In the preamble of the 1945 United Nations (UN) Charter, its Peoples declared their intention to establish, inter alia, conditions under which justice and respect for international law can be maintained. The main question about discussing the lawfulness secession without the consent of the territorial state rests on the conflict of two principles of international law: the right of self-determination applied to such secession and the territorial integrity of a state. Such strife can be better analysed when applied into two recent events: the secessions of Kosovo (from the Republic of Serbia) and of South Ossetia (from the Republic of Georgia). As we shall see, such discussion reflects a vestige of the Cold War era. The most important issue is to define the importance of the consent of the territorial state to determine if a de facto country can be considered a de jure one, and even if (according to the international law) an independent state can be born from a unilateral secession.
The milestone of the development of the relations between a state and its sovereignty is the Treaty of Westphalia (1648). Nowadays, according to the international law, here exemplified by the Montevideo Convention on the Rights and Duties of States (1933), there are four qualifications that entitle an entity to be recognized as a sovereign state: permanent population; delimitated territory; a legitimated Government; and the capacity to enter into relations with other states. The international costume has developed a fifth qualification: the recognition of the international sovereignty by other states. Even thought Kosovo and South Ossetia have the first four qualifications, the fifth one is contested by an important part of the international community, especially by the respective territorial states.
Kosovo and South Ossetia declared their independency unilaterally, i.e., their respective territorial countries did not consent on such declaration, manifesting that such regions are still under their legitimate sovereignty. Concerning the international community’s point of view, it is possible to compare these unilateral secessions to an important independency event which happened with the territorial state’s consent. East Timor’s recognition of sovereignty by the international community only occurred after several decades of negotiation (and UN intervention) between Portugal (its former controlling state, which granted its independency in 1975) and Indonesia (state that, after the granting of the mentioned independency, invaded and occupied East Timor), with UN’s supervision. Both Portugal and Indonesia consented in East Timor’s independency, followed by the whole international community. Kosovo, on the contrary, has been recognized as an independent country only by 75 out of 192 UN state members (39%), being recognized by 24 out of 28 NATO states (85.7%), and by three of the five Security Council members (USA, UK and France) whilst its territorial country (Serbia) has not consented. South Ossetia has been recognized as a newborn country only by few states like Russia, Nauru, Nicaragua and Venezuela (both last two countries’ decision reflects their Government’s proximity with Moscow and, specially, disagreement with Washington’s policies). According to Timothy McLellan, all the new states created during the UN Charter period “have either maintained pre-existing colonial borders or gained independence by mutual agreement with their parent states” (Crawford, 2006 apud McLellan, 2009). Such agreement has happened on East Timor case. It has not on Kosovo and South Ossetia ones.
One of the arguments in favour of the right of a unilateral secession is the theory of just-case (Moore, 2004), which underlies the remedial right to secede for groups that have suffered injustices, e.g., violation of human rights, as claimed by the peoples of Kosovo and South Ossetia. In both regions there were a lot of human suffering due to wars, and in Kosovo’s case there was even a massive displacement of population (around one million people). Another argument pro-unilateral secession would be the “choice theory of justified secession” (Moore, 2004), which requires a territorially concentrated majority to express its intention to secede in a referendum or plebiscite for the secession to be considered legitimate, as it recently happened in South Sudan referendum, when 98% of its population voted for independency from Sudan. Such procedure happened in Kosovo, where the respective parliament declared independence from Serbia on 17 February 2008, whilst it was under UN administration.
The UN Declaration of Friendly Relations (1970) and the UN Vienna Declaration (1993) are examples of pronouncements that endorse the right of self-determination of peoples. Nevertheless, such right is not intended to authorize actions in order to dismember or impair the territorial integrity or political unity of a sovereign state. Besides, such international documents are declarations, and not treaties or conventions, what makes them non-binding to the signing states, according to the international law.
Both these UN Declarations actually condemn any action aimed at the partial or total disruption of the territorial integrity of any country. In fact, although there is not one single international law that supports specifically “unilateral secessions”, there are some important legal bases that back up the territorial integrity of a sovereign state, such as Article 2(4) of the UN Charter; Article 3(b) of the African Union Charter; Article 3 of the Montevideo Convention (1933).
The main principle against the recognition of both secessions is that borders of a sovereign state should be changed only by agreement between the parties involved, and as it does not exist in the cases of Kosovo and South Ossetia, there should be no recognition of both secessions, in respect to the territorial integrity of Georgia and Serbia.
The admission of a new country into the international community is crowned by its acceptance in the UN, as it was argued in 1970 by the UN Secretary General U Thant: “the recognition of a state by the international community and its acceptance into the UN implied acceptance of its territorial integrity and sovereignty” (Emerson, 1971 apud Moore, 2004). Nevertheless, the procedure concerning such acceptance is withheld by the UN Security Council, controlled (veto power) by its permanent-members (USA; UK; France; China and Russia). From the five mentioned qualifications for a de facto country to become a de jure one, the acceptance in the UN is a political question that concerns the five permanent-members of the Security Council, since the Article 4(2) of the UN Charter states that the admission of a new state to the membership in such Organization depends on the decision of the General Assembly upon the recommendation of the Security Council. Here we have a clear situation: On the one side, Kosovo’s secession is supported by USA and other Western Countries, without the consent of Serbia, which is backed up by Russia. On the other side, we have South Ossetia’s secession, supported by Russia, without the consent of Georgia, a Western ally. Although such quasi-countries are not UN members, they may enjoy some relative international sovereignty in bilateral relations with the states which have recognized such secessions. It is worth mentioning that China has not recognized Kosovo’s and South Ossetia’s independence due to its concern about independency movements inside its own territory (mainly Tibet, Taiwan and Xinjiang).
As, under the International Law, there is no specific procedure for the constitution of a new state, its recognition is a political liberty act, oriented mainly by the country’s own political goals. The fact that some countries deny to recognize the newborn state means only that such countries do not want to maintain relations with the new state (Moon, 2004), i.e., it is an internal policy issue.
In South Ossetia’s case, no judicial discussion in international courts have arisen. Nevertheless, regarding Kosovo’s case, Serbia has requested the International Court of Justice’s opinion on the legality of such region’s independence. Serbia argues, inter alia, that the unilateral secession made by the temporary Kosovo Government was in violation of the UN Resolution 1244, which guaranteed Serbia’s (formerly Yugoslavia) territorial integrity. The Court’s decision should be based on international law, and not be influenced by historical international rivalry, neither between the interested parties, nor between the forces derived from the Cold War Era. On July 2010, the International Court decided that the declaration of independence of Kosovo did not violate general international law, basically because the international law contains no prohibition on declarations of independence. Serbia still does not recognize the Kosovar independency. One of the main issues is if such decision sets precedent of endorsing secessions in other countries.
A de facto country is born, usually, as an expression of its people’s own intention to be recognized as an independent country, which would be considered the sublime appliance of the principle of self-determination. Nevertheless, although self-determination has been recognized as an international human right principle, it should not threaten the territorial integrity of a sovereign state. For the international legal order to be respected, the recognition of a newborn state should only occur with the consent of its territorial state, as it happened in East Timor and South Sudan cases. The unilateral secession is not included on the right of self-determination due to the internationally recognized principle of the territorial integrity. A pacific and negotiated secession is an example to be followed. The international law must not support separatist movements against a legitimately established Government.
- CRAWFORD, James (2006). The Creation of States in International Law. Oxford. apud MCLELLAN, Timothy George (2009) in Kosovo, Abkhazia and the Consequences of state recognition. C.S.L.R. Volume 5. Issue 1. Cambridge.
- EMERSON, R. (1971), Self-Determination. American Journal of International Law. 65/3:464 in MOORE (2004), p. 224.
- MOON, Hee (2004). Introdução ao Direito Internacional. 2nd Edition. Ltr. p. 206.
- MOORE, Margarete (2004). The Ethics of Nationalism. p.146. / 167. Oxford.
- MCLELLAN, Timothy George (2009). Kosovo, Abkhazia and the Consequences of state recognition. C.S.L.R. Volume 5. Issue 1. Cambridge
Henrique Santos Costa de Souza é mestre em Direito pela University of Southampton, pós-graduado em Direito Empresarial (IICS) e Relações Internacionais – UNESP (firstname.lastname@example.org).