The Role of Recognition and Non-Recognition with Regard to Secession
The Role of Recognition and Non-Recognition with Regard to Secession
Abstract and Keywords
The recent cases of recognition of secessionist entities—Kosovo, Abkhazia, South Ossetia—have confused international legal doctrine. Do they mark a change in current state practice of recognition? The paper revisits traditional recognition doctrine and practice and elaborates on the rationale underlying traditional practice of non-recognition of secessionist entities while the former territorial sovereign has not consented to separate statehood. A closer look at this rationale, but also at the recent cases of Kosovo, Abkhazia, and South Ossetia speaks very much in favour of upholding the traditional policy of non-recognition. The paper also stresses the strong trend towards collective patterns of recognition—only in collective patterns, it is argued, can the international community influence conflicts over self-determination and territory and may moderate the behaviour of conflicting parties.
I. Introduction: After Kosovo—Has Kosovo Changed Anything?
The project from which the contributions to this book resulted was placed under the heading ‘After Kosovo’. But when one looks, with a certain dose of scepticism, at the recent discussions on the Kosovo precedent—in particular the Kosovo authorities’ unilateral Declaration of Independence (UDI) of 2010—as well as at the ICJ Advisory Opinion delivered upon the issue of this declaration,1 a fundamental question immediately arises: has the Kosovo precedent really changed anything? Admittedly, quite an important group of states has recognized Kosovo as an independent state in the wake of the UDI—despite the Serbian claim of still possessing territorial sovereignty over Kosovo, and despite SC Resolution 1244, which still applies to the situation and which confirmed Serbia’s title of territorial sovereignty.2 The recognizing states thus clearly departed from traditional practice that tended to avoid recognition as long as territorial sovereignty over a seceding territory remained in dispute. The move towards recognition of Kosovo, however, has met strong resistance—and, by and large, the community of states remains divided over whether such recognition makes sense (or is even legally feasible).3 (p.46) Thus, the Kosovo precedent has aggravated the tension over issues of recognition with regard to secession cases—and has given additional fuel to principled disputes over recognition vs. non-recognition in such cases.4 As a result, the Kosovo precedent has definitely not brought new light into the disputed landscape of recognition policies and the underlying theoretical queries in international legal doctrine—quite to the contrary, it has added to the already visible confusion in the field.5
What about the Kosovo Advisory Opinion of the International Court of Justice of 2010? The ICJ remained silent in this Opinion on the decisive issues of recognition and non-recognition, although the questions of recognition and secession constituted a kind of ‘elephant in the room’ when the Kosovo case was debated before the ICJ.6 The formula used by the court, namely that international law does not contain any prohibition on declarations of independence, is not really helpful in this regard, since it confuses the legal issues at stake more than that it delivers a fruitful contribution to their resolution. Such a statement, if it is to be taken seriously, rests on the assumption that the authors of the declaration of independence are mere civil society actors not bound by international law. Whether this was really true in the case of the elected members of the Kosovo Assembly that together issued the declaration, relying on their democratic credentials of being elected (to the Kosovo Assembly), is an issue open to dispute.7 (p.47)
Be that as it may, the Advisory Question leaves completely unanswered the question of whether the declared new state of the ‘Republika Kosova’ really fulfils the criteria under international law to qualify (and be recognized) as an independent and sovereign state.8 The ICJ thus leaves us international lawyers (and the international community in general) still alone with the confusing puzzle raised by conflicting claims of sovereignty.9 There may have existed good reasons of judicial politics to narrow down the question answered in the Opinion, and accordingly to avoid any hint of an answer to the delicate (and very disputed) questions of secession, of statehood of secessionist entities, and of subsequent recognition of such ‘de facto’ units of statehood.10 The court as a result managed to speak with one voice, not ending up in a kind of non liquet as was the case in the Nuclear Weapons Advisory Opinion—but the price paid is quite high. The decisive issue of the legality of recognition of secessionist entities like Kosovo has remained open, and still divides the international community (and also the European Union).
If we want to assess the questions of statehood and recognition (or non-recognition) of secessionist entities, we still have to look to traditional theories and have to analyse corresponding state practice. State practice on recognition, however, has ended up in a state of confusion anyway as a result of the events accompanying the dissolution of Yugoslavia.11 Accordingly, the paper must take a very careful look at such (p.48) practice in the past two decades in order to develop a plausible reconstruction of the current state of the role of recognition and non-recognition with regard to secession. There is a big question mark here: can we really take the Kosovo case as a precedent and, following from such precedent, argue a new policy line on recognition to be required by international law with regard to cases such as Transnistria, Abkhazia, South Ossetia, and Nagorno-Karabakh,12 and potentially other cases in future? Has Kosovo produced a change of tide in international recognition practice, or is this a minor incident of misguided policy in an unfortunate case, leaving unchanged the ‘longue durée’ of recognition patterns? Such questions are not easy to answer, but international legal practice needs answers to these questions in order to avoid the traps of ‘subjective’ misconstruction of what constitutes the state of the law.
II. Traditional Doctrines of Recognition
Recognition of new political entities may happen in various forms—usually by explicit declarations, but also in implicit ways.13 The real problem about recognition, however, is less its practical mode of exercise than its legal nature and consequences.14 The landscape of recognition doctrine has been ravaged by long and protracted turf wars between the so-called ‘declaratory’ and ‘constitutive’ theories.15 Most treatises of international law still describe the ‘declaratory theory’ as the dominant doctrine governing state practice.16 As main characteristics of the ‘declaratory theory’ on recognition, the writings of public international law usually describe that:
the underlying judgment of whether a political entity is a sovereign state constitutes a mere act of cognition oriented at criteria of effectiveness of state authority, and not a genuinely normative judgment;18
statehood in essence requires exclusive sovereignty over a distinct territory and people exercised by an effective structure of authority;19
a state worthy of recognition must be independent of foreign states and may not be subjected to a hierarchical relationship of authority exercised by another state.20
Such an empirical approach at first glance seems appealing because it avoids becoming entangled in a myriad of normative judgments on the political (democratic, constitutional) quality of a certain regime and the state-building process leading to its creation. The problems of such a strongly normative approach may still be seen in the problems raised by the recognition of governments21—does it make sense at all to recognize governments, and if we do so, what are the normative criteria guiding such recognition? Does it make sense to look merely for effectiveness of authority, ie sheer exercise of brute power, or should we look for criteria of constitutional legitimacy—and in the latter case, what are these criteria and where do they derive from?
There may be some wisdom in trying to avoid such normative questions, and it is no coincidence that most states stopped recognizing governments during the 1970s and 1980s.22 But issues of recognition of governments are back on the stage of international relations: an ‘emerging right to democratic governance’ and the corresponding condemnation of coups d’état requires the community of democratic states to withhold recognition in cases of putsch governments based on mere force in order to create pressure towards the reconstruction of constitutional (and democratic) legitimacy.23 Also, the recent case of recognition of the Libyan National Transitional Council as the government of Libya has indicated a change with regard to recognition patterns vis-à-vis governments.24 A comparable stumbling block seems to exist with regard to recognition of secessionist entities. (p.50) If analysed carefully, it remains open to doubt whether a simple, unreserved ‘declaratory’ approach really provides an accurate description of current state practice.25 Secession is perceived by most states in the world to be a severe threat to international order and a menace to the orderly development of statehood in the nation states constituting the international society. Accordingly, there exists a strong bias against secession in state practice.26 This bias can be easily seen if one looks to the persistent practice of non-recognition of secessionist entities as long as the previous territorial sovereign has not given up its title of territorial sovereignty over a disputed territory.27 For a very long time this approach of non-recognition constituted the ‘iron rule’ of traditional recognition practice with regard to secession.28
The underlying value judgement is not difficult to discern. The traditional practice of non-recognition of secessionist entities is based upon a widespread perception in the international community that territorial integrity constitutes a primordial value for a system based upon the idea of peaceful coexistence of states.29 To be exact: the addressees of such rule are not internal societal movements, such as rebels, insurgents, or revolutionary groups, but the other states. The civil society factions that struggle over the organization of statehood within a state are not bound by international law. In this regard, the ICJ was quite right in its Kosovo Advisory Opinion, at least in principle. Societal movements within a state quarreling over the way in which the state should be organized may act illegally from the perspective of a given legal (and constitutional) order. But the internal quarrel is not a matter of legitimate international concern, at least as long as the quarreling factions do not violate—in terms of a ‘gross and consistent pattern’—fundamental human rights. Quite to the contrary, the substantial questions of political organization being at stake in such quarrels, as well as the ways and means by which such quarrel is carried out, are issues of internal self-determination to be decided solely by the people in question, if necessary even by civil war.30 This does not change if the quarrel goes beyond questions of adequate political and constitutional organization inside a state and extends to questions of territorial organization of statehood as such, ie the question of whether diverse parts of a population want to live together in a state or would prefer separate statehood. The internal quarrel over separate statehood (and secession) remains in principle an issue of self-determination—at (p.51) its outset not of the ‘people’ claiming separate statehood, but of the entire population of the pre-existing state which must determine the question of continued joint statehood or separation.
The result of such a quarrel ultimately will not depend on matters of (internal) legality, which by definition will be disputed in such cases, but on essentially political factors: which faction has more support in the population, has more resources, and can consolidate its claim for legitimacy.31 There will always exist some cause for secession, otherwise a secessionist movement could not mobilize enough public support to become politically relevant. Whether such cause justifies separation, however, is not a matter to be judged by the outside world. Accordingly, traditional doctrine has dealt with phenomena of secession as a mere factual issue not governed as such by international law.32 It constitutes a legally neutral act whose consequences are regulated internationally.33 Particularly regulated under international law is the permissibility of third-state reaction to quarrels over secession. Third states may not support armed opposition groups militarily, and also may not provide secessionist movements with military items, training, or other kinds of significant material support capable of changing the political balance of power—if provided nevertheless, such support would qualify as a prohibited intervention.34 Such prohibition of intervention also applies to ‘premature’ forms of recognition of secessionist movements in terms of a separate statehood.35 The resulting rule of non-recognition of (unfinished) secessions secures—at least in the perspective of a more traditional brand of international lawyers—peace and stability of the international order.
Does this established pattern of non-recognition tell us anything about the adequacy of traditional doctrines of recognition? Probably not, since a pattern of non-recognition of secessionist entities is also explicable to a certain degree in terms of the declaratory theory. The continuing claim of the previous territorial sovereign puts into doubt the claim of exclusive authority raised by the new political entity—the former territorial sovereign will continue to exercise some authority over parts of the territory, or at least has reserved such exercise of authority, and could potentially regain its authority without violating any rule of international law. (p.52) But if there are competing contenders for public authority over territory and people, there does not exist ‘exclusive’ authority that constitutes the hallmark of sovereignty. There exists a limit, at least in terms of the ‘declaratory theory’. Can the previous territorial sovereign indefinitely uphold claims of territorial sovereignty, even if it has factually lost all his control over territory and people? The phenomenon of ‘stabilized de facto regimes’36 creates severe problems for a purely declaratory approach, since it is difficult to explain why long-standing factual authority of one sovereign effectively excluding the other does not constitute effective authority, and thus sovereign statehood. If ‘effectiveness’ is the only decisive criterion, effective authority over a certain period of time must lead to independent statehood, and thus to the admissibility of recognition by third states.
State practice, as such an intellectual experiment with radical insistence upon effectiveness demonstrates, definitively relies on normative criteria when dealing with issues of secession.37 This is relatively easy in cases where the intervention of third states, constituting illegal use of force under international law, has brought about the effective separation. In such situations, the Stimson doctrine, ie the rule of non-recognition of the results of illegal use of force, overrides all considerations of effectiveness.38 The same might in principle be true for arguments resulting from the right of self-determination, which undoubtedly constitutes a rule of jus cogens. The broad support for anti-colonial struggles of liberation demonstrates the point.39 States did not care about the claimed ‘territorial integrity’ of colonial powers, since the quest for self-determination of ‘non-self-governing’ peoples of colonial entities was perceived as legitimate. The same judgement does not hold true for claims of self-determination raised by parts of the population of ‘self-governing’, established states: this constitutes the backbone of postcolonial international practice. The community of states shows a strong reluctance to support processes of secession—many states feel threatened by separatist movements and perceive secession to erode the stability of the international order.40 (p.53)
III. International Legal Perspectives on Secession
Counterclaims have been made in legal doctrine, but these claims are difficult to sustain in terms of customary law, ie as a result of practice and opinio juris. Arguing that every group of persons having something in common in terms of language, culture, religion, or ethnicity forms a ‘people’ in the sense of the doctrine of self-determination, having a title to statehood,41 does not really make sense, at least not as long as self-determination is directed towards separate statehood.
A brief look into the historical evolution of the right of self-determination tells us that there is only one clear core area where the bearer of the right is beyond dispute: the case of decolonization, where state practice has confirmed that non-self-governing territories (as well as trusteeship territories) enjoy an unconditional right to self-determination, understood as a right to freely determine their political status.42 The ‘people’ in the sense of self-determination in these cases is the autochthonous population of the non-self-governing territories that has been grouped together into a polity in colonial times by its constitution as a distinct entity.43 These territories became independent states on the basis of the principle of uti possidetis, which means that the territorial shape of the territories had been definitely established in colonial times—and they simply inherited the boundaries from their colonial rulers.44 Self-determination clearly did not mean that a local people was completely free in its decision of whether they wanted to belong to the newly independent state, or instead to a neighbouring state. State practice clearly banned such a far-reaching claim, making the inherited territorial boundaries inviolable.45
Whether this excludes other ‘peoples’ from the right of self-determination is still an open issue. An important strand in international legal scholarship argues that every group of persons bound together by common objective characteristics, like language, culture, religion, or race might be qualified as a ‘people’, as long as such a group also has a common (subjective) understanding of belonging together and being distinct from all the other surrounding groups.46 Such an understanding (p.54) might be termed a ‘naturalist’ concept of peoples. Another line of thinking insists on the territorial element of self-determination. Self-determination, the argument goes, has always been linked to historically pre-constituted political entities with a specific territory. ‘People’ in this understanding is not simply a group of persons—one could also say an ethnic group—but the constituent people of a certain territorial entity formed by history.47
A careful analysis of state practice clearly supports the second understanding. There has never been any serious international support for a claim of self-determination raised by a simple ‘ethnic group’ having no firm territorial basis in a pre-existing political entity.48 Colliding claims of self-determination of (non-territorial) ethnic groups cannot be solved without taking recourse to a defined territory—a plebiscite or referendum where the majority might determine the political status of the territory only makes sense where a territory is given. Although a traditional, ‘naturalist’ understanding of a ‘people’ can point to the intuition that the term ‘people’ does not in itself have a territorial connotation, a functional perspective of self-determination, construing the concept in light of the political and legal system in which it is embedded, leads to the insight that a certain degree of ‘territoriality’ is unavoidable if the concept of self-determination is to operate productively.
In essence, the whole debate concerns the question of whether ‘ethnic groups’ which qualify as ‘minorities’ in the sense of modern concepts of minority protection may qualify also as ‘peoples’ enjoying a right of self-determination.49 In principle, one should definitely keep both concepts apart.50 The term ‘minorities’ covers all groups linked together by some commonalities, such as language, culture, religion, race—as long as these groups do not form the majority in a given state. Some of these minorities might have a clear territorial basis, a historical settlement area where the group used to live together in high concentration in former times. In modern times even such groups will tend to lose their territorial roots to a certain degree, because personal mobility and consequent waves of migration will spread these groups across a much larger area. Many minority groups never had clear territorial strongholds but were always scattered among other population groups. To accept a ‘right of self-determination’ for each of these historically formed groups would definitely be to open a Pandora’s box of never-ending disputes on territory and political dominance, at least as long as self-determination is understood in terms of separate statehood.51 The only way to avoid such endless quarrel is (p.55) the path taken by the community of states in twentieth-century state practice, by insisting upon a close linkage between (predetermined) political entities and self-determination. Self-determination is a right that can only be granted sustainably to polities linked to a historically defined territory—here self-determination may easily work, with a majority deciding in a plebiscite upon its political status and clearly defined boundaries that must be accepted by the neighbours according to the principle of uti possidetis.52
Such predetermined entities may be established states, where it is beyond dispute that the peoples of such states enjoy a continuing right of self-determination protecting them against foreign intervention, alien domination, or illegal occupation.53 They may also be historical entities traditionally enjoying a certain degree of autonomy within states, or member states of federations or federal states.54 The fact that a certain territory has formed a distinct political entity, with a population living together in such an entity for a long time, usually results also in a strong sense of collective identity irrespective of language, culture, or religion. This does not exclude divergences of opinion—the members of the previously dominant group will not like being separated from their kin-state and thus being made a minority in a new state, as was the case with Russians in the former republics of the Soviet Union.55 But the international community accepted the claims of such republics, as well as the claims of the former republics constituting the Socialist Federal Republic of Yugoslavia, to form their own states.56 Although in both cases the recognition was mostly based on arguments regarding dismemberment of the former federations, the international community had no problem accepting their claims of self-determination.
Beyond these specific constellations of predetermined political entities, a claim that a certain group of persons with distinct characteristics enjoys a right to self-determination can only be made in terms of ‘internal self-determination’, exercised in the various forms of autonomy, in federal constructs, or by mere political participation complemented by arrangements of minority protection.57 This is of particular importance for federal states. (p.56)
The historical feature of federated states, autonomous regions, and member states of federations is the fact that they are integrated into a roof state, although provided with a certain degree of political and institutional autonomy. The principle of territorial integrity works not only in favour of centralized, unitary states, but also protects federations, federal states, and quasi-federal constructs. The result of such precedence of territorial integrity is the legal assumption that in these cases self-determination is bound in the constructs of federation or autonomy. The ‘people’ of such entities historically had reasons for entering into a close relationship with another political entity, and as long as there are no exceptional grounds rebutting such a presumption in favour of territorial integrity, the internal dimensions of self-determination will prevail.58
Doctrinal debate over the last two decades has placed significant emphasis upon this dimension of ‘internal self-determination’.59 In terms of legal politics, it provides a productive alternative to endless claims for independent statehood in ever smaller political entities, leading to a vicious circle of ever new claims of secession.60 In constructs of federation and/or autonomy it is much easier to balance competing claims of political participation and dominance, with the central state taking over the role of guarantor for the complex arrangements balancing the competing interests of regional majorities and minorities.61 ‘Internal self-determination’ grants the possibility for majority populations of certain historical entities with ethnic, linguistic, cultural, and/or linguistic characteristics different from those of the ‘state nation’ to enjoy a high degree of self-government without involvement in counterproductive quarrels over statehood, territory, boundaries, and citizenship. Accordingly, the broad range of solutions of ‘internal self-determination’ is also the preferred toolbox of diplomatic mediators when trying to contain (often secessionist) conflicts over title to territory and self-government.62 (p.57)
For such solutions to work, they must include a certain guarantee of (limited) self-government. The concrete modalities of federation and/or autonomy cannot be cast in iron, but must to a certain degree remain flexible. If the federation or autonomy is drastically changed or abolished without the consent of the entity concerned, the question of self-determination is revived. Usually, the claim will go towards restoration of the previous state of autonomy, but in cases of brute and violent oppression, it might also convert into a claim for independent statehood, ie ‘secession’.63 The arbiter of these claims finally should be—and will be—the international community.
Only if the fundamental right to survival of such distinct groups are put in danger, by forms of genocide, massive ‘ethnic cleansing’, gross and consistent patterns of violations of fundamental human rights that threaten to destroy the group, may a legal claim directed towards separate statehood make sense. Separate statehood is ‘remedial’ in these cases since it cures a proven impossibility to live together in one state.64
If a state completely blocks any ‘internal self-determination’, erodes existing arrangements of autonomy, and takes recourse to brutal forms of violent oppression, ending in gross and consistent patterns of crimes against humanity, forms of ‘ethnic cleansing’, and perhaps even genocide, a ‘right to secession’ as an emergency tool seems to be arguable.65 Usually such a claim is founded on assumptions of natural law or general principles of law, such as self-defence in situations of extreme emergency. (p.58)
There are a number of cases where such a right has been argued in practice. State practice, however, is extremely reluctant to accept such a line of argument as justification for a legal entitlement to secession.66 For good reasons, states are afraid of secessionist movements. Secession does not usually solve the political problems lying beneath the surface, but often tends to escalate the situation. Claims of secession regularly produce counterclaims of secession of smaller sub-entities and lead to endless conflicts over territory and boundaries.67 It must be borne in mind that, in the end, it is not an ethnic group that is legally and factually seceding, but a certain territory that must be separated from the territory of the former sovereign in order to become a new state.68 But what is the ‘natural’ territory of a (by definition ‘de-territorial’) ethnic group? The conclusion is clear—in the end it is again a territorial entity that is seceding, not the ethnic group. But why ascribe the ‘subjectivity’ of self-determination to an ethnic group, and not to the political entity which attempts to separate? There are two reasons why parties on the ground have a preference for a ‘nationalist’, group-based construction of self-determination, and not a territorial understanding. First, a territorial understanding would raise the issue that, regularly, the population of a certain territory is not homogeneous; rather, there will be different ethnic, linguistic, and religious groups living in the territory. But who decides on the fate of the territory? This should not be monopolized by one group alone. The ‘secessionist’ group will either have to build a consensus with the other parts of the population, which will often prove difficult, or must at least demonstrate in a referendum that an overwhelming majority wants secession—and, as a consequence, then must find a compromise on minority protection for the other segments of the population. Second, secession in terms of a predetermined political entity brings uti possidetis into play, thus foreclosing from the beginning any territorial claims going beyond the established boundaries of the given historical entity.69
If one thus concludes that not ethnic groups (or minorities) but only territorial entities of a predetermined, historical nature can claim rights of self-determination, this does not mean that the issue of secession is completely closed. In exceptional cases of brute oppression, there might be reasonable grounds for political entities to strive for secession. Ongoing or pending genocide may be such a case, but so would gross and consistent patterns of (discriminatory) crimes against humanity, (p.59) targeted massacres among an oppressed population, and large-scale ‘ethnic cleansing’.70 Whether such (exceptional) circumstances, however, can lead to a clear ‘right’ to secession is open to doubt. Ultimately it is up to the international community to judge the legitimacy of such attempts at secession.71 There will always exist opposing strands of argument, resulting in a large margin of appreciation for external actors. Despite the brute violence characterizing a specific situation, the international actors still might prefer a solution of ‘internal self-determination’, ie a solution of autonomy. Overriding concerns of international policy might demand such a situation—and a clear legal entitlement, a ‘right’ to secession, would create obstacles for all attempts at international mediation. It is thus better to conceive such situations of (exceptional) legitimacy of secession not in terms of a clear-cut (collective) right, but in broader terms of legitimacy open to international moderation and judgement.72
Do the cases of Kosovo, Abkhazia, and South Ossetia, where some practice of recognition was observable, fit into the doctrine of remedial secession? In the cases of Abkhazia and South Ossetia, a very small number of states felt it appropriate to recognize these new entities,73 and even in the case of Kosovo, a large part of the state community perceived recognition as an independent state to be inappropriate.74 It is thus difficult to argue that these cases create a new practice that has established a different custom, departing in principle from traditional state practice. One might even argue the opposite. Using a proverbial saying of lawyers, one might say that ‘hard cases make bad law’—and such bad law is not made any better by stressing the ‘uniqueness’ of the cases concerned.75 The cases of Kosovo, Abkhazia, and South Ossetia will not help to establish a doctrine of remedial secession in state practice, as they show too much of an ad hoc character and are plagued by problems of moral hazard.76
Why do I argue that the cases of Kosovo, Abkhazia, and South Ossetia constitute ‘hard cases’ that make ‘bad law’? Even if one supports the doctrine of remedial secession in principle as a recipe for cases of extreme emergency, the (p.60) above-mentioned cases do not provide solid grounds for arguing for the necessity of secession, as instances of an ‘external right of self-determination’. As mentioned already, remedial secession is a tool for genuine cases of extreme emergency where the very survival of specific population groups is at stake.77 But was this the case in the mentioned situations? I do not think so. In the case of Kosovo, the military intervention of NATO states had relieved the Kosovar Albanians, which might have been under severe menace in the last phase of the Milosevic regime, from the conditions of emergency.78 Kosovar elites did not head towards independence because they still felt threatened, but because they had obviously been promised that independence might be an option—and the relevant outside powers were not raising principled objections against such a path (despite the continued applicability of Res. 1244). And what about Abkhazia and South Ossetia? The titular nations of these autonomous entities inside the Georgian Republic probably had reasons to feel threatened in the civil war situation under the late President Gamsachurdia, but with the Russian intervention they gained security, and it is difficult to argue that around 2010, when they declared independence, they were still under a situation of ‘extreme urgency’.79
As a result, established doctrine has good cause to argue for the precedence of territorial integrity.80 This does not say anything about the legitimacy of claims for internal self-determination. In all three cases, there were convincing grounds that called for extended autonomy of the territories, with institutionalized international guarantees for the stability of such autonomy. Serbia as well as Georgia were rather late in recognizing that such autonomy would be needed, but it was evident that such a construction might not only make sense in political terms, but was also a realistic political option in terms of international negotiations. Recognition of independent statehood by third states in such situations tends to lend support to the hardliners that go for maximum goals, and tends to consolidate a maximalist strategy oriented towards separate statehood where—in terms of mediation—the situation would be better kept fluid in order to preserve enough stakes for both sides to strike a compromise at the end.
In a more principled perspective of international legality, there are solid arguments speaking against recognition of secessionist entities in such situations. These are:
In a principled perspective taking into consideration the preferences of the state community as it found its expression in traditional doctrine and practice, territorial integrity should take priority over claims of separate statehood. (p.61)
This does not speak against a certain consolidation of the (de facto separate) political entities as ‘de facto regimes’.
Such a stabilization of the de facto situation is important in order to preserve the primordial value of international law, the non-use of force.
A final and lasting settlement usually needs quite a long time for negotiations to go ahead; such international negotiations should be supported, in the interest of finding an equitable solution, and should not be sabotaged by a premature legal entrenchment of the factual status quo.
For such negotiations, the question of incentives is decisive: the situation must remain fluid enough to promise both sides potential gains from a final settlement.
It must be made clear to factual holders of power that there is no way towards sovereign statehood, except as a result of negotiations.
At the same time, the former sovereign must be aware that any change of the situation in the direction of restitution of sovereign rights requires considerable concessions, typically in the form of extended autonomy with international guarantees.
Any final settlement needs a strong (and continued) involvement of outside powers—the parties to the conflict will not have enough trust to believe in a loyal implementation of the settlement and will need credible and reliable reassurances and guarantees from the outside world in order to be able to rely on the settlement.
IV. Patterns of Collective Recognition
As a consequence of such embedding of recognition in a pattern of international negotiations, recognition practice tends to lose its nature as a unilateral mode of action of a purely political nature and develops strong traits of a collective pattern of action. This is not a new insight, but has been quite clearly observed in some more recent studies.81 As an instrument of conflict management, recognition (or non-recognition) only develops certain leverage if it is exercised collectively, leaving the parties to the conflict no choice (in terms of playing out third states against each other).
Such a trend towards a collective mode of action became obvious for the first time in the case of the dissolution of former Yugoslavia, where recognition by the member states of the neighbouring European Union was made dependent upon a catalogue of legal criteria going way beyond the traditional criteria of effectiveness of the classical declaratory theory.82 The catalogue, drafted by the famous Badinter Commission, contained the magic triangle of EU values laid down now in Article 2 EU Treaty, namely the values of democracy, human rights, and the (p.62) rule of law, complemented by the protection of minorities83—the same criteria used in a more or less identical form as the so-called ‘Copenhagen criteria’ in the context of accession to the EU.84 These values constitute criteria of homogeneity of a value-based order of states. As a set of criteria for newly independent states to be recognized as new members of the state community, they are probably going a bit too far—although it must be admitted that politically it made sense to remind the (would-be) successor states of Yugoslavia that in order to fit into the new, post-1990 European environment, they should conform to certain basic values laid down in Council of Europe documents as basic requirements to become a member of the club of European states.85
What is important in our context here is less the justification of the substance of the criteria that are set up than the collective element that deeply characterized the recognition process with regard to the new states resulting from the dissolution of the Yugoslav Federation. The community of states—here in the particular emanation of the regional community of European states—took the role of a regulator of self-determination conflicts, in the result judging less the justification of the self-determination claims raised by the various republics than the political quality of the proclaimed new states.86 There is again a side question of precedent: how does the recognition practice in the case of former Yugoslavia fit the traditional patterns of recognition (and non-recognition) with regard to secession? At first sight, not that well! At least from the perspective of Belgrade—and this term comprises not only the clique around Serbian President Milosevic, but also the remnants of the former federal bureaucracy and the federal army—the declarations of independence first of Slovenia and Croatia, then of Bosnia and Macedonia, constituted attempts at secession from the Yugoslav state.87 Some of the western powers, such as France and Great Britain, initially had strong reservations about supporting such secession. It was political pressure from Germany and some smaller Central European states, in combination with the legal assessments of the Badinter Commission, that paved the way for recognition.88 In order not to count the recognition of Slovenia (p.63) and Croatia as unhappy precedents, the Badinter Commission’s finding that the Yugoslav Federation was in a process of dissolution played a central role.89 Such legal categorization helped in saying: stop, this is a special case—Slovenia and Croatia (and later Bosnia-Herzegovina and Macedonia) did not secede, but the federation fell apart and the constitutive republics of the federation gained full statehood as a result.90
The background of such a collective pattern of recognition is obvious. Delicate normative issues such as a people’s entitlement to its own statehood, the creation of new states and the settlement of territorial conflicts and boundary issues—issues that are extremely disputed in international law, but also in normative political theory91—cannot be left to the unilateral decision of the warring parties. The international community has an important role in moderating such conflicts and judging the validity of competing claims.92 This is particularly true for secessionist conflicts where a self-proclaimed people or a sub-entity of an established state claims its own statehood while the government of the previous territorial sovereign claims respect of its territorial sovereignty and integrity.93 There is an urgent need for the international community to exert moderating pressure upon both sides of the conflict, bringing them to a table in order to negotiate.94 But if the international community wants to have a decisive influence upon the parties, it must do its best to speak with one voice. Only when there is no possibility of playing the different international actors against each other will international efforts directed towards moderating the conflict have the chance of success.95 There is nothing worse than unilateral action in such cases, giving malign parties hope of achieving their objectives without any moderation or compromise.96
In this perspective, the old rule of non-recognition of attempts at secession, as long as the former territorial sovereign has not accepted such secession, has a very (p.64) good rationale.97 There is—as was stressed above—a principled presumption in favour of territorial sovereignty. Secessions may have legitimate causes in some exceptional cases—but whether this is the case should be sorted out in negotiations, and if this is not possible the third states should at least try to come to a concerted answer and should recognize the secessionist entity as a sovereign state only when more or less all agree that there is no alternative. Recognition in these cases gains a more or less ‘constitutive’ character since it is the concerted recognition of the international community that makes the entity claiming a right of self-determination a full-fledged state, becoming a member of the community of states.98 The constitutive character of recognition is becoming even more obvious as recognition is linked to certain substantial criteria of constitutional and political structure in order to secure a degree of structural homogeneity of states.99
As long as such a collective procedure of concerted recognition is not achieved through diplomatic efforts, recognition of secessionist entities is ‘premature’, which under traditional terms means that it is a violation of the principle of territorial integrity and of the prohibition of intervention.100 States should continue to respect these rules—otherwise they damage their political leverage over the parties to the conflict and risk ending up in open conflict with other third states.
In other words: the pattern of collective action in recognition stressed so much in this chapter is needed in order to gain political leverage over the parties—leverage that is needed in order to broker a peace arrangement.101 As a result of such a collective approach, recognition becomes a tool in political conflict management—and such a tool works only if recognition is organized as a collective process.102 This leads to an important political lesson. Collective recognition policy as an instrument of political management (and steering) ends up in an arrangement where recognition structures the accession of new political entities to the community of states. In order to achieve collective action, a group of states must agree in principle on a set of normative criteria concerning the required quality of statehood as a guideline for such common action. As a result, however, it is less effectiveness than some (normative) criteria of legitimacy that matters.
Put differently: the new state must fit into the normative framework of the existing community, and the process of state formation must have been compatible with normative underpinnings of the international community. This mechanism can be explained best through the example of the Turkish Republic of Northern Cyprus (TRNC). The TRNC fulfils all the classical criteria of statehood: it has a clearly circumscribed territory and people and it clearly rests on the democratic (p.65) consent of its inhabitants, which regularly elect a parliament and a president.103 There are some Turkish troops stationed in Northern Cyprus, but they do not dominate the political process in Northern Cyprus, as was the case in the first years after the Turkish invasion of 1974. There is one original deficiency, however, that plagues the TRNC to this day—its process of state-building in the 1970s. The Turkish invasion of Cyprus in 1974 clearly constituted a breach of Article 2 (4) of the UN Charter, all rights from the Guarantee Treaty notwithstanding.104 The Turkish army engaged in an exercise of ‘ethnic cleansing’ and expulsed more or less all Greek Cypriots from the North with brute force. These violations of jus cogens norms tend to obscure the strong Greek responsibility for the dead-end situation which resulted from the 1974 attempt at enosis and the resulting Turkish invasion.105 In a way, the original faults of the process of state creation hide the normative weaknesses of the Greek Cypriot position—a position that claims that the current ‘Republic of Cyprus’ represents the entire Cypriot state and is identical to the state founded in 1959. But the original Republic of Cyprus had a bicommunal constitution, guaranteed by the United Kingdom, Greece, and Turkey, and it was the Greek Cypriot side that brushed aside the original constitutional arrangement and—in a kind of coup d’état—transformed Cyprus into a majoritarian democracy that marginalized its Turkish population segment.106 It was the Greek side that commenced massacres and attempts at ethnic cleansing, and it was the Greek ‘putsch’ government that declared enosis and instigated Turkey’s military intervention. The way in which the invasion occurred, however, was clearly illegal—and this deficiency prevents the TRNC from recognition even nowadays, decades after the original events.107 Here, again, we find a pattern of collective non-recognition based on normative reasons108—and the same might be said for the collective pattern of non-recognition for Transnistria and for Nagorno-Karabakh.109 Separate statehood as a recognized member of the community is no option for these entities—at least as long as the other side does not consent to it.110 Negotiations must be held on federative arrangements or extended constructs of autonomy. In political terms, only this makes sense; options of separate statehood as a mini-statelet in the middle of nowhere do not.
The result is of far-reaching importance: recognition transforms from an instrument of bilateral diplomacy which governs state-to-state relations into a legal act (p.66) of a collective nature, based on a normative value judgement regarding whether a new political entity conforms to basic normative underpinnings of the international legal order (and the international community). It becomes a collective tool deciding upon the position of political entities in the structures of the community of states.
If this tool of collective management is to work, the nature of recognition as a collective process is of utmost importance. Collective action, however, requires processes of collective formation of will—and a spirit of seeking compromise, because otherwise the collective becomes fragmented into various factions, pulling in opposite directions. Alas, there are policy reasons why I find the Kosovo case so unfortunate as a precedent—so unfortunate that international lawyers should do everything in order to prevent it from becoming a precedent in a genuine sense—and these are:
First, it is extremely unfortunate as a precedent because there was no justified claim of ‘remedial secession’. There simply did not exist any normative argument that could override Serbia’s legitimate interest in territorial integrity (and the corresponding statements in Res. 1244 stressing the continuing territorial sovereignty of Serbia over Kosovo).
Second, unilateral recognition dividing the international community into opposing factions tends to erode the potential of collective patterns of recognition, and thus aborts any chance to use collective recognition as a tool of (collective) conflict management. Such a traditional form of unilateral recognition strengthens the stubbornness and intransigence of the parties to the conflict and leaves international negotiators with empty hands, without clear incentives to enter into compromise.
Third, it sets the wrong type of precedent in substance. It tells actors that intransigence in international negotiations, insisting stubbornly upon maximalist positions, is ultimately successful. But if such lessons are disseminated, radicals can easily avoid a moderated solution in self-determination conflicts, based on compromise, and can in the end impose maximalist claims on international negotiators as long as they can credibly threaten to cause trouble. The task of the international community, however, should be just the opposite: moderating the extremes and forcing parties to compromise on a middle-of-the-road solution—a solution which, in most cases, will consist of constructions of autonomy or federative arrangements.
The fact that such a bad precedent was immediately taken up by Russia in a (revenge-style) repetition by unilaterally recognizing Abkhazia and South Ossetia as independent states does not make the precedent better, but worse. Fortunately, the overwhelming majority of the members of the community of states have not applauded such a precedent. Despite strong political pressure from the US and the bigger EU states, a majority resisted following the ‘friends of Kosovo’ and refrained from recognition of Kosovo as an independent state. In the cases of Abkhazia and South Ossetia, even fewer states joined in—only a tiny group of states followed Russia in recognition. The argument of this chapter is that an (p.67) overwhelming number of states had strong policy reasons, as well as principled grounds based on international law, to remain sceptical of these ‘precedents’. And in the cases of Transnistria and Nagorno-Karabakh, even Russia resisted the temptation to appease the secessionist regimes by recognition—obviously for more or less the same principled reasons that caused the majority of the states community to avoid any step towards recognition of secessionist entities in general. As already said above, ‘hard cases make bad law’—and international lawyers should not allow the cases of Kosovo, Abkhazia, and South Ossetia to finally succeed in making bad law.
(1) Accordance with International Law of Unilateral Declaration of Independence in Respect of Kosovo (Advisory Opinion), ICJ Reports 2010, 141 (July 22, 2010)—in the following abbreviated as ‘ICJ Advisory Opinion’.
(2) Concerning the intricate relationship between the 2010 ICJ Advisory Opinion and Res. 1244 see S Oeter, ‘Secession, Territorial Integrity and the Role of the Security Council’ in P Hilpold (ed), Kosovo and International Law. The ICJ Advisory Opinion of 22 July 2010 (Brill 2012) 109, 122–8, and MG Kohen and K Del Mar, ‘The Kosovo Advisory Opinion and UNSCR 1244 (1999)’ (2011) 24 LJIL 109–26, but also C Schaller, ‘Die Sezession des Kosovo und der völkerrechtliche Status der internationalen Präsenz’ (2008) 46 Archiv des Völkerrechts 131, 145–62.
(3) See eg S Richter, ‘The Political Future of Kosovo after the ICJ Opinion: Status Question (Un)Resolved?’ in P Hilpold (ed), Kosovo and International Law. The ICJ Advisory Opinion of 22 July 2010 (Brill 2012) 263–80; S Tierney, ‘The Long Intervention in Kosovo—A Self-Determination Imperative?’ in J Summers (ed), Kosovo: A Precedent? (Nijhoff 2011) 249–78; as to the internal disputes inside the EU see W Koeth, ‘State Building Without a State: The EU’s Dilemma in Defining its Relations with Kosovo’ (2010) 15 EFAR 227–247, in particular 233–7.
(4) The Kosovo Assembly’s UDI has given rise to an extended dispute in public international law writings—see A Orakhelashvili, ‘Statehood, Recognition and the United Nations System: A Unilateral Declaration of Independence in Kosovo’ (2008) 12 Max Planck UNYB 1 et seq., D Fierstein, ‘Kosovo’s Declaration of Independence: An Incident Analysis of Legality, Policy and Future Implications’ (2008) 26 BUILJ 418 et seq.; R Muharremi, ‘Kosovo’s Declaration of Independence: Self-Determination and Sovereignty Revisited’ (2008) 33 RCEEL 401 et seq.; B Jia, ‘The Independence of Kosovo: A Unique Case of Secession?’ (2009) 8 Chinese JIL 27 et seq.; P Šturma, ‘The Case of Kosovo and International Law’ (2009) 29 PYBIL 51 et seq.; J Vidmar, ‘International Legal Responses to Kosovo’s Declaration of Independence’ (2009) 42 VJTL 778 et seq.; I Cismas, ‘Secession in Theory and Practice: The Case of Kosovo and Beyond’ (2010) 2 GJIL 531 et seq.; T Fleiner, ‘The Unilateral Secession of Kosovo as a Precedent in International Law’ in U Fastenrath (ed), From Bilateralism to Community Interest (OUP 2011) 877 et seq.; T Jaber, ‘A Case for Kosovo? Self-determination and Secession in the 21st Century’ (2011) 15 IJHR 926 et seq.; D Shelton, ‘Self-Determination in Regional Human Rights Law: From Kosovo to Cameroon’ (2011) 105 AJIL 60 et seq.
(5) See C Tomuschat, ‘Recognition of New States—The Case of Premature Recognition’ in P Hilpold (ed), Kosovo and International Law. The ICJ Advisory Opinion of 22 July 2010 (Brill 2012) 31–46.
(6) See also T Burri, ‘The Kosovo Opinion and Secession: The Sounds of Silence and Missing Links’ (2010) 11 GLJ 881, 885 et seq.; RA Falk, ‘The Kosovo Advisory Opinion’ (2011) 105 AJIL 50 et seq.; T Christakis, ‘The ICJ Advisory Opinion on Kosovo: Has International Law Something to Say About Secession?’ (2011) 24 LJIL 73, 74–80.
(7) See in this regard Oeter (n 2) 125–8; A Gattini, ‘“You Say You’ll Change the Constitution”—The ICJ and Non-State Entities in the Kosovo Advisory Opinion’ in P Hilpold (ed), Kosovo and International Law. The ICJ Advisory Opinion of 22 July 2010 (Brill 2012), 233–54; R Howse and R Teitel, ‘Delphic Dictum: How Has the ICJ Contributed to the Global Rule of Law by Its Ruling on Kosovo?’ (2010) 11 GLJ 841 et seq., 843; and Burri (n 6) 882 et seq.; M Bothe, ‘Kosovo—So What? The Holding of the International Court of Justice is not the Last Word on Kosovo’s Independence’ (2010) 11 GLJ 837 et seq., 838, Kohen and Del Mar (n 2) 109 et seq., as well as E Cirkovic, ‘An Analysis of the ICJ Advisory Opinion on Kosovo’s Unilateral Declaration of Independence’ (2010) 11 GLJ 895 at 903 et seq. and MD Öberg, ‘The Legal Effects of United Nations Resolutions in the Kosovo Advisory Opinion’ (2011) 105 AJIL 81 at 84 et seq.
(9) As critical comments to the Kosovo Advisory Opinion see Bothe (n 7); Howse and Teitel (n 7); Cirkovic (n 7); C Ryngaert, ‘The ICJ’s Advisory Opinion on Kosovo’s Declaration of Independence: A Missed Opportunity?’ (2009) 57 NILR 481 et seq.; A Rusniah and DI Efevwerhan, ‘The ICJ Opinion on Kosovo: Symphony or Cacophony?’ (2010) 50 IJIL 545 et seq.; DH Meester, ‘The International Court of Justice’s Kosovo Case: Assessing the Current State of International Legal Opinion on Remedial Secession’ (2010) 48 CYIL 215–54; V Röben, ‘The ICJ Advisory Opinion on the Unilateral Declaration of Independence in Respect of Kosovo’ (2010) 2 GJIL 1063 et seq.; Christakis (n 6) 73–86; JA Frowein, ‘Kosovo and Lotus’ in U Fastenrath (ed), From Bilateralism to Community Interest (OUP 2011) 923 et seq.; Falk (n 6) 50 et seq.; Kohen and Del Mar (n 2) 109 et seq.; M Weller, ‘Modesty Can be a Virtue—Judicial Economy in the ICJ Kosovo Opinion?’ (2011) 24 LJIL 127 et seq.; R Wilde, ‘Self-Determination, Secession, and Dispute Settlement after the Kosovo Advisory Opinion’ (2011) 24 LJIL 149 et seq.; D Jacobs and Y Radi, ‘Waiting for Godot: An Analysis of the Advisory Opinion on Kosovo’ (2011) 24 LJIL 331 et seq.; J Vidmar, ‘The Kosovo Advisory Opinion Scrutinized’ (2011) 24 LJIL 355 et seq.; J Summers (ed), Kosovo—A Precedent? (Nijhoff 2011); K Oellers-Frahm, ‘Problematic Question or Problematic Answer? Observations on the International Court of Justice’s Advisory Opinion Concerning Kosovo’s Unilateral Declaration of Independence’ (2011) 53 GYIL 793 et seq.; A Orakhelashvilli, ‘The International Court’s Advisory Opinion on the UDI in Respect of Kosovo’ (2011) 15 Max Planck UNYB 65 et seq.; R Tricot and B Sander, ‘The Broader Consequences of the International Court of Justice’s Advisory Opinion on the Unilateral Declaration of Independence in Respect of Kosovo’ (2011) 49 Columbia JTL 321 et seq.; Oeter (n 2) 109–138; P Hilpold, ‘Secession in International Law: Does the Kosovo Opinion Require a Re-assessment of this Concept?’ in P Hilpold (ed), Kosovo and International Law. The ICJ Advisory Opinion of 22 July 2010 (Brill 2012) 47–78.
(10) See Oeter (n 2) 127–8; in addition CD Espósito, ‘El discreto ejercicio de la función consultiva de la Corte Internacional de la Justicia en el asunto Kosovo’ (2011) 63 Revista española de derecho internacional 125–47; H Hannum, ‘The Advisory Opinion on Kosovo’ (2011) 24 LJIL 155–61.
(11) See in detail R Caplan, Europe and the Recognition of New States in Yugoslavia (CUP 2005), as well as P Radan, The Break-Up of Yugoslavia and International Law (Routledge 2002) 160–243.
(12) See CJ Borgen, ‘From Kosovo to Catalonia—Separatism and Integration in Europe’ (2010) 2 GJIL 997–1033.
(13) On the various modes of recognition see J Ker-Lindsay, The Foreign Policy of Counter Secession (OUP 2013) 7–9; I Brownlie, ‘Recognition in Theory and Practice’ in R St. J MacDonald and DM Johnston (eds), The Structure and Process of International Law. Essays in Legal Philosophy Doctrine and Theory (Nijhoff 1983) 628–9.
(14) With regard to the theoretical debates on recognition, and how these fit to state practice, see J Dugard, ‘The Secession of States and their Recognition in the Wake of Kosovo’ (2011) 357 Recueil des Cours de l’Académie de Droit International 13, 45–57; M Fabry, Recognizing States: International Society and the Establishment of New States Since 1776 (OUP 2009); WT Worster, ‘Law, Politics, and the Conception of the State in State Recognition Theory’ (2009) 27 BUILJ 115, 119–45; J Crawford, The Creation of States in International Law (2nd edn, Clarendon 2006), 17–28; J Dugard and D Raić, ‘The Role of Recognition in the Law and Practice of Secession’ in MG Kohen, Secession: International Law Perspectives (CUP 2006) 94, 96–101; S Talmon, ‘The Constitutive versus the Declaratory Theory of Recognition’ (2004) 75 BYIL 101–181; TD Grant, The Recognition of States: Law and Practice in Debate and Evolution (Praeger 1999) 1–38.
(15) See in detail U Saxer, Die internationale Steuerung der Selbstbestimmung und der Staatsentstehung (Springer 2010), 703–18; see in addition BR Roth, ‘Secessions, Coups and the International Rule of Law: Assessing the Decline of the Effective Control Doctrine’ (2010) 11 MJIL 393, 393, 396–8.
(17) See eg J Vidmar, ‘Territorial Integrity and the Law of Statehood’ (2012) George Washington ILR 697, 700–70; Roth (n 15) 396; S Talmon, Kollektive Nichtanerkennung illegaler Staaten (Mohr Siebeck 2006) 218–33; D Raić, Statehood and the Law of Self-Determination (Kluwer 2002) 50–82; J Castellino, International Law and Self-Determination: The Interplay of the Politics of Territorial Possession with Formulations of Post-Colonial ‘National’ Identity (Nijhoff 2000), 77–89.
(21) See eg MJ Peterson, Recognition of Governments: Legal Doctrine and State Practice, 1815–1995 (Macmillan 1997); S Talmon, Recognition of Governments in International Law (Clarendon 1998); BR Roth, Governmental Illegitimacy in International Law (Clarendon 1999) 121–99.
(23) See Roth (n 15) 422–39; J d’Aspremont, ‘Responsibility for Coups d´État in International Law’ (2010) 18 TJICL 451–475; Roth, Governmental Illegitimacy 365–412; SD Murphy, ‘Democratic Legitimacy and the Recognition of States and Governments’ (1999) 48 ICLQ 545–81.
(24) See A Schuit, ‘Recognition of Governments in International Law and the Recent Conflict in Libya’ (2012) 14 ICLR 381–402; G Nesi, ‘Recognition of the Libyan National Transitional Council’ (2011) 21 IYIL 45–59.
(25) See Saxer (n 15) 706–9, but also J Vidmar, ‘Explaining the Legal Effects of Recognition’ (2012) 61 ICLQ 361–87 and C Hillgruber, ‘The Admission of New States to the International Community’ (1998) 9 EJIL 491, 492–5.
(26) See, in particular, Ker-Lindsay (n 13) 24 (and very much in detail, as regards the reasons of such bias, 109–29); see in addition MG Kohen, ‘Introduction’ in MG Kohen (ed), Secession: International Law Perspectives (CUP 2006) 1, 3–4, as well as Dugard and Raić (n 14) 94–5.
(29) See eg J Mayall, ‘Secession and International Order’ in A Pavković and P Radan (eds), The Ashgate Research Companion to Secession (Ashgate 2011), 11, 16; Vidmar (n 17) 706–9; Dugard (n 14) 31–2, 98–107; Fabry (n 14) 204–7.
(30) See S Oeter, ‘Self-Determination’ in B Simma et al. (eds), The Charter of the United Nations. A Commentary (OUP 2012, 3rd edn) 313, para 41.
(31) See A Pavković and P Radan, Creating New States: Theory and Practice of Secession (Ashgate 2007) 33–163.
(32) See D Thürer and T Burri, ‘Secession’ in The Max Planck Encyclopedia of Public International Law (OUP online 2012) para 14, as well as AP Rubin, ‘Secession and Self-Determination: A Legal, Moral, and Political Analysis’ (2000) 36 Stanford JIL 253, 257 and Kohen (n 26) 4; but see also, as a critical analysis of such traditional doctrine, T Christakis, ‘The State as a “Primary Fact”: Some Thoughts on the Principle of Effectiveness’ in MG Kohen (ed), Secession: International Law Perspectives (CUP 2006) 138–70.
(34) See P Kunig, ‘Intervention, Prohibition of’ in Max Planck Encyclopedia of Public International Law (OUP online 2012) para 34, and—as far as direct military support is concerned—G Nolte, ‘Secession and External Intervention’ in MG Kohen (ed), Secession: International Law Perspectives (CUP 2006) 65, 76–93.
(35) See D Geldenhuys, ‘Secession and Contested States’ in A Pavković and P Radan (eds), The Ashgate Research Companion to Secession (Ashgate 2011) 285, 291, but also Raić (n 17) 92–104 and Dugard (n 14) 27–30.
(36) See JA Frowein, ‘De Facto Regime’ in Max Planck Encyclopedia of Public International Law (OUP online 2012); S Pegg, International Society and the De Facto State (Ashgate 1999) 26–52, 173–202; see in addition N Caspersen and GR Stansfield (eds), Unrecognized States in the International System (Routledge 2011); E Berg and R Toomla, ‘Forms of Normalisation in the Quest for De Facto Statehood’ (2009) 44 International Spectator 27–45; D Geldenhuys, Contested States in World Politics (Palgrave Macmillan 2009) 29–44.
(38) See eg Vidmar (n 25) 381–386; Christakis (n 6) 82–83; Kohen (n 26) 8; Talmon (n 17) 239–258; D Turns, ‘The Stimson Doctrine of Non-Recognition: Its Historical Genesis and Influence on Contemporary International Law’ (2003) 2 CJIL 105–43; Raić (n 17) 122–8.
(41) See the contributions in M Moore (ed), National Self-Determination and Secession (OUP 1998), but also VP Nanda, ‘Self-Determination under International Law: Validity of Claims to Secede’ (1981) 13 CWRJIL 257–80; D Turp, ‘Le droit de secession en droit international public’ (1982) 20 CYIL 24–78; D Murswiek, ‘The Issue of a Right of Secession—Reconsidered’ in C Tomuschat (ed), Modern Law of Self-Determination (Kluwer 1993) 21–40; A Cassese, Self-Determination of Peoples: A Legal Appraisal (CUP 1995) 119–20; D Raić, Statehood and the Law of Self-Determination (Kluwer 2002) 316–72; P Radan, ‘International Law and the Right of Unilateral Secession’ in A Pavković and P Radan (eds), The Ashgate Research Companion to Secession (Ashgate 2011) 321, 326–7.
(45) See J Fisch, Das Selbstbestimmungsrecht der Völker (CH Beck 2010) 56–61.
(46) See D Ronen, The Quest for Self-Determination (Yale University Press 1979) 39–45; C Gusy, ‘Selbstbestimmungsrecht im Wandel. Von der Selbstbestimmung durch den Staat zur Selbstbestimmung im Staat’ (1992) 30 Archiv des Völkerrechts 385–410.
(49) See J Castellino, ‘Order and Justice: National Minorities and the Right to Secession’ (1999) 6 IJMGR 389–415; J Wright, ‘Minority Groups, Autonomy, and Self-Determination’ (1999) 19 OJLS 605, 612–29; Castellino (n 17), 45–74; Saxer (n 15) 286–300, 310–25.
(51) See TM Franck, ‘Postmodern Tribalism and the Right to Secession’ in C Brölmann et al. (eds), Peoples and Minorities in International Law (Nijhoff 1993) 3–27 as well as TM Franck, ‘Clan and Superclan: Loyalty, Identity and Community in Law and Practice’ (1996) 90 AJIL 359–83.
(52) See MC Johanson, ‘Secession and Territorial Borders: The Role of Law’ in A Pavković and P Radan (eds), The Ashgate Research Companion to Secession (Ashgate 2011) 303, 314–17.
(53) See K Doehring, ‘Self-Determination’, in B Simma et al. (eds), The Charter of the United Nations: A Commentary, Vol 1 (2nd edn, OUP 2002) 56 para 33.
(54) See eg O Kimminich, ‘A “Federal” Right of Self-Determination?’ in Tomuschat (n 41) 83–99, as well as P Thornberry, ‘The Democratic or Internal Aspect of Self-Determination with some Remarks on Federalism’ in Tomuschat (n 41) 101–38; see also E McWhinney, ‘Self-Determination of Peoples and Plural-Ethnic States: Secession and State Succession and the Alternative Federal Option’ (2002) 294 Recueil des Cours de l´Académie de Droit International 171, 236–55.
(55) See WC Allison, ‘Self-Determination and Recent Developments in the Baltic States’ (1991) 19 DJILP 625–84.
(56) See M Weller, ‘The International Response to the Dissolution of the Socialist Federal Republic of Yugoslavia’ (1992) 86 AJIL 569–607.
(57) See eg Crawford (n 14) 127–8; as concurrent voices from political theory see W Kymlicka, ‘Federalism and Secession: At Home and Abroad’ (2000) 13 CJLJ 207–24; R Bauböck, ‘Why Stay Together? A Pluralist Approach to Secession and Federation’ in W Kymlicka (ed), Citizenship in Diverse Societies (OUP 2000) 366–93; J Wright, ‘Minority Groups, Autonomy, and Self-Determination’ (1999) 19 Oxford JLS 605, 612–29.
(58) See W Kymlicka, ‘Is Federalism a Viable Alternative to Secession?’ in PB Lehning (ed), Theories of Secession (Routledge 1998) 111–50, but also M Moore, The Ethics of Nationalism (OUP 2001) 165–201.
(59) As to ‘internal self-determination’ see H Hannum, Autonomy, Sovereignty, and Self-Determination (University of Pennsylvania Press 1990); P Thornberry, ‘The Democratic or Internal Aspect of Self-Determination with some Remarks on Federalism’ in Tomuschat (n 41) 101–38; A Rosas, ‘Internal Self-Determination’ in Tomuschat (n 41) 225–52; G Welhengama, Minorities’ Claims: From Autonomy to Secession (Ashgate 2000), 125–205; Doehring (n 53) 56–7 paras 32–4; W Danspeckgruber, ‘A Final Assessment’ in W Danspeckgruber (ed), The Self-Determination of Peoples: Community, Nation and State in an Interdependent World (Lynne Rienner 2002) 335–57; Raić (n 17) 272–88; M Moore, ‘An Historical Argument for Indigenous Self-Determination’ in S Macedo and A Buchanan (eds), Secession and Self-Determination (NYU Press 2003) 89–118; M Seymour, ‘Secession as a Remedial Right’ (2007) 50 Inquiry 395–423; Saxer (n 15) 335–51; Fisch (n 45) 61–3; Dugard (n 14) 85–8; M Seymour, ‘Internal Self-Determination and Secession’ in A Pavković and P Radan (eds), The Ashgate Research Companion to Secession (Ashgate 2011), 385–97; M Sterio, The Right to Self-Determination under International Law: ‘Selfistans’, Secession, and the Rule of the Great Powers (Routledge 2013), 18–22.
(60) See A Eide, ‘In Search of Constructive Alternatives to Secession’ in C Tomuschat (ed), Modern Law of Self-Determination (Kluwer 1993) 139–76.
(61) See, as a forceful argument in this direction, M Weller, Escaping the Self-Determination Trap (Nijhoff 2008), in particular 78–90.
(62) See MW Doyle, ‘UN Intervention and National Sovereignty’ in W Danspeckgruber (ed), The Self-Determination of Peoples: Community, Nation and State in an Interdependent World (Lynne Rienner 2002) 67–99; see in addition C Borgen, ‘Imagining Sovereignty, Managing Secession’ (2007) ORIL 477, 483–5.
(63) See S Oeter, ‘Selbstbestimmungsrecht im Wandel. Überlegungen zur Debatte um Selbstbestimmung, Sezessionsrecht und “vorzeitiger” Anerkennung’ (1992) 52 ZaöRV 741, 753–55.
(65) See EM Brewer, ‘To Break Free from Tyranny and Aggression: Proposing a Model for a Remedial Right to Secession in the Wake of the Kosovo Advisory Opinion’ (2012) 45 VJTL 245–92; JR Ablan, ‘Signals and Affirm: How the United Nations Should Articulate the Right to Remedial Secession’ (2012) 45 VJTL 211–43; TW Simon, ‘Remedial Secession’ (2011) 40 GJICL 105–73; Dugard (n 14) 112–22, 211–13; Meester (n 9), 215–54; Cismas (n 4) 543–54; M Sterio, ‘On the Right to External Self-Determination: “Selfistans”, Secession and the Great Powers’ Rule’ (2010) 19 MJIL 137, 145–6; M Ott, Das Recht auf Sezession als Ausfluss des Selbstbestimmungsrechts der Völker (BWV Berliner Wissenschafts-Verlag 2008); Weller (n 56) 59–69; J Summers, Peoples and International Law. How Nationalism and Self-Determination Shape a Contemporary Law of Nations (Nijhoff 2007) 343–4; A Pavković and P Radan, Creating New States: Theory and Practice of Secession (Ashgate 2007) 213–37; Dugard and Raić (n 14) 106–9; Tomuschat (n 48) 38–42; AE Buchanan, Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law (OUP 2004), 331; P Groarke, Dividing the State: Legitimacy, Secession and the Doctrine of Oppression (Ashgate 2004) 149–68; DL Horowitz, ‘A Right to Secede?’ in S Macedo and A Buchanan, Secession and Self-Determination (NYU Press 2003) 50–75; A Buchanan and M Moore, States, Nations and Borders: The Ethics of Making Boundaries (CUP 2003) 247; J Dugard, ‘A Legal Basis for Secession: Relevant Principles and Rules’ in Dahlitz (n 40), Secession and International Law (T.M.C. Asser Press 2003) 89–96; Raić (n 17) 366–72; C Tomuschat, ‘Self-Determination in a Post-Colonial World’ in C Tomuschat (ed), Modern Law of Self-Determination (Nijhoff 1993) 9; H Hannum, ‘Rethinking Self-Determination’ (1993) 34 VJIL 1, 46–7; LC Buchheit, Secession: The Legitimacy of Self-Determination (Yale University Press 1978).
(66) See eg Saxer (n 15) 394–400; in addition Welhengama (n 59) 255–87; Kohen (n 26) 10; A Tancredi, ‘A Normative “Due Process” in the Creation of States through Secession’ in MG Kohen (ed), Secession: International Law Perspectives (CUP 2006) 171–207.
(67) See TM Franck, ‘Postmodern Tribalism and the Right to Secession’ in C Brölmann et al. (eds), Peoples and Minorities in International Law (Nijhoff 1993) 3–27.
(68) See L Brilmayer, ‘Secession and Self-Determination: A Territorial Interpretation’ (1991) 16 YJIL 177–202, as well as Crawford (n 14) 127 and M Moore, ‘The Territorial Dimension of Self-Determination’ in M Moore (ed), National Self-Determination and Secession (OUP 1998) 134–56.
(69) See Saxer (n 15) 772–5; see in addition Beaudouin (n 44); M Bothe, ‘Drawing Borders as a Means to Restore and Maintain Peace: From Palestine to Kosovo and Back’ in P Hilpold (ed), Kosovo and International Law. The ICJ Advisory Opinion of 22 July 2010 (Brill 2012) 181–96; Raić (n 17) 293–304.
(72) See also L Seshagiri, ‘Democratic Disobedience: Reconceiving Self-Determination and Secession at International Law’ (2010) 51 HILJ 553–98, as well as RS Beiner, ‘National Self-Determination: Some Cautionary Remarks Concerning the Rhetoric of Rights’ in M Moore (ed), National Self-Determination and Secession (OUP 1998) 158–79.
(73) See Ker-Lindsay (n 13) 47–53; Geldenhuys (n 36) 69–86; S Wolff, ‘The Limits of International Conflict Management in the Case of Abkhazia and South Ossetia’ in N Caspersen and GR Stansfield (eds), Unrecognized States in the International System (Palgrave Macmillan 2011) 147–64; see also the papers by C Waters (175 et seq.) and F Mirzayev (191 et seq.) in this volume.
(74) See eg DI Efevwerhan, ‘Kosovo’s Chances of UN Membership: A Prognosis’ (2012) 4 GJIL 93, 120–7, as well as—critical of the ‘law talk’ of most western powers—C Borgen, ‘The Language of Law and the Practice of Politics: Great Powers and the Rhetoric of Self-Determination in the Cases of Kosovo and South Ossetia’ (2009) 10 Chicago JIL 1, 10–16.
(75) See in particular R Mullerson, ‘Precedents in the Mountains: On the Parallels and Uniqueness of the Cases of Kosovo, South Ossetia and Abkhazia’ (2009) 8 Chinese JIL 2–25; see also Borgen (n 74) 10–28; A Tancredi, ‘Neither Authorized nor Prohibited? Secession and International Law after Kosovo, South Ossetia and Abkhazia’ (2008) 18 IYIL 37–62.
(76) For an explicit argument in this direction see N Kemoklidze, ‘The Kosovo Precedent and the “Moral Hazard” of Secession’ (2009) 5 JILIR 117–40.
(78) See eg Jaber (n 4) 941–2, and G Wilson, ‘Self-Determination, Recognition and the Problem of Kosovo’ (2009) 56 Netherlands ILR 455–81; but see also for the opposite position Cismas (n 4) 567–72; Fierstein (n 4) 437–8; K Paeameswaran, ‘Der Rechtssstatus des Kosovo im Lichte der aktuellen Entwicklungen’ (2008) 46 Archiv des Völkerrechts 172–204.
(80) See eg R Trisotto, ‘Seceding in the Twenty-First Century: A Paradigm for the Ages’ (2010) 35 BJIL 419, 422–5; A Gioia, ‘Kosovo’s Statehood and the Role of Recognition’ (2008) 18 IYIL 3–35; Kohen (n 26) 6–8; WE Butler, ‘Territorial Integrity and Secession: The Dialectics of International Order’ in Dahlitz (n 40).
(83) Conference on Yugoslavia Arbitration Commission, Opinions on Questions Arising from the Dissolution of Yugoslavia (1992) 31 ILM 1488 (‘Badinter Commission Opinions’). For arduous criticisms of the Badinter Commission’s opinions see eg Roth (n 15) 409–15; TW Waters, ‘Contemplating Failure and Creating Alternatives in the Balkans: Bosnia’s Peoples, Democracy, and the Shape of Self-Determination’ (2004) 29 YJIL 423, 438–44; M Jovanovic, Constitutionalizing Secession in Federalized States: A Procedural Approach (Eleven International Publishing, 2007) 83–114; P Radan, ‘Yugoslavia’s Internal Borders as International Borders: A Question of Appropriateness’ (1999) 33 EEQ 137, 137; Radan (n 11) 204–42.
(84) See eg E Faucompret and J Konings, Turkish Accession to the EU: Satisfying the Copenhagen Criteria (Routledge 2008).
(85) See as an argument in this direction A Buyse and R Lawson, ‘State Recognition: Admission (Im)Possible’ (2007) 20 LJIL 785–95.
(87) For an argument in this direction see A Pavković, ‘Recursive Secessions in Former Yugoslavia: too Hard a Case for Theories of Secession?’ (2000) 48 PS 485–502.
(88) See chapter 2 in M Weller, Twenty Years of Crisis: The Violent Dissolution of Yugoslavia (OUP 2013), but also KP Zeitler, Deutschlands Rolle bei der völkerrechtlichen Anerkennung der Republik Kroatien unter besonderer Berücksichtigung des deutschen Außenministers Genscher (Tectum 2000).
(89) See Roth (n 15) 411–15; Sterio (n 59) 34–6; Vidmar, (n 17) 723–9; Fierstein (n 4) 432; Crawford (n 14), 397; S Tierney, ‘In a State of Flux: Self-Determination and the Collapse of Yugoslavia’ (1999) 6 IJMGR 197, 211–14; Grant (n 14) 153–68; MCR Craven, ‘The European Union Arbitration Commission on Yugoslavia’ (1995) 66 British YIL 333, 389–90.
(90) See as a critical account of such practice RJ Delahunty and A Florido Pérez, ‘The Kosovo Crisis: A Dostoievskian Dialogue on International Law, Statecraft, and Soulcraft’ (2009) 42 VJTL 15, 72–85.
(91) See as a critical survey of the various normative theories J McGarry and M Moore, ‘Secession and Domination’ in A Pavković and P Radan (eds), The Ashgate Research Companion to Secession (Ashgate 2011) 427–39; M Moore, ‘The Ethics of Secession and a Normative Theory of Nationalism’, (2000) CJLJ 225–50; M Freeman, ‘The Right to Self-Determination in International Politics: Six Theories in Search of a Policy’ (1999) 25 RIS 355–70; A Buchanan, ‘Theories of Secession’ (1997) 26 PPA 31–61; A Buchanan, Secession: The Morality of Political Divorce from Fort Sumter to Lithuania and Quebec (Westview 1991) 27–125.
(95) As to the strategic implications of attempts to secede see BF Walter, ‘Information, Uncertainty, and the Decision to Secede’ (2006) 60 IO 105–35.
(96) See also B Coggins, ‘Friends in High Places: International Politics and the Emergence of States from Secessionism’ (2011) 65 IO 433–67.
(101) For the resulting argument that the United Nations should play a central role ‘as regulator of state creation’ see Grant (n 39) 52–7; but see also, with a particular emphasis on the influence of great powers on the process of state creation in current practice, Sterio (n 59) 57–70.
(102) See J Vidmar, ‘Kosovo: Unilateral Secession and Multilateral State-Making’ in J Summers (ed), Kosovo: A Precedent? (Nijhoff 2011) 143–77.