For most people, especially in the West, the legal existence of their country is beyond dispute. Whatever gives their country this status is scarcely relevant, for the reality of their country proves itself.
For those in places of war and civil strife, however, a country’s existence may be openly questioned. Claims to country status by South Korea, Kosovo, and Catalonia, for example, are not universally recognised. Whether their claims are valid is a question of serious political (and emotional) consequences in areas like diplomacy, identity, and access to international systems ¹. If the rule of law is to exist for such an important concept then international law should answer these questions clearly and consistently.So how does international law decide when a country is created?
Where to find the international law of statehood
Today’s legal system of determining statehood (‘state’ being the legal term for ‘country’) primarily stems, like nearly all existing current international law, from the actions of the United Nations and its members. Virtually every national government on Earth is (or desires to be) a member of the United Nations, which gives the United Nations a ‘supreme’ ² legitimacy in fulfilling its chartered roles of encouraging the development of international law, giving advisory legal opinions, and make legally binding decisions on its members.
To simplify, the ‘actions’ of United Nations that most shape the international law of statehood are:
- the resolutions passed by its Security Council and (to a lesser extent) its General Assembly;
- the decisions of the International Court of Justice (ICJ);
- the law-recording (‘codification’) efforts of the International Law Commission; and
- the decisions by members to enter treaties and recognise (or not recognise) purported states.
Similar actions by other intergovernmental organisations (like the European Union or the Organization of American States) also shape international law but, given their smaller membership and purpose, to a lesser degree than the United Nations ³.
Taken together, these actions have formed a pattern through which scholars (and sometimes states and international organisations themselves) have identified the ‘rules’ of the international law of statehood. These rules are not fully settled and are often applied in highly political contexts but, nonetheless, a rough legal consensus can be said to exist.
The current law
Essentially, the international law of statehood is a basic ‘checklist’ of features that an entity should have before it can be legally considered a state (assuming it wants to be a state4).
By and large, the most important items on this checklist relate to the actual features of the state itself, but some relevance is given to the legal and diplomatic opinion of other states and judicial bodies.
So what are the items on this checklist?
The three ‘traditional’ criteria – population, territory, and government
The three most basic (and least controversial) criteria of statehood come from Article 1 of the Montevideo Convention of 1933. Although the treaty itself has never been officially adopted outside of the Americas, Article 1 remains highly influential and is generally considered a reflection of the most fundamental criteria of statehood.5
Population
The first fundamental criterion is a permanent population. Simply put, the population of a potential state cannot be entirely composed of nomads6 or travellers based elsewhere.
Territory
The second is a defined territory. The borders do not need to be fully defined or undisputed7 8-there just needs to be an identifiable location.9
Government
The third is an effective, independent government with the capacity to enter into relations with other states. This is the trickiest of the three to elaborate (and actually forms two parts in the Montevideo Convention) but essentially it requires a state to have a structured, legally independent administration that controls at least some of its claimed territory and population.10 Some additional points to note are:
- a state does not have to have actual diplomatic relations (it could be under diplomatic boycott)-it just needs to have the capacity to have them;11 and
- a state can voluntarily outsource governmental and diplomatic functions to another state or organisation (e.g. Liechtenstein to Switzerland12) or have a foreign head of state (e.g. Australia), provided it has a separate internal legal order (respected as statehood by the foreign state/organisation) with the legal right to end or change the outsourcing arrangement.13
It should also be noted that there is no minimum population14 or territory size requirement.15 Nauru and Monaco, for example, are independent states (and United Nations members) of 10,000 people and 2km2 respectively. On multiple occasions the UN General Assembly has even recognised the theoretical right of the UK territory of the Pitcairn Islands (population of 54 people over 47km2) to claim statehood.16 Logically speaking though, having a tiny population and/or territory makes it difficult to actually sustain a fully functional government.17
The ‘modern’ additional criteria – the grey areas
Beginning in the early 1960s (with some isolated examples beforehand), the traditional picture above began to change.18The international community began determining statehood on the Montevideo Convention checklist plus certain additional criteria.19
There is no universally-accepted list of these additional criteria (and their relative importance is heavily debated), but the major ones are:
- widespread recognition;
- fundamental illegality of creation; and
- the right to self-determination.
Crucially, these additional criteria do not replace the Montevideo Convention checklist. Instead, these additional criteria can push a potential state ‘over the line’ if it is close to satisfying the Montevideo Convention checklist or, conversely, cancel out its illegitimate satisfaction of the Montevideo Convention checklist.20
Widespread recognition
If an entity is widely recognised as a state by the international community, this can help it legally achieve statehood.21
One common manifestation of widespread recognition is United Nations membership, which is only given upon the combined recommendation of the UN Security Council and approval of the UN General Assembly 22(in other words, with the consent of the majority of the international community). Accordingly, an entity becoming a United Nations member is strong evidence of statehood.23
State recognition should not be confused, though, with government recognition.24 The governments of PR China and Taiwan compete for diplomatic recognition, for example, but both do so on the claim that they represent the one Chinese state (not two states).25 Similarly, during South African apartheid, most states boycotted the apartheid government whilst still considering South Africa itself to be a state.26
Fundamental illegality of creation
If an entity is created in an act (or for a purpose) that breaches fundamental international law-regardless of whether it satisfies the Montevideo Convention checklist-that entity cannot legally be a state.27
The types of breaches considered ‘fundamental’ are acts such as invasion and racial oppression.28
Recent historical examples include:
- Rhodesia–a white-minority rule entity that declared independence from the UK in 1965 in order to avoid the indigenous majority being decolonised.29 Rhodesia was not recognised by any state and the UN Security Council and UN General Assembly both passed multiple resolutions affirming the indigenous majority’s right to self-determination and declaring Rhodesia an illegal racist minority regime with no valid independence.30 Rhodesia (briefly reformulated into Zimbabwe-Rhodesia) ceased to exist after indigenous resistance to Rhodesia allowed the UK to regain control, shortly after which the territory legally gained independence as the state of Zimbabwe.31
- The Bantustans of Transkei, Bophuthatswana, Venda, and Ciskei-a collection of four entitites created by the apartheid government of South Africa between 1976 and 1981 from South African territory and used by the apartheid regime to remove indigenous South Africans from South Africa.32 Recognised as states only by South Africa, these entities were declared by the UN Security Council and UN General Assembly as being legally invalid manifestations of apartheid.33 The Bantustans were all dissolved after South African apartheid ended in 1994.34
- Northern Cyprus / Turkish Cyprus–an entity created several years after Turkey’s took occupation of northern Cyprus in 1974. Recognised as a state only by Turkey, this entity (which still exists) has been declared by the UN Security Council to be a legally invalid entity created in contravention of the Republic of Cyprus’ sovereignty.35 36
Indeed, other states have a legal duty not to recognise such illegally-created ‘states’.37
Right to self-determination
If an entity’s right to self-determination is not being respected by the status quo (e.g. by an oppressive coloniser), this can help the entity achieve statehood.38
Internal vs External Self-Determination
The first thing to note is that there is ‘internal’self-determination (having political rights and cultural autonomy within a foreign state) and there is ‘external’ self-determination (having one’s own independent state).39 Every ethnic/cultural community has a legal right to internal self-determination,40 but only certain ethnic/cultural communities in certain circumstances have a legal right to external self-determination–and it is external self-determination that matters in creating statehood.
External Self-Determination
So when does an ethnic/cultural community gain the right to external self-determination?
Firstly, as mentioned above, the ethnic/cultural community must form an entity that is at least close to satisfying the Montevideo Convention principles.
Secondly, the occupying foreign state has to be failing to honour the entity’s internal self-determination (through neglect or repression).41 This is especially necessary if the foreign state is refusing to consent to the entity becoming an independent state.542
Thirdly, although not expressly stated in a United Nations resolution or ruling,43 legal scholars have noticed that the international community has allowed self-determination to aid statehood creation so far only in situations of ‘salt-water’ decolonisation (that is, in situations where the colonised entity is geographically separated from the occupying foreign state by an ocean or sea).44 Recently there has been debate about broadening external self-determination to ‘freshwater’ decolonisation (i.e. where the entity and occupying foreign state are separated only by rivers or lakes) in certain circumstances, but such ‘remedial secession’ is still legally contentious.45 46
Finally, even in situations of saltwater decolonisation, once an ex-colony has gained statehood (thus achieving its own external self-determination), secessionists cannot then use self-determination against the ex-colony. This is because, legally speaking, at the moment of independence, the ex-colony’s colonial borders (set by the departing colonists) get automatically ‘upgraded’ into being its international borders, no matter how many ethnic/cultural communities get divided or arbitrarily positioned in the process. These new international borders then take legal priority over the self-determination of those ethnic/cultural communities inside the new state (unless the new state’s government agrees otherwise).47 48 Whilst this result may seem odd at first, the stated logic is to prevent established outside powers from exploiting tensions to carve up ex-colonial states during early vulnerability.49
All of this is not to say that certain ethnic/cultural communities are somehow morally ‘undeserving’ of statehood, or that they won’t become states in the future (especially if remedial secession gains traction). It is simply to say that the current international law of self-determination weighs against their legal cause.
Conclusion
As all of the above shows, the legal creation of a country is a value judgement based on shifting qualitative measures–in short, an ambiguous yardstick.
Indeed, this in-built ambiguity may actually be deliberate. For, whilst ‘greyness’ is problematic for the rule of law, it gives existing countries the (politically useful) ability to control the creation of new countries under the guise of international law. Existing countries have this self-interest because, with all the Earth’s land now completely discovered by humanity, the emergence of a new country invariably shrinks at least one existing country.50
As a result, the international law of statehood rarely develops unless a political crisis challenges the status quo and forces existing states to justify a response. These responses (when they occur) can then lead to new practices and doctrines, like the ‘modern’ criteria added to the Montevideo Convention principles during the latter half of the 20th century. Yet, with the United Nations currently undergoing its longest period without a new member, the inherent inertia of statehood creation is unlikely to disappear any time soon.
Footnotes
1 See Wong, D 2014, ‘Sovereignty Sunk? The Position of ‘Sinking States’ at International Law’, Melbourne Journal of International Law, vol. 14, no. 2 (December 2013), pp. 346 – 391 (“Wong”) at pp. 349 – 350, relatedly citing Grant, TD 2009, Admission to the United Nations: Charter Article 4 and the Rise of Universal Organization, Martinus Nijhoff Publishers at p. 238.
2 Reparation for injuries suffered in the service of the United Nations, Advisory Opinion, I.C.J. Reports 1949, p. 174 (“ICJ Reparations”) at p. 179
3 See for example Article 38 of the Statute of the International Court of Justice and Chapters IV, V, VIII, and XIV of the Charter of the United Nations. For a more detailed analysis of the creation of international law (customary international law in particular), see here
4 Harris, D 2010, Cases and Materials on International Law, Sweet & Maxwell (Thomson Reuters), 7th edition (“Harris”) at p. 96; Shaw, MN 1997, International Law, Cambridge University Press, 4th ed., Cambridge (“Shaw”) at p. 148 (citing additional sources)
5 See for example GD 2006, International law: contemporary principles and practices, LexisNexis Butterworths, Sydney (“Triggs”) at p. 150, De la Cuba, PM 2011, ‘The statehood of ‘collapsed’ states in Public International Law’, Agenda Internacional, year 18, no.29, pp. 121 – 174 (“De la Cuba”) at p.123 citing Crawford, JR 2006, The Creation of States in International Law, Oxford University Press, 2nd edition (“Crawford”) at p.96, Wong at p. 353 (citing by example Harris at p. 92, Crawford at pp. 45 – 46, Raič, D 2002, Statehood and the Law of Self-Determination, The Hague, Kluwer Law International, 1st edition (Raič) at pp.24, 49, and Lowe, V 2007, International Law, Oxford University Press, p. 136 at p. 153)
6 Shaw at p. 140; Triggs at p. 150
7 North Sea Continental Shelf, Judgment, I.C.J. Reports 1969 p. 3 (“ICJ North Sea”) at 46, cited in Islam, MR 2014, International Law: current concepts and future directions, LexisNexis Butterworths, 1st edition (“Islam”) at p. 165 (see for citations), in Triggs at p. 151 (citing additional sources), in De la Cuba at p. 124, in Duursma, JC 1996, Fragmentation and the International Relations of Micro-States, Cambridge University Press, Cambridge (“Duursma”) at p. 116, in Crawford, JR 2012, Brownlie’s Principles of Public International Law, Oxford University Press, 8th edition (“Brownlie’s Principles”) at p. 128 (citing ICJ North Sea at 32 and for example Conference on Yugoslavia Arbitration Commission: Opinions on Questions Arising from the Dissolution of Yugoslavia 31 I.L.M. 1488 (1992) (“Badinter Opinions”) at pp. 1494 – 1499, 1525 – 1526), and in Wong at p. 355 (citing for example Brownlie’s Principles at p. 128 and Harris at p. 92); Shaw at pp. 141 (5th edition partially cited in Triggs at p.151), citing ICJ North Sea at pp. 3, 39 and other sources.
8 For example, Japan and South Korea dispute the islets of Dokdo/Takeshima
9 See for example Wong at pp. 354 citing Shaw (6th ed.) at p. 199
10 See the points made in Badinter Opinions at p. 1495, Wong p. 354 – 355, Shaw at p. 141-142 (citing additional sources), Islam at p. 167 (see for citations), Triggs at pp.152-153, and Wheatley, S 2016, ‘The Emergence of New States in International Law: The Insights from Complexity Theory,’ Chinese Journal of International Law, vol. 15, no. 3 (1 September 2016), pp. 579 – 606 (“Wheatley”) at p. 597.
11 De la Cuba at pp. 124 – 125 citing Raič at pp. 73; Harris at p. 98; Crawford at p. 61 (citing for example article 1(d) of the Montevideo Convention); Blay, SKN 2005 in Blay, SKN, Piotrowicz, RW & Tsamenyi, M (eds.), Public international law: an Australian perspective, Oxford University Press, 2nd edition (“Blay”) at p. 188 (which notes that a mere lack of resources is also irrelevant).
12 Liechtenstein has been unambiguously confirmed as a state in an ICJ judgment in 1955 (page 20) and by subsequent UN membership. See Wong at p. 374 (citing Duursma at p. 201, 205), Shaw at p. 155 (citing additional sources), and Blay, SKN 2005 in Blay, at p.188.
13 See for example: International Law Commission, Law of Treaties: Third Report by G.G. Fitzmaurice, Special Rapporteur, Yearbook of the International Law Commission 1958, vol. 2 at p. 32, Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, I.C.J. Reports 2002, p. 303 at para. 205 – 207 (partially cited in Triggs at p.155), Case concerning rights of nationals of the United States of America in Morocco, Judgment of August 27th, 1952, I.C.J. Reports 1952, p. 176 (“ICJ Rights of Nationals”) at pp. 185, 188, 193 (partially cited in Triggs at p.155), Triggs at pp. 153, 155, Blay at p. 188, Wong at p. 374 – 375 citing Duursma at p. 201, 205, Shaw p. 154 – 156 (citing ICJ Rights of Nationals at pp. 176, 188 and additional sources), and Brownlie’s Principles at p. 130.
14 Duursma at p. 117; Brownlie’s Principles at p. 129, cited in Wong at p. 355; Harris at p. 92; Triggs at p. 150; Crawford at p.46 (citing additional sources).
15 UN General Assembly resolutions 2709, 2869, 3156, and 3157 (art. 4) and resolutions 3289 and 3290 (art. 3); Wong at p. 355 citing Brownlie’s Principles at p. 129; and Bunck JM & Fowler, MR 1996, ‘What Constitutes the Sovereign State?’, Review of International Studies, vol. 22, no.4 (October 1996), Cambridge University Press, pp. 381 – 404 (“Bunk & Fowler”) at p. 381; Harris at p. 92; Duursma at pp. 117-118.
16 Duursma at pp. 48 – 50, 118, citing the near-identical UN General Assembly resolutions 3156 and 3290 (and others)
17 Crawford at p. 47; Duursma at pp. 48 – 50, citing for example United Nations General Assembly 1976, Report of the Special Committee on the Situation with Regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples, A/9623/Add.5, 29th Session (1974), Vol. 4 at chapters XV – XVIII, vol. 3 and 4 of the 1977 edition of this Report (A/31/23/Rev.1) at pp. 193 – 194 and 161-171 (contextually) respectively, and UN General Assembly resolutions 54/90, 55/144, and 56/72
18 See Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 12 (“ICJ Western Sahara”) at para. 57; ICJ Kosovo at para. 79; Shaw at p. 144 – 145
19 Harris at p. 92
20 Wheatley at pp. 595 – 597; Triggs at pp. 158 – 159; Crawford at p. 46 (citing additional contextual sources)
21 Badinter Opinions at p. 1523; Crawford at pp. 223, 692 (cited in Wong at p. 381) and p. 438 (cited in Wheatley at p. 601); Triggs at pp. Shaw at pp. 146 – 147, 305 (citation omitted); Crawford at p. 93 citing by example Duursma and Hillgruber, C 1998, ‘The Admission of New States to the International Community’, European Journal of International Law, vol. 9, no. 3, pp. 491 – 502 (“Hillgruber”); Vidmar, J 2013, ‘Palestine and the Conceptual Problem of Implicit Statehood’, Chinese Journal of International Law, vol. 12, no. 1 (1 March 2013), pp. 19 – 41 (“Vidmar”) at p. 30 (citing additional sources) ; Muharremi, R. 2008, ‘Kosovo’s Declaration of Independence: Self-Determination and Sovereignty Revisited’, Review of Central and East European Law, vol. 33, issue 4 (2008), pp.401-435 (“Muharremi”) at p. 432
22 Article 4.2 of the Charter of the United Nations
23 Wong at p. 364 (citing for example Brownlie’s Principles at p. 150). The United Nations itself has suggested that membership unambiguously confirms statehood (see United Nations Treaty Section of Office of Legal Affairs 1999, Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties, ST/LEG/7/Rev.1 at p. 22, cited in Wheatley at p. 601 and Vidmar at p. 23), but legal scholars question whether it is that definitive (see for example the arguments cited in Brownlie’s Principles at pp. 150-151 (partially cited in Wong at p. 364), Vidmar at p. 33, Fabry at p. 9, and Wheatley at pp. 601-602)
24 See for example Shaw at pp. 303 – 305 (citing additional sources)
25 Shaw at p. 166 (citing additional sources); Blay at pp. 196 – 197. Since the two governments split, Taiwan’s constitution has referred to PR China as a ‘communist rebellion’ (1949 – 1991) and ‘the Chinese mainland’ (1991 onwards), reflecting Taiwan’s one-state policy. From 1993 to 2007 the Taiwanese government did annually (and unsuccessfully) seek separate United Nations membership, but this stopped in 2008 after failing to gain referendum approval (see here for more).
For its part, since 1978 the constitution of PR China (including the current one) has expressly declared Taiwan to be ‘part of the sacred territory of the People’s Republic of China’. For more on PR China’s constitution, see here
26 See for example resolution 31/6 Parts A and I and resolution 32/105 Parts N and K, in which the UN General Assembly referred to South Africa as a “country” with “territorial integrity” (echoing Article 2(4) of the Charter of the United Nations), yet referred to the apartheid government as “illegitimate [with] no right to represent the people of South Africa”. Indeed, even when the General Assembly recommended South Africa’s expulsion from the UN (which the Security Council rejected), it was on the basis of South Africa’s breaches of the Charter of the United Nations (i.e. a treaty applicable only to states). For a detailed timeline of South Africa and the United Nations, see here. For more, see Wheatley at p. 597 citing HIllgruber at p. 495
27 Blay at pp. 196 – 197; De la Cuba at pp. 130 – 131; Shaw at pp. 143 – 146 (citing additional sources); Triggs at pp. 153, 155. See also Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, I.C.J. Reports 2010, p. 403 (“ICJ Kosovo”) at para. 81
28 See for example: ICJ Kosovo at para. 81 in conjunction with Legal Consequences for States of 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 (“ICJ Namibia”) at para. 131 and Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 14 (“ICJ Nicaragua”) at para. 190, the latter being cited in Turns, D 2003, ‘The Stimson Doctrine of Non-Recognition: Its Historical Genesis and Influence on Contemporary International Law’, Chinese Journal of International Law, vol. 2, no. 1 (1 January 2003), pp. 105 – 143 (“Turns”) at p. 135; Turns at p. 139; Blay at pp. 196 – 197; Triggs at pp. 154 – 155 (citing further); De la Cuba at p. 130 citing Crawford at pp. 345; Harris at pp. 101 – 102 citing Crawford at pp. 131, 344.
29 Harris at pp. 101 – 102.
30 UN Security Council resolutions 216 and 217 in particular and UN General Assembly resolutions 2022, 2024, 2138, 2151, and 2379; Shaw at p. 145 (citing above resolutions 216, 217, 2024, and 2151); Turns at p. 136 – 137 (citing above resolutions 216 and 2379); Blay at p. 196 – 197 (citing above resolutions 216 and 217); Harris at pp. 101 – 102, 802 (citing above resolutions 216 and 2379 plus UN Security Council resolution 411); Brownlie’s Principles at p. 156 (citing the above UN Security Council resolutions plus 232, 253, 277, 318, 320, 388, 409, and 423 and also for example J 1987, Recognition and the United Nations, Cambridge University Press, (“Dugard 1987”) at 90-8); Wheatley at pp. 586, 595 – 597 citing Hillgruber at p. 506; Triggs at pp. 150, 158 (citing above resolutions 217 and 2379 plus UN Security Council resolution 221)
31 Turns at pp. 136 – 137; Harris pp. 101 – 102. For a brief chronology (including the Australian government’s involvement), see here
32 De la Cuba p. 130; Turns at p. 137.
33 UN Security Council resolutions 402 and 407, UN Security Council statements S/13549 (1979) (cited in Blay at p. 196) and S/14794 (1981), UN General Assembly resolutions 31/6 (cited by Turns at p. 137, Triggs at p. 154, and Harris at p. 101) and 32/105; De la Cuba at p. 130 citing Part E of UN General Assembly resolution 2775; Shaw at p. 143 – 144 (citing both UN Security Council statements, Part A of UN General Assembly resolution 31/6, and other sources); Brownlie’s Principles at p. 156 (citing the above UN Security Council resolutions plus 385 and 417 and other sources including Ronen, Y 2011, Transition from Illegal Regimes under International Law, Cambridge University Press (“Ronen”) at pp. 27 – 37); Harris at p. 101 (citing Witkin, MF 1977, ‘Transkei: An Analysis of the Practice of Recognition – Political or Legal?’, Harvard International Law Journal , vol. 18, no. 3 (Summer 1977) beginning p. 605 regarding Transkei); Wheatley at pp. 595 – 597, citing Dugard, J 2011, ‘South African Bantustan Policy’, in R Wolfrum, Max Planck Encyclopedia of Public International Law, (“Dugard 2011”) at para. 10; Triggs at p. 154 (citing additional sources).
34 Harris at p. 101; Dugard 2011 at para. 1; Shaw at p. 143 (citing additional source)
35 In particular UN Security Council resolutions 367, 541 (cited in Ker-Lindsay, J 2011, ‘Analysis of Current Events – Not such a ‘sui generis’ case after all: assessing the ICJ opinion on Kosovo’, The Journal of Nationalism and Ethnicity, Nationalities Papers, vol. 39, no. 1 (January 2011), pp. 1 – 11 (“Ker-Lindsay”) at p. 7, in Turns at p. 139, in Harris at p.103, and in Triggs at p. 155), and 550 (cited in Turns at p. 139, in Harris at p. 103, and in Bunk & Fowler at p. 394, the latter citing James, A 1988, ‘Unit Veto Dominance in United Nations Peace-keeping’, in Lawrence S. Finkelstein (ed.), Politics in the United Nations System, Durham, Duke University Press at p. 83.), the latter two resolutions cited in Brownlie’s Principles at p. 156 (citing Ronen at pp. 38 – 54 generally and several non-ICJ cases); Bunk & Fowler at p 394, citing for example Dugard 1987 at pp. 108-11 generally); Turns at pp. 138-139 citing Loizidou v. Turkey, ECHR Rep. 1996-VI, para. 44; Harris at pp. 103, 746 (citing UN Security Council resolutions 353 and 440 and further sources); De la Cuba at p. 131 citing Crawford at p. 133; Crawford at pp. 133, 143 – 144 (citing the above resolutions plus additional sources); Blay at p.196 (citing above resolutions 541 and 550)
36 The Northern Cyprus case can be contrasted with Bangladesh’s independence from Pakistan in 1971, which was consolidated by India’s military intervention against Pakistan. Scholars theorise that Bangladesh was subsequently accepted as a legal state (unlike Northern Cyprus) because Bangladesh was a distinct territorial ‘unit’ whose independence was being suppressed through the infliction of war atrocities. See Harris at pp. 102 – 103, 745 (citing Crawford at pp. 140 onwards and p. 148) and the arguments cited in Crawford at pp. 140 – 147 and in Duursma at pp. 83, 130 (in particular the latter’s citation of paragraph 7 of UN General Assembly resolution 2625 and Suzuki, E 1976, ‘Self-determination and World Public Order: Community Response to Territorial Separation’, Virginia Journal of International Law, vol. 16 at pp. 805-6)
37 International Law Committee 2001, Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, Yearbook of the International Law Commission, 2001, vol. 2, no. 2, at p. 115, cited in Turns at pp. 134 – 135, in Triggs at pp. 160-161, and in Brownlie’s Principles at p. 155 (citing further sources) and generally in De la Cuba at p. 130; De la Cuba at pp. 130 – 31, citing Raič at p. 109; Blay at pp. 196 – 197.
38 Shaw at p.144 – 145 (see for citations); Triggs at pp. 152, 159; Crawford at pp. 118 – 119, 127, 387 (last page cited in Harris at p. 102); see also article 3 of UN General Assembly resolution 1514 (cited in, for example, De la Cuba at p. 127 and Crawford at p. 604)
39 Fabry, M 2012, ‘The contemporary practice of state recognition: Kosovo, South Ossetia, Abkhazia, and their aftermath’, The Journal of Nationalism and Ethnicity, Nationalities Papers, vol. 40, no.5 (September 2012), pp. 661 – 676 (“Fabry”) at pp. 663 – 664; Preda, A. 2003, ‘The Principle of Self-Determination and National Minorities’, Dialectical Anthropology, vol. 27, no. 3- 4 (September 2003), pp. 205 – 226 (“Preda”) at pp. 205 – 207; Muharremi at p. 416; Åkermark, SS 2013, ‘Internal Self-Determination and the Role of Territorial Autonomy as a Tool for the Resolution of Ethno-Political Disputes’, International Journal on Minority and Group Rights , vol. 20, no. 1 (2013), pp. 5 – 25 (“Åkermark”) generally and at pp. 7, 24 (citing an earlier work of the author); De la Cuba at p. 128 (citing Raič at p. 205 and relatedly citing UN General Assembly resolution 1541).
40 See for example the reference to “all peoples” in Article 1 of both the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights (both cited in Crawford pages 112 – 133) and in UN General Assembly resolution 545
41 Preda at pp. 209, 220 (citing further discussion at Moore, M (ed.) 1998, Self-Determination and Secession, Oxford University Press, Oxford); Crawford at pp.118 – 119, 127, 387 (citing additional sources), the latter two pages cited in Knoll, B (2009) ‘Fuzzy Statehood: An International Legal Perspective on Kosovo’s Declaration of Independence’, Review of Central and East European Law, vol. 34, issue 4 (2009), pp. 361 – 402 (“Knoll”) at p. 389 and in Harris at p. 102 respectively. See also UN General Assembly resolutions 2625 (cited in Preda at pp. 208 – 209 and in Crawford at pp. 118 – 119) and 47/135 (cited in Crawford at pp. 118 – 119), Article 7 of UN General Assembly resolution 3314 (cited in Muharremi at p. 415), clause 2 of Part I of the Vienna Declaration and Programme of Action (cited in Crawford at pp. 118 – 119), and contextually ICJ Kosovo at para. 79, 82 (cited in Ker-Lindsay at p. 5).
42 Fabry even goes so far to argue that, since the early 1970s, consent has become necessary before external self-determination can be gained (at pp. 663-664, 671, citing for example Shaw, M 1997, ‘The Heritage of States: The Principle of Uti Possidetis Juris Today.” British Year Book of International Law 1996. Oxford: Clarendon (“Heritage of States”) at pp 98- 99, 104 and UN General Assembly resolutions 1541 (paragraph 6) and 2625 as evidence). One stark example of the opposite is Guinea-Bissau in 1973, where UN General Assembly resolutions 3061 and 3181 declared it a state despite there being Portuguese troops in the territory trying to suppress independence (see Shaw at pp. 144 – 145 (citing additional sources), Crawford at pp. 386 – 387 (citing the above resolutions and additional sources) and Harris at p. 102 (relevantly citing Crawford at pp. 387, resolution 3061, and other sources)
43 In its resolution 1541, the UN General Assembly recognised the right of self-determination of territories that are geographically “separate” from foreign administrators but did not specify the necessary level of such separation. In ICJ Kosovo (para. 79, 81) the right was also discussed in general, universal terms.
45 See for example Preda at p. 212 (citing Principle IV of UN General Assembly resolution 1541 and Rigo Sureda, A 1973 The Evolution of the Right of Self determination. A Study of United Nations Practice, Leyden, at p. 105) and Wolff, S & Rodt, AP 2013, ‘Self-determination after Kosovo’, Europe-Asia Studies, vol. 65, no. 5 (July 2013), pp. 799 – 822 (“Wolff & Rodt”) at p. 805 (citing Mushkat, M 1972, ‘The Process of Decolonization: International Legal Aspects’, Baltimore Law Review, vol. 2, issue 1 (Winter 1972), pp. 16–34).
45 ICJ Kosovo at para. 82 – 83 (cited in Ker-Lindsay at p. 5); Knoll at pp. 388, 396; Ker-Lindsay, J 2013, ‘Preventing the Emergence of Self-Determination as a Norm of Secession: An Assessment of the Kosovo ‘Unique Case’ Argument’, Europe-Asia Studies, vol. 65, no. 5 (July 2013), pp. 837 – 856 (“Preventing the Emergence”) at p. 849; MacFarlane, N & Sabanadze, N 2013, ‘Sovereignty and self-determination: Where are we?’, International Journal, vol. 68, no. 4 (December 2013), pp. 609 – 627 (“MacFarlane & Sabanadze”) at pp. 623 – 624 citing ICJ Kosovo generally and additional sources. See also the arguments cited in Muharremi at pp. 416 – 417, 434 – 435, in Crawford at pp. 118 -119, in Fabry at pp. 671-672, and in Åkermark at pp. 7, 12.
46 Indeed, the alternative label ‘remedial secession’ reflects the view of many legal scholars that ‘freshwater decolonisation’ is not comparable to conventional (saltwater) decolonisation. See for example the use of the terms “context of decolonisation” and “colonial context” in Preventing the Emergence at p. 841 and Muharremi at pp. 416 – 417, 435 (and in the latter’s citation of Crawford at p. 415) respectively.
47 This principle being called “utis (or uti) possidetis juris”. See for example Frontier Dispute, Judgment, I.C.J. Reports 1986, p. 554 (“ICJ Frontier Dispute”) at para. 20 – 26 (partially cited in Triggs at p. 159), Badinter Opinions at p. 1498 (cited in Preda at pp. 213 – 214), Triggs at p. 159, MacFarlane & Sabanadze at pp. 613, 617, 623 (citing ICJ Frontier Dispute and Badinter Opinions generally, plus additional sources), Fabry at pp. 663, 672 (citing Heritage of States at pp. 98 – 99, 104 and UN General Assembly resolutions 1514 (paragraph 6) and 2625), Ker-Lindsay at p. 2, and Preventing the Emergence at pp. 841 – 842 (the latter two citing additional sources without naming the principle). For the application of the principle to the reintegration of colonially-separated entities, see Duursma at p.84 (citing additional sources)
48 This is of course different to an ex-colony annexing territory that had been allotted (by departing colonists) to a different ex-colony. For example, Indonesia and East Timor were different colonies that had both declared independence separately (as the colonists intended, albeit yet to depart East Timor) before Indonesia forcibly annexed East Timor. The UN Security Council condemned the invasion (resolutions 384 and 389) and the UN General Assembly declared the annexation illegal (resolutions 3485, 31/53, and 32/34) For more, see here and Duursma at p.396 (citing Blay, SKN 1985, ‘Self-determination versus Territorial Integrity in Decolonization Revisited’, vol. 25, Indian Journal of International Law, at pp. 395 – 398); Wolff & Rodt at p. 800, Preventing the Emergence at p. 842 (citing Garry, J 2004, ‘Foreword’, in Bahceli, T Bartman, B.& Srebrnik, H. (eds), De Facto States: The Quest for Sovereignty, Routledge, London); Brownlie’s Principles at p. 156 citing the above resolutions plus UN General Assembly resolutions 33/39, 34/40, 35/27, 36/50, and 37/30 and Ronen at pp. 54 – 61 generally; Harris at p. 109, citing resolutions 384 and 3485 above and Elliot, PD 1978, ‘The East Timor Dispute’, International & Comparative Law Quarterly, vol. 27, no.1 (January 1978), British Institute of International and Comparative Law, at pp. 238 – 249;
49 ICJ Frontier Dispute at para. 20, 23 (cited generally in Duursma at p. 84)
50 See, for example, similar points and further citations made in MacFarlane & Sabanadze at pp. 621 – 622, Triggs at pp. 149, 159 – 160, Ker-Lindsay at p. 1, Muharemmi at p. 435, and Klabbers, J 2006, ‘The Right to be Taken Seriously: Self-determination in International Law”, Human Rights Quarterly, vol. 28, pp. 186 – 206, at pp. 187, 199 – 200
