The principle of self-determination and the right of territorial integrity: a legal and a political issue, por Henrique Santos Costa de Souza

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.

 

Bibliography

  • 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 (henriquesouza@hotmail.com).

Print Friendly, PDF & Email

7 Comentários em The principle of self-determination and the right of territorial integrity: a legal and a political issue, por Henrique Santos Costa de Souza

  1. Much of this article is simply plagiarism of MCLELLAN, Timothy George (2009) in Kosovo, Abkhazia and the Consequences of state recognition. 5 C.S.L.R. 1. If you are going to plagiarise, I would suggest you find something a bit more imaginative to copy than this rather straightforward essay written by an undergraduate student.

    One of the few aspects that aren’t is the idea that because territorial integrity is a part of international law it should therefore be respected. This rather naive assumption that the dignity of international law is an intrinsic good ought to be questioned.

    Moreover, the article has misunderstood the Kosovo ICJ case. This case did not consider the legality of Kosovo’s independence. It considered the legality of Kosovo declaring its independence. The distinction was entirely overlooked by the media, but you would expect a student of international law to be a bit more discerning.

  2. Firstly, I would like to thank you for your attention on reading the whole article. You must know that the accusation of plagiarism is rather serious, especially one made in such a frivolous way. I am a lawyer and I am aware of my own acts. Therefore, I would never plagiarize anyone´s work.

    Perhaps you got confused after reading my article, since the subject of McLellan´s article is almost the same as mine. This happens because we were both part of the 2009 International Essay Competition held by the Cambridge Student Law Review (C.S.L.R.), which topic was related to the recognition of newborn states without the consent of the territorial state.

    In fact, I would like to take this chance to congratulate him (Timothy George McLellan) on his article, since it was extremely well written and, consequently, it was chosen to be published at the Cambridge Student Law Review in such a competitive contest. His article was so competent, that I properly cited it on the article published on this website (when I chose to update my original article which sent to the Competition). I can only take as a compliment to have my article compared to the one that was chosen to be published by the C.S.L.R.

    Nevertheless, I recommend you to pay more attention to both articles, as nothing in my article can be classified as “plagiarism”. Nothing at all.

    Now, in order for me to answer properly your comment, I shall do it by referring to each paragraph.

    “Much of this article is simply plagiarism of MCLELLAN, Timothy George (2009) in Kosovo, Abkhazia and the Consequences of state recognition. 5 C.S.L.R. 1. If you are going to plagiarise, I would suggest you find something a bit more imaginative to copy than this rather straightforward essay written by an undergraduate student”.

    I would like to talk about the frivolous accusation of “plagiarism”. As one can obviously see through the article I have written, not only did I mention the name of Timothy George McLellan (lines 17 and 19 of the 3rd paragraph), but I also indicated the source of such article in the bibliography, in the end of the article (“MCLELLAN, Timothy George (2009) in Kosovo, Abkhazia and the Consequences of state recognition. C.S.L.R. Volume 5. Issue 1. Cambridge”). Besides, I have never plagiarized anything in my whole life, so your curious suggestion on “how to plagiarize” is not only useless, but is also immoral and outrageous.

    Among the several important English Dictionaries, the Oxford Dictionary is perfectly able to remind, or even teach, you the meaning of “plagiarism”:

    “the practicing of taking someone else´s work or ideas and passing them off as one´s own”(The Oxford Dictionary. Oxford University Press. Available at: http://oxforddictionaries.com/view/entry/m_en_ us1278519#m_en_us1278519. Accessed in 13/03/2011).

    As unnecessarily explained above for one who pays attention to what one reads, I did not take anyone else’s work/ideas, and it is clear that I did not pass anyone’s work/ideas as my own. According to the rules of the webpage I used to publish my article, not only did I use the Chicago-style citation but I also wrote the reference cited at the end of the article (citing not only McLellan´s article, but some other sources as well). I never hide the author´s name. Actually I even wrote “According to Timothy McLellan” (line 17 of the 3rd paragraph) just before citing his work using the Chicago-style and as one of the sources in the “bibliography”.

    “One of the few aspects that aren’t is the idea that because territorial integrity is a part of international law it should therefore be respected. This rather naive assumption that the dignity of international law is an intrinsic good ought to be questioned.”

    I can name a lot of aspects and analysis of my article that could be considered not only different from McLellan´s, but also new and even polemic, as the one you mentioned above. Some of these aspects, inter alia, are: the comparison between the declarations of independency of Kosovo/Abkhazia and the one of East Timor (3rd paragraph of my article); the percentage of countries member of NATO and of the United Nation recognizing both declarations, showing that these recognitions “reflect a vestige of the Cold War era” (line 8, 1st paragraph and 3rd paragraph of my article); South Sudan´s independency (4th paragraph of my article); the vestige of the Cold War era reflected in the process of admission of a newborn country in the United Nations (7th paragraph of my article). Just to be clear and fair, none, I repeat, none of this arguments are mentioned on McLellan´s article.

    Now, discussing you argument, when I wrote that the territorial integrity is part of the international law, I was based on Article 2(4) of the United States Charter, Article 3(b) of the African Union Charter and Article 3 of the Montevideo Convention (1933). I never used the expression “dignity of international law”. Nevertheless, I wrote about some rights and principles that are enshrined in international law. If you would like to discuss your point of view about my article, please, I will be glad to do it (you might do it here on the website or you can even use my e-mail mentioned in this webpage).

    “Moreover, the article has misunderstood the Kosovo ICJ case. This case did not consider the legality of Kosovo’s independence. It considered the legality of Kosovo declaring its independence. The distinction was entirely overlooked by the media, but you would expect a student of international law to be a bit more discerning.”

    Maybe due to some lack of attention, you have written that my article has “misunderstood the Kosovo ICJ case”. I believe I can quote what I have written in this article: “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.” As you can see by the stressed words above taken from my article, Kosovo’s case, indeed, did not consider the legality of its independence, but the legality of Kosovo´s declaration of independence. Actually we totally share the same point of view: the distinction was completely overlooked by the media. I hope these clarifications helped to make you realize we share the same discerning opinion, one might say.

    Last, but not least, I strongly refuse to accept this alleged accusation of “plagiarism”. One could say that such false claim could only be made by someone who suffers from serious lack of attention or, if not, someone in bad faith (not to mention the lack of arguments to question my article). Both cases would be inexcusable. Usually the recommendation for ADHD is to go to a Doctor. In cases of bad faith, this website policy would probably not allow the publishing of any of the suggestions that would come to the mind of those who disapprove a false accusation of plagiarism. There is even the possibility that some people could even misinterpret unfounded accusations of plagiarism as functional illiteracy. There is a great importance on debating ideas, as long as one, in good faith, pays attention to what someone else has said or written, and shows arguments, not personal and unfounded attacks.

  3. Firstly, “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.” does not cite my work it cites Crawford’s.

    Secondly, this is not the only part of the article with worrying unacknowledged similarities.

    Thirdly, we were not part of the same 2009 International Essay Competition. My article was published several months before the competition was announced.

    None of your other comments merit a response.

  4. Just to clarify the situation concerning the Essay Competition: I was part of the 2010 Competition, held by the University of Cambridge. The theme was “Secession can never be lawful without the consent of the territorial state. Discuss with reference to Kosovo and South Ossetia”. Even thought I consulted your article (as said before, the subjects are almost the same), I wrote my article myself and properly cited yours, consulting lots of other sources (especially newspapers and governmental websites), including those listed in the bibliography. Furthermore, in the 12th paragraph of my previously given response, I have highlighted some of the different aspects and analysis I have written in my article.
    Besides, it would be important if you paid attention to the word “apud” located just before you surname. According to the costumes and the rules of citation, this means that I validly cited your work. Nevertheless, as a demonstration of good faith, I have already asked for the inclusion of your article with your surname in the bibliography.

  5. Em inglês, não existe tal palavra como ‘independency’, é ‘independence’.

    The inclusion of East Timor here is inappropriate, as East Timor was never originally part of Indonesia, nor its predecessor, the Netherlands East Indies, nor was it seeking to secede from it. Unlike China and India, which saw Macau and Goa as Portuguese colonial enclaves in their national territory, Indonesia argued that its national territory was composed only of the former Dutch East Indies, including West New Guinea, and did not include neighbouring Portuguese or British territories.

    East Timor declared independence from Portugal unilaterally in 1975, but this was because it had effectively been abandoned by Portugal. Indonesia invaded and annexed East Timor as its ’27th province’, but this was never recognised by the UN, which maintained that East Timor was a ‘non-self-governing territory under Portuguese administration’ until 1999.

    Kosovo and South Ossetia, on the other hand, are cases of territories which were part of an existing nation state (or its predecessor) and which are now seeking to secede, just as South Sudan already has from Sudan.

  6. Dear Mr. Ken

    Embora o termo mais utilizado seja o “independence”, a palavra “independency” não só existe, como é aceita por diversos dicionários, podendo-se utilizar como parâmetro o prestigiado Dicionário de Oxford.

    The inclusion of East Timor in such article, in my point of view, was not inappropriate, as it was an example of the respect of the international legal order by the international community after many years of negotiation between Portugal (its former controlling state) and Indonesia (the State that invaded and occupied East Timor after Portugal granted its independency), with UN´s supervision. I never said that East Timor was part of Indonesia, not its predecessor. I totally agree that Macau and Goa were different cases.

Top