford Handbook on

Human Rights (OUP 2013) Forthcoming. Available at SSRN: https://ssrn.com/abstract=2279563, Chaper 23; 55 Ibid. See David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002)

p. 145-146 for further elaboration. 56 The contemporary development of self-determination as a concept continues with the ICCPR, ICESCR,

Friendly Relation Declaration, the OSCE Helsinki Final Act, the African Charter on Human and Peoples’ Rights

and the Vienna Declaration and Programme of Action from the World Conference on Human Rights. More value

is added from the practice of ICJ, so will be also elaborated. 57 Cassese, Self-determination of people (Cambridge University Press 1995) elaborates the view that in the

practice of the UN Human Rights Committee, can be deduced that first the idea of internal self-determination was

“neglected”. It followed more loose interpretation of ICPPR art. 22 and 25; that under OP only individuals can

lodge communications; subsequently it was a turn more on internal self-determination as democratic decision-

making process. For further details, see p. 64; 58 David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002) Page

227;

20

3. Content/scope of self-determination in contemporary view

3.1.What does external self-determination in its contemporary meaning amount to?

Self-determination continues to be valid after the decolonization period, defined as

universal59 and “unquestionable”60 right. It belongs to all people without distinction61 and it

was perceived as a norm linked to the principle of equal rights.62This link extends to the idea

that all states have to provide to all peoples the right to determine their internal and external

political status.63 Furthermore, as the Human Rights Committee elaborates in its General

Comment 12, all States parties have the obligation not only to all its population, but to the

people who have not exercised or did not have the possibility to exercise their right to self-

determination.64 Raic defines that the purpose of the right to self-determination is to guarantee

“the effective development and preservation of the collective identity of a peoples as well as

for the enjoyment of the individual human rights of its members”.65

3.2. Scope and content of internal self- determination

The ICJ’s stance in the case of South Sahara66 is that internal self-determination should

exercise in a free manner including the political, economic and cultural development of all

people. If we take this view, it should be regarded as a “method” by which States must take

decisions over their peoples- by respecting their free will internally.67 The idea to “determine

59 ICCPR article 1(1) and E Brewer, 'To break free from the tyranny and oppression: proposing a model for a

remedial right to secession in the wake of the Kosovo advisory opinion' [2012] 45(245) Vand J Transnat'l 257 the

author rightly notes the ruling of ICJ in East Timor case, confirms the universal right of self-determination as erga

omnes. Above I also have noted this; FRD principle 5, para. 1 and 2; 60 African charter article 20 (1) “(…) unquestionable and inalienable right to self-determination (…); see also art.

20 (2) “colonized and oppressed peoples shall have the right to free themselves from the bonds of domination

(…)” See Raic Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002 page 232 61 FRD safeguard clause principle 5 “all people have the right freely to determine, without external interference,

their political status and to pursue their economic, social and cultural developments (…) every state have the duty

to respect this (…), realization of the principle of equal rights and self-determination of peoples (…)” 62 Helsinki Final Act of OSCE art. 1(a) VIII. E. Brewer 257 FRD principle 5 The principle of equal rights and

self-determination of peoples; See also FRD principle VI; 63 Evan Brewer, 'To break free from the tyranny and oppression: proposing a model for a remedial right to

secession in the wake of the Kosovo advisory opinion' [2012] 45(245) Vand J Transnat'l p.257, Helsinki Final act

“reaffirms the universal significance of this principle”; 64 See Human Rights Committee General Comment 12, para. 6, it stances that there is an obligation to all States

parties in relation to their own peoples and to all which have not been able to exercise or deprived the possibility

to exercise their right to self-determination. See David Raic, Statehood & the Law of Self-Determination (Vol 43

edn, Kluwer Law International 2002) p. 235; 65 David Raic Ibid. Chapter V, Section 4 pp.227; also see Western Sahara case, ICJ Reports 1975, p. 36; 66 Western Sahara case, ICJ Reports 1975, p. 12, note 73; David Raic ibid. page. 132; See also Shaw- International

Law (Cambridge University Press 2008, Sixth Edition) page 254 and Simone Driest- Remedial secession; A right

to external self-determination as a remedy to serious injustices? 2013, Schools of Human Rights Research Series,

Volume 61, p. 34, chapter II; 67 Cassese, Self-determination of people (Cambridge University Press 1995) 72 page 320;

21

their political status means to”68protect, preserve, strengthen and develop cultural, ethnic and

historical identity and to guarantee freedom and existence69 without external involvement.70

The free enjoyment of the right of all people to self-determination was elaborated further in

common article 1(1) of the ICCPR and ICESCR.71 This is an “on-going right”72 which as

Cassese argues, is beyond the idea that if once independence is achieved the external-

determination is exhausted as Raic notes. The language of the Covenants differs from that

decolonization concept of self-determination by emphasizing on its “continuing” and

“permanent” character and that it should be exercised without outside interference.73 Moreover,

“a contrario reading”74 of the safeguard clause75 of the Declaration on Friendly Relation (from

now on UN Res.2625 or FRD) clearly demonstrates self-determination as non-exhausted once

independence is achieved.76

In the light of the ICCPR, Cassese defines internal self-determination as a “manifestation”77 of

the rights enshrined in it.78 In fact, a precise definition of internal self-determination is provided

by Cassese: the right to internal self-determination is “allowed to exercise those rights and

68 International Covenant on civil and political rights (ICCPR) and International Covenant nn economic, social

and cultural rights (ICESCR) common article 1(1) also some scholars, as Simone Driest- Remedial secession; A

right to external self-determination as a remedy to serious injustices? 2013, Schools of Human Rights Research

Series, Volume 61, page 51; refers to Aland case, which elaborates that the purpose of the concept of self-

determination is the maintenance and free development of the groups’ characteristics; mainly religious, ethnic,

etc. also see my note 10; D Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law

International 2002) p. 237 describes the form of internal self-determination as: “(…) mode of implementation of

political self-determination which denotes a right of a people to participate (a right to have a say) in the decision-

making process of the State”. Also refer as “right of participation”. 69David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002), page 257 70 FRD principle 5, para. 1; 71 Article 1(1) of the ICCPR ("All peoples have the right of self-determination. By virtue of that right they freely

determine their political status and freely pursue their economic, social and cultural development."). 72 Antonio Cassese, Self-determination of people (Cambridge University Press 1995) p. 101 73 Ibid. p. 54-55, the author refers to the Covenants and to a comment made by the Chairman of the Working Party

of the Third Committee, see note 51; 74 Simone Driest- Remedial secession; A right to external self-determination as a remedy to serious injustices?

2013, Schools of Human Rights Research Series, Volume 61, page 302; 75 The FRD 1970, “Nothing 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. “ 76 David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002) notes, p.

230; 77Antonio Cassese, Self-determination of people (Cambridge University Press 1995) 72, page 53, freedom of

expression art. 19, the right to peaceful assembly art. 21, the right to take part in the conduct of public affairs,

directly or through freely chosen representative art. 25 (a); 78 Ibid. page 53, claims that internal self-determination is best described as “manifestation of the totality of rights

embodied in the Covenant”, by referring to rights of free expression (art.19), the right of peaceful assembly

(art.21);

22

freedoms which permit the expression of the popular will”.79As it was noted in the Quebec

secession case, self-determination was perceived as normally fulfilled through internal self-

determination in the peoples’ aim to define their political will.80 Buchheit defines the perceived

two layered notion of internal and external self- determination as: the latter refers to peoples

who are entitled to pursue their political, cultural and economic development; the former refers

to the right of all parts of population to participate in the political discussion of their country.81

Raic confirms this view by defining self-determination as legal right under general

international law82 and that its continuity as a right is primarily linked to the right to participate

in the political process within the State.83 Participation can take the form of a

“representative”84government of whole peoples without discrimination85 or indirectly through

referendum or plebiscite.86 He also points out that there is a possibility for a wider form of

government, which amounts to a form of “federalism, power-sharing, autonomy and holding

of referenda”87 which will lead to successful representation and respective participation in the

political process. Therefore, as Buchheit finds out, the two layered concept of self-

determination links to “external independence and internal autonomy”.88

3.3.Subject of internal self-determination

As already defined the content of the concept of self-determination now will turn to the

question who the subject of internal self-determination is. Based on the above examination it

79 Ibid. The author also defines p. 102 the main issues of internal form: “(…) the internal self-determination of the

whole people of sovereign states, that is the right to have a representative and democratic government; the right

of racial and religious groups living in States which grossly discriminate against them; the right of ethnic groups,

linguistic minorities’ indigenous populations, and national peoples living in federal States. (…)” They can be

traced also in some international documents as FRD principle V, art. 7, Vienna Declaration and Programme of

actions part 1, art.2; ICCPR art. 25; which does not apply to the purpose of the present research; 80 Quebec case 1998, 161 DLR (4th), 385, 437-8 115 ILR, p. 536 See also Shaw- International Law (Cambridge

University Press 2008, Sixth Edition) page 293; 81 Lee Buchheit, Secession: the legitimacy of self-determination (New Heaven: Yale University 1978) 14 82 David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002) page

284, refers to FRD and a discussion of Poland and Argentina. 83 Ibid. page 272; for more information, see also article 25 of the ICCPR which is defined by Raic in p. 274 as

complementary article to art. 1 of ICCPR; 84 Vienna Declaration and Programme of actions, principle 2, para. 2 as well as FRD Res. 2625 principle 5, line

7, imposed the essentiality of representative government for the exercise of the right to internal –self-

determination. Simone Driest- Remedial secession; A right to external self-determination as a remedy to serious

injustices? 2013, Schools of Human Rights Research Series, Volume 61, page 53; for more information, see also

David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002) page. 272-

273; 85 FRD principle 5, para.7 refers to without discrimination of race, color or creed. 86 David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002) pp. 272-

273; 87 For more elaboration on that topic, See David Raic, Statehood & the Law of Self-Determination (Vol 43

edn, Kluwer Law International 2002) Chapter 6 Section 3; Simone Driest chapter III, section 3.3; 88 Ibid. referring to Sukovic, principle of equal rights and self-determination of peoples, in principle of

international law concerning FRD 323, 350 (M. Sahovic, ed. 1972)

23

can deduce that it refers explicitly to “all peoples”89 which are entitled to the right to internal

determination. This debated question is elaborated by many scholars90 who provide different

examinations. They link it mainly to the “right of nations”91 , thus the entire population within

one State92, but “minority-peoples”93 are also included, under specific circumstances,

according to Raic. On the contrary, Cassese claims that minority groups do not have such a

right, based on the UN practice.94 However, by scrutinizing the safeguard clause95 of FRD, it

can be argued that the right to internal self-determination belongs to racial or religious groups

to which participation in the political process was denied.96 Therefore, FRD links external self-

determination to internal self-determination in such exceptional circumstances.97 Thus, the

subject is extended to “peoples” 98 meaning not only entire population but also sub-groups99

and minorities which bear collective identity. The importance of the internal form of self-

determination derives from the fact that it amounts to conditio sine qua non100 for the effective

protection of individual human rights and for the lawful exercise of external self-

89 Cassese, Self-determination of people (Cambridge University Press 1995), page 74 The author emphasizes that

internal self-determination of colonial peoples was disregarded; 90 My focus is on Raic, Shaw and Casses, Hannum, E. Brewer; 91 David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002), p.288;

92 Ibid. page 272; 93 Ibid. page 282-284 and 310 the author elaborates the view that if autonomy is granted to a minority-people will

increase the effectiveness of their exercise of internal self-determination. 94 Antonio Cassese, Self-determination of people (Cambridge University Press 1995) p.108; 95 FRD Principle V, para. 7 : “Nothing 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.” 96 Antonio Cassese, Self-determination of people (Cambridge University Press 1995)page 114; page 106 the

author examines the case of South Tyrol/Alto Adige concerning Austria and Italy, UNGA Res. 1497 and 1661 for

settling peacefully the dispute. Important note made by the author is that, this does not mean that States are

granting a menu of rights (as he defines) or neither prohibit it. States simply should allow to racial and religious

groups to have access to public institutions and decisions. (114 page) 97 Antonio Cassese, Self-determination of people, Cambridge University Press1995, page 120; 98 Ibid. See also Simone Driest- Remedial secession; A right to external self-determination as a remedy to serious

injustices? 2013, Schools of Human Rights Research Series, Volume 61, page 84; 99 David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002) p. 262

refers to the criteria for “peoplehood” as group of individual human beings who enjoy some or all of the following

features: (a) a (historical) territorial connection, on which territory the group forms a majority; (b) a common

history; (c) a common ethnic identity or origin;152 (d) a common language; (e) a common culture; (f) a common

religion or ideology; (2) the belief of being a distinct people distinguishable from any other people; 100 Ibid. page 240 Condition sine qua non from Latin refer to a condition without which it could not be, a necessary

condition, according to Oxford Reference:

http://www.oxfordreference.com/view/10.1093/oi/authority.20110803095631167

24

determination.101 Thus it “triggers”102 the exercise of external self-determination. Therefore,

internal self-determination is possible to be satisfied “normally” as act of people determining

its political, social, cultural and economic development within a State.103 However, are there

other possibilities to exercise your right to self-determination? Are there specific conditions

under which people can determine their development externally? If there is a denial of internal

determination, do people have a legal right to claim determination beyond the boundaries of

the State where they reside? Under specific conditions (mainly discrimination and denial to

exercise internal self-determination), the possibility to exercise self-determination in an

external form emerges. All these questions will be examining in the next paragraphs.

3.4.Denial of the right to internal self-determination

There are several acts which amount to a breach of internal self-determination: first is the

government’s denial104 people to exercise their internal self-determination, second: a possible

act of formally granting the right, but in practice denied (which is indirect discrimination) and

third: a serious violation of human rights (as Raic refers to right to life, or practice of genocide

of ethnic cleaning as in Croatia).105 But even though these on theory clear ground however,

from practical point of view it is still questionable how to define the gravity of an act and

whether it amounts to violation of internal self-determination, which evokes the exercise it

externally? Raic defines that some general principles of necessity, subsidiarity and

101 David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002), p. 262

the author describes internal self-determination as condition for a guarantee of individual human rights. See also

292, p. 306; FRD also makes reference to denial of fundamental rights, see FRD principle 5, para. 2; Vienna

Declaration and Programme of Actions from 1993, defines that the denial of the right of self-determination

amounts to a violation of human rights. See E. Brewer, 'To break free from the tyranny and oppression: proposing

a model for a remedial right to secession in the wake of the Kosovo advisory opinion' [2012] 45(245) Vand J

Transnat’l page 257; 102 Simone Driest- Remedial secession; A right to external self-determination as a remedy to serious injustices?

2013, Schools of Human Rights Research Series, Volume 61, pages 4-7; 103 The Canadian Supreme Court define it (to add specific description of the case); See also Shaw- International

Law (Cambridge University Press 2008, Sixth Edition) page 293; And E Brewer, 'To break free from the tyranny

and oppression: proposing a model for a remedial right to secession in the wake of the Kosovo advisory

opinion' [2012] 45(245) Vand J Transnat’l page 259; 104 David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002), page

368, Denial is also mentioned in the FRD declaration, principle V, par. 2 (b) referring to people which are subject

to different forms of domination as well as denial of fundamental human rights. Although it is in the context of

decolonization, this can be considered as valid in the aftermath of decolonization. As the right of self-

determination was perceived as fundamental human rights, it is logical to come with this conclusion. Self-

determination was placed on one stance with the respect of equal rights in the FRD. See Hust Hannum, 'Rethinking

of self-determination page' [2011] Vol 34(1) Virginia Journal of International Law, p.16-19; See FRD Principle

V; 105David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002) page

368 where the author refers to the cases of Croatia and Bangladesh;

25

proportionality are leading principles and “dictate” the denial of internal self-determination.106

The denial to exercise internal self-determination should be of such extent as to impose a

“threat of the maintenance of the collective identity of the people”.107 Therefore, if we take

these features as possible requirement and threshold for the denial of internal self-

determination, then logically will lead to the question in what ways external self-determination

can be exercised.108

3.5.Ways of exercising self-determination externally

After defining the conditions which need to be met in order to evoke the external self-

determination here we will focus on the possible modes of exercising it. The FRD109 imposes

that the external form of self-determination can be exercised in a form of secession, dissolution,

union or merge.110 The latter two possibilities are defined as peaceful ways for peoples to

determine their “own destiny”111 either directly or through representative government.112 So

these two modes will require the consent of the “mother” state, will be exercised by the nation

(as the whole nation has entitlement to exercise it113) and there will be no clash or conflict with

other international legal principle of territorial integrity. This demonstrates that the modes of

exercising self-determination externally, clearly expand beyond the boundaries of the “mother”

State, as the achievement of independence is linked to the change of the initial boundaries of

the parent State. In that sense dissolution and secession are slightly different, as they sometimes

involve acts which do not receive a prior consent of the metropolitan state.

106 David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002), p. 368,

See also p.369-380 for further information about the principle applicable in the case of denial internal self-

determination; 107 Ibid. p. 369; 108 Ibid. 109 Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States

in accordance with the Charter of the United Nations, adopted by the General Assembly on 24 October 1970

(FRD) Principle 5 para. 4 and para.5: “the establishment of a sovereign and independent State, the free association

or integration with an independent State or the emergence into any other political status freely determined by a

people constitute modes of implementing the right of self-determination by that people.” See also Helsinki Final

Act principle VIII; 110 FRD principle 5, para. 4; See also David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer

Law International 2002) p. 289-291 for secession as mode of exercise SD externally; S. Driest page 84-86 on the

different modes of external self-determination. 111 Cedric Ryngaert and Christine Griffioen, 'The relevance of the right to self-determination in the Kosovo Matte:

in partial response to the Agora Papers' [2009] 1(1) Oxford University Press, page. 574; 112 David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002) page.

290 The authors marks that there is no prohibition under international law which prohibit the dissolution of one

State or to divide its territory, by referring to the cases of Czechoslovakia, Soviet Union, SFRY; see supra notes

260, 261; see page 291-293; 113Ibid. page 292;

26

4. The blurred line between dissolution and secession

Dissolution can be mistaken with secession in some cases. Some authors stated that the line

between dissolution and secession is often blurred114 leaving a degree of uncertain about what

is the difference between these two modes of separation and whether we should do it at all? On

the one hand, dissolution refers to the ceasing of the existence of the parent state and creating

new successors; on the other hand, secession refers to the cases of separation of an entity, while

the parent state continues its existence.115 Klabbers notices that in fact the main feature of

secession which differentiates it from the other modes of separation is that the parent state

continues its existence without a change as legal subject of international law, but with changed

territory.116

5. Definition of Secession

Secession is a mode of self-determination which refers to acts of withdrawal of a specific

part of the territory of the existing state and emergence of another state, while the mother State

continues to exist.117 The goal of secession is to dismember a State118, in order to separate a

part of its territory and achieve independence. Kohen elaborates on a more restrictive approach

and defines that broadly speaking the notion of secession, refers to “the creation of a new

independent entity through the separation of a part of the territory and population of an

existing State, without the consent of the latter”.119

Some scholars120 define secession as consensual or constitutional secession. The latter refers

to the right of secession as primarily granted in the constitution of the sovereign State, and the

former refers to the received prior consent of the State to allow unilateral right to secession to

a group of peoples. Vidmar supports this view by pointing that it can be executed only with the

consent of the parent state.121 Both aspects of consensual and constitutional secession, are

114 Simone Driest- Remedial secession; A right to external self-determination as a remedy to serious injustices?

2013, Schools of Human Rights Research Series, Volume 61, page 89; 115 David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002) pp. 358-

359; See Jan Klabbers, International law (Cambridge University Press 2013), page 81; 116 Jan Klabbers, International law (Cambridge University Press 2013) page 80; 117 Simone Driest- Remedial secession; A right to external self-determination as a remedy to serious injustices?

2013, Schools of Human Rights Research Series, Volume 61, page 87 and Peter Raddan, 'Post-secession

international borders: a critical analysis of the opinions of the Badinter Arbitration Commissions' [2000] Review

50(24) Melbourne University Law, page 9; 118Lee Buchheit , Secession: the legitimacy of self-determination (New Heaven: Yale University 1978) page 13; 119 Marcelo Kohen Secession, International law perspectives, Cambridge University Press, 2006, pages 2-3 120 Simone Driest- Remedial secession; A right to external self-determination as a remedy to serious injustices?

2013, Schools of Human Rights Research Series, Volume 61page 87; 121 Jure Vidmar Remedial secession, Theory and lack of practice, page 38;

27

considered as peaceful and do not breach or influence on any legal principles of international

law.

Despite that, the FRD declaration does not define explicitly the content of these modes, it only

states that it must be exercised freely without outside interference122 and it should be in non-

violent manner123. Therefore, this modes of external-self-determination does not confront other

legal principles as territorial integrity, as long as they are peaceful, without outside interference

and with the prior consent of the parent States.124

Nevertheless, secession can include a case of separation in order to be incorporated as part of

another State, but still without the consent of the parent state. Hence, this links secession

primarily with the presence of consent of the mother state, and defines its absence as a “key

element” characterising the concept of remedial secession and main reason of controversy.125

If the peoples have the approval of the mother state there will be no need to examine these

kinds of secessionist attempts as they do not amount to any breach of international legal

norms126 and will be qualified rather as “devolution”.127 Some of the instances of secession

pointed by scholars128 are of South Sudan, Rhodesia, East Pakistan, etc. Others129 define some

cases as unsuccessful secessionist attempts like South Ossetia and Abkhazia, Tatarstan and

Chechnya. Therefore, it can be deduced that self-determination encompass secession130 as

modes of separation but only secession with the prior consent of the parent state, thus as a

peaceful way to exercise external self-determination.

122 The Declaration on Principles of International Law concerning Friendly Relations and Co-operation among

States" was adopted by the General Assembly on 24 October 1970 (FRD) principle V, para. 1; 123 Ibid. para. 5 It states that the States have a duty to refrain from forcible action which could influence or

“deprive” peoples to exercise their right to determination; 124 Simone Driest- Remedial secession; A right to external self-determination as a remedy to serious injustices?

2013, Schools of Human Rights Research Series, Volume 61, page 93; 125 Ibid. 126 Ibid. page 293; 127 Ibid. page 3; 128 J. Crawford, S. Driest, J. VIdmar, M. Khoen, E. Brewer, B. Coppieters; 129 Rygaert and Griffoen, The relevance of the right to self-determination in Kosovo Matter: in partial response to

the Angora Papers,2009, Oxford University Press, page 578, see also D Raic, Statehood & the Law of Self-

Determination (Vol 43 edn, Kluwer Law International 2002) page 109; 130 David Raic Statehood and the law of self-determination, Kluwer Law International,2002, page 289; See

Simone Driest- Remedial secession; A right to external self-determination as a remedy to serious injustices? 2013,

Schools of Human Rights Research Series, Volume 61, page 89;

28

6. Self-determination includes secession

6.1.Declaration on Friendly relations

Even though the resolutions of UN General Assembly are not judicially binding to the states,

they have strong influence on their practice. UNGA Declaration FRD 2625 from 1970s is

crucial because it was adopted with full consent and thus it is of significant importance.131 FRD

imposes ground-breaking principles which will be leading in the future practice of the States:

state sovereignty, territorial integrity, and duty not to intervene in domestic matters, duty of

States to cooperate, to refrain from the use of force and to fulfil obligations in good faith in

accordance with the Charter132 and self-determination which is defined as human right.

Therefore, the FRD requires focusing on the connection between self-determination and other

principles of international law, mainly territorial integrity which limits133 its applicability.

7. Territorial integrity and self-determination

As two different approaches can be determined towards self-determination: the personality

principle and the territorial principle134, here it should be noted the research will take more

neutral position and will oscillate between these two approaches.

The first is a more restrictive approach135, which defines human rights of leading importance

over the territorial sovereignty of States. This view will be elaborated further in the section of

secession and remedial secession. However, before turning into more detailed analysis of

unilateral secession and the cases of remedial secession, the logical approach of this research

requires first to touch upon the leading importance of territorial preservation and how self-

determination as a legal principle influences it.

8. Applicability of territorial integrity regarding self-determination

Self-determination and territorial integrity can be defined as two sides of one coin. From one

side, self-determination is primarily linked to the right of peoples to determine their political

131 Vaughan Lowe, International law, Oxford University Press, 2007, page 100; 132 Ibid. page 101; FRD Declaration principles 1-7; 133 Vaughan Lowe, International law, Oxford University Press, 2007, page 113; The author makes reference to

the UNGA Res. 1514, stating that the destabilization of the international relations is visible from the UNGA Res.

2625 and it is so called “safeguard clause” which impose that territorial integrity is superior to the right of self-

determination, and that the destabilization and breaching of that principle is incompatible with the UN provision

and UN Charter. 134 Jorg Fisch, 'The right of self-determination of peoples' [2015] 1(1) Cambridge University Press, page 41 the

author defines the personality principle as mainly referring to person who belong to organization, and the territorial

one refer to persons who reside in specific territory. 135 Hermann-Josef Blanke and Yasser Abdelrehim, 'Catalonia and the Right to Self-determination from the

perspective of international law' [2015] 1(1) Koninklijke brill nv, Leiden page 549;

29

development, as was defined above. On the other side there is territorial integrity, which is a

principle belonging to the States as subject of international law. Territorial integrity was

described as a principle protecting states’ territories from outside aggression.136 Territorial

integrity is widely elaborated in the FRD, according to which the breach of territorial integrity

refers to attempts of partial or total disruption of national unity. Territorial integrity is defined

as a “guarantee against the dismemberment of one territory”.137 The declaration imposes that

the use of force violates the territorial integrity which amounts to violation of the UN

Charter138, where the principle of territorial integrity is linked to the prohibition of the use of

force.139 This demonstrates the broader scope of its application140, the supremacy of territorial

integrity and that every state has the duty to refrain from acts which could breach the principle

of territorial integrity.

When it comes to limitations and violations of the exercise of self-determination, the Vienna

Declaration from 1993 provides some valuable contributions. The Vienna Declaration imposes

that the denial of self-determination is a violation of human rights141, mainly in the context of

decolonization and peoples under foreign occupation. However, when these actions violate the

territorial integrity of states, they cannot be considered lawful anymore.142 Furthermore, the

“safeguard clause” of this declaration imposes that the principle of territorial integrity is

superior and precludes143 to the principle of self-determination, and when self-determination

136 E. Gzoyan and Lilit Banduryan, 'Territorial integrity and self-determination: contradiction or

equality'[2011] 2(10) «21st CENTURY», p. 97, The authors take the stance that the principle of territorial

integrity can be seen as well in the context of the Peace of Westphalia 1648, where the territory of a state was

considered as essential to secure the state and to preserve the status quo in the world order. 137 Marcelo Kohen Secession, International law perspectives, Cambridge University Press, 2006, page 6, on the

impact of fundamental principles of international law; 138 Article 2 of UN Charter, para. 4 and 5 states: “All Members shall refrain in their international relations from

the threat or use of force against the territorial integrity or political independence of any state, or in any other

manner inconsistent with the Purposes of the United Nations. (5) All Members shall give the United Nations every

assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance

to any state against which the United Nations is taking preventive or enforcement action. (…) “; See also David

Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002) page 294, where

the author elaborates that territorial integrity is mentioned in many other international instruments as well; See

also Helsinki Final Act 1975 OSCE Declaration Principle VIII; 139 Lee Buchheit, Secession: the legitimacy of self-determination (New Heaven: Yale University 1978), page 32,

describes art. 2 of UN Charter as “principle norm of international law of our time”. 140 David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002) p. 292-

294; 141 Vienna Declaration and Programme of Action, 1993; see also E. Brewer, To break free from the tyranny and

oppression: proposing a model for a remedial right to secession in the wake of the Kosovo advisory opinion, 45

Vand. J. Transnat'l L. 245 2012, page 257; 142 Evan Brewer, To break free from the tyranny and oppression: proposing a model for a remedial right to

secession in the wake of the Kosovo advisory opinion, 45 Vand. J. Transnat'l L. 245 2012, page 257; see FRD,

safeguard clause; 143 Hurst Hannum, 'Rethinking of self-determination page' [2011] Vol 34(1) Virginia Journal of International

Law, page 16; See also African Commission on Human Rights and E. Brewer, To break free from the tyranny and

30

breaches the territorial integrity, it is defined as unlawful act under international law. So thus,

self-determination can be exercised as long as States are conducting in accordance with the

principles enshrined in FRD including respect of territorial integrity.144 Cassese precisely

notices that:

“ (…) if in a sovereign state the government is ‘representative’ of the whole population, in that

it grants equal access to the political decision-making process and political institutions to any

group and in particular does not deny access to government to groups on the ground of race,

creed and colour, then that government respects the principle of self-determination;

consequently, groups are entitled to claim right to self-determination only where the

government of a sovereign State denies access on such grounds.” 145

Some scholars146 define that international law favours the principle of territorial integrity for

the sake of the people’s will and their aspiration for political independence. Territorial integrity

can be seen as a limitation of self-determination, as the latter’s aim is to change the boundaries

of the States, as the former aims to preserve them. However, territorial integrity applies to those

states which conduct themselves in compliancy with the principles of equal rights and self-

determination and thus represent the whole population without distinctions.147 This, on one

hand, is confirmed by Crawford by emphasizing that people can exercise the right of self-

determination internally, through their participation in the government on a base of equality.148

But on the other, the FRD in conjunction with Vienna Declaration are implicitly stating

remedial secession as a possible remedy for people, subject to absolute denial of participation

in the political life of the State.149 Comparing to the Crawford stance, Brewer goes further by

defining the Vienna Declaration as a limitation to territorial integrity: it does not permit

secession, but “eliminates the ability to invoke territorial integrity”.150 Hence, in secessionist

oppression: proposing a model for a remedial right to secession in the wake of the Kosovo advisory opinion, 45

Vand. J. Transnat'l L. 245 2012, page 259, the author states that territorial integrity will be superior unless there

is a grave abuse of human rights and denial of self-determination. 144 James Crawford, The creation of new states in international law (Oxford University Press 2007), page 118,

FRD principle 5, para. 7; 145 Antonio Cassese, Self-determination of people (Cambridge University Press 1995) page 112; 146 H Blanke and Y Abdelrehim, 'Catalonia and the Right to Self-determination from the perspective of

international law' [2015] 1(1) Koninklijke brill nv, Leiden, p. 559; 147 Ibid. referring to FRD see also James Crawford, The creation of new states in international law (Oxford

University Press 2007), page 119; 148 James Crawford, The creation of new states in international law (Oxford University Press 2007), page 119; 149 Ibid. 150 Evan Brewer, To break free from the tyranny and oppression: proposing a model for a remedial right to

secession in the wake of the Kosovo advisory opinion, 45 Vand. J. Transnat'l L. 245 2012, page 258;

31

attempts, territorial integrity might not be applicable and thus might not be a limit and an

obstacle to the concept of “remedial secession”.

9. Trace Remedial secession into self-determination

As it was seen above, self-determination may encompass secession as a peaceful mode of

separation. A careful look on its safeguard clause of FRD demonstrates that it grants a right to

racial and religious groups within one state, to exercise externally as well as internally self-

determination.151 This clause imposes directly that nothing cannot preclude or dismember the

territorial integrity and state sovereignty of a State, which acts in accordance with the

declaration. The final paragraph of the safeguard clause states that “in compliance” with equal

rights and self-determination should be understand as that the governments should represent

the whole population without distinction. And the Vienna Declaration from 1993, although

vague in some of its provisions, does not oblige the States to grant such a right, neither prohibit

it; but rather allows the limitation of the possibility to evoke territorial integrity in a context of

discrimination and States’ non-compliance.152 But if they do not represent the whole peoples,

is it illegitimate and does it violate the principle of self-determination? 153 And would it amount

to “action which would dismember or impair totally or in part, the territorial integrity or

political unity of sovereign and independent States”?154 However, after reading the safeguard

clause a contrario155 it is logical to ask if a State is not acting in accordance with these

provisions, thus denying determination to groups within its territory, is it possible to apply

secession as mode of separation?156 Cassese states that the FRD does not rule out secession,

but “implicitly” defines that secession is allowed under specific circumstances.157

There are specific requirements which if met, might evoke secession as a mode of separation.

If there is a persistent denial of internal self-determination, there is a gross human rights

violation and there is no possible settlement by peaceful measures within one state, e.g. there

151 Antonio Cassese, Self-determination of people (Cambridge University Press 1995), p. 114 and 118 Principle

V (7) the safeguard clause of FRD: “Nothing 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.” 152 Evan Brewer, To break free from the tyranny and oppression: proposing a model for a remedial right to

secession in the wake of the Kosovo advisory opinion, 45 Vand. J. Transnat'l L. 245 2012, page 258. 153 Lee Buchheit, Secession: the legitimacy of self-determination (New Heaven: Yale University 1978) page 93; 154 Ibid. 93-94 and FRD, principle V, para. 7 safeguard clause; 155 David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002), page

318; 156 James Crawford, The creation of new states in international law (Oxford University Press 2007), page 119; 157Antonio Cassese, Self-determination of people (Cambridge University Press 1995), pages 118-119;

32

is no “likelihood”158 to be reached, thus racial or religious groups may attempt to separate

through secession. The same stance is taken by Rygaert and Griffoen who establish certain

condition, which need to be satisfied prior to the invocation of external self-determination.159

There should be “people” with distinct identity from the rest of the population and to amount

to “clear majority”160 ; discrimination and massive violations of human rights, exclusion from

political discussions and unfruitful negotiation between the oppressed people and the sovereign

State.161

If we embrace the idea of two different approaches of self-determination162: the one human

rights oriented and the other territorial oriented, here leading will be the latter. As Neff

describes, there are two ways of creation a state through secession: “high and low road” or also

called “positive and negative paths”.163 The high or positive path refers to the inherited and

collective right to self-determination, while the negative or low road refers to a remedy for

violations committed by the mother state or the dominant population.164 Neff states that

international law does support only the latter way of achieving independence, and not the

former: as “free standing right” of secession.165 Taking into consideration the FRD and its

safeguard clause, the Vienna Declaration 1993 and the Helsinki Final Act166 which all in some

way repeat the FRD’s clause (safeguard clause: Principle V(7)) can deduce that they refer more

to the so called negative (low) road, than to secession as separate right entitled to all the

population of one State. These documents impose that States should resist such attempts of

unilateral secession if they do not meet the conditions provided above167 and that remedial

158 Antonio Cassese, Self-determination of people (Cambridge University Press 1995), page 120; 159 Cedric Rygaert and Christine Griffoen The relevance of the right to self-determination in Kosovo Matter: in

partial response to the Angora Papers,2009, Oxford University Press, page 575; 160 Ibid. page 577-578 Taking into account the term “minority” does not receive any clarification on international

legal sphere; 161 Ibid, p. 575-576; 162 Stephan Neff, 'Some considerations on secession and independence: the cases of Kosovo and Georgia' [2009]1-

2(1) Amsterdam Law Forum, p. 33; 163 Ibid. 164 Ibid. 165 Stephan Neff, 'Some considerations on secession and independence: the cases of Kosovo and Georgia' [2009]1-

2(1) Amsterdam Law Forum 1, p. 33 and 37; 166 Vienna Declaration and Programme of Action adopted by the World conference on Human Rights in 1993;

Helsinki Final Act of OSCE from 1975; See Cassese, Self-determination of people (Cambridge University

Press 1995), page 286; 167 Marcelo Kohen Secession, International law perspectives, Cambridge University Press, 2006, page 106

33

secession can be seen as aim to “safeguarding“the peoples ‘identity168. Kohen defines that kind

of secession under exceptional conditions as “qualified secession doctrine”.169

9.1.Quebec and Aaland Islands cases and their contributions

The support of remedial secession is observed also from some judicial decisions. In order to

be able to trace whether self-determination encompasses secession, one should look into article

38 of the ICJ Statute170 and examine the judicial decisions.

Turning back to the Aaland Islands case from 1920s, we can see some contributions to the idea

of qualified remedial secession. The Aaland Islands case was concerning Finland and Sweden,

questioning whether secession should be granted to the inhabitants of these islands and

subsequently, to unify Sweden.171 The case provides some valuable remarks: firstly, it states

that secession is to be a matter concerning domestic fora, rather than international. However,

if there is an abuse of sovereign power from the State, the domestic character can be overcome,

and become a matter within the scope of League of Nations. Secondly, it does not grant an

absolute right to secession by imposing the prevailing role of stability and states’ order.172

However, the fact that it does not provide a right to secession under all circumstances does not

mean that it negates the possibility of secession in general. But the opposite, the Commission173

notices that separation of minorities can be exercised only as “exceptional solution, as a last

resort” when the State lacks the power or lacks abilities to guarantee freedom174 to territories

that are greatly oppressed and “misgoverned”175 by the parent State. The dispute was ruled

within the Council of the League of Nations taking the Finnish stance, and supporting the view

that it should grant rights to such groups of minorities.176 Therefore, unilateral secession was

168 Marcelo Kohen Secession, International law perspectives, Cambridge University Press, 2006, page 106; 169 David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002) p. 321

the aouthr defines it as qualified right to secession; 170 Article 38 of the ICJ Statue describes the sources of international law which will take into account when

deciding cases, namely: international conventions, international custom, general practice of law and judicial

decisions and the teachings of the most highly qualified publicists as subsidiary means. 171 The case was discussed by two Commissions appointed by the Council of League of Nations: Commission of

Jurist and Commission of Rapporteurs, in order to provide advisory opinions on the matter. For more elaboration

on this case, see S. Driest Remedial secession, A right to external self-determination as a remedy to serious

injustices? School of human rights research series, vol. 61, 2013, pages 123-127; and D Raic, Statehood & the

Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002) p. 328-330; 172 David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002) p.198-

199 Provides elaboration on the Aland Islands question, LNOJ, Spec. Supp. No. 3, 1921, para. 27-28; 173 Ibid. para. 28; 174 Ibid. 175 James Crawford, The creation of new states in international law (Oxford University Press 2007) page 111; See

also Simone Driest- Remedial secession; A right to external self-determination as a remedy to serious injustices?

2013, Schools of Human Rights Research Series, Volume 61, page 127; 176 James Crawford The creation of new states in international law (Oxford University Press 2007), p. 108-111;

34

seen more as a last resort due to the inability of State to provide freedom for their groups within

it, than as to absolute right belonging to such groups.177

9.2.Is remedial secession allowed under specific circumstances?

The view of remedial secession as a possible outcome for separation, as well as the

conditions which need to be met in order to evoke the doctrine of secession, were supported by

the case of Quebec as well. Although the Supreme Court of Canada determines that

“normally”178 self-determination is exercised internally179, it does not exclude a possibility to

exercise it externally as well. The Court argued that international law provides a right to

external self-determination to former colonies and when peoples are oppressed or denied access

to participate in the governmental decision processes.180 Therefore, it is possible only, when a

right to exercise self-determination internally181 has been denied, to exercise determination

through secession. The Court defines that general, international law does not grant a legal right

to unilateral secession to parts of a state by providing greater importance to the principle of

territorial integrity.182 But under specific circumstances, it is possible to evoke the concept of

secession as remedy to gross violations.183 It argues that the right to secession is not prohibited,

177 James Crawford The creation of new states in international law (Oxford University Press 2007), p. 108-111,

see also Simone Driest- Remedial secession; A right to external self-determination as a remedy to serious

injustices? 2013, Schools of Human Rights Research Series, Volume 61, page 127; 178 Re secession of Quebec, Supreme Court Judgement, 1998, Report (1998), 2 SCR 217, Case number 25506,

Canada, para. 126; 179 Ibid. para 2; See Evan Brewer, To break free from the tyranny and oppression: proposing a model for a remedial

right to secession in the wake of the Kosovo advisory opinion, 45 Vand. J. Transnat'l L. 245 2012, page 259; See

also James Crawford, Modes of the Creation of States in international law, Oxford University Press, 2006, page

119; 180Re secession of Quebec, Supreme Court Judgement, 1998, Report (1998), 2 SCR 217, Case number 25506,

Canada, para. 138; 181 Ibid. para 134-138 See also Hermann-Josef Blanke and Yasser Abdelrehim, 'Catalonia and the Right to Self-

determination from the perspective of international law' [2015] 1(1) Koninklijke brill nv, Leiden, page 554; 182Re secession of Quebec, Supreme Court Judgement, 1998, Report (1998), 2 SCR 217, Case number 25506,

Canada, para. 108 and 109; See Roya M. Hanna, Right to Self-Determination in Re Secession of Quebec, 23 Md.

J. Int'l L. 213 (1999), p. 221; Although as Hermann-Josef Blanke and Yasser Abdelrehim 'Catalonia and the Right

to Self-determination from the perspective of international law' [2015] 1(1) Koninklijke brill nv, Leiden, p.556

state the case of Quebec does not amount of instance of breach of human rights; 183 Re secession of Quebec, Supreme Court Judgement, 1998, Report (1998), 2 SCR 217, Case number 25506,

Canada, para. 112 and 133; See also I Libarona, 'Territorial integrity and self-determination: the approach of the

international court of justice in the advisory opinion on Kosovo ' [2012] 1(16) REAF, page 110 Hermann-Josef

Blanke and Yasser Abdelrehim, 'Catalonia and the Right to Self-determination from the perspective of

international law' [2015] 1(1) Koninklijke brill nv, Leiden, p 554; See Evan Brewer To break free from the tyranny

and oppression: proposing a model for a remedial right to secession in the wake of the Kosovo advisory opinion,

45 Vand. J. Transnat'l L. 245 2012, page 259, the author argues that it might be justified unilateral secession of

peoples, who are denied to exercise self-determination externally, thus as a legitimate last resort: through referring

to para. 112 of Re Secession of Quebec;

35

but also not allowed for every group of peoples within one State.184 The Court supports the

view that the matter of creating of a new state, should be dealt primarily within the domestic

fora, and thus it is a matter of the jurisdiction of the Sovereign state, rather than of the

international law as such. The Court elaborates that a right to secession under self-

determination is happening when “peoples” are defined as a governed under colonial rulings,

subject to form of domination, or subject to denial of any internal exercise of self-

determination.185 Thus, although on first stance a matter of domestic law, secession can be

evoked as a last resort, when a state is violating its obligations, the Court argues that there

exists a possible right to secession as a last resort of decolonization, “alien subjugation,

domination or exploitation outside the colonial context”186 and cases of denial of internal self-

determination.187 Thus, the Supreme Court recognizes a qualified right to secession.188

10. Who is entitled to the right of secession as a remedial right against gross human rights

violations?

The Supreme Court of Canada argues that as long as it refers to internal self-determination,

it applies to minority peoples within one State.189 However, when it comes to external self-

determination, the Supreme Court of Canada concludes that it does not have to define the term

“peoples” in the context of the present case, because the subject of external self-determination,

i.e. secession, should be considered as: people governed as part of colonial empire, where “a

people” is subject to alien subjugation (…) and possibly where “a people” is denied any

meaningful exercise of its right to self-determination within the state of which it forms a part.

(…)”190

184 Re secession of Quebec, Supreme Court Judgement, 1998, Report (1998), 2 SCR 217, Case number 25506,

Canada, para. 135 and 109, See Roya M. Hanna, Right to Self-Determination in Re Secession of Quebec, 23 Md.

J. Int'l L. 213 (1999), page 221; 185 Re secession of Quebec, Supreme Court Judgement, 1998, Report (1998), 2 SCR 217, Case number 25506,

Canada, para. 138; 186 Ibid. para. 132 and 133 see Daniel Thurer and Thomas Burri, 'Secession' [2015] 1(1) Oxford University Press,

Max Plank Encyclopaedia of public international law, para. 34; 187 David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002) page

332; 188 Hermann-Josef Blanke and Yasser Abdelrehim, 'Catalonia and the Right to Self-determination from the

perspective of international law' [2015] 1(1) Koninklijke brill nv, Leiden, page 554 189 Re secession of Quebec, Supreme Court Judgement, 1998, Report (1998), 2 SCR 217, Case number 25506,

Canada, para. 126; 190 Ibid. para. 154;

36

10.1. Who are the people entitled?

This question in fact is one of the major criticisms of scholars191, as many of them confirm

the lack of clarity and sometimes the unwillingness of States to define who exactly is entitled

to the right to secession.192 A main reason for this is that States consider that a clear-cut

definition of peoples might lead to dismemberment of their territoriality and would

automatically lead to right to secession.193

It is clear that self-determination is valid beyond the decolonisation period194, and from

international documents it can be concluded that self-determination as internal form is entitled

to the collectivist entity195 of “all peoples”196. Cassese confirms this, by arguing197 that the

entire population is perceived as subject to the internal self-determination. However, the

concept of “peoples” does not include ethnic, cultural or linguistic minorities of one State,

therefore it is a limitation of the idea of all peoples referring only to racial or religious groups198.

191 Antonio Cassese, Self-determination of people (Cambridge University Press 1995) page 326, the author argues

that some commentators claim that the legal regulation of self-determination does not refer to nations and

minorities, it is more a one-sided and it does not regard the “representative democracy” requirement. He examines

two major criticisms: the content of the legal regulation and the second: that the legal regulation “does not define

the units of self-determination”. The second critique (referring to Emerson, Pomerance, Schwebel, etc) leads to

the issue of defining exactly who are the “peoples”, “nation” or “ethnic groups”, etc. However, Cassese is on the

view that even if there is not a legal definition, it does not mean that there can be interpret depending on the

context. Cassese argues that thus, international law does specify indirectly the units of self-determination. See

page 327 for more elaboration on the matter. 192 Lee Buchheit, Secession: the legitimacy of self-determination (New Heaven: Yale University 1978) page 19,

the author argues that most of the independent States fear that the claims of secession can become a threat to intra-

State balance and will destabilize their systems. See also Cassese Self-determination of people, Cambridge

University Press 1995, page 319; 193 Cedric Rygaert and Christine Griffoen The relevance of the right to self-determination in Kosovo Matter: in

partial response to the Angora Papers,2009, Oxford University Press, page 576 See also Tomuschat, Yugoslavia’s

Damaged Sovereignty over the Province of Kosovo, in G. Kreijen et al. State, Sovereignty and International

Governance (2002) 344; 194 David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002) page

243; 195 David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002) page

242, refers to the question of what collectivities are to be considered “peoples”; p.248 refers to “raison d’etre of

self-determination which imposes that concern the protection of the collective identity of a “people” as a group”;

On p.262 Raic defined the criteria for peoplehood for the sake of collective identity as follow: it consists of group

of individuals which share the same threat as historical connection, common history, ethnic identity, language,

culture, religion or ideology or a belief that they are distinct group; The author states that is a group find itself in

some of these features, it will be hold the right of internal self-determination (p.264) Raic defines peoplehood as

requirement when it comes to unilateral secession: see p. 366, Chapter 7, section 4; See also Hurst

Hannum, 'Rethinking of self-determination page' [2011] Vol 34(1) Virginia Journal of International Law, Vol.

34:1,p.17; 196 See common article 1 of the ICCPR and ICESCR; Which Raic elaborates as referring to the entire population

of one state. See page 245; See also Helsinki Final Act which support the view that the entire population is entitled

to internal self-determination. 197 Antonio Cassese, Self-determination of people (Cambridge University Press 1995) by referring to the Helsinki

Final Act (Cassese elaboration) and to the African Charter art. 20(1); 198 See Antonio Cassese Self-determination of peoples, Cambridge University Press, 1995, p.114; See as well

David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002) page 247

37

That stance is supported by Buchheit199 who claims that in this context “the peoples’ right to

self-determination” should be understood as equal to national groups, rather than the entire

population of a state.

Turning to sub-groups within one state, there are different elaborations by some scholars. On

one hand, Cassese reads the FRD as imposing a right to internal self-determination to racial

and religious groups200 and with the conditions of representatives, capable of acting as such.201

He considers this as limitation, excluding the linguistic and national groups form the right to

internal self-determination.202

An opposing view is presented by Raic who has rather inclusive opinion than to Cassese’s

exclusive view. Raic recognizes that subgroups are entitled to internal self-determination and

they are not limited to racial or religious groups.203 Nevertheless, there is no unified stance on

who are the bearers of the right to internal self-determination, and as above demonstrated some

scholars embrace different view on the matter taking also the fact that States primarily are

unwilling to define it. Thus, maybe it is more correct to determine that question on case-by-

case basis, than to search for general criteria for “peoples”.

The question who is entitled to self-determination becomes even more complicated when it

comes to external self-determination, i.e. remedial secession. From the FRD safeguard clause,

Aaland Islands case and Quebec case can be deduced that in general the peoples, who are

entitled to the right to remedial secession are the ones under colonial domination, under

oppression or denial of internal self-determination or subject of human rights violations. So

where the author confirms the view of limitation by ignoring the ethnic, cultural and linguistic treats by which the

groups are differed. 199 Refer to the UN Charter art. 2 and 55; 200 Antonio Cassese Self-determination of peoples, Cambridge University Press, 1995, page 114; the author

supports that view by examining the practice of the Security Council and the General Assembly regarding the

Apartheid by the white minority government of South Africa and in South Rhodesia. See p. 120-125; 201 Ibid. page 147; 202 Ibid. page 114; 203 David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002) p. 255-

257 He examines the Katangese Peoples’ Congress v. Zaire as well as support its view by referring to the Supreme

Court of Canada and Constitutional Court of the Russian Federation which elaborates more broad definition of

who is entitled to internal self-determination, see page 256; p. 250 The author traces the meaning of “without

distinction as to race” through elaborate the definition of race, by referring to the Convention on the Elimination

of All Forms of Racial Discrimination from 1966 and to UNESCO Declaration on Race and Racial Prejudice in

order to support the view that the prohibition of racial discrimination refers to the prohibition of acts of

discrimination based on racial nature. See page 252-253 for more elaboration on that matter;

38

thus, people must be considered as a separate entity of the entire population, and “must have

an identity that distinguishes it”204, thus to be a part/group of the entire state’s population.

10.2. Does it include minorities?

Raic defines that the right to unilateral secession belongs to “minority-people as separate

part of the territory”205 who also have connection with the land they inhabit206which means

that national or ethnic minorities can also have the right to unilateral secession.207 When it

comes to minorities, Rygaert and Griffioen argue that sometimes “people” and “minority” can

be considered equal.208 They provide the same elaboration as Raic on the basis of the criteria

of “peoplehood”.209 If a minority has a “collective identity” it can be entitled to the right to

unilateral secession.210 But according to Cassese even if they have collective identity, the

external self-determination should be done by some type of representation of the whole people

according to the customary international law.211

11. Legality of Secession

Secession can be evoked as a right to people against oppression, domination and gross

human rights violations and should be in a legal manner. Remedial secession will be evoked

only when all local remedies have been exhausted.212 If so, then the only option available for

the people entitled is to secede unilaterally as a remedy against the oppressor (usually the parent

State). Raic defines unilateral secession as “ultimum remedium” to fight against repression.213

204 David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002) page

557, through UNESCO, International Meeting of experts on further study of the concept of the rights of peoples,

final report and recommendation, see note 15; The authors state that the people should also be a majority of the

territory; See Simone Driest- Remedial secession; A right to external self-determination as a remedy to serious

injustices? 2013, Schools of Human Rights Research Series, Volume 61, p. 115 the author supports the view that

entire population and subgroups of one state are entitled to internal self-determination. 205 David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002), page

367; See as well Rygaert and Griffoen The relevance of the right to self-determination in Kosovo Matter: in partial

response to the Angora Papers, 2009, Oxford University Press, page 576, the authors argue that people includes

a” portion” of the population which is entitled for unilateral secession. 206 Ibid. 207 David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002) page

242 See also Simone Driest- Remedial secession; A right to external self-determination as a remedy to serious

injustices? 2013, Schools of Human Rights Research Series, Volume 61, p. 117; 208 Cedric Rygaert and Christine Griffoen The relevance of the right to self-determination in Kosovo Matter: in

partial response to the Angora Papers,2009, Oxford University Press, page 577; 209 David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002) page

262 the author argues that the criteria for peoplehood in ethnic sense means a group of people which share the

common history, identity and origin, language, culture, religion or ideology. 210 Ibid. page 578; 211 Antonio Cassese, Self-determination of people (Cambridge University Press 1995) page 147; 212 Ibid. Page120, See also D Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law

International 2002) page 370; 213 Ibid. D. Raic page 370, Chapter 7, Section 4.4;

39

All local as well as international solutions should be exhausted in order to evoke the principle

of qualified right to secession.214 This means that all peaceful remedies should be sought,

before considering whether the other three conditions are met in order to evoke the right to

secession namely: human rights violations and oppression, exclusion from the domestic

political process, and no “reasonable prospect for peaceful” settlement215. If all local remedies

are exhausted and thus “internal self-determination is beyond reach” the secession can be

legitimate216, but if not, this act can be considered as illegal and a violation of the principle of

self-determination.217

When it comes to a unilateral act of secession, thus changing of the territorial limitation of the

state, without its prior consent, then it comes to a different point, which touches upon the

sensitive international principle of territorial integrity. In general, the acts of separation aiming

to change the territorial boundaries of an existing state, will breach the principle of sovereign

equality and territorial integrity. However, according to Raic a denial of the right to exercise

internal self-determination218, might lead to forfeit the States from their right to preserve

territorial integrity and hence people can have a right to unilateral secession as a remedy to

gross violations. And moreover, territorial integrity applies only to intra-state relations, thus it

might be overcome in a context of secession, as these acts primarily refer to sub-groups entities.

12. Conclusion

The legal framework of self-determination drawn above and its elaboration by scholars’

prove that the question of remedial secession remains really controversial. On one hand, this

question does not receive much clarity from international provisions; on the other, it can be

regarded as a political matter. International law states that self-determination in its

contemporary form is a principle belonging to all people and is exercised first internally. If

self-determination cannot be exercised or denied internally and all internal remedies are

exhausted, then self-determination might take an external form. The external forms can be

secession, dissolution, merge and union, but all of them should be exercised peacefully with

214 Ibid. p. 371 and 447; According to the author qualified secession doctrine exists only if there are harmful acts

against minorities, serious violations of human rights and denial of right to internal self-determination and when

all other possibilities to exercise self-determination within the boundaries of the State, have been exhausted. 215Antonio Cassese, Self-determination of people (Cambridge University Press 1995) page 120; See Rygaert and

Griffoen The relevance of the right to self-determination in Kosovo Matter: in partial response to the Angora

Papers,2009, Oxford University Press, page 576; 216Antonio Cassese Ibid. page 120 217 Ibid. See also David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law

International 2002), p.109,106, 371; 218 Ibid. D. Raic page 447

40

the consent of the parent state. From this point, it is logical to deduce that self-determination

might include remedial secession but as a peaceful way of determination. Although considering

secession implicitly as a form of contemporary external self-determination, some obstacles as

the absence of consent of the parent states and the lack of clarity on who are entitle to right to

remedial secession, hinder to define a legal concept of remedial secession. And international

law remains reluctant to clarify precisely whether remedial secession exists legally, when there

are gross human rights violations and a denial to participate in the political life of the State.

Despite the judicial decisions and scholars’ interpretation which acknowledge the existence of

remedial secession, there are still no legal provisions which confirm it. The idea of remedial

secession linked to the conditions of gross human rights violations, has historical motives even

from the Decolonization period. Remedial secession might be allowed under the following

circumstances: gross human rights violations, denial of internal determination and exhaustion

of all internal ways of participation in the political life. In this context remedial secession will

be a reaction as remedy against these conditions, and will primarily lead to dismemberment of

the state’s boundaries. From international law perspective, this will breach the principle of

territorial integrity. Thus, it cannot be concluded that there is a positive entitlement for remedial

secession under the contemporary framework of self-determination. However, regardless of

the fact that international law remains really cautious when it comes to defining or clarifying

possible ways of creation or separation of new states, a valuable source can be the judicial

practice. As it will be seen in the subsequent chapters, the practice and judicial decision might

provide some new insights and add value to the idea of remedial secession in its contemporary

development. Whether this practice might amount to state practice which with opinio juris can

create customary law, according to article 38 of ICJ Statute, will be a relevant question in the

present research. Whether it can amount to state practice and ascertaining a legal principle of

remedial secession based on customary international law will be a question at stake in the next

chapters. On that point, it is worth noticing that self-determination does not provide positive

entitlement for remedial secession. It does impose that there might be a possible secession as a

way of exercising self-determination, but primarily peaceful and with the consent of the parent

state.

41

Section III

CHAPTER II: THE KOSOVO ADVISORY OPINION

1. Factual Background

The advisory opinion by International Court of Justice (from now on ICJ) regarding the

legality of the unilateral declaration of independence of Kosovo from 2008 was provoked by

series of events in the late twentieth century. In 1998 the United Nations Security Council

decided to intervene in the territory of Serbia and by recalling Chapter VII219 of the UN Charter

to take measures regarding the conflict in Kosovo. The UN adopted series of resolutions220

which called for political solution of the issue of Kosovo.221 The NATO bombing campaign

over Serbia led to the establishment of the Security Council Resolution 1244 (1999) which

aimed to authorize the UN to take interim measures in order to place Kosovo under

international control of the UN. Resolution 1244 from 1999222 provided the establishment of

“(...) International civil presence for Kosovo ... and which will provide transitional

administration while establishing … the development … of self-governing institutions to ensure

conditions for a peaceful and formal life (...) ”223 The United Nations Interim Administration

Mission in Kosovo (from now on will be used as UNMIK) aimed to stabilize the situation, to

end the armed conflict and to provide provisional institutions to facilitate “(…) the political

process (…)”224 toward establishment of self-government and deciding the future status of

Kosovo.225 The process continue with the appointed of Martti Ahtisaari by the Security Council

as special Envoy for Kosovo226 which aim was to facilitate a settlement of mutual agreement

and discussion between Kosovo and Serbia. However, he did not succeed with the

219 Chapter VII of the UN: Actions with respect to threats to the peace, breach of the peace, and acts of aggression 220 UN. Doc. S/RES/1160 para.4 obtained from http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-

6D27-4E9C-8CD3-CF6E4FF96FF9%7D/kos%20SRES1160.pdf and RESOLUTION 1244 (1999) obtained from

https://documents-dds-ny.un.org/doc/UNDOC/GEN/N99/172/89/PDF/N9917289.pdf?OpenElement 221 UN. Doc. S/RES/1160 para.1 222 Which is considered as the UNSC framework regarding Kosovo Interim Administration Mission (UNMIK)

information obtained from official UN page:

http://www.un.org/en/peacekeeping/missions/unmik/background.shtml 223 RESOLUTION 1244 (1999) para.10 224 RESOLUTION 1244 (1999) para.10 e) in accordance with the Rambouillete accords (S/1999/648) although it

was rejected by Serbia, however it has been given effect by SCRES 1244 225 RESOLUTION 1244 (1999) para.11 (e) states: “Decides that the main responsibilities of the international civil

presence will include: e. Facilitating a political process designed to determine Kosovo's future status, taking

into account the Rambouillet accords (S/1999/648);” 226 UN Doc. S/2005/709 from 2005

42

Comprehensive Proposal for the Kosovo Status Settlement227 to the Secretary-General and

regardless of the subsequent effort by the Troika of the Contact Group228 to settle a mutual

agreement regarding the status of Kosovo, a progress was not achieved, neither an agreement

was reached.

On the 17th of February 2008 the Parliament of Kosovo issued a unilateral declaration of

independence of Kosovo as a sovereign state.229 Although the independence was recognized

formerly by the US, France, Germany and other EU countries, Serbia denounced the

declaration and proclaimed it as illegal because it is breaching the territorial integrity of Serbia.

Moreover, Serbia aimed at gaining more attention and support for its position by putting230 this

internal issue on international scene. Another suggestion is that Serbia wanted to support its

interest and not to give a motive to Kosovo to secede unilaterally and one of its supporter was

Russia which took the Serb’s position. Thus, the General Assembly on behalf of Serbia,

adopted Resolution 63/3, and recalling Article 65 of the Statute of the ICJ asked for its advisory

opinion on the following question: “Is the unilateral declaration of independence by the

Provisional Institutions of Self-Government of Kosovo in accordance with international law?”

2. Kosovo Advisory Opinion

On 22th of July 2010 the International Court of Justice gave its advisory opinion231 on the

question regarding the unilateral declaration of independence of Kosovo. Without examining

the controversial aspects of the advisory opinion, it could be determined that the outcome of

the opinion is not problematic. The importance of the opinion derives from its ambiguous

227 Comprehensive Proposal for the Kosovo Status Settlement from UN Doc. S/2007/168/Add.1 obtained from

http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-

CF6E4FF96FF9%7D/Kosovo%20S2007%20168.Add1.pdf 228 The Contact Group consists of representatives of the EU: United Kingdom, France, Germany, Italy, United

States and Russia and was set up as a facilitator; 229 Official website of the Government/Municipality of Kosovo, it states in its constitutions that on 17 February,

2008 in Kosovo was declared a sovereign and independent state (…) Information obtained from: https://www.rks-

gov.net/en-US/Republika/Pages/Kushtetuta.aspx 230 Accordance with International law of the Unilateral Declaration of Independence in Respect of Kosovo,

Advisory Opinion, I.C.J. Report 2010, paragraph 53: The resolution 63/3 of the General Assembly with which

was requested the advisory opinion, it has been proposed by the Republic of Serbia which was described as the

sole sponsor of resolution 63/3; 231The Court can hear two different types of cases; first can hear legal disputes between States which they submit

to it and can receive requests for advisory opinions on legal questions, as the Court referred in its opinion to

Article 65231, paragraph 1 of its Statute: “it may give an advisory opinion on any legal question at the request of

whatever body may be authorized by or in accordance with the Charter of United Nations to make such a request.”

The advisory opinions of the Court do not have legally binding character, however they can be a strong legal

burden and to have moral effect. They can even be used as a first step before using diplomacy or establishing

peace-keeping missions.

Information based on the Official website of the International Court of Justice/ Jurisdiction; obtained at

http://www.icj-cij.org/jurisdiction/index.php?p1=5&p2=2

43

elements, which ultimately led to the uncertain outcome. The question was not about whether

Kosovo has achieved independence, neither was about the validity and the legal effects of

possible recognition of Kosovo, and the Court remained silent for the legal consequences of

the declaration.232 The ICJ reached its conclusion that the declaration does not violate general

international law, or UNSC Res. 1244(1999)233 and the Constitutional Framework, neither

breached the applicable role of international law.234

3. The importance of Kosovo Advisory Opinion

The importance of Kosovo advisory opinion derives from the fact that for the first time such

an internal issue235 was brought on the international legal sphere, which makes it a sui

generis236 case. The subsequent advisory opinion was long-awaited for the sake of providing

clarity on the legal practice for future attempts for dissolution and secession. This is one of the

reasons why the Kosovo advisory opinion is so widely and in-depth analysed by many

scholars237. The controversial aspects of the ICJ’s reasoning proves that the Court was unable

to give clear response to such a highly political question. Aiming to preserve its integrity and

reputation, the Court concluded in divisive way to exercise its jurisdiction instead of using its

discretionary power and declined providing an answer. By deciding to issue advisory opinion

232 Accordance with International law of the Unilateral Declaration of Independence in Respect of Kosovo,

Advisory Opinion, I.C.J. Report 2010, paragraph 51: “(…) It does not ask about the legal consequences of that

declaration. In particular, it does not ask whether or not Kosovo has achieved statehood. Nor does it ask about

the validity or legal effects of the recognition of Kosovo by those States which have recognized it as an independent

State. The Court notes that, in past requests for advisory opinions, the General Assembly and the Security Council,

when they have wanted the Court’s opinion on the legal consequences of an action, have framed the question in

such a way that this aspect is expressly stated (…)Accordingly, the Court does not consider that it is necessary to

address such issues as whether or not the declaration has led to the creation of a State or the status of the acts of

recognition in order to answer the question put by the General Assembly. The Court accordingly sees no reason

to reformulate the scope of the question.” 233 The United Nations Security Council Resolution 1244 (1999) obtained from https://documents-dds-

ny.un.org/doc/UNDOC/GEN/N99/172/89/PDF/N9917289.pdf?OpenElement 234 ICJ Advisory Opinion; Accordance with International law of the Unilateral Declaration of Independence in

Respect of Kosovo, Advisory Opinion, I.C.J. Report 2010, Conclusion para. 122; 235 Interesting aspect here is that according to the jurisdiction of the ICJ their advisory opinions must be more

focus on “elucidation and development of international law (…) and strengthening of peaceful relations between

States.”, than to determine internal conflicts. Information based on the Official website of the International Court

of Justice/ Jurisdiction; obtained at http://www.icj-cij.org/jurisdiction/index.php?p1=5&p2=2 236 In the separate opinion of judge Trindade paragraph 45 which will be elaborate later on, recalls the fact that

some participants characterize the Kosov situation as sui generis. In paragraph 146 he refers to the established by

the ICTY (Trial Chamber) in the Milutinovic et al. case (2009) that described the situation of Kosovo as unique

and sui generis. Also Judge Trindade points the fact that Poland is not the stance that the mass violations and

ethnic cleansing in the 19th century must be taken into consideration when evaluating the Kosovo declaration of

independence. 237 Hurst Hannum, Ralph Wilde, Jure Vidmar, Christian Pippan, Doc Jacobs, Yanik Radi, Ryngaert and Sobrie;

44

regarding an act performed by non-state actors the Court lost its ratione personae- regarding

only states and international organizations.238

For the sake of tracing the added value of self-determination and remedial secession after the

Kosovo Advisory Opinion, it is worth noticing how the Court described as irrelevant the

questions of self-determination and remedial secession. With the aim to elaborate the scope

and the meaning of the question posed by the General, the Court noted that the question does

not refer to the consequences of the Kosovo declaration of independence, neither whether

Kosovo has achieved statehood.239 The Court differed the Kosovo case from the case of Quebec

and the opinion provided by the Supreme Court of Canada, on the basis that the question put

to the Supreme Court of Canada was referring directly to the “effective secession” and asked

whether there is an international rule that allows it. Which according to the Court is different

from the question asked by the General Assembly, which refers only to whether the applicable

international law prohibited the declaration of independence. Hence, the Court did not

elaborate the question as whether according to the norms of international law the Kosovo

unilateral declaration of independence, is allowed. Moreover, the Court considered that it is

possible a unilateral declaration of independence not to be in violence of the international law

and in the same time not to impose explicitly the right conferred by it.240

Furthermore, the Court acknowledged the contribution of the 20th century in regard to the

development of the concept of self-determination which creates a right to independence for

238 David Jacobs and Yacob Radi: Waiting for Godot- An analysis of the Advisory Opinion on Kosovo, Leiden

Journal of International Law, 24 (2011) pp. 312, pp. 343;

Here should make a note regarding the difference between a requesting party and the matter of the request.

According to the official website of the ICJ, does not provide explicitly what king of matters the UN organs can

request an advisory opinion, neither whether can be regarding states, non-state actors or international

organizations. Advisory Opinion can be requested by 5 major organs of the UN and by 16 Specialized Agencies

of the UN. The UNGA and UNSC can request an advisory opinion on “any legal question”. Any other agencies

can request opinion only in regard to a questions within their competence and their activities. Regarding non-

governmental international organizations, it is stated that the only one authorized by the ICJ was regarding the

International Status of South West Africa. However, the Court rejected such a requests by private parties.

However, it states that the Court can create a list of States and international organization which can receive

information regarding the question imposed before the Court. Also notes that the proceedings are between States

and only States can present statements. Information obtained in ICJ official page-How the court works:

http://www.icj-cij.org/court/index.php?p1=1&p2=6

Another point of view is that according to the statute of ICJ article 34 (1) rationae personae, only states can be

parties to a case before the Court. So therefore, there is no explicitly mentioned what kind of reference for advisory

opinion can be made and regarding what issues and concerning what king of actors. 239 Kosovo Advisory Opinion paragraph 51 although this contradict to article 11 e of the Res. 1244 (1999) which

states that the one of the main purposes is to deal with the future status of Kosovo, which implicitly involve the

question of achieving statehood; 240 Kosovo Advisory Opinion, Accordance with International law of the Unilateral Declaration of Independence

in Respect of Kosovo, Advisory Opinion, I.C.J. Report 2010, paragraph 56;

45

peoples of non-self-governing territories and people subject to domination and exploitation.

Hence, the Court embraced the view that outside such context the state practice did not lead to

emergence of a new rule in international law which prohibits the making of declaration241and

furthermore, that self-determination allows the right of population to separate from State.242

Regardless of this conclusion, the Court considered as not relevant to resolve the questions

whether international law provides the right to “remedial secession” and whether it is

applicable to the Kosovo case. The ICJ supports the stance that this is beyond the scope of the

question posed by GA which focuses only on whether the declaration violated general

international law and lex specialis created by the SC Resolution 1244.243 Regardless that these

points were neglected in the Court’s reasoning, the judges’ separate opinions and the

subsequent recognition of Kosovo by some states, provide significant insights on the matter of

self-determination and remedial secession. This will be elaborated elsewhere in this chapter as

a crucial point of the Kosovo Advisory Opinion and will defend the stance that remedial

secession might not be a lost cause.244

4. Legal analysis of the Kosovo advisory opinion

4.1.Legality of the declaration of independence

The first elements of the advisory opinion which will scrutinize, is the legality of issuing a

unilateral declaration of independence. The Court did not addressed the nature of the

declaration itself, but rather evaluated it in conjunction with the Resolution 1244 (1999) 245 and

the Constitutional Framework. The ICJ concluded that the Resolution 1244 did not impose any

prohibitions from issuing declaration of independence. The arguments of the Courts are that

the purpose of the Resolution was primarily to establish an interim regime in Kosovo, which

241 Accordance with International law of the Unilateral Declaration of Independence in Respect of Kosovo,

Advisory Opinion, I.C.J. Report 2010, paragraph 79 and 82; 242 Ibid. paragraph 82; 243 Ibid. paragraph 83, lex specialis refer to special law that repeals general laws, information obtained from:

http://www.oxfordreference.com/view/10.1093/acref/9780195369380.001.0001/acref-9780195369380-e-1303 244 A notation drawn to the article of Hurst Hannum (2011), The Advisory Opinion on Kosovo: An Opportunity

Lost, or a poisoned chalice refused? LJIL 24, pp.155-161 is that Kosovo advisory opinion is an opportunity lost

as it did not provide the needed clarity over the concept of remedial secession. 245 UNSC Resolution 1244(1999) was passed on 10 June 1990 and it is considered as the base document in the

Kosovo case. It led to the authorization and establishment of the UNMIK and the implementation of PISG

(provisional institutions of democratic self-government); The Court in its Kosovo Advisory opinion paragraph

83, described Res. 1244 as lex specialis; In paragraph 58 The Court states that: “Resolution 1244 (1999) was

adopted by the Security Council, acting under Chapter VII of the United Nations Charter, on 10 June 1999. In

this resolution, the Security Council, “determined to resolve the grave humanitarian situation” which it had

identified (see the fourth preamble paragraph) and to put an end to the armed conflict in Kosovo, authorized the

United Nations Secretary-General to establish an international civil presence in Kosovo in order to provide “an

interim administration for Kosovo . . . which will provide transitional administration while establishing and

overseeing the development of provisional democratic self-governing institutions” (para. 10). “

46

did not intent to resolve the question of the final status of the Kosovo, neither to define the

conditions under which this can be achieved. 246 The declaration of independence on the

opposite site, was aiming to determine the final status of Kosovo. Therefore, according to the

Court this differed from the Resolution’s purpose and furthermore, the lack of evidence that

the Security Council will try to impose beyond the resolution’s scope any additional obligations

led to conclude that there were no prohibitions for issuing the declaration.247 A further

evaluation of the Court was that this Resolution did not apply to the authors of the declaration

as they acted not as part of the PISG248. The status of the authors of the declaration will be

addressed in the next section, but here is sufficient to mention that the Resolution did not

impose obligations or prohibitions to acts of such sub-state actors, according to the Court.249

4.2.The Constitutional framework of the Provisional Self-governance

The other question at stake is the compatibility of the declaration with the Constitutional

Framework. It should be noted that the Court is entitled to review only the lawfulness of

international provisions. In a normal context a Constitution is formed under national law and

therefore, cannot be a source of international law.250 In the context of Kosovo, The

Constitutional Framework is created by the international territorial administration UNMIK and

by the Special Representative of the Secretary-General.251 Due to the fact that the legal

authority of the Special Representative derives from the Resolution 1244 of UNSC, the Court

concluded that the binding character of the Constitutional Framework is based on the above

resolution as well, hence based on international law. However, this framework although

proclaimed by an International organization, is supposed to have primary and exceptional

power only over this domestic sphere. Hence, this puts under doubt the real legal status of the

Constitutional Framework. Following the approach of the Court, we can assume that the

246 Kosovo Advisory Opinion, Accordance with International law of the Unilateral Declaration of Independence

in Respect of Kosovo, Advisory Opinion, I.C.J. Report 2010, paragraph 99, 114; 247This paragraph represents the Courts’ stance: Accordance with International law of the Unilateral Declaration

of Independence in Respect of Kosovo, Advisory Opinion, I.C.J. Report 2010, para. 88, para.110-121; 248 Ibid. paragraph 105, PISG is the Provisional Institution of Self-Government established in Kosovo; 249 Accordance with International law of the Unilateral Declaration of Independence in Respect of Kosovo,

Advisory Opinion, I.C.J. Report 2010, p.115; The Court notes that Res. 1244 impose obligations and

authorizations to UN Member States and UN organs, with the mark that it also refers to only KLA and other

Kosovo Albanian groups. Based on that the Court concludes that SC Res. 1244 do not impose obligations or

prohibitions to other actors. See Christian Pippan, 'The international Court of Justice's Advisory Opinion on

Kosovo's declaration of independence: an exercise in the art of silence ' [2010] Vol3 (3-4) EJM 159; 250 Cedric Ryngaert (2010), The ICJ’s Advisory Opinion on Kosovo’s declaration of independence: A missed

opportunity? Netherlands International Law Review, LVII: pp. 481-494, 2010 T.M.C. Asser Instituut and

Contributors; DOI: 10.1017/S0165070X10300052, 484-486; 251 Accordance with International law of the Unilateral Declaration of Independence in Respect of Kosovo,

Advisory Opinion, I.C.J. Report 2010, p.403; UNMIK is the United Nations Mission in Kosovo;

47

Framework can be valid on international and national surface as well. Thus this dual nature of

the status of the Constitutional Framework could have been applied in the other way around252

to the Resolution 1244(1999) which is adopted under Chapter VII. Therefore, in that logic it

could be concluded that the resolution had internal application only (emphasis added).

Nevertheless, by concluding that the Constitutional Framework had international

applicability253, the Court converted this highly domestic event into a matter of international

concern. More importantly, when this is a matter of external form of self-determination, the

legal framework would play the major role in achieving it. By concluding that neither

Resolution 1244 nor the Framework do not constitute clauses of terminations254, the Court

accepts to reply to the question asked by the General Assembly and by this, it stepped one more

time behind its jurisdiction regarding only matters concerning state entitles and international

organizations.255

4.3.The legal status of the authors of the declaration

This led to another essential point in establishing self-determination and the concept of

remedial secession in the Kosovo Advisory Opinion-the question who has the right and power

to proclaim unilaterally a secessionist attempt, and what kind of legal status should be obtained,

in order to achieve independence. The ambiguity of the Court’s advisory opinion derives from

the uncertain legal status of the author of the declarations as well. The ICJ embraced the view

that the authors of the declaration were acting as representatives of the will of the Kosovars256

rather than as part of the PISG.257 Thus, the Court concluded that the authors did not act in the

252 Christian Pippan, 'The international Court of Justice's Advisory Opinion on Kosovo's declaration of

independence: an exercise in the art of silence ' [2010] Vol3 (3-4) EJM, page 160; 253 Accordance with International law of the Unilateral Declaration of Independence in Respect of Kosovo,

Advisory Opinion, I.C.J. Report 2010, paragraph 88 Court states that: “In particular, it has been argued before

the Court that the Constitutional Framework is an act of an internal law rather than an international law

character. According to that argument, the Constitutional Framework would not be part of the international law

applicable in the present instance and the question of the compatibility of the declaration of independence

therewith would thus fall outside the scope of the General Assembly’s request.” 254 Accordance with International law of the Unilateral Declaration of Independence in Respect of Kosovo,

Advisory Opinion, I.C.J. Report 2010, paragraph 91; 255 David Jacobs and Y.acob Radi: Waiting for Godot- An analysis of the Advisory Opinion on Kosovo, Leiden

Journal of International Law, 24 (2011) pp. 332; 256 Accordance with International law of the Unilateral Declaration of Independence in Respect of Kosovo,

Advisory Opinion, I.C.J. Report 2010, p.403, paragraph109; 257Christian Pippan, 'The international Court of Justice's Advisory Opinion on Kosovo's declaration of

independence: an exercise in the art of silence ' [2010] Vol3 (3-4) EJM 159; See also Judge Skotnikov in his

separate opinion, para. 15 is on the stance that by considering the authors as acting outside the legal order

established in Kosovo, the Court circumvents the Constitutional Framework. He emphasizes that there is a

difference between acting outside and breaching the legal order. Judge Skotnikov in para.14 elaborates the

interpretation of the the Res. 1244 and the UDI as from one side the resolution creates binding obligation to all

and applies in full to the Kosovo Albanians citizens, taking into account Res. 1244 paragraph 11 (e) which states:

“Decides that the main responsibilities of the international civil presence will include: € Facilitating a political

48

framework of the self-government of Kosovo258 and this lands the most controversial feature

of the authors’ identity.259As the ICJ stated they were not “random”260 Kosovars but

representatives of the people’s will261 and here the question emerges: from where they gained

that capacity to represent the whole Kosovars community. It is logical to say that this capacity

derives from the fact that Kosovo was under provisional control for three years. However, the

Court did not consider that question, or even silently neglected it, as concluding that the authors

were not part of the institutional framework, but they had the capacity deriving from the same

framework.262 The conclusion of the Court lacks logic because of the fact that if the authors

of the declaration had the capacity to act on behalf of the Kosovars, deriving from the PISG,

so thus they are acting on the behalf of the institutional framework, and not the opposite.263 If

they acted outside the institutional structure, thus they did not have the capacity.264

4.4.Is the secessionist attempt in accordance with international law provisions?

Having defined the legal capacity of the authors, the following section will turn to the

question how such an attempt of self-determination through proclaiming declaration of

independence, can occur legally and in accordance with the general rules of international law.

process designed to determine Kosovo's future status, taking into account the Rambouillet accords (S/1999/648);”

and on the other side Judge Skotnikov emphasizes on the main purpose of determination of the final status of

Kosovo. However, the Court finds that the Resolution does not impose any obligations for the authors of the

declaration and the circumstances should be evaluated on case-by-case base. So hence, the Judge Skotnikov points

out that through this was the Court concludes that the effect of this political process of determination of the final

status of Kosovo stated in article 11 (e) of the Res. 1244, can be terminated by unilateral act by the authors of the

declaration257. And the Judge describes this as “a giant loophole in the régime it established under resolution

1244 by allowing for a unilateral “political settlement” of the final status issue”. 258 Ibid. 259 Accordance with International law of the Unilateral Declaration of Independence in Respect of Kosovo,

Advisory Opinion, I.C.J. Report 2010, para. 102- 106, The Court determines that status of the authors based on

the language of the declaration, the circumstances under which was proclaimed and on the silent reaction of the

Special Representative of the UNSC. Based on these examination the Court concludes that the authors are acting

on different surface, from the one of the Resolution 1244: they acted with the aim “to resolve” the status of Kosovo

(by recalling par. 1 and 30 of the Preamble of the Declaration) which demonstrates that they act outside the legal

order of UNMIK and PISG. Separate Opinion of Judge Karoma, paragraph 4 “Moreover, the Court’s conclusion

that the declaration of independence of 17 February 2008 was made by a body other than the Provisional

Institutions of Self Government of Kosovo and thus did not violate international law and it is legally untenable,

because it is based on the Court’s perceived intent of those authors”. 260 Jure Vidmar, Kosovo Advisory Opinion scrutinized, Leiden Journal of International Law, 24 (2011), pp. 355–

383; page 361 He uses this wording: “Thus, the concept of a unilateral declaration of independence presupposes

that independence is not declared by a random group of people. (…)” 261Accordance with International law of the Unilateral Declaration of Independence in Respect of Kosovo,

Advisory Opinion, I.C.J. Report 2010, para. 107: “(…) “We, the democratically-elected leaders of our people . .

.” (…) “para. 109 the Court concludes that the authors are acting as representative of the people of Kosovo outside

the framework of UNMIK and PISG; 262 Ibid. The author refers to the Constitutional framework for PISG REG/2001/9,15 From 2001 and refers to

Kosovo Adv. Opinion para. 109; 263 Jure Vidmar, Kosovo Advisory Opinion scrutinized, Leiden Journal of International Law, 24 (2011), pp. 355–

383; page 361; 264 Ibid.

49

Self-determination as already established in Chapter I primarily belongs to people or group of

people and it is closely related to the principle of territorial integrity.265 According to the UN

Charter, the latter concept is linked to the prohibition of use of force and considering only inter-

state relations. The principle of territorial integrity and respect of sovereignty are considered

to be one of the main obstacles in cases of secessionist attempts because these principles are

precluding the principle of self-determination which is protecting the borders of the States.266

The principle of territorial integrity is also codified in the Friendly Relations Declaration,

where it is stated as element of the principle of state sovereignty.267 The FRD makes a clear

relation between the territorial integrity and self-determination, stating in paragraph V (7) of

the FRD 1970 that actions of States should be in accordance with the principle of respect of

territorial integrity and in compliance with the principle of equal rights and self-determination

of peoples.268 This draws the link between the two concepts and the fact that the principle of

self-determination imposes to respect the territorial integrity of other states. The above

statement, also supports the fact that the principle of territorial integrity applies in general to

State relations. However, Ryngaert269 argues that the above mentioned paragraph from the FRD

establishes some “intra-state dimension” that people are in general not allowed to violate the

territorial integrity of a State where they reside. Ryngaert claims that territorial integrity in such

a context of self-determination is referring to states which are acting in compliance with

international law provisions.270 A similar view was expressed by the Court, defining territorial

integrity as mainly referring to interstate relations, therefore it is not considered to be bound to

265 See Chapter I p. 31-33 of the present research; see also Simone Driest- Remedial secession; A right to external

self-determination as a remedy to serious injustices? 2013, Schools of Human Rights Research Series, Volume

61, Chapter IV Traces of a (Remedial) Right to Unilateral Secession in Contemporary International Law?, p.

157;and art. 2 (4) UN Charter, Charter of OAS art.1,12,20; Charter of OAU preamble; Helsinki final act, principle

1,2,4,8; 266 Simone Driest- Remedial secession; A right to external self-determination as a remedy to serious injustices?

2013, Schools of Human Rights Research Series, Volume 61, page 145; and Chapter I, p. 25 of the present

research. 267 Friendly relations declaration (FRD), principle 1,5 p.7 and 8; principle 6; Preamble “Considering it essential

that all States shall refrain in their international relations from the threat or use of force against the territorial

integrity or political independence of any State, or in any other manner inconsistent with the purposes of the

United Nations” 268 Friendly relations declaration, preamble, para. 5(7) “Nothing 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” 269 Cedric Ryngaert, The ICJ’s Advisory Opinion on Kosovo’s declaration of independence: A missed

opportunity? Netherlands International Law Review, LVII: pp. 481-494, p. 491 emphasis added 2010 T.M.C.

Asser Institute and Contributors; DOI: 10.1017/S0165070X10300052, 484-486; 270 Ibid. page 491;

50

non-state actors as the authors of the declaration.271 Therefore, according to the Court the

declaration of independence of Kosovo does not preclude the territorial integrity of Serbia. The

main reason why this is so important for the emerging concept of remedial secession and self-

determination is that through this deduction, the Court confirms that non-state actors are not

restricted by the principle of territorial integrity.272 Thus, in such cases as in Kosovo, where a

secessionist attempt happened, the Court embraces the view that the principle of territorial

integrity is not applicable, as the authors of the declaration are a non-state entity. Therefore,

there was no general prohibition of unilateral declarations273, according to the Court’s view.

Based on that conclusion it can be assumed that it is possible a non-state entity to proclaim

independence and might not be opposing to the international law.274 This is supported by

Wilde’s view that “state’s right to territorial integrity is not opposable to groups within it at

all, and so whether they have right to self-determination is irrelevant as they are not subject to

an obligation to respect this territorial integrity in the first place”.275

The above section of the research describes and discusses how the Court concludes that the

notion of self-determination and remedial secession were irrelevant276 and how territorial

integrity did not apply to non-state entities. Following the logic of the Advisory Opinion, it

highlights some of the ambiguity elements in relation to how a self-determination can be

achieved through Kosovo opinion’s perspective: the legal framework of proclaiming

declaration of independence and who bears the right to declare it. The Courts converts such a

domestic issue, into a matter of international concern-by interpreting the established

Constitutional Framework and Resolution 1244, determining that general international law is

271 Accordance with International law of the Unilateral Declaration of Independence in Respect of Kosovo,

Advisory Opinion, I.C.J. Report 2010, para. 80, conclusion supported by R.Wilde, Self-determination, secession,

and the Dispute settlement after the Kosovo Advisory Opinion, Leiden Journal of International Law, 24 (2011),

pp. 149–154, page 152-153; Jure Vidmar Kosovo Advisory Opinion scrutinized, Leiden Journal of International

Law, 24 (2011), p. 368; and H. Hurst, The Advisory Opinion on Kosovo: An Opportunity lost, or a poisoned

Chalice Refused?, Leiden Journal of International Law, 24 (2011), pp. 155–161,page 157; Christian Pippan, 'The

international Court of Justice's Advisory Opinion on Kosovo's declaration of independence: an exercise in the art

of silence ' [2010] Vol3 (3-4) EJM, p.17; Simone Driest- Remedial secession; A right to external self-

determination as a remedy to serious injustices? 2013, Schools of Human Rights Research Series, Volume 61,

Chapter IV Traces of a (Remedial) Right to Unilateral Secession in Contemporary International Law? pp. 97-184; 272 Simone Driest Ibid. page 146-147 the author notes that the Serbia’s territorial integrity was not violated,

because of the fact that the declaration was proclaimed by non-state actors; 273 Accordance with International law of the Unilateral Declaration of Independence in Respect of Kosovo,

Advisory Opinion, I.C.J. Report 2010, para. 81; 274 Ibid. para. 56 275 Ralph Wilde, Self-determination, secession, and the Dispute settlement after the Kosovo Advisory Opinion,

Leiden Journal of International Law, 24 (2011), page 152 276 In the wording of ICJ, they are “beyond the scope of the question posed by the General Assembly”. Accordance

with International law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion,

I.C.J. Report 2010;

51

not imposing obligations or prohibitions to non-state actors and that the principle of territorial

integrity does not apply to them. This leads to the conclusion that there might be a room left

for domestic issues on an international level. Following ICJ’s approach, it can be observed that

it is possible local endeavours for achieving independence, separation or dissolution to be

resolved not within the domestic fora, but rather within the international sphere. Moreover, a

unilateral act of declaring independence would be a way to internationalize such a thrive.277

Despite the fact that the ICJ did not implicitly add value to the notion of self-determination and

respectively remedial secession, the separate opinions of some of the judges attached to the

general conclusion proved the opposite. The following section will differ from the Court’s

general conclusion, and will elaborate the judges’ descending opinions, which offer distinctive

aspects on the concepts of self-determination and remedial secession. They provided a

differentiated attitude towards the interconnection between human rights, self-determination

and territorial integrity; and important insights whether a concept of remedial secession under

self-determination could be ascertained.

5. Separate opinions of judges

5.1.Judge Trindade

Contrary to the lack of attention given by the ICJ on the historical intensity in the region of

Kosovo, in the separate opinions of the judges, some of them recognize the fact that the case

of Kosovo, should be elaborated from a broader historical perspective. As Judge Trindade notes

in his opinion, declarations of independence are not happening in a “social vacuum”278 , thus

it requires a more in-depth analysis, including the historical tension which led to thrive of

proclaiming independence. He gives the needed attention to the factual background, defining

it as “humanitarian crisis”, “humanitarian catastrophe”279. Moreover as some scholars280

277 Jure Vidmar (2011) Kosovo Advisory Opinion scrutinized, Leiden Journal of International Law, 24 (2011),

pp. 355–383; pages 360-361: The author makes important observations regarding the authors and how can a

declaration of independence to be proclaimed unilaterally. He refers to the fact that unilaterally means an act

without the consent of the “mother” state, the fact that this act requires entitlement for representation the will of

people, which should derive legal capacity from somewhere. He pointed as major concern is how the Court

separates the authors’ capacity to act as representative of Kosovars from the institutional self-government, which

primarily established their capacity. 278 Accordance with International law of the Unilateral Declaration of Independence in Respect of Kosovo,

Advisory Opinion, I.C.J. Report 2010; KAO, ICJ Separate Opinion of Judge Trindade paragraph 12; 279 Ibid. 280 Evan Brewer, To break free from the tyranny and oppression: proposing a model for a remedial right to

secession in the wake of the Kosovo advisory opinion, 45 Vand. J. Transnat'l L. 245 2012, page 273;

52

define the opinion of Judge Trindade as more human rights based281 rather than states’

sovereignty-based. Judge Trindade notes:

“(…) that grave humanitarian crisis, as it developed in Kosovo along the nineties was marked

by a prolonged pattern of successive crimes against the civilians, by grave violations of

International Humanitarian Law and International Human Rights Law, and by emergence of

one of the most heinous crimes of our times, that of ethnic cleansing. (…) “282

Thus, although the fact that the Court examines the case in isolation, the opinion of Judge

Trindade confirms the historical pressure of Kosovo and most importantly, recalls the “droit

des gens”283 vision and that more attention should be put on the people under oppression and

subject to serious violations. Through his assessment, Judge Trindade establishes a path to trace

the right of unilateral secession284 by emphasizing that such a humanitarian crises as in Kosovo,

led to attempts of remedial secession and thus they are interconnected. He does not elaborate

explicitly the notion of remedial secession; neither provides explicitly how it should be done.

However, through recalling the self-determination after the decolonization period, he confirms

the validity of remedial secession in cases of gross violence285. This line of Judge Trinidade

can be linked to the view which Judge Yusuf embraces.

5.2.Judge Yusuf

Judge Yusuf is on the stance that the exceptionality of the Kosovo case derives from the

historical tension of the case and the State’s gross violations committed towards part of its

281 Evan Brewer, To break free from the tyranny and oppression: proposing a model for a remedial right to

secession in the wake of the Kosovo advisory opinion, 45 Vand. J. Transnat'l L. 245 2012, page 273; 282 Ibid.; See also Accordance with International law of the Unilateral Declaration of Independence in Respect of

Kosovo, Advisory Opinion, I.C.J. Report 2010, Separate Opinion of Judge Trindade paragraph 44; 283 Accordance with International law of the Unilateral Declaration of Independence in Respect of Kosovo,

Advisory Opinion, I.C.J. Report 2010, Separate Opinion of Judge Trindade paragraph 72; Droit des gens from

Latin refers to the law of nations; 284 S Simone Driest- Remedial secession; A right to external self-determination as a remedy to serious injustices?

2013, Schools of Human Rights Research Series, Volume 61, Chapter IV, page 153; The author defends the view

that although implicitly, judge Trindade makes reference to right to unilateral secession and that he recalls the

principle of self-determination of people. I his wording and his argument outlines a clear support to the existence

of remedial secession under international law. 285 KAO, Accordance with International law of the Unilateral Declaration of Independence in Respect of Kosovo,

Advisory Opinion, I.C.J. Report 2010, Separate Opinion of Judge Trindade paragraph 175: “(…) The principle of

self-determination has survived decolonization, only to face nowadays new and violent manifestations of

systematic oppression of peoples (…) It is immaterial whether, in the framework of these new experiments, self-

determination is given the qualification of “remedial” or another qualification. The fact remains that people

cannot be targeted for atrocities, cannot live under systematic oppression. The principle of self-determination

applies in new situations of systematic oppression, subjugation and tyranny. “

53

population, which amounts to circumstances of unilateral secession.286 He defines the advisory

opinion of the ICJ as failure and missed opportunity to provide clarification about the scope

and content of the right to external self-determination in a post-colonial aspect.287 Moreover,

he considers that this limited approach of the Court could be misinterpreted as a legitimating

declarations under international law by other ethnic or secessionist groups.288 He is on the view

that the right of people to determine their political, social or economic fate is mainly within

States thus, an exercise of internal self-determination.289 When it comes to the other aspect:

external self-determination, Judge Yusuf describes it as a challenge to the international law and

to the States. According to him the general right of external self-determination is associated to

the peoples of non-governing territories and people under alien subjugation, but should not

mean that all ethnical groups within States have a right to unilateral secession.290

However, Judge Yusuf takes into account the fact that there are some exceptional cases when

States breach their obligations toward its population: as denying right to external self-

determination, or committing gross violations of human rights towards its population. He

considers that if these conditions291 imposed by international law are met, is possible a claim

of separation of people to be supported and “the law may encourage it”.292 Thus, Judge Yusuf

claims that as long as the State is in compliance with its duties of equal rights and self-

determination of people and as long as the claim does not violate international law, the

286 Accordance with International law of the Unilateral Declaration of Independence in Respect of Kosovo,

Advisory Opinion, I.C.J. Report 2010, Separate Opinion of Judge Yusuf paragraph 12; 287 Ibid. paragraph 17; 288 Ibid paragraph 4 “To accept otherwise, to allow any ethnic, linguistic or religious group to declare

independence and break away from the territory of the State of which it forms part, outside the context of

decolonization, creates a very dangerous precedent. Indeed, it amounts to nothing less than announcing to any

and all dissident groups around the world that they are free to circumvent international law simply by acting in

a certain way and crafting a unilateral declaration of independence, using certain terms. The Court’s Opinion

will serve as a guide and instruction manual for secessionist groups the world over, and the stability of

international law will be severely undermined.” 289 Ibid. paragraph 9; 290 Ibid. paragraph 10; 291 Ibid. Judge Yusuf in para. 5 he notes that international law in general does not regulate declaration of

independence. However, he recalls that under conditions of situation of decolonization or people subject to

subjugation, domination and exploitation, the law may encourage it. He uses different international legal

instruments as Declaration on Principles of International Law Concerning Friendly Relations and Co-operation.

It recalls the safeguard clause, regarding equal rights and self-determination of people: “Nothing 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.” 292 Ibid. para. 5 Judge Yusuf states: “(…) If such a claim meets the conditions prescribed by international law,

particularly in situations of decolonization or of peoples subject to alien subjugation, domination and exploitation,

the law may encourage it; but if it violates international law, the latter can discourage it or even declare it

illegal, (…)”

54

territorial integrity will remain the leading in examining the possibility of granting self-

determination. However, if the State fails to do so293 it could be considered as exceptional

situation, and a claim of external self-determination can be successfully exercised.294

5.3.Judge Karoma

On the contrary Judge Karoma takes a different approach, more state sovereignty-based in

interpreting the right of self-determination. In his assessment of the case, he emphasizes on the

concepts of sovereignty and territorial integrity295 as crucial and that the declaration of

independence is in breach of these legal principles. By referring to the Declaration on Principles

of International Law concerning Friendly Relations and Cooperation among states in

accordance with the UN Charter296 and Resolution 1244 (1999), Judge Karoma emphasizes on

their primary role in such “attempts of disruption”297. He considers that the equal rights and

self-determination are not precluding the territorial integrity and do not allow for secession of

existing State298, which differs from the Trindade’s humanist vision.299

293 Accordance with International law of the Unilateral Declaration of Independence in Respect of Kosovo,

Advisory Opinion, I.C.J. Report 2010, Separate Opinion of Judge Yusuf, paragraph 16 “To determine whether a

specific situation constitutes an exceptional case which may legitimize a claim to external self-determination,

certain criteria have to be considered, such as the existence of discrimination against a people, its persecution

due to its racial or ethnic characteristics, and the denial of autonomous political structures and access to

government. A decision by the Security Council to intervene could also be an additional criterion for assessing

the exceptional circumstances which might confer legitimacy on demands for external self-determination by a

people denied the exercise of its right to internal self-determination. Nevertheless, even where such exceptional

circumstances exist, it does not necessarily follow that the concerned people has an automatic right to separate

statehood. All possible remedies for the realization of internal self-determination must be exhausted before the

issue is removed from the domestic jurisdiction of the State which had hitherto exercised sovereignty over the

territory inhabited by the people making the claim. In this context, the role of the international community, and

in particular of the Security Council and the General Assembly, is of paramount importance.” 294 KAO, Accordance with International law of the Unilateral Declaration of Independence in Respect of Kosovo,

Advisory Opinion, I.C.J. Report 2010, Separate Opinion of Judge Yusuf paragraph 12; 295 KAO, Accordance with International law of the Unilateral Declaration of Independence in Respect of Kosovo,

Advisory Opinion, I.C.J. Report 2010, Separate opinion of Judge Koroma- paragraph 13; He emphasizes that

these concepts are enshrined in the Resolution 1244(1999), Friendly Relation Declaration and set out in Helsinki

Final Act; these concepts impose obligations to respect the definition, delineation and territorial integrity of an

existing State (according to paragraph 21 of his opinion: “The Declaration further stipulates that “[t]he territorial

integrity and political independence of the State are inviolable”.) 296 Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States

in accordance with the Charter of the United Nations, adopted by the General Assembly on 24 October 1970

(FRD) 297 KAO ICJ, Separate opinion of Judge Koroma- paragraph 21; 298 Ibid. paragraph 22; 299 Judge Trindade in his Separate opinion- para. 180 and 206,208, assesses the equal rights and right of self-

determination of people applicable beyond the decolonization period. By referring to paragraph 5(7) of 1970 UN

Declaration of Principles: “Nothing 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.” he emphasizes on the fact that if a State

undertake gross and systematic violations of human rights, ceases to represent the people victimized. Moreover,

55

Turning back to the elaborations of Judge Karoma, he underlines the fact that under the interim

admirations, the Kosovars can enjoy “substantive autonomy within”300 the territory of Federal

Republic of Yugoslavia (Serbia), so thus it does not provide any basis to determine the final

status of Kosovo, nor provide any legal basis to amend the FRY’s sovereignty.301 One of his

critiques is regarding the authors of the declaration, which ICJ defined as acting outside of the

PISG and therefore does not violate international law, which conclusion Karoma describes as

“untenable”302. Judge Karoma stated that this examination is based on the Court own

perception303 of the authors: evaluate their identity mainly by their perceived intent to be

legitimate leaders and representatives of the Kosovo’s population. Another critique refers to

the position of the ICJ that international law neither prohibits nor authorizes unilateral

declaration of independence, because it will be logical only in abstract way304 according to the

judge. Based on that, he describes the outcome as “absurd”- as to circumvent the international

law.305 Therefore, referring to the Supreme Court of Canada’s examination on the Secession of

Quebec from Canada306, he concludes that the resolution does not permit any unilateral

declaration307 of independence or secessionist attempts without the consent of the mother

he refers to the Vienna Declaration from 1993 which recognized the denial of the right of self-determination as a

violation of human rights. Hence, based on the above documents, Judge Trindade concludes that no State can use

territory to destroy population or after committing violations of human rights including denial of right of self-

determination, to pretend to profit from its territorial integrity299. Territorial integrity goes closely related to the

human integrity299 particularly in intra-State relations according to him. Thus territorial integrity is mainly related

to respect of human integrity in “intra-State dimension” and self-determination is associated to the people which

are under a form of oppression or assimilation. Therefore, every act breaching that respect should amount to

breach of the Law of the United Nation according to Judge Trindade. 300 Resolution 1244 (1999) para. 10 states: “Authorizes the Secretary-General, with the assistance of relevant

international organizations, to establish an international civil presence in Kosovo in order to provide an interim

administration for Kosovo under which the people of Kosovo can enjoy substantial autonomy within the Federal

Republic of Yugoslavia, and which will provide transitional administration while establishing and overseeing the

development of provisional democratic self-governing institutions to ensure conditions for a peaceful and normal

life for all inhabitants of Kosovo; (…) “ 301 KAO Accordance with International law of the Unilateral Declaration of Independence in Respect of

Kosovo, Advisory Opinion, I.C.J. Report 2010, Separate opinion of Judge Koroma- paragraph 14; 302 Ibid. Separate Opinion of Judge Karoma p.467 abstract and para. 4; 303 Ibid. paragraph 4; Furthermore, he is on the view that international law does not confer a right on ethnic,

linguistic or religious groups to break away from territory of a State, without its content. 304 Judge Karoma refers to the Advisory Opinion of the Supreme Court of Canada, reaching such a conclusion in

the abstract with respect to secession in international law, Reference by the Governor in Council concerning

Certain Questions relating to the Secession of Quebec from Canada, 1998, 2 SCR, Vol. 2, p. 217, para. 112 305 Separate opinion of Judge Koroma- paragraph 5; 306 Reference by the Governor in Council concerning Certain Questions relating to the Secession of Quebec from

Canada, 1998, 2 SCR, Vol. 2, p. 217, para. 111; 307 KAO ICJ, Separate opinion of Judge Koroma- paragraph 20; He consider the declaration of independence to

amount to unilateral secession;

56

State.308 Hence, the unilateral declaration of independence is not in accordance with

international law according to judge Karoma.309

5.4.Judge Simma

A different view is elaborated by Judge Simma who supports the major elements of the fact-

finding and the final conclusion of the ICJ that international law does not prohibit unilateral

declaration. However, Judge Simma adds some personal elaboration regarding the scope of

the Court’s analysis which led to unsatisfactory answer to the imposed question310 and to an

“exercise of a mechanical jurisprudence”.311 He criticizes the wording of the General

Assembly and the fact that it excluded from the Courts analysis the possibility whether

international law may permit or foresee an entitlement to declare independence when specific

conditions are met.312 But the most important part of his separate opinion is the fact that he

considers crucial and relevant to address the issues of self-determination and remedial

secession, in order to deal with the broader problematic matter of Kosovo. Thus, a wider scope

of interpretation and examination by the Court and more comprehensive answer is necessary

in order to elaborate the issue of remedial secession and all legal uncertainties which derive

from such attempts of secession.313 Although, he does not examine the legal status of the

authors of the declaration of independence, he notes that they are the ones who represent the

“will of their people” which according to him is a reference to the exercise of self-

determination.314

6. Conclusion

By looking into the separate opinions of the judges, it cannot be concluded that they support a

common view on the exercise of self-determination. However, some features can be drawn

which demonstrate the added value of the separate opinions. Both Judge Trindade and Yusuf

turn back to the historical pressure of Kosovo, in order to elaborate the issues imposed there.

They both are on the stance that the case cannot be examined in isolation and furthermore, the

gross violations committed there should not be disregarded by the Court. On one side, if we

take the human-rights based view of judge Trindande it might be possible to trace implicitly

308 KAO, Accordance with International law of the Unilateral Declaration of Independence in Respect of Kosovo,

Advisory Opinion, I.C.J. Report 2010, Separate opinion of Judge Koroma- paragraph 18; 309 Ibid. paragraph 25; 310 KAO, Accordance with International law of the Unilateral Declaration of Independence in Respect of Kosovo,

Advisory Opinion, I.C.J. Report 2010, Separate opinion of Judge Simma- paragraph 3; 311 Ibid. paragraph 10; 312 Ibid. paragraph 1; 313 Ibid. paragraph 6 and 7; 314 Ibid.

57

the right to remedial secession to such a people subject to oppression. And this stance is

overlapping with the view elaborated by Judge Yusuf that the matters of self-determination and

remedial secession could have been considered by the ICJ in its advisory opinion, in order to

resolve the broader issue considering the historical background of Kosovo. On the other side,

if we take a more state sovereignty approach as Judge Karoma, we will conclude that unilateral

attempts of secession are breaching the principle of territorial integrity315, and thus violate

international law. Nevertheless, it can be seen after the Kosovo Advisory Opinion that the

notions of self-determination and remedial secession gain more attention. Even though the

Court to remains reluctant to consider them in its evaluation, the separate opinions provide

valuable evidence that there is a room316 left on the international law’s surface. It can be seen

after the Kosovo case, that remedial secession is considered in the sphere of external self-

determination as a remedy or a last resort of gross human rights violations mainly committed

by the “mother state”. Hence, remedial right of unilateral secession is triggered by subjugation

and it can be an entitlement of oppressed people.317 On the contrary, remedial secession if

breaches peremptory norms as territorial integrity is prohibited by the law, according to Judge

Karoma. The Court differs from this opinion by stating that territorial integrity does not apply

to non-state actors. Therefore, from Kosovo case’s perspective we can deduce that it should be

considered as an evidence for a form of entitlement of a right to secede rather than as

prohibition to do so.318 Here a note should be made: according to Crawford international law

is neutral regarding secession: neither prohibiting it nor allowed. He notes that secession is

neutral, which consequences can become a matter of internationalize concern.319 Therefore, the

above elaborated added value is more referring to the consequences of an entitlement to have

a right to secede of oppressed people: thus, how to achieve legally recognition by other states.

315 This conclusion differs from the Court view, that territorial integrity does not preclude the unilateral declaration

of independence, due to the fact that it is a cat of non-state actors. The Court considers the principle of territorial

integrity to be applicable only in interstate relations. 316 Simone Driest- Remedial secession; A right to external self-determination as a remedy to serious injustices?

2013, Schools of Human Rights Research Series, Volume 61, Chapter IV Traces of a (Remedial) Right to

Unilateral Secession in Contemporary International Law?; 317Jure Vidmar, 'Remedial secession in international law: Theory and (lack of) practice ' [2010] Review 6(No 1) St

Antony's International Review 43;

318 Here should be noted the difference between having the prohibition to remedial secession and the entitlement

to secede according to James Crawford. He emphasizes that it is connected to the effectiveness of successfully

attain a statehood and to be recognized. Thus, according to him the difference lies in the consequences of creating

a state: in making it easier or harder to do. 319 James Crawford, The creation of new states in international law (Oxford University Press 2007) page 390;

58

Nevertheless, to consider the elaborations of the judges as a clear and strong evidence to trace

the unilateral secession and a right to remedial secession, will be a hastier determination than

a logical conclusion. It can be noted as well that, the Kosovo case does not provide clear

guidelines how a right to self-determination can be exercised. However, the added value of the

advisory opinion and the separate opinions of the judges is that they tend to ascertain the

question of remedial secession mainly concerning people suffering oppression.320 But perhaps

the advisory opinion, considering the external form of self-determination, is a challenge to

international law and mainly to States in the cases of states’ non- compliance with the

obligations imposed by the law. Therefore, after the Kosovo case self-determination does not

entail a guideline how to be exercised, but provides some important insight that the right to

remedial secession and its success will continue to oscillate between the state compliancy and

state recognition321 and how statehood can be achieved in accordance with the mother state

entity.

Whether external self-determination by culminating into recognition by other state entities, can

provide evidence from a right to remedial secession I will elaborate in the next chapter. Some

states322 recognized Kosovo on the basis of its sui generis character which confirms that the

case provides valuable elements. I will try to connect these elements to the case of Abkhazia

in order to trace new challenges or new value added to the notion of self-determination and

remedial secession. A further intention is to trace whether these cases can amount to state

practice, which along with opinion juris might allow to ascertain a legal principle of remedial

secession on the basis of the customary international law.

320 Jure Vidmar, 'Remedial secession in international law: Theory and (lack of) practice ' [2010] Review 6(No

1) St Antony's International Review 4, page 40: the author refer to Buchanan theory: If the state persists in serious

injustices toward a group, and the group’s forming its own independent political unit is a remedy of last resort for

these injustices, then the group ought to be acknowledged by the international community to have the claim-right

to repudiate the authority of the state and to attempt to establish its own independent political unit. See Allen

Buchanan, Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law (Oxford:

Oxford University Press, 2004), 335. 321 Ibid. The author refers to The Quebec case (1998) (n 5) [155] page 39, which provides valuable contribution

on the matter of remedial secession. 322 Simone Driest- Remedial secession; A right to external self-determination as a remedy to serious injustices?

2013, Schools of Human Rights Research Series, Volume 61, Chapter VI A customary right to remedial secession?

Page 245, the author notes that some of the states show support implicitly or explicitly for the existence of remedial

secession as Albania, Germany, Ireland, Netherlands, etc.

59

Section IV

CHAPTER III: REMEDIAL SECESSION IN THE CASE OF

ABKHAZIA

Abstract

The Abkhazian episode was described by some scholars as a recent instance of secessionist

conflict from the mother state in order to acquire independence and sovereignty.323 As this

chapter will be more practical oriented, thus the above legally examined theoretical framework

including the contributions of the Kosovo case will be applied to the case of Abkhazia. The aim

of this chapter is to examine whether it can be applied to the conditions of remedial secession,

and whether Abkhazians can claim a right to remedial secession. A remark in the conclusion

will be on the recognition by third parties as possible outcome to secessionist movements. This

will subsequently lead to an examination whether the case of Abkhazia contributes to the

concept of remedial secession, and last but not least where we stand in its aftermath.

1. Introduction

A recent case which raise the question of the existence of right to remedial secession is the

case of Abkhazia and its attempt to separate from Georgia. From historical and territorial points

of view the case of Abkhazia goes together with the case of South Ossetia, as both regions

within Georgia. However, for the sake of this research the focus will be only on the case of

Abkhazia, because it demonstrates on one side the controversial relations with the Georgian

Government, and on the other the wide influence by the Socialist block. These relations play

major role in the further international attempts of negotiation and mediation in the Caucasus

region.

1.2.Historical overview

The region of Abkhazia achieved a degree of autonomy as “autonomous republic”324 within

Georgia Union Republic since 1936 after the dissolution of the Transcaucasian Soviet

323 Bruno Coppieters, Europeanization and conflict resolution, case study from the European

periphery (Academia press 2004) 191 See also David Raic, Statehood & the Law of Self-Determination (Vol 43

edn, Kluwer Law International 2002) p. 372 the author describes Abkhazia as unsuccessful unilateral secession; 324 Bruno Coppieters, Europeanization and conflict resolution, case study from the European

periphery (Academia press 2004) page 193; See also Christian Axboe Nielsen (2009) The Kosovo precedent and

60

Federated Socialist Republic.325 Although this autonomy lasted until 1991, it can be defined as

more declarative which impose unequal and “subordinate” relation with Georgia (which at

time was under the Soviet structure), than to grant any particular degree of sovereignty or right

to secession to Abkhazians. A wide influence and “systematically manipulation”326 of the

Soviet bloc from the destalinization to the democratization process, and the declaration of

independence of Georgia in 1991 were all considered as a threat of assimilate327 by the

Abkhazian population. This can be argued as a turning point in the attempt of Abkhazia to

acquire right to self-determination.328 A subsequent events of: abolishment of the autonomous

status of Abkhazia, a military coup which led to change to communist leadership and

abolishment of the constitution and replacing it with Soviet oriented one escalated in a war in

1992-1993 which was solved by the intervention of the Russian forces.329 In the afterwards,

led to unilateral acts of Abkhazia declaring its sovereign status.330

2. A possible analogy with Kosovo case

This will be the starting point in applying the already established legal framework of self-

determination and a possible remedial secession in the case of Abkhazia. Before that, it should

be sketched whether there are similar features in both cases, which could define a model or

pattern in the attempts to secession, e.g. relations between these regions and the respective

“metropolitan states”331 or previous historical tensions and their response on international

level. This will be further developed in the next section of the present chapter, where will apply

the rhetorical deployment of former Yugoslav analogies in the cases of Abkhazia and South Ossetia, Southeast

European and Black Sea Studies, 9:1-2, 171-189, DOI: 10.1080/14683850902723595, page 175; 325 Bruno Coppieters, Europeanization and conflict resolution, case study from the European

periphery (Academia press 2004) 193; 326 Christian Axboe Nielsen (2009) The Kosovo precedent and the rhetorical deployment of former Yugoslav

analogies in the cases of Abkhazia and South Ossetia, Southeast European and Black Sea Studies, 9:1-2, 171-189,

DOI: 10.1080/14683850902723595, page 175; 327 On the contrary, that fear of the population of Abkhazia was described by Ch. Nielen, Ibid. page 176 (see note

3) as “mutual victimization” of South Ossetia and Abkhazia at the time of democratization under the Bolshevik

and Menshevik parties. 328 Christian Axboe Nielsen (2009) The Kosovo precedent and the rhetorical deployment of former Yugoslav

analogies in the cases of Abkhazia and South Ossetia, Southeast European and Black Sea Studies, 9:1-2, 171-189,

DOI: 10.1080/14683850902723595, p. 193-196; As turning points was argued the Destalinization period from

1950 and the democratization policies under the Gorbachov ruling in the 1980s led to to tension between the

Abkhazian community and the government of Georgia. Thus a wide influence of Socialist block can be traced

since that period, which later on will continue to play major role in the future attempts to resolve the issue of

Abkhazia self-determination. 329 Bruno Coppieters, Europeanization and conflict resolution, case study from the European

periphery (Academia press 2004) pages 196-199; For more detailed overview of the historical events can see also

M. Kohen, Secession, International law perspectives, Cambridge University Press, 2006, page 113; 330 later on in the present chapter will be elaborated on the unilateral acts of Abkhazia to declare its independence 331 Term used by J. Crawford, Modes of the Creation of States in international law, Oxford University Press,

2006, p. 258 and 330 which term refers to the mother/ parent state.

61

the legal framework and will trace whether the case of Abkhazia satisfy the conditions of

remedial secession, outlined in chapter I and II.

The historical pressure in Kosovo and in Abkhazia exercised by the parent states, is considered

as a driving force for the worsening in their relations with the mother state and for the

subsequent escalations. To both regions have granted a certain degree of autonomy by Serbian

and Georgian government, although Kosovo had more expanded rights and degree of self-

government while Abkhazia had more declarative autonomous status within the Socialist

Federative Republic of Georgia.332 Both territories were autonomous regions, but as response

to repression by their parent states, their autonomy status was terminated in 1990s.333 These

acts led to unilateral acts of declaring independence by Kosovars and Abkhazians, proclaiming

themselves as sovereign states.334 Furthermore, both declared their independence based on a

referendum in 1991 in Kosovo and in 1999 in Abkhazia.335 The population of both regions can

be defined as ethnic minorities within their respective nations. In both regions there were a

series of violations which subsequently escalated in repression. Moreover, there were

allegations for committing genocide336 in the region of Kosovo and Abkhazia during this

period. The oppression by the Serbian government emerged in war between Kosovo and Serbia

in 1998, as did between Abkhazia and Georgia after series of events which led to the war from

1992. In both cases an extensive use of force was used as main reason for outside intervention-

in the case of Kosovo: by the United Nations and NATO, while in the case of Abkhazia an

implicit support by Russian troops. The use of force and the series of events in both regions

332 Bruno Coppieters, Europeanization and conflict resolution, case study from the European

periphery (Academia press 2004) page 198; see also M. Kohen Secession, International law perspectives,

Cambridge University Press, 2006, page 113, where the author states that Abkhazia had signed a “contract

alliance” with Georgia, under which Abkhazia keeps its status of autonomous republic within Soviet Georgian

Republic. Abkhazia adopted its constitution in 1925 with the influence of Soviet bloc, where clearly it states its

status. 333 Ibid. See also Crawford, The creation of States in international law, Oxford university press, 2006, page 408

and Bruno Coppieters, Europeanization and conflict resolution, case study from the European

periphery (Academia press 2004) p. 198; 334 Bruno Coppieters, Europeanization and conflict resolution, case study from the European

periphery (Academia press 2004) pages 197; See David Raic, Statehood & the Law of Self-Determination (Vol

43 edn, Kluwer Law International 2002) p. 380-381:” the Abkhazian Supreme Soviet declared Abkhazian

sovereignty in 1992”; 335 See A stability pact for the Caucasus, A Consultative document of the Center for European Policy Studies task

force on the Caucasus, page 50; obtained from

http://aei.pitt.edu/32563/1/2._A_Stability_Pact_for_the_Caucasus.pdf ; See also Constitution of Kosovo art. 2(1)

and Constitution of Abkhazia Preamble; 336 Christian Axboe Nielsen (2009) The Kosovo precedent and the rhetorical deployment of former Yugoslav

analogies in the cases of Abkhazia and South Ossetia, Southeast European and Black Sea Studies, 9:1-2, 171-189,

pages 178-179, See also Mikulas Fabry (2012) The contemporary practice of state recognition: Kosovo, South

Ossetia, Abkhazia, and their aftermath, Nationalities Papers, 40:5, 661-676, page 668;

62

provoked the unilateral acts of Kosovars and Abkhazians to declare their sovereignty. The

intervention of NATO and the UN in Kosovo was a driving force in the negotiation and in the

process of acquiring a higher level of autonomy and independence, while this was not the case

in the region of Abkhazia where 3rd state intervention played a major role. Under the heading

of UN Interim Provisional Administration and after the ruling of the ICJ, Kosovo acquired a

degree of independence and recognition; in Abkhazia the UNOMIG337 and the Soviet Union

involvement did not have the same outcome. Nielsen defines Abkhazia as the “stalking-horse

for the Russian interests”338 in the Caucasus region, as non-governmental reports and scholars

analysis provide evidence for Russian support for Abkhazia.339 Also Abkhazia has open access

to Russia by railway connection and the fact that since 1990s started a process of granting

Russian citizenship to the Abkhaz population340 can be argued as evidence of a favoured

attitude. Based on this overview of the historical devolution of the both regions can be argued

that they both can be placed on the same surface, based on the above examined common

features.

3. The application of the legal framework of secession

As already examine in Chapter I the legal framework of self-determination, it argues

implicitly that there is a possible existence of remedial secession as a mode of exercising self-

determination but only when the necessary conditions are presented. It claims that remedial

secession can be seen as not absolute right, but as limited to certain criteria which need to be

met in order to apply remedial secession. The Second Chapter by examining the case of

Kosovo advisory opinion, outlines the controversial evaluation of the existence of remedial

secession. Even though, the case of Kosovo to be defined by some scholars as “sui generis”

337 The United Nations Observer Mission in Georgia (UNOMIG); 338 Christian Axboe Nielsen (2009) The Kosovo precedent and the rhetorical deployment of former Yugoslav

analogies in the cases of Abkhazia and South Ossetia, Southeast European and Black Sea Studies, 9:1-2, 171-189,

page 176; 339 See M. Kohen Secession, International law perspectives, Cambridge University Press, 2006, page 115 the

author states that Georgia accused Russia for supporting Abkhazia by providing military equipment. See Human

Right Watch Helsinki Report from 1995, on Georgia/Abkhazia: violations of the laws of war and Russia’s role in

the conflict, page 7; See also Helge Blakkisrud & Pål Kolstø (2012) Dynamics of de facto statehood: the South

Caucasian de facto states between secession and sovereignty, Southeast European and Black Sea Studies, 12:2,

281-298, DOI: 10.1080/14683857.2012.686013, page 290; 340 Bruno Coppieters, Europeanization and conflict resolution, case study from the European

periphery (Academia press 2004) pages 199-200; See also Christian Axboe Nielsen, 'The Kosovo precedent and

the rhetorical deployment of former Yugoslav analogies in the cases of Abkhazia and South Ossetia ' [2009] Vol

9(9:1-2 edn) Southeast European and Black Sea Studies 174, Page 178; See also Littlefield, Scott, Citizenship,

Identity and Foreign Policy: The Contradictions and Consequences of Russia's Passport Distribution in the

Separatist Regions of Georgia, Europe-Asia Studies, Vol. 61, No. 8, (2009), 1461-1482, p. 1461;

63

and which cannot be used as standard for any further attempts to secede341, it does contribute

to the development of remedial secession and question its existence under international law

provisions. It is argued that remedial secession in the aftermath of Kosovo advisory opinion, is

not allowed neither prohibited, but neutral.342 Therefore, this research takes the view of self-

determination as inalienable human right, belonging to every nation343, but remedial secession

is limited by certain conditions, which impose a particular threshold in order to define a case

as instance of remedial secession. Thus it will require theoretical examination whether the

episode of Abkhazia can amount to case of remedial secession by analysing the applicability

of remedial secession conditions imposed in Chapter I.

3.2.People/peoplehood

The first condition defined by some scholars344 which need to be satisfied before evoking a

possible right to remedial secession is that the group should be considered as “peoples” for the

sake of remedial secession. As was outlined in Chapter I there is not unified stance on who can

be defined as “peoples”.345 However, a collective entity which share common treats as history,

culture ethnic identity, language, religion and culture may satisfy this condition.346 This

collective identity will be a characteristic which should distinguish the group, from the rest of

the population and it should be a majority within the territory. Even though, that Kosovars can

clearly be defined as majority within Kosovo region, as they share common treats and identity

which distinguish them from the rest of the population. However, within Serbia it is doubtful

whether they amount to majority. On the other side, the Abkhazian population was a minority

group in Georgia, prior to the hostilities.347 They also have collective identity which is deeply

rooted in the historical development of Georgia since the time when Abkhazia receive a statute

341 Christian Axboe Nielsen ibid. page 174, the author refers to Havier Solana as High Representative for Common

Foreign and Security Policy who also defines it as sui generis case. 342 James Crawford, The creation of new states in international law (Oxford University Press 2007) page 390; 343 See Bruno Coppieters, 'Secession and War: A moral analysis of the Russian Chechen Conflict' [2003] XII (4)

Central Asian Survey, p. 380 the author states a “choice approach” which assume that every nation has the right

to self-determination. Also see Rygaert and Griffoen The relevance of the right to self-determination in Kosovo

Matter: in partial response to the Angora Papers, 2009, Oxford University Press, page 575 refer to self-

determination as universal human right. 344Cedric Rygaert and Chrstine Griffoen The relevance of the right to self-determination in Kosovo Matter: in

partial response to the Angora Papers,2009, Oxford University Press, page 575; 345 See Chapter I p.30-33 for more elaboration on the question who can be considered as “peoples” ; 346 See Chapter I p. 17, p. 24-25, p.30-33 of the present research; also see David Raic, Statehood & the Law of

Self-Determination (Vol 43 edn, Kluwer Law International 2002) page 220; See L. Laurinaviciute, L. Biekša- the

relevance of remedial secession, International Comparative Jurisprudence 1 (2015) 66–75, page 69; See Cedric

Rygaert and Chrstine Griffoen The relevance of the right to self-determination in Kosovo Matter: in partial

response to the Angora Papers,2009, Oxford University Press, page 575; 347 Marcelo Kohen Secession, International law perspectives, Cambridge University Press, 2006, page 113;

64

of autonomous region.348 Thus, it can be argued that although a sub-group within Georgia, it

has an internal right of self-determination based on the fact that they share common collective

identity. According to the ICJ judgement this might even counterweigh and preclude the lack

of majority within one territory.349 When it comes to external self-determination, i.e. remedial

secession, this condition will be one of the obstacles, but if we embrace the Court’s stance,

then this criteria might be neglected if all the remaining condonations are met.350

3.3.Oppression/segregation and gross human rights violations

Some scholars351 support the view that remedial secession refers to episodes of systematic

oppression and segregation, when secession is perceived as remedial countermeasure. The

question what amounts to systematic oppression or how grave the human rights violations

should be in order to evoke remedial secession, was not considered in scholars’ interpretations.

However, in the case of Abkhazia it cannot be argued that there was a systematic oppression,

nor gross human rights violations. Even if takes into account the war in 1992 and in 2008

between Georgia and Russia, one can claim that both sides committed atrocities.352 Moreover,

there is no clear evidence that there were systematic human rights violations towards the

secessionist- Abkhazian populations, even though that Russia used it as justification for its

intervention in the region.353 The historical tension between Abkhazia and Georgia, the

abolishment of Abkhazian autonomous status prior to the war in 1992 and moreover, the

subsequent depopulation of Gali region and general denial of the right to return there of all

refugees after the war354, triggered accusations of ethnic cleaning by some international

organization as the OSCE and non-governmental organization.355 Therefore, it can be argued

that there was a degree of oppression, but whether it amounts to systematically, is uncertain.

The other element of gross and widespread human rights violation directed to the Abkhazian

348 Marcelo Kohen Secession, International law perspectives, Cambridge University Press, 2006, page 113; 349 Accordance with International law of the Unilateral Declaration of Independence in Respect of Kosovo,

Advisory Opinion, I.C.J. Report 2010, KAO by ICJ, See Chapter II p. 43-45 of the resent research; 350 Cedric Rygaert and Chrstine Griffoen The relevance of the right to self-determination in Kosovo Matter: in

partial response to the Angora Papers,2009, Oxford University Press, page 575; 351 David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002) page

311, the author refers to Lee Buchheit and E. Vattel The law of nations,1916, Ch. 4, para 54; 352 L. Laurinaviciute, L. Biekša- the relevance of remedial secession, International Comparative Jurisprudence 1

(2015) page 72; 353 Christian Axboe Nielsen (2009) The Kosovo precedent and the rhetorical deployment of former Yugoslav

analogies in the cases of Abkhazia and South Ossetia, Southeast European and Black Sea Studies, 9:1-2, 171-189,

DOI: 10.1080/14683850902723595, page 179; 354 According to Bruno Coppieters, Europeanization and conflict resolution, case study from the European

periphery (Academia press 2004) p.199 the author there was a deny to return back in the region. 355 Ibid. 199; See also Human rights watch report from 1995, on Georgia/Abkhazia: violations of the laws of war

and Russia’s role in the conflict, page 7, obtained from https://www.hrw.org/reports/1995/Georgia2.htm ;

65

population was not present prior to the secessionist attempts. One can claim that in the case of

Abkhazia the conflict was a consequence but not a reason for secession.356 Hence, the second

condition is partially fulfilled.

3.4.A denial of internal self-determination, exclusion from participation in the political life

and exhausted all possibilities to resolve the issue peacefully

The last two criteria which need to be satisfied so to invoke the doctrine of remedial

secession will be examine in conjunction, as they are interrelated. The first is that there was a

denial of internal self-determination and the second: that all peaceful remedies for settling or

negotiating were exhausted, that there is no visible future possibility to be solved peacefully

e.g. “the negotiation leads to nowhere”.357 In the case of Abkhazia there is no evidence for

denial of political participation, Abkhazia had status of autonomous republic since 1925, which

status was defined as subordinate to the Georgian Union Republic from 1936 to 1991. Abkhazia

had its own constitution, even though that it was temporary cancelled in 1990s by the Georgian

government. Worth noticing is that the status of Abkhazia as autonomy was not legally

enshrined in the constitution of Georgia from 1921 which was substituted under the ruling of

Shevrdnadze. Thus, Abkhazia had a degree of self-ruling, although in a more declarative sense,

as subordinate to Georgia. However, there was a negative attitude toward the Abkhazian

population during the destalinization and democratization of Gorbachov, which include a

degree of Soviet influence in Georgia, including Abkhazia.358 After all, this subordinate

relation and the Russian attempts to influence were perceived as a threat by Abkhazians.

However, it cannot be argued that there was a denial of participation or exclusion from the

political life of the state.

Regarding to the question whether all possible ways of settling the issue were exhausted, the

series of attempts by the Georgian government to negotiate based on a “two-tier federal

framework”, did not lead to a positive outcome.359 Under the ruling of Shevardnadze there

were series of attempts to negotiate the final status of Abkhazia based on a federalization within

356 L. Laurinaviciute, L. Biekša- the relevance of remedial secession, International Comparative Jurisprudence 1

(2015) page 72; 357 Cedric Rygaert and Chrstine Griffoen The relevance of the right to self-determination in Kosovo Matter: in

partial response to the Angora Papers,2009, Oxford University Press, page 576; 358 Bruno Coppieters, Europeanization and conflict resolution, case study from the European

periphery (Academia press 2004) p.199; 359 Ibid. page 200;

66

asymmetric relations with Georgia.360 However, this endeavour was met by rejection of the

Abkhazian authorities, which considered as possible outcome only full recognition of their

sovereign status. This was visible by the second Abkhazian act of proclamation, by reinforcing

the Constitution of 1925 and subsequently in 1999 by unilaterally declaring its

independence.361 Furthermore, there are some scholars’ analysis which emphasize that the

international involvement of the UN, Russia and the OSCE to facilitate the process of

negation362, is in fact after the unilateral declaration of independence. Thus, this does not fall

under the criteria of exhausted all possible peaceful remedies prior to the act of secession.

Furthermore, taking into account the “unwillingness”363 of Abkhazia to negotiate any

possibilities below their demands, is another factor which preclude the applicability of the last

condition364. Therefore, it can be argued that the last two conditions of remedial secession were

not fulfilled.

3.5. Sub-conclusion

Nevertheless, even if it were possible to define Abkhazian as group which share common

features and identity, it is uncertain whether the fact that it is a minority within Georgia will

pass the threshold for “peoples” for the sake of remedial secession, according to Kosovo

advisory opinion. There is clear sign of negative attitude towards them by the Government, but

still this cannot be defined as systematic nor widespread, and it is questionable whether it

amounts to gross human rights violations prior to the hostilities. Furthermore, in the Abkhazian

episode there were series of opportunities to resolve its final status, which were met with

hesitancy by the Abkhazian authorities. Consequently, even if Abkhazian are to be defined as

peoples, the rest of the conditions are not satisfied and thus, there are obstacles which preclude

the applicability of right to remedial secession. Furthermore, the Abkhazian reluctance to

negotiate, confirm the assessment that all peacefully remedies were not exhausted prior to the

360 Bruno Coppieters, Europeanization and conflict resolution, case study from the European

periphery (Academia press 2004), page 200; 361 Ibid. page 198, where that authors states the previous attempt constituted an unilateral act of Abkhazia to

reinstate the constitution of 1925 which define Abkhazia as independent state; 362 There were attempts to negotiate in order to preserve the territorial integrity of Georgia and in the same time

to respect the self-determination. M. Kohen Secession, International law perspectives, Cambridge University

Press, 2006, p.115 outlines the UN talks in 1994 with the mediation of Russia and OSCE, referring the status of

Abkhazia. See also Bruno Coppieters Europeanization and conflict resolution, case study from the European

periphery (Academia press 2004), p. 207, the author refers to Boden document drafted in 2001, which is after the

unilateral act of Abkhazia in 1999; All of them where met with the Abkhazian “unwillingness” to cooperate. 363 Marcelo Kohen Secession, International law perspectives, Cambridge University Press, 2006, page 118; 364 This stance is also supported by Cedric Rygaert and Chrstine Griffoen The relevance of the right to self-

determination in Kosovo Matter: in partial response to the Angora Papers,2009, Oxford University Press, p. 583

and L. Laurinaviciute, L. Biekša- The relevance of remedial secession, International Comparative Jurisprudence

1 (2015) 66–75, p. 72;

67

declaration of independence. This, along with the lack of evidence for gross human rights

violations are further obstacles to define that Abkhazian have a right to remedial secession.

4. External intervention and procedural rules

When it comes to secession, some authors argue that three procedural rules can be outlined:

no foreign support, which is linked to the principle of non-intervention; the consent of the

majority of the population by referendum and third-to respect the uti possidetis

principles.365These procedural rules refer to how a secessionist states can be created and not

whether it exists.366 In that sense, before delving into these rules, some common traits of the

cases of Kosovo and Abkhazia should be outlined. Both of them were widely influenced by

major international organizations or at least tried to provide mediation in the case of Abkhazia.

In the case of Kosovo, the UN and NATO were aiming to facilitate the process of transition to

democratic governance and to “secure the rights of an ethnic group suffering from prosecution

based on racial ground”367; in Abkhazia-the UN in a role of monitoring actor368 to verify the

compliance with the ceasefire agreement between Georgia and Abkhazia, in the aftermath of

the war in 1992.369 Other actors involved in the Abkhazian episode were the Russian Federation

as co-mediator and the OSCE as third interested party. Both interventions by the UN differ by

context, but their common goal was to preserve peace as in Kosovo context was for the sake

of preserving international peace and security in the region, while in Abkhazia it emerged

primarily as an observation mission.370 The UNOMIG mission’s scope in Abkhazia

subsequently was extended, including to strength the parties to Moscow agreement on cease

fire and separation of forces in the region.371 Both missions were authorized by the Security

365 Marcelo Kohen Secession, International law perspectives, Cambridge University Press, 2006, page 14 the

author elaborates the view of Tancredi, presented in Chapter 6, page 171 of Secession, International law

perspectives, Cambridge University Press, 2006: Antonello Tancredi ‘A normative ‘due process’ in the creation

of States through secession’; According to Kohen, page 15, uti possidetis is a customary rule referring to respect

the territorial boundaries as they were at the moment of independence. 366 Marcelo Kohen Secession, International law perspectives, Cambridge University Press, 2006, page 14; 367 Ibid. page 38; 368 It was established the UNOMIG as The United Nations Observer Mission in Georgia in 1993 by UN SC

Resolution 858 in order to provide help in the Gali region and to facilitate the return of the peoples to their homes. 369 Susan Stewart, The role of the United Nations in the Georgian-Abkhazian Conflict, Journal on Ethnopolitics

and Minority Issues in Europe, Issue 2/2003, page 11; 370 Ibid. p. 11-13 the author states that UNOMIG was originally aiming to verify the compliance the ceasefire

agreement reached by the Georgia and Abkhazia. See the note below; 371 Moscow agreement is signed between Georgia and Abkhazia regarding the ceasefire and separation of forces

in 1994. According to UN official page, it was agreed to place peacekeeping forces (CIS and UNOMIG) there in

order to monitor the compliance with the agreement. Information obtained from

http://www.un.org/en/peacekeeping/missions/past/unomig/background.html For further information, see Susan

Stewart, The role of the United Nations in the Georgian-Abkhazian Conflict, Journal on Ethnopolitics and

Minority Issues in Europe, Issue 2/2003, p. 21; The context of Abkhazian war is really consistent in events and

68

Council, thus the principles of non-intervention may argue that refer to third states only and

not to international interventions.372 In fact, it can be argued that the intervention of the UN in

Abkhazia took rather territorial integrity-oriented stance, than neutral.373But as we saw in the

Kosovo Advisory Opinion, the court defined that territorial integrity might be overcome in a

secessionist context, as the entity seeking secession is not a legal entity for the sake of

international law.374 So the applications of this standard is debatable as it was argued that it

refers to inter-states relations only.375

This challenges the extent of UN mission and whether it was valuable for Abkhazian attempt

to secession. The answer is partially linked to the application of the principles of territorial

integrity, self-determination, non-use of force and non-intervention.376 As was outlined in

chapter II, if we take the stance of the ICJ, the principle of territorial integrity will not play

major obstacle in Abkhazian context. However, the UN intervention was argued to be rather

territorial oriented in order to preserve the sovereignty of Georgia, than to take a neutral

stance.377 For the sake of preserving peace as mediator in such a primarily domestic conflict, it

should be from impartial position, which is not present in the context of Abkhazia. Therefore,

this played a major problem in the negotiation process since 1994 between the UN, Georgia

and Abkhazia. Furthermore, this led to the Abkhazian unwillingness to cooperate and to

compromise since the end of the war in 1993.378 During the negotiation attempts the Abkhazian

administration gradually refused to settle for nothing less than full recognition as

independent.379Although, that there was occasionally good will on behalf of Georgia to settle

foreign interventions. Thus, for more information see UN official web page

http://www.un.org/en/peacekeeping/missions/past/unomig/background.html

and also Marcelo Kohen Secession, International law perspectives, Cambridge University Press, 2006, page 115-

119, also The role of United Nations in the Georgian-Abkhazian Conflict, Susana Stewart, Issue 2/2003, Journal

on Ethno politics and minority issues in Europe, pp. 1-31, p. 11; 372 See Marcelo Kohen Secession, International law perspectives, Cambridge University Press, 2006, page 11; 373 Ibid. page 116, See also D Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law

International 2002) page 384; 374 Chapter II of the present research, p. 43-45 On Kosovo case and ICJ’s advisory opinion on Kosovo; 375 Chapter I p. 24-26, Chapter II p. 43-45 of the present research; 376 Principles enshrined in the GA Res. 2625; 377 Marcelo Kohen Secession, International law perspectives, Cambridge University Press, 2006, p. 117; David

Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002) pp. 1-485, p. 383; 378 See Marcelo Kohen Secession, International law perspectives, Cambridge University Press, 2006. p. 118; 379 For more elaboration on the stance of Abkhazia during the negotiation process see David Raic, Statehood &

the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002) pp. 1-485, Chapter 7, page 381-

286,p. 383 emphasis added, See also Susan Stewart, The role of the United Nations in the Georgian-Abkhazian

Conflict, Journal on Ethnopolitics and Minority Issues in Europe, Issue 2/2003, p.19 and 22 in 1999 there was

another attempt to settle called “Boden document” which was aiming to settle the constitutional distribution of

power between the two capitals and to provide “comprehensive settlement”, but again emphasizing on the

territorial integrity of Georgia. See M. Kohen Secession, International law perspectives, Cambridge University

Press, 2006, p. 118 where the author describes it as consistent rejection of Abkhazia;

69

this conflict, the proposed federation settlement was indifferently neglected by Abkhazia.380 It

is argued that this rejection demonstrates how Abkhazia is unwilling to exhaust the peaceful

methods prior to evoke secession.381 A response to these events, Abkhazia proclaimed

unilaterally its status of independent state under international law in 1999.382

The last obstacle which can be outlined and argued to be the major hindrance to consider the

case of Abkhazia as remedial secession, is the 3rd state involvement. Thus, it seeks to examine

its lawfulness taking into consideration the applicability of the principle of non-intervention,

and focusing on the cases when 3rd state intervenes on behalf of the opposition groups to the

sovereign.383

The provisions of GA Res. 2625 impose that all states should reframe to intervene directly or

indirectly in internal or external affairs of any other States.384 This can be understood as

imposing on states to abstain from involvement in domestic affairs including not supporting

any attempts for disruption or impair the parent state’s integrity. This in general can be seen as

obstacle when it comes to secession as well, because the principle of non-intervention rejects

a third states support to such secessionist attempts, and thus precludes the right to self-

determination. In the context of the Abkhazian event, this requires more elaboration since

Abkhazia is influenced by the Russian federation since the early 1990s.385

As was outlined above Abkhazia tended to be favoured by Russia, since it was an autonomous

republic which status was granted by the Soviet Union.386 It is argued that the involvement of

Russia in the Abkhazia case is demonstrated by fact that Russia was sending troops, providing

assistance and equipment to both sides in response to the war from 1992.387Subsequently the

fact that Russia was granted a status of “facilitator” and “co-mediator” during the UNOMIG

380 David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002) page

383 and Marcelo Kohen Secession, International law perspectives, Cambridge University Press, 2006, page 118; 381 Marcelo Kohen, Secession, International law perspectives, Cambridge University Press, 2006, page 118; 382 Ibid. the author defines it as “formal declaration of independence”; 383 Ibid. page 93 the author points out that in fact more import is the involvement of 3rd state but on behalf of the

opposite group to the Sovereign. 384 United Nations General Assembly Resolution 2625 on Friendly Relations para.3 (1); 385 Bruno Coppieters, Europeanization and conflict resolution, case study from the European

periphery (Academia press 2004), page 193; 386 Susan Stewart, The role of the United Nations in the Georgian-Abkhazian Conflict, Journal on Ethnopolitics

and Minority Issues in Europe, Issue 2/2003, p. 2; 387 Although, there is no clear evidence for the Russian support, the author in UN in Abkhazia page 3 elaborates

that Russia in fact was supporting both sides of the conflict; Georgia as former Soviet state and Abkhazian claims

as well. In p.22 the author even claims that the act of granting citizenship can be described as a “manoeuvre” of

Russia to increase its influence in the region. See M. Kohen Secession, International law perspectives, Cambridge

University Press, 2006, page92 and D Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law

International 2002) pp. 1-485, page 381;

70

and CISPKF388 can demonstrate that Russia was involved during the whole process of

negotiation and is supporting the Abkhazian claims.389 Their claims differ from the Kosovo

context of fighting against persistent human rights violations, which was the primary reason

for the UN and NATO intervention.390Thus by supporting Abkhazians, Russia in fact violate

the principle of non-intervention and it can be argued that it is hindering the secessionist

attempt of Abkhazian. This turns us back to the provisional rules imposed above391, among

which is the non-support of foreign states, and it can deduced that in this context, this rule is

clearly not respected.

The other procedural rules on how a secessionist state is created are that there should be the

consent of the majority of the population by referendum and that the principle of uti possidetis

should be respected. A referendum in Abkhazia was held in 1999 regarding their independence

which led to a unilateral act of proclamation of independence. This plebiscite held in Abkhazia

disregarded the majority of the population and this constituted the major issue when it comes

to recognizing the episode as remedial secession. Moreover, it did not involve the rest of the

population thus, it was held in isolation. Due to these factors it was regarded as illegitimate by

Georgian government and international organizations392 and it can be claimed that it does not

satisfy the second procedural rule, neither. The third provision to respect the uti possidetis

principle refers to cases of exercise external self-determination of majority group within one

state, by respecting the territorial limits393 and “with regard to that administrative unit”.394 But

this principle operates mainly when the two parties agreed to apply it and in absent of such an

agreement, thus can be seen as “temporary measure in regard to boundaries in process of

succession of States”.395 This principle cannot be considered as applicable in the context of

Abkhazia as they do not amount to group entitled for secession, as it was outlined above.

388 This is the peacekeeping mission under CIS Commonwealth of independent states, forces authorized in 1994

by UNSC Res. 937, information obtained from http://peaceoperationsreview.org/wp-

content/uploads/2014/10/2007_abz_geor_mission_notes.pdf 389 Ibid. page 3 and 12 of Susan Stewart, the role of the United Nations in the Georgian-Abkhazian Conflict,

Journal on Ethnopolitics and Minority Issues in Europe, Issue 2/2003; See also Nielsen How Russia used Kosovo,

p. 175-176 the author by referring to Hunter 2006/14 and states the “Soviets were manipulated systematically

ethnic groups in Caucasus in a way of divide and rule, in order to maintain control”. 390 Marcelo Kohen Secession, International law perspectives, Cambridge University Press, 2006, page 92; 391 See page 61 of the present chapter; 392 Marcelo Kohen Secession, International law perspectives, Cambridge University Press, 2006, page117, Bruno

Coppieters B, Europeanization and conflict resolution, case study from the European periphery (Academia

press 2004), p.202; 393 Marcelo Kohen Secession, International law perspectives, Cambridge University Press, 2006, page 15; 394 David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002), p. 304; 395 David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002), page

305;

71

The procedural rules are not considered as general principles but more as orientation how

secessionist states can be created. The major obstacle is the external intervention of 3rd state

which in this case although implicitly, did support the secessionist aspiration of Abkhazians.

From the examination of the main conditions of remedial secession as well as the procedural

rules in this chapter, it can be deduced that it is hard to define the Abkhazian context as identical

to the Kosovo case. Moreover, the unilateral act on behalf of Abkhazia cannot be considered

as legitimate because there is evidence that they were performed while there was a degree of

autonomy within Georgia, thus a right to internal self-determination was already exercised. As

the legal framework outlined, external self-determination may be evoked only if there is a

denial of its internal form. And moreover, the claim cannot be legitimate because as the parent

state did not provide any consent and all local remedies were not exhausted. Therefore, it can

be argued that Abkhazians are not entitled to the right of external self-determination as this is

valid only when they are denied to exercise it internally, neither to remedial secession as this

case do not pass the threshold. Thus, to define the case of Abkhazia as episode of remedial

secession will be rather premature and legally not justifiable.

5. Conclusion

A series of events and deterioration in the relation between Georgia and Russia led to the

wake of Georgia-Russian war in 2008.396 Some argued that a direct attempt of de-escalation

can be more valuable for successful secession than the UN stabilization attempts in Abkhazian

region.397 And this is partially demonstrated as in the context of the 2008 war, when Russia

used the Kosovo event as justification in order to recognize South Ossetia and Abkhazia as

independent states.398 This leads to the question of recognition, which is primarily linked to

secession, and whether such 3rd state involvement will facilitate or deteriorate the secessionist

attempts. In the context of Abkhazia, the unilateral act of recognition by Russia did not entail

396 Adam Eberhardt, 'The 2008 Russia-Georgia War over South Ossetia - the Policy of the Russian Federation and

Its Consequences' [2008] 17(3) The Polish Quarterly of International Affairs, page 52 the author argues that the

war was a result of long deterioration of the relationship between Georgia and Russia; Prior to the war, the Rose

revolution and “colour revolution” are among the predecessors of the escalation in 2008 which lasted no more

than a week. This war was conducted in the territory of South Ossetia, where is argued that is committed ethnic

cleansing. This provoke the Russian act to recognize both South Ossetia and Abkhazia as independent states, as

an act of defending its citizens. 397 Susan Stewart, The role of the United Nations in the Georgian-Abkhazian Conflict, Journal on Ethnopolitics

and Minority Issues in Europe, Issue 2/2003, p. 21 398 See how Christian Axboe Nielsen (2009) The Kosovo precedent and the rhetorical deployment of former

Yugoslav analogies in the cases of Abkhazia and South Ossetia, Southeast European and Black Sea Studies, 9:1-

2, 171-189, page 179; See also Helge Blakkisrud & Pål Kolstø (2012) Dynamics of de facto statehood: The South

Caucasian de facto states between secession and sovereignty, Southeast European and Black Sea Studies, 12:2,

281-298, page 290;

72

any effects on the international field as Russia might have expected or at least secretly have

desired to. Whether this act was driven by Russian generous attempt to defend their citizens in

Abkhazia and South Ossetia where acts of “ethnic cleansing”399were alleged, or to support

political interests in the region is a controversial question.400 One can argue that international

recognition regardless the international criteria for recognizing a statehood401, remains more a

political act, than based on legal justifications.402 Beside Russia, Abkhazia was recognized by

six other states: Nicaragua, Venezuela, three microstates Tuvalu, Nauru and Vanuatu; and

South Ossetia. Their acts were considered to support the Russian claim but nevertheless, these

countries do not have any further interest in these Georgian regions.403 Thus, this degree of

dependency of Abkhazia from Russia did not provide further valuable clarity for the sake of

achieving full independence neither recognition. The number of states recognizing Abkhazia

do not constitute any considerable number and is far from achieving any significant level of

international recognition de jure404. It can be argued that the Russian involvement even

deteriorated the relationship between Abkhazia and Georgia did not facilitate the Abkhazian

attempt to secede. Therefore, Abkhazia, even though partially de facto recognized by some

states, its legal status under international law remains doubtful. And even if we take the ICJ

stance that territorial integrity does not preclude the secessionist attempt of Abkhazia, they

cannot be defined as entitled for exercising external self-determination based on the above

unfulfilled criteria. Furthermore, the 3rd state involvement in the conflict is another obstacle

which precludes any secessionist attempts. The questions whether the Abkhazian episode can

be compared to Kosovo and whether Abkhazia passes the threshold for remedial secession

should be answered in negative. Nevertheless, it can be claimed that a possible outcome for

399 M. Jishkariani, Russian-Georgian war crimes and its outcomes; European Psychiatry, 33S, 2016, S114-S289,

introduction; The accusation of ethnic cleansing was referring only to the region of South Ossetia; 400 Christian Axboe Nielsen (2009) The Kosovo precedent and the rhetorical deployment of former Yugoslav

analogies in the cases of Abkhazia and South Ossetia, Southeast European and Black Sea Studies, 9:1-2, 171-189,

DOI: 10.1080/14683850902723595, p. 178 the author refers to the the protection of citizens; As the war in 2008

was conducted mainly in South Ossetia, where acts of ethnic cleansing were alleged to the Georgian government

and subsequently were used as justification to intervene in the conflict by Russia. In the aftermath of the war,

Russia by recalling the Kosovo case, recognized both South Ossetia and Abkhazia as independent states. 401 See article 1 of the Montevideo Convention on the right and duties of States, singed December 1933, in force

from 1994; See M. Kohen, Secession, International law perspectives, Cambridge University Press, 2006, page 98; 402 Marcelo Kohen Secession, International law perspectives, Cambridge University Press, 2006, page 13 403 Christian Axboe Nielsen (2009) The Kosovo precedent and the rhetorical deployment of former Yugoslav

analogies in the cases of Abkhazia and South Ossetia, Southeast European and Black Sea Studies, 9:1-2, 171-189,

DOI: 10.1080/14683850902723595, page 179; See as well Helge Blakkisrud & Pål Kolstø (2012) Dynamics of

de facto statehood: The South Caucasian de facto states between secession and sovereignty, Southeast European

and Black Sea Studies, 12:2, 281-298, p. 292; 404 De facto recognition refers to cases where the government does not have sufficient stability and where the

recognition is more a provisional act; The recognition de jure means formal and legal recognition where the state

in question satisfy all the criteria imposed by the law;

73

Abkhazia will be either to settle in a form of asymmetric division of power between the

governments of Georgia and Abkhazia, in a form of federation; or as in Kosovo happened- a

recognition by major international organization as the UN or the EU might be more fruitful for

a future de jure recognition by majority of the other states, than to third state unilateral

recognition.

Section V

General Conclusion

The contemporary legal framework imposed that self-determination is exercised primarily

in the domestic sphere. Thus, the internal self-determination within the borders of the titular

state is the main form of self-determination. Only when that internal self-determination cannot

be reached or achieved, the external form might be evoked. According to the contemporary

frame of external self-determination, its exercise can take different modes including secession.

However, all of them are primarily considered as peaceful means which prior to their exercise

have received a consent of the titular state. This theoretical basis proves that the consent of the

metropolitan state is essential for the successful separation. But this scheme left the door open

for the questions who is exactly entitled to the right of external self-determination and what it

should be done if there is no consent of the mother state. The subject of self-determination

through the whole evolution of this concept did not receive any clarity from international

provisions neither from state practice. Therefore, there are some obstacles which preclude to

define clearly to what, in reality secession amounts. They remain also when it comes to

remedial secession in response to gross human rights violations. Self-determination is a more

territorial oriented concept which application is limited to the principle of territorial integrity.

The latter principle is limited to states acting in conformity with international law. If not, then

a remedial secession might arouse. Secondary sources of international law elaborate this by

stating that there are certain conditions which need to be satisfied in order to evoke the doctrine

of remedial secession. Hence, self-determination contains remedial secession as conditional

method and defines that the dependency of the criteria will mostly be evaluated on case-by-

case basis. Accounting the outlined obstacles, it can be concluded that self-determination does

encompass a form of positive entitlement of conditional remedial secession. But does not

amount to legal doctrine of remedial secession and remain cautious when it comes to secession

74

of religious groups. Whether this might be seen as evidence for consistent existence of state

practice granting entitlement of remedial secession to religious group405 will remain doubtful.

The outlined practice in the Kosovo case and the ICJ’s advisory opinion, on a first sign did not

provide any clear cut definition of remedial secession or general guidelines how to be

exercised. However, a closer look into the Court’s opinion and the judges’ separate opinions,

it can be deduced that the context of gross human rights violations is a condition for evoking

the principle of self-determination as right of remedial secession. The Court’s view

demonstrates that remedial secession can be triggered by subjugation and violations committed

by the parent States. According to the Court this context might even preclude the force of the

principle of territorial integrity. From legal point of view this principle was seen as obstacle

precluding the exercise of self-determination. However, from the Court’s view an act of non-

state actors might preclude the principle of territorial integrity as it is applicable to inter-states

relations mainly. The Kosovo advisory opinion questions the states’ non-compliance with the

obligations imposed by the law, and the effect of the principle of territorial integrity over the

States’ subjects. Thus, this conclusion questions the whole frame of self-determination, the

principles enshrined in the UN Charter and who is the concrete subject of remedial secession.

The fact that the judges’ separate opinions took into account the possibility that an answer to

the question imposed to ICJ might be remedial secession, demonstrates that there is a room left

to ascertain a legal doctrine of remedial secession in the future. However, the threshold for

remedial secession remains blurred as neither the states, neither international organizations are

willing to define it unambiguously. Therefore, after the Kosovo advisory opinion, the right to

self-determination and a possible doctrine of remedial secession will continue to oscillate

between the states’ compliancy on one side, and state recognition and achieving statehood in

accordance with mother state entity on the other side. Furthermore, in the aftermath of the

Kosovo advisory opinion the question of remedial secession and the theoretical conditions will

still be examining on case-by-case basis.

The case of Abkhazia is a recent attempt to secede from the metropolitan state without its prior

consent. This in practice might be described as remedial secession, but in theory the conditions

imposed in the legal framework of self-determination are not fully applicable. The lack of clear

405 As was defined in this present research, there is difference between religious and ethnic groups. The religious

groups are the one which share same religious treats, while ethnic groups share same cultural which differ them

from the majority of the population. So therefore, here the focus in on religious groups, rather than ethnic as the

law does not impose any entitlement for ethnic groups.

75

definition who is entitled to remedial secession and whether there is a precisely defined conduct

of remedial secession are issues still persistent in the Abkhazian episode. Even though that

theoretically Abkhazia did not amount to episode of remedial secession, it points out valuable

features. The further attention on this case brought by the unilateral act of recognition of

Abkhazia and South Ossetia by Russia, reminds us that the question of remedial secession is

more controversial and cannot be seen in a vacuum. On one side, the primary goal of secession

is to achieve independence and statehood. This, on the other side is linked to the act of

recognition mainly de jure. The act of Russia recognizing Abkhazia did not entail what maybe

Kremlin was hoping: to have repercussion on international sphere which might preclude the

lack of Georgian consent and the fact that will change the territorial indivisibility. However,

this is more a conjecture than legal conclusion. But still it reminds us that recognition even as

declaratory act is continuing to be more political, than legally justifiable act. And so secession

might be. Although, to have some general provisions on succession of states406, the law remains

reluctant to define unambiguously how a new state may be created. The lack of clear definition

and the lack of consistent practice might be argued as demonstration that remedial secession

will remain more in the sphere of political acts, than acts imposed by the law. But still the lack

of definition is justified by reasonable motive: a precise determination on who is entitled and

how to secede successfully might provoke such a desires in many sub-states’ entities.

International custom consists of state practice and of the sense of obligation to accept it as law-

opinion juris.407 Therefore, new customary provisions can be created, based on the general

belief that it is necessary to create such a legal principle- opinio juris which is supported by

evidence of a general state practice.408 Some scholars argue whether both components are

equally relevant for the emerging of new custom.409 For the present paper will take neutral

point, defining both elements as equally important in order to define whether a remedial

secession can be ascertain from customary law. If we take the stance that state practice must

be a long repeated and consistent410, then the above mentioned cases will be hard to define as

such. The cases of Kosovo and Abkhazia do provide valuable contributions and elaborations

406 Vienna Convention of succession of states in respect of Treaties 1978, in force from 1996; 407 Article 38 of ICJ Statute; Nicaragua case the ICJ 1986, Rep. 14, 98, par. 186; 408 Book review of B Lepard, 'Customary International Law. A New Theory with Practical Applications- book

review '[2010] 1(1) Cambridge University 795, done by Niels Petersen; See also B. Lepard, Customary law,

Cambridge Univeristy Press 2010, p. 97-98; 409 Ibid. See B. Lepard Necessity of opinion juris in the formation of customary international law, Discussion

paper for panel on “Does Customary international law need opinion juris?” the author argues that opinio juris is

the essence of the creation of new custom, p.8; 410 Jack Goldsmith and Eric Posner, A theory of Customary international law’ (1999) 2nd series (No. 63) John M

Olin Law & Economics Working Paper, page 5;

76

on possible existence of remedial secession under international law, but do not amount to a

consistent neither repeated practice. Furthermore, the fact that remedial secession is more

elaborated on case-by-case basis demonstrates that might be premature to consider the cases as

state practice.411 The general state practice is also the element which leads to the second one-

the belief of obligation to establish new provisions- opinio juris. It is perceived that state

practice in fact is the evidence of opinio juris, which is the “belief that a practice is already

requiring it”.412 Taking into account the above examined cases of secession and the advisory

opinion, will be hard to define as state practice and to trace a valid opinio juris, respectively.

As the main argument for this, is that remedial secession refers to acts which primary do not

include the consent of the mother state. This oppose to opinio juris which represents an

indicator of states’ belief and intention.413 And furthermore, the ambiguous advisory opinion

and the rather negative attitude of the metropolitan states towards such attempts of secession,

might lead us to conclude that cannot be defined as such a general acceptance.414 Unifying this

with the absence of consistent state practice and the lack of expressed perception that the

practice is requiring it, indicate that remedial secession cannot be ascertain as customary norm

of international law.

Although, the many instances of cases challenge the framework of self-determination and

question the existence of remedial secession, international law does not establish a legal

doctrine of remedial secession. This is due to the lack of consistent practice and more

importantly a general belief that such a practice is necessary. Furthermore, considering that

states “comply with norms of customary law because pursuit of self-interested policies”415, it

should be concluded that it is almost a ‘dead end street’ to ascertain remedial secession from

customary law. This demonstrates that States are either unwilling to establish it, or do not

believe that they are obliged to do so.416 Secession as a concept remains controversial as it

depends on subjective elements which are defined mostly case-by-case. Therefore, it is

411 There are other cases of secessionist attempts: South Sudan, Rhodesia, East Pakistan as mentioned in page 23

of the present research; 412 See B. Lepard Necessity of opinion juris in the formation of customary international law, Discussion paper for

panel on “Does Customary international law need opinion juris?”, p. 7; 413 Jack Goldsmith and Eric Posner, ‘A theory of Customary international law’ (1999) 2nd series (No. 63) John M

Olin Law & Economics Working Paper, page 5 although the to elaborate that UNGA resolutions are often an

evidence of customary international law, this cannot preclude the requirement of the states’ intention and belief

to be oblige to create a custom. 414 Ibid. 415 Jack Goldsmith and Eric Posner, ‘A theory of Customary international law’ (1999) 2nd series (No. 63) John M

Olin Law & Economics Working Paper, page 3; 416 Ibid.

77

uncertain whether a future attempt for generalization and validation of a doctrine of remedial

secession would be fruitful or the opposite. Furthermore, the fact that remedial secession

touches upon sensitive principles as territorial integrity, makes the attempts for creation of new

states and their future recognition even more unachievable. Therefore, international law will

remain reluctant to establish a legal doctrine of remedial secession as long as violates territorial

integrity and state sovereignty. But whether a group can secede without the consent of the

mother state and in accordance with international law is an open question? Nevertheless, an

effective approach of the international community might be to shed some light on all the

instances of human rights violations which in fact are evoking the principle of remedial

secession. Through this an awareness of the states will be raised that in fact the practice requires

it- thus to establish opinio juris as prevention to limit the perpetration of human rights violation

and their escalation.

78

Section VI

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86

Statement of Integrity

87