Tanita Pechalova ANR: 940463
Transcript of Tanita Pechalova ANR: 940463
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‘Remedial secession as right of self-determination: The cases of Kosovo and Abkhazia’
Tanita Pechalova
ANR: 940463
SNR: 1273121
A thesis submitted in partial fulfilment of the requirements for the degree of Masters in
International and European Law awarded by the Tilburg University Law School
Tilburg, the Netherlands
June 2017
Supervisors:
Anna K. Meijknecht
Natasha Stamenkovikj
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Table of Contents
ACKNOWLEDGEMENT .......................................................................................................... 4
ABSTRACT ................................................................................................................................ 5
ABBREVIATION ....................................................................................................................... 6
SECTION I ................................................................................................................................. 7
1. INTRODUCTION ............................................................................................................................ 7
2. THE PURPOSE OF THE THESIS ..................................................................................................... 10
3. CENTRAL QUESTIONS................................................................................................................ 11
i. Is it possible to ascertain a legal principle of remedial secession from customary
international law after the cases of Kosovo and Abkhazia? ......................................................... 11
ii. What do the case of Abkhazia contribute to the concept of remedial secession? ................. 11
SUB-QUESTIONS ................................................................................................................................ 11
i. To what extent does the right to self-determination encompass the right to secession? ...... 11
ii. What does the right of self-determination entail from the Kosovo case’s perspective? ....... 11
4. METHODOLOGY, SCOPE AND OBJECTIVES OF THE THESIS ......................................................... 11
5. STRUCTURE ............................................................................................................................... 13
SECTION II ............................................................................................................................. 14
CHAPTER I: THE LEGAL FRAMEWORK OF SELF-DETERMINATION .......................... 14
1. SELF-DETERMINATION FROM DECOLONIZATION PERIOD TOWARDS CONTEMPORARY CONCEPT
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2. SELF-DETERMINATION BEYOND DECOLONIZATION PERIOD. CONTEMPORARY MEANING ........ 19
3. CONTENT/SCOPE OF SELF-DETERMINATION IN CONTEMPORARY VIEW .................................... 20
3.1. What does external self-determination in its contemporary meaning amount to? ............ 20
3.2. Scope and content of internal self- determination ............................................................ 20
3.3. Subject of internal self-determination ............................................................................... 22
3.4. Denial of the right to internal self-determination ............................................................. 24
3.5. Ways of exercising self-determination externally ............................................................. 25
4. THE BLURRED LINE BETWEEN DISSOLUTION AND SECESSION ................................................... 26
5. DEFINITION OF SECESSION ........................................................................................................ 26
6. SELF-DETERMINATION INCLUDES SECESSION ........................................................................... 28
6.1. Declaration on Friendly relations .................................................................................... 28
7. TERRITORIAL INTEGRITY AND SELF-DETERMINATION .............................................................. 28
8. APPLICABILITY OF TERRITORIAL INTEGRITY REGARDING SELF-DETERMINATION .................... 28
9. TRACE REMEDIAL SECESSION INTO SELF-DETERMINATION ...................................................... 31
9.1. QUEBEC AND AALAND ISLANDS CASES AND THEIR CONTRIBUTIONS ................................... 33
9.2. IS REMEDIAL SECESSION ALLOWED UNDER SPECIFIC CIRCUMSTANCES? .............................. 34
10. Who is entitled to the right of secession as a remedial right against gross human rights
violations? ..................................................................................................................................... 35
10.1 . Who are the people entitled? .......................................................................................... 36
10.2. Does it include minorities? ........................................................................................... 38
11. LEGALITY OF SECESSION ...................................................................................................... 38
12. CONCLUSION .............................................................................................................. 39
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SECTION III ............................................................................................................................ 41
CHAPTER II: THE KOSOVO ADVISORY OPINION ........................................................... 41
1. FACTUAL BACKGROUND ........................................................................................................... 41
2. KOSOVO ADVISORY OPINION ................................................................................................... 42
3. THE IMPORTANCE OF KOSOVO ADVISORY OPINION ................................................................. 43
4. LEGAL ANALYSIS OF THE KOSOVO ADVISORY OPINION ........................................................... 45
4.1. Legality of the declaration of independence ..................................................................... 45
4.2. The Constitutional framework of the Provisional Self-governance .................................. 46
4.3. The legal status of the authors of the declaration ............................................................. 47
4.4. Is the secessionist attempt in accordance with international law provisions? ................. 48
5. SEPARATE OPINIONS OF JUDGES ................................................................................................ 51
5.1. Judge Trindade ................................................................................................................. 51
5.2. Judge Yusuf ....................................................................................................................... 52
5.3. Judge Karoma ................................................................................................................... 54
5.4. Judge Simma ..................................................................................................................... 56
6. CONCLUSION ................................................................................................................. 56
SECTION IV ............................................................................................................................ 59
CHAPTER III: REMEDIAL SECESSION IN THE CASE OF ABKHAZIA ........................... 59
1. INTRODUCTION .......................................................................................................................... 59
1.2. Historical overview ........................................................................................................... 59
2. A POSSIBLE ANALOGY WITH KOSOVO CASE ............................................................................. 60
3. THE APPLICATION OF THE LEGAL FRAMEWORK OF SECESSION ................................................. 62
3.2. People/peoplehood ............................................................................................................ 63
3.3. Oppression/segregation and gross human rights violations ............................................. 64
3.4. A denial of internal self-determination, exclusion from participation in the political life
and exhausted all possibilities to resolve the issue peacefully ..................................................... 65
3.5. Sub-conclusion .................................................................................................................. 66
4. EXTERNAL INTERVENTION AND PROCEDURAL RULES .............................................................. 67
5. CONCLUSION ............................................................................................................................. 71
SECTION V ............................................................................................................................. 73
GENERAL CONCLUSION ...................................................................................................... 73
SECTION VI ............................................................................................................................ 78
BIBLIOGRAPHY .................................................................................................................................. 78
STATEMENT OF INTEGRITY ............................................................................................................... 86
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Acknowledgement
This thesis was a long journey which I begin without realizing it. This was my first serious research
in my academic practice, which I completed thanks to the guidelines and support I received through the
year. I would like to express my deep sense of gratitude to my supervisor ass. prof. Anna Meijcknecht
for her support, encouragements and advices which guided me through the whole journey. Thank you
for your professionalism! Your dedication inspired me! I could not ask for better guidelines and
encouragement. I am very grateful to Evgeni for the constant support and that you did not stop believing
in me, even when I was in doubt! I am grateful that life gave me Ines, Marta and Rati with who for
better and worst we were all together. Without you girls everything would had been different!
На първо място искам да благодаря на моята майка! Цял живот ще ти бъда благодарна, че
ми помогна да осъществя тази моя мечта! Благодаря ти за вярата, куража и за съвети, които
ми даваше! Без теб и твоята подкрепа, аз нямаше да успея!
Посвещавам тази дипломна работа на теб!
To my mother
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Abstract
The essence of the present research is to examine whether remedial secession exists as legal
entitlement of people, subject to oppression. This question seems more than urgent in the
context of many instances of secessionist conflicts. Although, to differ from one another, they
demonstrate the need to redefine some legal concepts and to search for new notions in the
sphere of international law. Until now there are some judicial decisions which add value and
question the possibility of a future establishment of remedial secession as legal entitlement.
Nevertheless, international law remains reluctant to define one, regardless of state and judicial
practice. All of the above defines why remedial secession is so widely debated nowadays. That
leads to the main purpose of the present research: to trace remedial secession based on the
practice and the judicial decisions. Remedial secession should be examined from a broader
perspective, which requires analysis based on the international legal framework in conjunction
with the practice. The international legal framework of self-determination provides
considerable evidence that there is room left for future emergence of remedial secession. The
focus will be on two striking episodes of secessionist conflicts and their aftermath, including
the controversial advisory opinion of the International Court of Justice. Based on this approach,
the paper will outline the striking features with the aim to demonstrate why this concept is so
widely debated. Whether there is enough legal and practical evidence to trace remedial
secession will be a leading intention through the whole research. This will demonstrate how
remedial secession continues to fluctuate between the legal and political spheres of life.
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Abbreviation
(ACHPR) African Charter on Human and Peoples’ Rights, adopted in 1981
(EJM) Europäisches Journal für Minderheitenfragen
(FRD) Friendly Relation Declaration
(ICCPR) International Covenant on Civil and Political Rights
(ICESCR) International Covenant on Economic, Social and Cultural Rights
(ICJ) International Court of Justice
(KAO) Kosovo Advisory Opinion
(LNOJ) League of Nations Official Journal
(LJIL) Leiden Journal of International Law
(OAS) Organization of American States
(OAU) Organization of African Unity
(OSCE) Organization for security and Co-operation in Europe
(OUP) Oxford University Press
(PISG) Provisional Institution for self- government
(UN) The United Nations
(UNGA Res.) United Nations General Assembly Resolution
(UNMIG) The United Nations Observer Mission in Georgia in 1993
(UNMIK) The United Nations Mission in Kosovo
(UNSC Res.) The United Nations Security Council Resolution
(VCLT) Vienna Convention on the Law of Treaties of 1969
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“In the essence, the right of self-determination means that individuals and peoples should be
in control of their destinies and should be able to live out their identities, whether within the
boundaries of existing States or through independence.” Alfred de Zeyas1
Section I
1. Introduction
The dissolution of the Socialist Federal Republic of Yugoslavia (SFRY) in the early 1990s
occurred as a cause of the wars on the Balkans and is a crucial phenomenon for many reasons.
It is important for international law, not only because of the mass atrocities which happened
there, but also because of the subsequent separation of states and the respective reactions of the
great powers. It dissolved into six separate countries and two provinces Kosovo and Vojvodina
which remained autonomous within Serbia. Even though Kosovo was granted with expanded
rights for self-government and autonomy, a revocation of its autonomy by the Serbian
government resulted in an ethnic conflict in Kosovo.2 As a consequence, the oppression by the
Serbian Government led to the war between Kosovo and Serbia. This resulted in Kosovo’s
secession and its unilateral declaration of independence which were achieved through the
intervention of NATO and the UN. A few months after the controversial Kosovo case, Russia
signed decrees of recognition for South Ossetia’s and Abkhazia’s independence.3
NATO’s bombing campaign in Serbia and Kosovo4, the large amount of crimes committed by
Kosovars against ethnic Serbs and other minorities and the unilateral declaration of
1 UN General Assembly, Report - A/69/272 Promotion of a democratic and equitable international order an interim
report of the Independent Expert on the promotion of a democratic and equitable international order, Alfred-
Maurice de Zayas, submitted in accordance with Assembly resolution 68/175.
2 Christian Axboe Nielsen, 'The Kosovo precedent and the rhetorical deployment of former Yugoslav analogies
in the cases of Abkhazia and South Ossetia ' [2009] Vol 9(9:1-2 edn) Southeast European and Black Sea
Studies 174 171-189, p. 171-174 for further overview of the historical background; 3 Bruno Coppieters (2012) Conflict resolution after the 2008 Georgia–Russia War: The Taiwan and Kosovo
models as tools for mobilization and comparison, Nationalities Papers, 40:5, 677-701, p. 680, the author claims
that Russia when recognizing the two regions as independent used moral and legal arguments similar to those
used by the countries which recognized Kosovo unilateral declaration of independence in 2008. 4 Christian Axboe Nielsen, 'The Kosovo precedent and the rhetorical deployment of former Yugoslav analogies
in the cases of Abkhazia and South Ossetia ' [2009] Vol 9(9:1-2 edn) Southeast European and Black Sea
Studies 174 171-189, p. 173;
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independence of Kosovo that followed, brought up the question of self- determination and the
legality of such unilateral acts of determination. Especially in a context of such gross violations,
the usage of the term “remedial secession” seems more than adequate. But international law
still remains reluctant to define a right to remedial secession and to ascertain it as a legal
principle.
The controversial aspect of the Kosovo case derives from the fact that an internal issue was for
the first time recognized as international. Moreover, the UN legalized to alter territorial
integrity for the sake of prosecuted population. Further tension was added in 2010 when the
International Court of Justice issued its advisory opinion5, requested by the General Assembly
of the UN (UNGA), which stated that the unilateral declaration of independence did not violate
any rules of international law. This advisory opinion was crucial because it did not add
straightforward new value of the notion of remedial secession, but more questioned its power
by the uncertain features of the advisory opinion. The ambiguous advisory opinion was also
used as a pretext by Russia in justifying its actions regarding South Ossetia and Abkhazia. This
only confirmed the exceptionality of the Kosovo case. Even though, the court disregarded the
legality of the unilateral act6, Kosovo has been recognized as independent by a number of
states, excluding Serbia, Georgia and Russia. However, the external recognition of Kosovo
cannot fulfil the Kosovars’ expectation to finally be considered as a separate state from Serbia.
Neither has Kosovo been accepted in the United Nations or European Union. Kosovo’s
unilateral secession, which was described as sui generis7 exception of the existing practice,
could lead to a solid base to claim the existence right of remedial secession.
5Accordance with International law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory
Opinion, I.C.J. Report 2010, p.403, para.122; 6Accordance with International law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory
Opinion, I.C.J. Report 2010, p.403, para.81, The Courts “the illegality attached to the declarations of
independence thus stemmed not from the unilateral character of these declarations as such, but from the fact that
they were, or would have been, connected with the unlawful use of force or other egregious violations of norms
of general international law, in particular those of a peremptory character (jus cogens). (…)” 7Christian Axboe Nielsen, 'The Kosovo precedent and the rhetorical deployment of former Yugoslav analogies in
the cases of Abkhazia and South Ossetia ' [2009] Vol 9(9:1-2 edn) Southeast European and Black Sea Studies 174
171-189, page. 174; the author notes the fact that the States which recognized Kosovo as a State, describe it as
unique “sui generis”. As the author Ch. Nielsen refers to the words of EU Enlargement Commissioner Olli Rehn-
and that should not be interpreted as precedent (Rehn 2007); Ch. Pippan, 'The International Court of Justice’s
advisory opinion on Kosovo’s declaration of independence: an exercise in the art of silence' [2010] 3-4(9:1-2
edn) EJM 154, the author refers as well to the sui generis right to “remedial secession” if certain conditions are
satisfied.
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Series of tensions during the Soviet period between the Georgian government on one side and
the Abkhazia on the other, emerged in secessionist ethnic conflict.8 Historical injustices, the
democratization processes under the perestroika in the 1980s and the subsequent dissolution
of the Soviet Union led to the continuous struggle for ethnic determination of the population in
the region of Abkhazia within Georgia.9 This secessionist conflict provides different aspects
on the debate about self-determination and whether the right of remedial self-determination is
applicable in the case of Abkhazia. An involvement of Russia during the whole conflict, led to
the even more urgent questioning of remedial secession as a concept. The following unilateral
recognition of Abkhazia by Russia10 demands to trace the link between self-determination and
recognition. Further attention will be drawn on whether recognition is a possible solution or
deterioration of secession.
Both the cases of Kosovo and Abkhazia concern one fundamental concept of the international
public law: self-determination as unilateral secession as methods of achieving statehood and
recognition. Through the attempts for ethnic determination in Kosovo and Abkhazia, the
research will try to outline whether the right of self- determination includes a general right of
unilateral secession and whether it is possible to evoke the doctrine of remedial secession after
these cases. Both cases draw specific attention to the paradigm of statehood recognition,
unilateral self-determination, and questions the possibility to ascertain the concept of remedial
secession on the legal arena of customary international law.
8 Bruno Coppieters, Europeanization and conflict resolution, case study from the European periphery. Academia
press 2004, p. 191 Chapter 5 The Georgian-Abkhaz conflict, the author goes back to the second half of the
nineteen century when a dissolution of the Transcaucasian Soviet Federated Socialist Republic created three union
republics: Azerbaijan Georgia and Armenia. An established subordinate relation between Abkhazia and Georgia
under the Soviet Structures, the destalinization in 1950s and the unsuccessful reforms led to protests and tension
between Georgia and Abkhazia in 1970s, according to the author. The democratization policies under Gorbachov,
the Georgian proclamation of independence in 19991 and the change in the political power in Georgia worsen the
relation between Abkhazia and Georgia. See Benedikt Harzl, Nationalism and Politics of the Past: The cases of
Kosovo and Abkhazia, Martinus Nijhoff publishers, Review of Central and East European Law 36 (2011) 53-77,
p. 70 for further elaborations. See also Chapter III of the present research, page 43-45; 9Bruno Coppieters, Europeanization and conflict resolution, case study from the European periphery. Academia
press 2004, Page 175-177; See also Svante E. Cornell Religion as a factor in Caucasian conflicts, Civil Wars,
(1998), 1:3, 46-64, p. 51, the author elaborates that perestroika “exacerbated” the existing tensions and was seen
as a change to revive the claim for independence by Abkhazians; See Bruno Coppieters The politicization and
securitization of ethnicity: The case of the Southern Caucasus, Civil Wars, (2001), 4:4, 73-94, see p. 74-77 the
author traces to define whether this conflict can be seen as inter-states or intra-state. The author elaborates on the
effects of the dissolution of Soviet Union, which according to him was caused by the increasing ethnic tension
and the economic disintegration after the elections of Zvian Gamasakhurdia for a president of Georgia. 10 Bruno Coppieters Conflict resolution after the 2008 Georgia–Russia War: The Taiwan and Kosovo models as
tools for mobilization and comparison, Nationalities Papers, (2012), 40:5, 677-701, p. 690-691, the author
elaborates that Russia used just-cause principle to justify its act by stating that independence is the only way to
prevent human rights abuses.
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2. The purpose of the thesis
On one hand, the purpose of the research is first to examine the case of Kosovo and the
advisory opinion given by the International Court of Justice regarding its unilateral declaration
of independence and how these events contribute to the development of the notion of self-
determination. The focus will be on two main issues: whether self-determination includes
secession and whether it can amount to unilateral secession. The issue of self-determination is
two dimensional: internal and external self-determination and including the issue of possible
claim of secession from an already existing state.
More tension was put on that notion after the Kosovo Advisory opinion was given, which
provides interesting insights regarding the external self-determination as a possible outcome in
situations of unilateral declaration of independence and how it contributes to the development
of the notion of self-determination. The advisory opinion is uncertain not only because of the
ambiguous actions taken by the Court in evaluating its jurisdiction, discretion and in
reformulating the question, but also because it remains reluctant to give a precise answer to the
crucial notions of self-determination and remedial secession in the Kosovo context. However,
there are some elements of the Advisory opinion which are contributing to conclude that some
value is added to these notions, even though not explicitly mentioned. This will be evaluated
in order to provide insights that, even though the opinion is too vague and narrow in some
points, it can be considered as contributing to the notion of remedial secession.
My intention is, by taking the idea of secession as external self-determination which might
include unilateral secession as a manner of determination of political structure, status and
sovereignty, to examine the case of Abkhazia. The unilateral secession has two perspectives-
as a right of self- determination of people, and as a remedial right- a last resort of serious
violations. Therefore, first I will examine the legal value and nature of the multi-layered notion
of self-determination, upon which I will try to analyse secession as last resort in the Kosovo
case and if it possible to ascertain a legal principle of remedial secession. The case of Abkhazia
will be a further focus in the present research and whether it adds value to the notion of remedial
secession in its aftermath.
Based all of the above, the research will conclude whether the cases of Kosovo and Abkhazia
amount to enough state practice and whether that state practice demonstrates the need and
States’ to define a legal concept of remedial secession, from customary law.
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3. Central Questions
i. Is it possible to ascertain a legal principle of remedial secession from customary
international law after the cases of Kosovo and Abkhazia?
ii. What do the case of Abkhazia contribute to the concept of remedial secession?
Sub-questions
i. To what extent does the right to self-determination encompass the right to secession?
ii. What does the right of self-determination entail from the Kosovo case’s perspective?
4. Methodology, scope and objectives of the thesis
The first sub-question will be explored theoretically in order to provide a legal framework
upon which to scrutinize the cases of Kosovo and Abkhazia. Hence, a descriptive analysis of
the nature and value of the principles of self-determination will be applicable here. The
framework will outline the development of self- determination as a principle toward its
establishment as a right of determination. The legal framework requires a brief historical
evaluation of this establishment as a principle from the decolonization period. Self-
determination from legal perspective is closely related to the principle of territorial integrity,
thus will make legal analysis. Therefore, the structure of self-determination from
decolonization period and how it is developed through time will including primary sources of
international law.
Self-determination holds two important issues11: first i) who has the right of self-
determination, and second ii) regarding the claim of secession from already existing state. For
the sake of this research paper, the first will be analysed briefly, and the focus will be on the
second issue. This will logically introduce the question of unilateral secession, due to its close
relation with territorial integrity. In such circumstances I will try to give an answer the question
whether the unilateral secession consists of elements of remedial right of secession as a last
resort.
This requires to elaborate the case of Kosovo from the historical background towards self-
determination from the perspective of the Kosovo advisory opinion given in 2010.
In the first chapter the focus will be on primary sources of international public law12 and
11 Jan Klabbers, International law (Cambridge University Press 2013) 117 Chapter VI- Self- determination; 12 Article 38 (1) (a), Statute of the International Court of Justice (1945), UNGA-Res. 2625, UN Charter, Helsinki
Final Act, ICCPR, Vienna Declaration, Rambouillete Accords;
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academic literature, so to examine the nature and the legal framework of self-determination. In
this context I will examine whether it encompasses a unilateral secession and whether it can be
considered as a part of the right of self- determination of groups of people from existing states.
Thus, the focus will be on external self-determination from the perspective of secession. I will
describe the development of the right to Self-determination since the First World War by
introducing the following issues:
I) Who has the right of self- determination in international law?
II) Does the right to self-determination encompass the claim of secession from an existing
state?
III) The concept of unilateral secession
IV) The notion of remedial secession in the context of mass atrocities
The second chapter will focus on the Kosovo advisory opinion given by the International Court
of Justice for the unilateral declaration of independence of Kosovo. I will make a legal analysis
of the advisory opinion and the subsequent separate judges’ opinions on the advisory opinion.
Then will outline whether the advisory opinion adds new value and insights and whether is
influencing on the international legal order. Then a relevant connection between the Kosovo
case after the advisory opinion and the case of secession of Abkhazia will be drawn.
The third chapter is focused on the case of Abkhazia and the attempt of secession. It requires
to outline the historical background of the case, and to do a brief analogue whether it can be
considered similar to the Kosovo case. This will outline whether Kosovo was used solely as
justification to support political interests by recognizing Abkhazia as independent state by
Russia. Whether a new value to the notion of remedial secession is added after Abkhazian case
will be a central question. Based on all of the above, the paper will search for an answer if it is
possible to define these cases as enough state practice to ascertain a legal principle of remedial
secession.
Therefore, in the analysis of these concepts, the cases of Kosovo and Abkhazia will play a
major role in the tracing of the right of remedial secession. This leads to the second central
question of the research- how these cases contribute to the concept of remedial secession, which
is a case-oriented study, which is why I will apply a qualitative research. I will use these cases
as a guideline in order to provide an answer to the question if a remedial right of secession can
be recognized as general principle of public international law.
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5. Structure
The purpose is on the basis of the cases of Kosovo and Abkhazia to ascertain the legal
notions and to elaborate whether these cases add new value to the concept of remedial
secession. Therefore, the research will focus on two main questions and two sub-questions.
The idea behind the central questions is to examine how remedial secession is emerging,
providing answers from legal aspect and political aspect of this concept. The substantive body
will be separated as following: first chapter will provide the framework of the development of
self-determination, where I will determine the general principles of international law and
whether the emergence of a right of (remedial) secession can be traced. The second chapter
will be focused on the practice including the advisory opinion given by the International Court
of Justice regarding the unilateral independence of Kosovo and its contribution to the idea of
remedial secession. The third chapter will focus on the case of Abkhazia and whether it is
adding value to the development of the notion of remedial secession. The first central question
is the legal one, which answer will conclude the whole research, while the second one is more
political which will be applicable in Chapter III.
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Section II
CHAPTER I: THE LEGAL FRAMEWORK OF SELF-
DETERMINATION
Abstract
The main purpose of this chapter is to trace remedial secession on the basis of the evolution of
self-determination. Thus, I will first elaborate the development of the right to self-
determination by briefly describing the pre-WWII era conception of self-determination and
subsequently, by focusing more on the contemporary post-WWII understanding in its internal
and external form. The main focus will be on whether self-determination is valid in the post
decolonization period; who the bearers of the right to determination are and whether there is
a legal concept of secession. On this surface I will try to trace remedial secession in a context
of gross violations.
Self-determination as concept was widely elaborated and examined by many scholars13 of
international public law. Its development can be outlined prior to the World War I, in the
American and French Revolution14, in ethnic nationalism and in the conceptions of Lenin15 and
Wilson16 who elaborate self-determination as in the concepts of democracy and nationality. As
Ryngaert and Griffon17 note, Wilson for the first time links the right of a people to “participate
13Many authors are scrutinizing the development of self-determination. In this point I will refer mainly to J.
Crawford (2006), S.Driest (2013), D.Raic (2002), H.Hannum, E.Brewer, Buchheit as authors which are
elaborating this concept. 14Simone Driest- Remedial secession; A right to external self-determination as a remedy to serious injustices?
2013, Schools of Human Rights Research Series, Volume 61, page 14; H Hannum, 'Rethinking of self-
determination page' [2011] Vol 34(1) Virginia Journal of International Law,3; D. Raic (2002); Crawford (2006) 15 Simone Driest, Ibid. page 15: Lenin’s conception (in his “Theses on the Socialist Revolution and the Right of
Nations to Self-determination from 1916 and Soviet Declaration) elaborates the right to self-determination more
as general condition of liberation; as right to nations as victims of oppression or subjugation, and which want to
break away from such an oppression. His view is related to the creation of new state and implies a right to secession
according to the author. Lenin believes that this right should be used in order to spread the socialist revolution and
to create universal socialist community. 16 Ibid. Simone Driest, page 15, the author takes the view that self-determination can be connected to the division
of different ethnic groups in the world, which was called nation, and they will be the grounds of establishing
statehood. This theory embraces the view that the individual can achieve self-realization only through the nation.
See also Shaw- International Law (Cambridge University Press 2008, Sixth Edition) page 251; D Raic, Statehood
& the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002) 189); 17 Cedric Ryngaert and Christine Griffioen, 'The relevance of the right to self-determination in the Kosovo Matte:
in partial response to the Agora Papers' [2009] 1(1) Oxford University Press 547
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in the decision-making process within a State”, which according to Raic18 is purely an internal
form of self-determination. Another important contribution was brought in the Aaland Island
case, where self-determination was described as a “principle of justice and of liberty”19 and it
was acknowledged as a possible exceptional solution and as a last resort to secession, when no
alternative is provided.20 Some authors elaborate the view that self-determination goes through
different stages21 of evolution. However, a more noticeable development to the right to self-
determination happens after the WWII and the establishment of UN Charter in 1945 which I
will elaborate elsewhere in this chapter. Self-determination as a legal notion is widely
connected to the question of achieving independence. Firstly, it was perceived as an external
form of determination22 in the decolonization period, which was purely a right of peoples under
colonial oppression. Subsequently, its evolution continues in emerging as a form of internal
and external self-determination. While many international documents23 provide valuable
insights regarding self-determination, they also give rise to the question of secession and in
“exceptional circumstances”24 to remedial secession. Therefore, before going into depth in the
contemporary meaning of self-determination and tracing secession, self-determination will be
described in the decolonization context.
1. Self-determination from decolonization period towards contemporary concept
In the wake of the end of WWII, a need for new international organization to maintain
peace25 in the post-war time led to the creation of the United Nations and the subsequent
18David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002) 237
describes the form of internal self-determination as: “(…) mode of implementation of political self-determination
which denotes a right of a people to participate (a right to have a say) in the decision-making process of the
State”. Also refer as “right of participation”. However, the W. Wison contribution but fails to universalize self-
determination by not including it in the League of Nations Covenant according to Shaw 2008, page. 225). 19 The Aaland Islands Question, examined by two groups of experts of the League of Nations, Report presented
to the Council of the League by the Commission of Rapporteurs, League of Nations Doc. B.7.21/68/106 (1921)
at 27, Shaw- International Law (Cambridge University Press 2008, Sixth Edition) page 251, elaborates that the
case demonstrates that the principle of self-determination was purely a political concept, then legal rule of
international law. 20 Simone Driest- Remedial secession; A right to external self-determination as a remedy to serious injustices?
2013, Schools of Human Rights Research Series, Volume 61, page 26, By referring to the Report of the
International Committee of Rapporteurs, 16 April 1921, Council Document paras 22-23, the author notes that this
case is crucial not so much for the establishment of self-determination as principle, but for the acknowledgement
of remedial secession as possible remedy of last resort when no alternative is provided. Or to add more on what
Driest add for SD from Aland case 21 Ibid. page 26 22 Antonio Cassese, Self-determination of people (Cambridge University Press 1995) 72; 23 ICCPR, ICESCR, FRD, Helsinki Final Act, Vienna Declaration; Supreme Court of Canada; 24 Canadian Supreme Court refers to exceptional circumstances” when a right to secession may arise. Find It
exactly 25 Article 1(2) of UN Charter “(…) to develop friendly relations among nations based on respect for the principle
of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal
peace (…)”
16
proclamation of the UN Charter (1945). In the Charter, self-determination is mentioned twice:
in article 1(2) which states that among the main purposes of the UN is to maintain friendly
relations respecting the principles of equality and self-determination of people.26 A crucial
point worth noticing is the reference of “people” in article 1 (2) and article 55 of the Charter.
Although Crawford27 argues that there is an implicit proclamation of the general right of self-
determination, we can observe from the narrow view of the UN Charter that self-determination
was not defined as a legal principle. Nevertheless, the subsequent resolutions adopted by the
UN General Assembly are providing the necessary clarification and some new insights,
defining the principle of self-determination as a right of colonizing entities.28
The UN General Assembly adopted Resolution 1514 in 1960 (so called “Declaration on
granting independence to Colonial Countries and Peoples”29) which is imposing that “all
peoples”30 are the subject of self-determination and who have the right of self-determination
which denial is to be considered as contrary to the Charter. Hence, the bearers of the right of
self-determination are considered as subject31 of domination, exploitation and rejection32 of
fundamental human rights. This resolution associates the application of self-determination to
the free determination of political status and economic development.33 This, according to Burak
Cop34 is an important step and a sign for the subsequent development of the ICCPR in view of
26 UN Charter, article 1(2) “To develop friendly relations among nations based on respect for the principle of
equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal
peace;”; 27 James Crawford, The creation of new states in international law. Oxford University Press 2007, p. 114; 28 The evolution of self-determination as right is connected to Chapter XI and XII from UN Charter, as
Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002) p. 131describes
as the background of the evolution of self-determination as legal right. The territorial applicability of self-
determination is interconnected with what was established under the Charter: Non-self-governing territories and
trust territories28. A further effort of General Assembly to ascertain authority over these territories, led to adoption
of number of resolutions, including the UNGA Resolution 1514 from 1960 on the Granting of Independence to
Colonial Countries and Peoples (Declaration on Colonial Independence), Resolution 1541 defining the three
options for self-determination and Declaration 2625 on Friendly relations from 1970. This move of the UN, Raic
describes as important shift happens in the view of, “gradual development of Non-Self-Governing territories”
towards “immediately granted independence”28. 29 Which demonstrates a move towards immediate “end of colonialism in all its manifestations”29 and proclaims
that “immediate steps shall be taken, in Trust and Non-Self-Governing Territories or all territories which have
not yet attained independence (…)”29 which defines the territorial jurisdiction of the declaration. 30 Ibid. supra note 2; 31 Therefore, Resolution 1514 refers to people who are under foreign domination as its name refers and defines
oppression. 32 As confirmed also in Res. 1514 note 5, Namibia case, p.31, note 73; Res. 2625 note 5. Principle V (from Raic
page 146); 33 A closer look on the resolution, will notice that in supra note 5 it refers to freely application of self-determination
and free determination of political status. 34Burak Cop and Dogan Eymirlioglu, 'The right of self-determination in international law towards 40th
anniversary of the adoption of ICCPR and ICESCR' [2015] 1(1) Perceptions 118;
17
self-determination. It is considered to be a “move”35 from a principle towards a “right to self-
determination”.36 The final goal of self-determination is to cease armed actions or repressions
and to “exercise complete independence”37, hence “all colonial territories have the right of
independence”38. In the decolonization aspect, self-determination is elaborated in the form of
an external39 rather than internal manifestation.
UNGA Resolution 1541 from the same year confirms that self-determination refers only to
colonial territories, which are separate from the metropolitan state.40 Its most valuable
contribution is the elaboration of the three possible ways41 to achieve self-determination in its
external form in the context of decolonization.42 The three types of achieving self-governing
territories are:
“Emergence as a sovereign independent State;
Free association with an independent State;
or Integration with an independent state.”43
Thus, it can be argued that achieving independence is the main goal of external determination,
and that self-determination was primarily referring to colonial territories. This limits the
application of self-determination rejecting the possibility of “a permanent right of self-
35 David Raic, Statehood and the law of self-determination, Volume 43, Kluwer Law International 2008, page
215-217, As the author elaborates a number of resolution were adopted under the title of “the right of peoples and
nations to self-determination” as UN Res. 637 (A/B/C) from 1952 regarding recognize and promote the realization
of right to self-determination, UN Res. 742 (VIII) from 1953 regarding the guiding factors in determining whether
a territory is within the scope of Chapter XI UN Charter. Resolution 1188 (XII) from 1957, etc. D. Raic notices
that the character of the right to self-determination under customary international law is visible even prior to Res.
1514. And that Res. 1514 in fact demonstrates an existing rule of customary law. As he notes under supra note
200, that there are many resolutions adopted post 1960 which also prove the existence of right to self-
determination.
36 Ibid. and as supra note 6 of Res. 1514 makes reference, the principle of equality and territorial integrity which
are limitations and leading in non-interference in internal affairs and the respect of sovereign rights of all people 37 Ibid. supra note 5; 38 Hurst Hannum, 'Rethinking of self-determination page' [2011] Vol 34(1) Virginia Journal of International
Law,12; 39 David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002) page
227-228, “external” self-determination in colonial situations is the only relevant form. 40 The phrase “metropolitan state” is used by James Crawford, The creation of new states in international
law (Oxford University Press 2007) 285This is in contrary to the elaboration of Hurst Hannum, Ibid. where the
author argues that this does not refer to a possibility one territory to be home to more than one group of people.
Therefore, peoples are linked to territories and considered as its nation. See Hurst Hannum, 'Rethinking of self-
determination page' [2011] Vol 34(1) Virginia Journal of International Law,13 for further elaborations; 41 UN Res. 1541, Principle VI; 42 First the resolution defines that it refers only to territories known to be from colonial type according to UN Res.
1541, Principle I 43 UN Res. 1541, Principle VI;
18
determination”44, and defining it more as of “temporal nature” which operates only in specific
situations45 and only until self-government and independence is achieved. The resolution
provides implicitly that a leading principle is the free will of peoples regarding their political
and economic development, or also called “the principle of free choice”46 for their political
status.47 It also confirms that the main goal is to achieve independence, and once that is
achieved, the right of self-determination can be completed.48
The development of self-determination was widely influenced by some advisory opinions of
the International Court of Justice, which were scrutinized by many scholars.49 In a nutshell,
the case of Namibia defines the three main points in the concept of self-determination: it applies
to peoples subject to colonial rule, it refers to its external form and it applies to the people as a
whole.50 The case of Western Sahara confirms the view of free determination of political status
“by their own freely expressed will”.51And as Driest notes the court deliberates self-
determination as legal principle in the context of decolonization and that it was perceived as
legal entitlement. This entitlement according to Raic was explicitly qualified by States
(referring to Spain in the case of Western Sahara) as a norm of “jus cogens”.52 In the former
case Raic notices that the “entitlement to respect the right to self-determination is erga
44 Ibid. page 227 David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law
International 2002) 189 the author elaborates that in the light of decolonization period, the concept of self-
determination develops into positive right of oppressed territories, which have the right freely to determine the
achieving of “self-government” through emerge, integration or association. The bearer of the right to self-
determination is mainly the peoples under colonial oppression. 45 David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002) 226,
Chapter 6 the post-colonial era: internal and external self-determination; 46 Ibid. page 212 in accordance to principle VII of Resolution 1541; 47 Ibid. page 219; 48 According to principle II of Resolution 1541 and to Resolute 1514; 49 See David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law
International 2002) p.103,145, 218-219 East Timor; Shaw- Sahara case 236-237, 254, East Timor case 1068 and
1078, Namibia- 1219, Simone Driest- Remedial secession; A right to external self-determination as a remedy to
serious injustices? 2013, Schools of Human Rights Research Series, Volume 61, Chapter II; 50 Legal Consequences or States in the Continued Presence of South Africa in Namibia (South West Africa)
notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p.16; See
Cassese p. 72, ICJ Reports 1971, para .52 51 Western Sahara case, ICJ Reports 1975, p.12, note 73, David Raic, Statehood & the Law of Self-
Determination (Vol 43 edn, Kluwer Law International 2002) page. 132; See also Shaw International law,
Cambridge press, 6th edition, 2008, page 254 and S Simone Driest, Remedial secession, A right to external self-
determination as a remedy to serious injustices? (Volume 61, School of human rights research series 2013) 34
chapter II; 52 David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002) p. 218
referring to Spain, Western Sahara ICJ, pp. 206-208; Algeria pp. 497-500; this stance is also defended by S Simone
Driest- Remedial secession; A right to external self-determination as a remedy to serious injustices? 2013, Schools
of Human Rights Research Series, Volume 61, p. 34-35;
19
omnes”53 and this is a step further in the evolution of self-determination.54 Also in that case it
states that this right of self-determination is a core principle of contemporary international
law.55
2. Self-determination beyond decolonization period. Contemporary meaning56
Abstract
As it was highlighted above, self-determination was widely perceived in its external form of
application in the decolonization period. However, on one hand the contemporary evolution of
self-determination continues its development, while on the other hand it is emerging as two-
dimensional. In the context above self-determination was primarily expressed externally, but
the contemporary meaning encompasses internal form57as well. As Raic rightly emphasizes,
this internal mode must be understand as another method of exercising self-determination, and
not as different rights of self-determination.58 Although a brief overview of the internal form of
self-determination will be applied here, the primary focus will be on external self-
determination in its contemporary modes of application.
53 David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002) page
145, East Timor case, Judgement of ICJ Reports 1995, p. 102, note 241; See Simone Driest- Remedial secession;
A right to external self-determination as a remedy to serious injustices? 2013, Schools of Human Rights Research
Series, Volume 61, page 35 note 101 for what is erga omnes: character of a norm indicates that the norm concerned
applies to the international community as a whole and that all states can be said to have a legal interest in its
protection. Barcelona Traction? 54 Erga omnes obligation according to the Barcelona Traction case of 1970 these are the obligations concerning
all states and are directed to the international community. The concept impose that these obligations are for the
interest of the whole community. From Latin means “towards all” according to Oxford reference:
http://www.oxfordhandbooks.com/view/10.1093/law/9780199640133.001.0001/law-9780199640133-e-24 ; On
the other side and jus cogens refers to norms from which no derogation is permitted according to Vienna
Convention on the Law of Treaties of 1969 (VCLT); For further elaborations on these concepts see Erika De Wet,
Jus Cogens and Obligations Erga Omnes (January 15, 2013). Dinah Shelton (Ed), The Oxford Handbook on
Human Rights (OUP 2013) Forthcoming. Available at SSRN: https://ssrn.com/abstract=2279563, Chaper 23; 55 Ibid. See David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002)
p. 145-146 for further elaboration. 56 The contemporary development of self-determination as a concept continues with the ICCPR, ICESCR,
Friendly Relation Declaration, the OSCE Helsinki Final Act, the African Charter on Human and Peoples’ Rights
and the Vienna Declaration and Programme of Action from the World Conference on Human Rights. More value
is added from the practice of ICJ, so will be also elaborated. 57 Cassese, Self-determination of people (Cambridge University Press 1995) elaborates the view that in the
practice of the UN Human Rights Committee, can be deduced that first the idea of internal self-determination was
“neglected”. It followed more loose interpretation of ICPPR art. 22 and 25; that under OP only individuals can
lodge communications; subsequently it was a turn more on internal self-determination as democratic decision-
making process. For further details, see p. 64; 58 David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002) Page
227;
20
3. Content/scope of self-determination in contemporary view
3.1.What does external self-determination in its contemporary meaning amount to?
Self-determination continues to be valid after the decolonization period, defined as
universal59 and “unquestionable”60 right. It belongs to all people without distinction61 and it
was perceived as a norm linked to the principle of equal rights.62This link extends to the idea
that all states have to provide to all peoples the right to determine their internal and external
political status.63 Furthermore, as the Human Rights Committee elaborates in its General
Comment 12, all States parties have the obligation not only to all its population, but to the
people who have not exercised or did not have the possibility to exercise their right to self-
determination.64 Raic defines that the purpose of the right to self-determination is to guarantee
“the effective development and preservation of the collective identity of a peoples as well as
for the enjoyment of the individual human rights of its members”.65
3.2. Scope and content of internal self- determination
The ICJ’s stance in the case of South Sahara66 is that internal self-determination should
exercise in a free manner including the political, economic and cultural development of all
people. If we take this view, it should be regarded as a “method” by which States must take
decisions over their peoples- by respecting their free will internally.67 The idea to “determine
59 ICCPR article 1(1) and E Brewer, 'To break free from the tyranny and oppression: proposing a model for a
remedial right to secession in the wake of the Kosovo advisory opinion' [2012] 45(245) Vand J Transnat'l 257 the
author rightly notes the ruling of ICJ in East Timor case, confirms the universal right of self-determination as erga
omnes. Above I also have noted this; FRD principle 5, para. 1 and 2; 60 African charter article 20 (1) “(…) unquestionable and inalienable right to self-determination (…); see also art.
20 (2) “colonized and oppressed peoples shall have the right to free themselves from the bonds of domination
(…)” See Raic Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002 page 232 61 FRD safeguard clause principle 5 “all people have the right freely to determine, without external interference,
their political status and to pursue their economic, social and cultural developments (…) every state have the duty
to respect this (…), realization of the principle of equal rights and self-determination of peoples (…)” 62 Helsinki Final Act of OSCE art. 1(a) VIII. E. Brewer 257 FRD principle 5 The principle of equal rights and
self-determination of peoples; See also FRD principle VI; 63 Evan Brewer, 'To break free from the tyranny and oppression: proposing a model for a remedial right to
secession in the wake of the Kosovo advisory opinion' [2012] 45(245) Vand J Transnat'l p.257, Helsinki Final act
“reaffirms the universal significance of this principle”; 64 See Human Rights Committee General Comment 12, para. 6, it stances that there is an obligation to all States
parties in relation to their own peoples and to all which have not been able to exercise or deprived the possibility
to exercise their right to self-determination. See David Raic, Statehood & the Law of Self-Determination (Vol 43
edn, Kluwer Law International 2002) p. 235; 65 David Raic Ibid. Chapter V, Section 4 pp.227; also see Western Sahara case, ICJ Reports 1975, p. 36; 66 Western Sahara case, ICJ Reports 1975, p. 12, note 73; David Raic ibid. page. 132; See also Shaw- International
Law (Cambridge University Press 2008, Sixth Edition) page 254 and Simone Driest- Remedial secession; A right
to external self-determination as a remedy to serious injustices? 2013, Schools of Human Rights Research Series,
Volume 61, p. 34, chapter II; 67 Cassese, Self-determination of people (Cambridge University Press 1995) 72 page 320;
21
their political status means to”68protect, preserve, strengthen and develop cultural, ethnic and
historical identity and to guarantee freedom and existence69 without external involvement.70
The free enjoyment of the right of all people to self-determination was elaborated further in
common article 1(1) of the ICCPR and ICESCR.71 This is an “on-going right”72 which as
Cassese argues, is beyond the idea that if once independence is achieved the external-
determination is exhausted as Raic notes. The language of the Covenants differs from that
decolonization concept of self-determination by emphasizing on its “continuing” and
“permanent” character and that it should be exercised without outside interference.73 Moreover,
“a contrario reading”74 of the safeguard clause75 of the Declaration on Friendly Relation (from
now on UN Res.2625 or FRD) clearly demonstrates self-determination as non-exhausted once
independence is achieved.76
In the light of the ICCPR, Cassese defines internal self-determination as a “manifestation”77 of
the rights enshrined in it.78 In fact, a precise definition of internal self-determination is provided
by Cassese: the right to internal self-determination is “allowed to exercise those rights and
68 International Covenant on civil and political rights (ICCPR) and International Covenant nn economic, social
and cultural rights (ICESCR) common article 1(1) also some scholars, as Simone Driest- Remedial secession; A
right to external self-determination as a remedy to serious injustices? 2013, Schools of Human Rights Research
Series, Volume 61, page 51; refers to Aland case, which elaborates that the purpose of the concept of self-
determination is the maintenance and free development of the groups’ characteristics; mainly religious, ethnic,
etc. also see my note 10; D Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law
International 2002) p. 237 describes the form of internal self-determination as: “(…) mode of implementation of
political self-determination which denotes a right of a people to participate (a right to have a say) in the decision-
making process of the State”. Also refer as “right of participation”. 69David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002), page 257 70 FRD principle 5, para. 1; 71 Article 1(1) of the ICCPR ("All peoples have the right of self-determination. By virtue of that right they freely
determine their political status and freely pursue their economic, social and cultural development."). 72 Antonio Cassese, Self-determination of people (Cambridge University Press 1995) p. 101 73 Ibid. p. 54-55, the author refers to the Covenants and to a comment made by the Chairman of the Working Party
of the Third Committee, see note 51; 74 Simone Driest- Remedial secession; A right to external self-determination as a remedy to serious injustices?
2013, Schools of Human Rights Research Series, Volume 61, page 302; 75 The FRD 1970, “Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any
action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign
and independent States conducting themselves in compliance with the principle of equal rights and self-
determination of peoples as described above and thus possessed of a government representing the whole people
belonging to the territory without distinction as to race, creed or colour. “ 76 David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002) notes, p.
230; 77Antonio Cassese, Self-determination of people (Cambridge University Press 1995) 72, page 53, freedom of
expression art. 19, the right to peaceful assembly art. 21, the right to take part in the conduct of public affairs,
directly or through freely chosen representative art. 25 (a); 78 Ibid. page 53, claims that internal self-determination is best described as “manifestation of the totality of rights
embodied in the Covenant”, by referring to rights of free expression (art.19), the right of peaceful assembly
(art.21);
22
freedoms which permit the expression of the popular will”.79As it was noted in the Quebec
secession case, self-determination was perceived as normally fulfilled through internal self-
determination in the peoples’ aim to define their political will.80 Buchheit defines the perceived
two layered notion of internal and external self- determination as: the latter refers to peoples
who are entitled to pursue their political, cultural and economic development; the former refers
to the right of all parts of population to participate in the political discussion of their country.81
Raic confirms this view by defining self-determination as legal right under general
international law82 and that its continuity as a right is primarily linked to the right to participate
in the political process within the State.83 Participation can take the form of a
“representative”84government of whole peoples without discrimination85 or indirectly through
referendum or plebiscite.86 He also points out that there is a possibility for a wider form of
government, which amounts to a form of “federalism, power-sharing, autonomy and holding
of referenda”87 which will lead to successful representation and respective participation in the
political process. Therefore, as Buchheit finds out, the two layered concept of self-
determination links to “external independence and internal autonomy”.88
3.3.Subject of internal self-determination
As already defined the content of the concept of self-determination now will turn to the
question who the subject of internal self-determination is. Based on the above examination it
79 Ibid. The author also defines p. 102 the main issues of internal form: “(…) the internal self-determination of the
whole people of sovereign states, that is the right to have a representative and democratic government; the right
of racial and religious groups living in States which grossly discriminate against them; the right of ethnic groups,
linguistic minorities’ indigenous populations, and national peoples living in federal States. (…)” They can be
traced also in some international documents as FRD principle V, art. 7, Vienna Declaration and Programme of
actions part 1, art.2; ICCPR art. 25; which does not apply to the purpose of the present research; 80 Quebec case 1998, 161 DLR (4th), 385, 437-8 115 ILR, p. 536 See also Shaw- International Law (Cambridge
University Press 2008, Sixth Edition) page 293; 81 Lee Buchheit, Secession: the legitimacy of self-determination (New Heaven: Yale University 1978) 14 82 David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002) page
284, refers to FRD and a discussion of Poland and Argentina. 83 Ibid. page 272; for more information, see also article 25 of the ICCPR which is defined by Raic in p. 274 as
complementary article to art. 1 of ICCPR; 84 Vienna Declaration and Programme of actions, principle 2, para. 2 as well as FRD Res. 2625 principle 5, line
7, imposed the essentiality of representative government for the exercise of the right to internal –self-
determination. Simone Driest- Remedial secession; A right to external self-determination as a remedy to serious
injustices? 2013, Schools of Human Rights Research Series, Volume 61, page 53; for more information, see also
David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002) page. 272-
273; 85 FRD principle 5, para.7 refers to without discrimination of race, color or creed. 86 David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002) pp. 272-
273; 87 For more elaboration on that topic, See David Raic, Statehood & the Law of Self-Determination (Vol 43
edn, Kluwer Law International 2002) Chapter 6 Section 3; Simone Driest chapter III, section 3.3; 88 Ibid. referring to Sukovic, principle of equal rights and self-determination of peoples, in principle of
international law concerning FRD 323, 350 (M. Sahovic, ed. 1972)
23
can deduce that it refers explicitly to “all peoples”89 which are entitled to the right to internal
determination. This debated question is elaborated by many scholars90 who provide different
examinations. They link it mainly to the “right of nations”91 , thus the entire population within
one State92, but “minority-peoples”93 are also included, under specific circumstances,
according to Raic. On the contrary, Cassese claims that minority groups do not have such a
right, based on the UN practice.94 However, by scrutinizing the safeguard clause95 of FRD, it
can be argued that the right to internal self-determination belongs to racial or religious groups
to which participation in the political process was denied.96 Therefore, FRD links external self-
determination to internal self-determination in such exceptional circumstances.97 Thus, the
subject is extended to “peoples” 98 meaning not only entire population but also sub-groups99
and minorities which bear collective identity. The importance of the internal form of self-
determination derives from the fact that it amounts to conditio sine qua non100 for the effective
protection of individual human rights and for the lawful exercise of external self-
89 Cassese, Self-determination of people (Cambridge University Press 1995), page 74 The author emphasizes that
internal self-determination of colonial peoples was disregarded; 90 My focus is on Raic, Shaw and Casses, Hannum, E. Brewer; 91 David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002), p.288;
92 Ibid. page 272; 93 Ibid. page 282-284 and 310 the author elaborates the view that if autonomy is granted to a minority-people will
increase the effectiveness of their exercise of internal self-determination. 94 Antonio Cassese, Self-determination of people (Cambridge University Press 1995) p.108; 95 FRD Principle V, para. 7 : “Nothing in the foregoing paragraphs shall be construed as authorizing or
encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political
unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights
and self-determination of peoples as described above and thus possessed of a government representing the whole
people belonging to the territory without distinction as to race, creed or colour.” 96 Antonio Cassese, Self-determination of people (Cambridge University Press 1995)page 114; page 106 the
author examines the case of South Tyrol/Alto Adige concerning Austria and Italy, UNGA Res. 1497 and 1661 for
settling peacefully the dispute. Important note made by the author is that, this does not mean that States are
granting a menu of rights (as he defines) or neither prohibit it. States simply should allow to racial and religious
groups to have access to public institutions and decisions. (114 page) 97 Antonio Cassese, Self-determination of people, Cambridge University Press1995, page 120; 98 Ibid. See also Simone Driest- Remedial secession; A right to external self-determination as a remedy to serious
injustices? 2013, Schools of Human Rights Research Series, Volume 61, page 84; 99 David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002) p. 262
refers to the criteria for “peoplehood” as group of individual human beings who enjoy some or all of the following
features: (a) a (historical) territorial connection, on which territory the group forms a majority; (b) a common
history; (c) a common ethnic identity or origin;152 (d) a common language; (e) a common culture; (f) a common
religion or ideology; (2) the belief of being a distinct people distinguishable from any other people; 100 Ibid. page 240 Condition sine qua non from Latin refer to a condition without which it could not be, a necessary
condition, according to Oxford Reference:
http://www.oxfordreference.com/view/10.1093/oi/authority.20110803095631167
24
determination.101 Thus it “triggers”102 the exercise of external self-determination. Therefore,
internal self-determination is possible to be satisfied “normally” as act of people determining
its political, social, cultural and economic development within a State.103 However, are there
other possibilities to exercise your right to self-determination? Are there specific conditions
under which people can determine their development externally? If there is a denial of internal
determination, do people have a legal right to claim determination beyond the boundaries of
the State where they reside? Under specific conditions (mainly discrimination and denial to
exercise internal self-determination), the possibility to exercise self-determination in an
external form emerges. All these questions will be examining in the next paragraphs.
3.4.Denial of the right to internal self-determination
There are several acts which amount to a breach of internal self-determination: first is the
government’s denial104 people to exercise their internal self-determination, second: a possible
act of formally granting the right, but in practice denied (which is indirect discrimination) and
third: a serious violation of human rights (as Raic refers to right to life, or practice of genocide
of ethnic cleaning as in Croatia).105 But even though these on theory clear ground however,
from practical point of view it is still questionable how to define the gravity of an act and
whether it amounts to violation of internal self-determination, which evokes the exercise it
externally? Raic defines that some general principles of necessity, subsidiarity and
101 David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002), p. 262
the author describes internal self-determination as condition for a guarantee of individual human rights. See also
292, p. 306; FRD also makes reference to denial of fundamental rights, see FRD principle 5, para. 2; Vienna
Declaration and Programme of Actions from 1993, defines that the denial of the right of self-determination
amounts to a violation of human rights. See E. Brewer, 'To break free from the tyranny and oppression: proposing
a model for a remedial right to secession in the wake of the Kosovo advisory opinion' [2012] 45(245) Vand J
Transnat’l page 257; 102 Simone Driest- Remedial secession; A right to external self-determination as a remedy to serious injustices?
2013, Schools of Human Rights Research Series, Volume 61, pages 4-7; 103 The Canadian Supreme Court define it (to add specific description of the case); See also Shaw- International
Law (Cambridge University Press 2008, Sixth Edition) page 293; And E Brewer, 'To break free from the tyranny
and oppression: proposing a model for a remedial right to secession in the wake of the Kosovo advisory
opinion' [2012] 45(245) Vand J Transnat’l page 259; 104 David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002), page
368, Denial is also mentioned in the FRD declaration, principle V, par. 2 (b) referring to people which are subject
to different forms of domination as well as denial of fundamental human rights. Although it is in the context of
decolonization, this can be considered as valid in the aftermath of decolonization. As the right of self-
determination was perceived as fundamental human rights, it is logical to come with this conclusion. Self-
determination was placed on one stance with the respect of equal rights in the FRD. See Hust Hannum, 'Rethinking
of self-determination page' [2011] Vol 34(1) Virginia Journal of International Law, p.16-19; See FRD Principle
V; 105David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002) page
368 where the author refers to the cases of Croatia and Bangladesh;
25
proportionality are leading principles and “dictate” the denial of internal self-determination.106
The denial to exercise internal self-determination should be of such extent as to impose a
“threat of the maintenance of the collective identity of the people”.107 Therefore, if we take
these features as possible requirement and threshold for the denial of internal self-
determination, then logically will lead to the question in what ways external self-determination
can be exercised.108
3.5.Ways of exercising self-determination externally
After defining the conditions which need to be met in order to evoke the external self-
determination here we will focus on the possible modes of exercising it. The FRD109 imposes
that the external form of self-determination can be exercised in a form of secession, dissolution,
union or merge.110 The latter two possibilities are defined as peaceful ways for peoples to
determine their “own destiny”111 either directly or through representative government.112 So
these two modes will require the consent of the “mother” state, will be exercised by the nation
(as the whole nation has entitlement to exercise it113) and there will be no clash or conflict with
other international legal principle of territorial integrity. This demonstrates that the modes of
exercising self-determination externally, clearly expand beyond the boundaries of the “mother”
State, as the achievement of independence is linked to the change of the initial boundaries of
the parent State. In that sense dissolution and secession are slightly different, as they sometimes
involve acts which do not receive a prior consent of the metropolitan state.
106 David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002), p. 368,
See also p.369-380 for further information about the principle applicable in the case of denial internal self-
determination; 107 Ibid. p. 369; 108 Ibid. 109 Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States
in accordance with the Charter of the United Nations, adopted by the General Assembly on 24 October 1970
(FRD) Principle 5 para. 4 and para.5: “the establishment of a sovereign and independent State, the free association
or integration with an independent State or the emergence into any other political status freely determined by a
people constitute modes of implementing the right of self-determination by that people.” See also Helsinki Final
Act principle VIII; 110 FRD principle 5, para. 4; See also David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer
Law International 2002) p. 289-291 for secession as mode of exercise SD externally; S. Driest page 84-86 on the
different modes of external self-determination. 111 Cedric Ryngaert and Christine Griffioen, 'The relevance of the right to self-determination in the Kosovo Matte:
in partial response to the Agora Papers' [2009] 1(1) Oxford University Press, page. 574; 112 David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002) page.
290 The authors marks that there is no prohibition under international law which prohibit the dissolution of one
State or to divide its territory, by referring to the cases of Czechoslovakia, Soviet Union, SFRY; see supra notes
260, 261; see page 291-293; 113Ibid. page 292;
26
4. The blurred line between dissolution and secession
Dissolution can be mistaken with secession in some cases. Some authors stated that the line
between dissolution and secession is often blurred114 leaving a degree of uncertain about what
is the difference between these two modes of separation and whether we should do it at all? On
the one hand, dissolution refers to the ceasing of the existence of the parent state and creating
new successors; on the other hand, secession refers to the cases of separation of an entity, while
the parent state continues its existence.115 Klabbers notices that in fact the main feature of
secession which differentiates it from the other modes of separation is that the parent state
continues its existence without a change as legal subject of international law, but with changed
territory.116
5. Definition of Secession
Secession is a mode of self-determination which refers to acts of withdrawal of a specific
part of the territory of the existing state and emergence of another state, while the mother State
continues to exist.117 The goal of secession is to dismember a State118, in order to separate a
part of its territory and achieve independence. Kohen elaborates on a more restrictive approach
and defines that broadly speaking the notion of secession, refers to “the creation of a new
independent entity through the separation of a part of the territory and population of an
existing State, without the consent of the latter”.119
Some scholars120 define secession as consensual or constitutional secession. The latter refers
to the right of secession as primarily granted in the constitution of the sovereign State, and the
former refers to the received prior consent of the State to allow unilateral right to secession to
a group of peoples. Vidmar supports this view by pointing that it can be executed only with the
consent of the parent state.121 Both aspects of consensual and constitutional secession, are
114 Simone Driest- Remedial secession; A right to external self-determination as a remedy to serious injustices?
2013, Schools of Human Rights Research Series, Volume 61, page 89; 115 David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002) pp. 358-
359; See Jan Klabbers, International law (Cambridge University Press 2013), page 81; 116 Jan Klabbers, International law (Cambridge University Press 2013) page 80; 117 Simone Driest- Remedial secession; A right to external self-determination as a remedy to serious injustices?
2013, Schools of Human Rights Research Series, Volume 61, page 87 and Peter Raddan, 'Post-secession
international borders: a critical analysis of the opinions of the Badinter Arbitration Commissions' [2000] Review
50(24) Melbourne University Law, page 9; 118Lee Buchheit , Secession: the legitimacy of self-determination (New Heaven: Yale University 1978) page 13; 119 Marcelo Kohen Secession, International law perspectives, Cambridge University Press, 2006, pages 2-3 120 Simone Driest- Remedial secession; A right to external self-determination as a remedy to serious injustices?
2013, Schools of Human Rights Research Series, Volume 61page 87; 121 Jure Vidmar Remedial secession, Theory and lack of practice, page 38;
27
considered as peaceful and do not breach or influence on any legal principles of international
law.
Despite that, the FRD declaration does not define explicitly the content of these modes, it only
states that it must be exercised freely without outside interference122 and it should be in non-
violent manner123. Therefore, this modes of external-self-determination does not confront other
legal principles as territorial integrity, as long as they are peaceful, without outside interference
and with the prior consent of the parent States.124
Nevertheless, secession can include a case of separation in order to be incorporated as part of
another State, but still without the consent of the parent state. Hence, this links secession
primarily with the presence of consent of the mother state, and defines its absence as a “key
element” characterising the concept of remedial secession and main reason of controversy.125
If the peoples have the approval of the mother state there will be no need to examine these
kinds of secessionist attempts as they do not amount to any breach of international legal
norms126 and will be qualified rather as “devolution”.127 Some of the instances of secession
pointed by scholars128 are of South Sudan, Rhodesia, East Pakistan, etc. Others129 define some
cases as unsuccessful secessionist attempts like South Ossetia and Abkhazia, Tatarstan and
Chechnya. Therefore, it can be deduced that self-determination encompass secession130 as
modes of separation but only secession with the prior consent of the parent state, thus as a
peaceful way to exercise external self-determination.
122 The Declaration on Principles of International Law concerning Friendly Relations and Co-operation among
States" was adopted by the General Assembly on 24 October 1970 (FRD) principle V, para. 1; 123 Ibid. para. 5 It states that the States have a duty to refrain from forcible action which could influence or
“deprive” peoples to exercise their right to determination; 124 Simone Driest- Remedial secession; A right to external self-determination as a remedy to serious injustices?
2013, Schools of Human Rights Research Series, Volume 61, page 93; 125 Ibid. 126 Ibid. page 293; 127 Ibid. page 3; 128 J. Crawford, S. Driest, J. VIdmar, M. Khoen, E. Brewer, B. Coppieters; 129 Rygaert and Griffoen, The relevance of the right to self-determination in Kosovo Matter: in partial response to
the Angora Papers,2009, Oxford University Press, page 578, see also D Raic, Statehood & the Law of Self-
Determination (Vol 43 edn, Kluwer Law International 2002) page 109; 130 David Raic Statehood and the law of self-determination, Kluwer Law International,2002, page 289; See
Simone Driest- Remedial secession; A right to external self-determination as a remedy to serious injustices? 2013,
Schools of Human Rights Research Series, Volume 61, page 89;
28
6. Self-determination includes secession
6.1.Declaration on Friendly relations
Even though the resolutions of UN General Assembly are not judicially binding to the states,
they have strong influence on their practice. UNGA Declaration FRD 2625 from 1970s is
crucial because it was adopted with full consent and thus it is of significant importance.131 FRD
imposes ground-breaking principles which will be leading in the future practice of the States:
state sovereignty, territorial integrity, and duty not to intervene in domestic matters, duty of
States to cooperate, to refrain from the use of force and to fulfil obligations in good faith in
accordance with the Charter132 and self-determination which is defined as human right.
Therefore, the FRD requires focusing on the connection between self-determination and other
principles of international law, mainly territorial integrity which limits133 its applicability.
7. Territorial integrity and self-determination
As two different approaches can be determined towards self-determination: the personality
principle and the territorial principle134, here it should be noted the research will take more
neutral position and will oscillate between these two approaches.
The first is a more restrictive approach135, which defines human rights of leading importance
over the territorial sovereignty of States. This view will be elaborated further in the section of
secession and remedial secession. However, before turning into more detailed analysis of
unilateral secession and the cases of remedial secession, the logical approach of this research
requires first to touch upon the leading importance of territorial preservation and how self-
determination as a legal principle influences it.
8. Applicability of territorial integrity regarding self-determination
Self-determination and territorial integrity can be defined as two sides of one coin. From one
side, self-determination is primarily linked to the right of peoples to determine their political
131 Vaughan Lowe, International law, Oxford University Press, 2007, page 100; 132 Ibid. page 101; FRD Declaration principles 1-7; 133 Vaughan Lowe, International law, Oxford University Press, 2007, page 113; The author makes reference to
the UNGA Res. 1514, stating that the destabilization of the international relations is visible from the UNGA Res.
2625 and it is so called “safeguard clause” which impose that territorial integrity is superior to the right of self-
determination, and that the destabilization and breaching of that principle is incompatible with the UN provision
and UN Charter. 134 Jorg Fisch, 'The right of self-determination of peoples' [2015] 1(1) Cambridge University Press, page 41 the
author defines the personality principle as mainly referring to person who belong to organization, and the territorial
one refer to persons who reside in specific territory. 135 Hermann-Josef Blanke and Yasser Abdelrehim, 'Catalonia and the Right to Self-determination from the
perspective of international law' [2015] 1(1) Koninklijke brill nv, Leiden page 549;
29
development, as was defined above. On the other side there is territorial integrity, which is a
principle belonging to the States as subject of international law. Territorial integrity was
described as a principle protecting states’ territories from outside aggression.136 Territorial
integrity is widely elaborated in the FRD, according to which the breach of territorial integrity
refers to attempts of partial or total disruption of national unity. Territorial integrity is defined
as a “guarantee against the dismemberment of one territory”.137 The declaration imposes that
the use of force violates the territorial integrity which amounts to violation of the UN
Charter138, where the principle of territorial integrity is linked to the prohibition of the use of
force.139 This demonstrates the broader scope of its application140, the supremacy of territorial
integrity and that every state has the duty to refrain from acts which could breach the principle
of territorial integrity.
When it comes to limitations and violations of the exercise of self-determination, the Vienna
Declaration from 1993 provides some valuable contributions. The Vienna Declaration imposes
that the denial of self-determination is a violation of human rights141, mainly in the context of
decolonization and peoples under foreign occupation. However, when these actions violate the
territorial integrity of states, they cannot be considered lawful anymore.142 Furthermore, the
“safeguard clause” of this declaration imposes that the principle of territorial integrity is
superior and precludes143 to the principle of self-determination, and when self-determination
136 E. Gzoyan and Lilit Banduryan, 'Territorial integrity and self-determination: contradiction or
equality'[2011] 2(10) «21st CENTURY», p. 97, The authors take the stance that the principle of territorial
integrity can be seen as well in the context of the Peace of Westphalia 1648, where the territory of a state was
considered as essential to secure the state and to preserve the status quo in the world order. 137 Marcelo Kohen Secession, International law perspectives, Cambridge University Press, 2006, page 6, on the
impact of fundamental principles of international law; 138 Article 2 of UN Charter, para. 4 and 5 states: “All Members shall refrain in their international relations from
the threat or use of force against the territorial integrity or political independence of any state, or in any other
manner inconsistent with the Purposes of the United Nations. (5) All Members shall give the United Nations every
assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance
to any state against which the United Nations is taking preventive or enforcement action. (…) “; See also David
Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002) page 294, where
the author elaborates that territorial integrity is mentioned in many other international instruments as well; See
also Helsinki Final Act 1975 OSCE Declaration Principle VIII; 139 Lee Buchheit, Secession: the legitimacy of self-determination (New Heaven: Yale University 1978), page 32,
describes art. 2 of UN Charter as “principle norm of international law of our time”. 140 David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002) p. 292-
294; 141 Vienna Declaration and Programme of Action, 1993; see also E. Brewer, To break free from the tyranny and
oppression: proposing a model for a remedial right to secession in the wake of the Kosovo advisory opinion, 45
Vand. J. Transnat'l L. 245 2012, page 257; 142 Evan Brewer, To break free from the tyranny and oppression: proposing a model for a remedial right to
secession in the wake of the Kosovo advisory opinion, 45 Vand. J. Transnat'l L. 245 2012, page 257; see FRD,
safeguard clause; 143 Hurst Hannum, 'Rethinking of self-determination page' [2011] Vol 34(1) Virginia Journal of International
Law, page 16; See also African Commission on Human Rights and E. Brewer, To break free from the tyranny and
30
breaches the territorial integrity, it is defined as unlawful act under international law. So thus,
self-determination can be exercised as long as States are conducting in accordance with the
principles enshrined in FRD including respect of territorial integrity.144 Cassese precisely
notices that:
“ (…) if in a sovereign state the government is ‘representative’ of the whole population, in that
it grants equal access to the political decision-making process and political institutions to any
group and in particular does not deny access to government to groups on the ground of race,
creed and colour, then that government respects the principle of self-determination;
consequently, groups are entitled to claim right to self-determination only where the
government of a sovereign State denies access on such grounds.” 145
Some scholars146 define that international law favours the principle of territorial integrity for
the sake of the people’s will and their aspiration for political independence. Territorial integrity
can be seen as a limitation of self-determination, as the latter’s aim is to change the boundaries
of the States, as the former aims to preserve them. However, territorial integrity applies to those
states which conduct themselves in compliancy with the principles of equal rights and self-
determination and thus represent the whole population without distinctions.147 This, on one
hand, is confirmed by Crawford by emphasizing that people can exercise the right of self-
determination internally, through their participation in the government on a base of equality.148
But on the other, the FRD in conjunction with Vienna Declaration are implicitly stating
remedial secession as a possible remedy for people, subject to absolute denial of participation
in the political life of the State.149 Comparing to the Crawford stance, Brewer goes further by
defining the Vienna Declaration as a limitation to territorial integrity: it does not permit
secession, but “eliminates the ability to invoke territorial integrity”.150 Hence, in secessionist
oppression: proposing a model for a remedial right to secession in the wake of the Kosovo advisory opinion, 45
Vand. J. Transnat'l L. 245 2012, page 259, the author states that territorial integrity will be superior unless there
is a grave abuse of human rights and denial of self-determination. 144 James Crawford, The creation of new states in international law (Oxford University Press 2007), page 118,
FRD principle 5, para. 7; 145 Antonio Cassese, Self-determination of people (Cambridge University Press 1995) page 112; 146 H Blanke and Y Abdelrehim, 'Catalonia and the Right to Self-determination from the perspective of
international law' [2015] 1(1) Koninklijke brill nv, Leiden, p. 559; 147 Ibid. referring to FRD see also James Crawford, The creation of new states in international law (Oxford
University Press 2007), page 119; 148 James Crawford, The creation of new states in international law (Oxford University Press 2007), page 119; 149 Ibid. 150 Evan Brewer, To break free from the tyranny and oppression: proposing a model for a remedial right to
secession in the wake of the Kosovo advisory opinion, 45 Vand. J. Transnat'l L. 245 2012, page 258;
31
attempts, territorial integrity might not be applicable and thus might not be a limit and an
obstacle to the concept of “remedial secession”.
9. Trace Remedial secession into self-determination
As it was seen above, self-determination may encompass secession as a peaceful mode of
separation. A careful look on its safeguard clause of FRD demonstrates that it grants a right to
racial and religious groups within one state, to exercise externally as well as internally self-
determination.151 This clause imposes directly that nothing cannot preclude or dismember the
territorial integrity and state sovereignty of a State, which acts in accordance with the
declaration. The final paragraph of the safeguard clause states that “in compliance” with equal
rights and self-determination should be understand as that the governments should represent
the whole population without distinction. And the Vienna Declaration from 1993, although
vague in some of its provisions, does not oblige the States to grant such a right, neither prohibit
it; but rather allows the limitation of the possibility to evoke territorial integrity in a context of
discrimination and States’ non-compliance.152 But if they do not represent the whole peoples,
is it illegitimate and does it violate the principle of self-determination? 153 And would it amount
to “action which would dismember or impair totally or in part, the territorial integrity or
political unity of sovereign and independent States”?154 However, after reading the safeguard
clause a contrario155 it is logical to ask if a State is not acting in accordance with these
provisions, thus denying determination to groups within its territory, is it possible to apply
secession as mode of separation?156 Cassese states that the FRD does not rule out secession,
but “implicitly” defines that secession is allowed under specific circumstances.157
There are specific requirements which if met, might evoke secession as a mode of separation.
If there is a persistent denial of internal self-determination, there is a gross human rights
violation and there is no possible settlement by peaceful measures within one state, e.g. there
151 Antonio Cassese, Self-determination of people (Cambridge University Press 1995), p. 114 and 118 Principle
V (7) the safeguard clause of FRD: “Nothing in the foregoing paragraphs shall be construed as authorizing or
encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political
unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights
and self-determination of peoples as described above and thus possessed of a government representing the whole
people belonging to the territory without distinction as to race, creed or colour.” 152 Evan Brewer, To break free from the tyranny and oppression: proposing a model for a remedial right to
secession in the wake of the Kosovo advisory opinion, 45 Vand. J. Transnat'l L. 245 2012, page 258. 153 Lee Buchheit, Secession: the legitimacy of self-determination (New Heaven: Yale University 1978) page 93; 154 Ibid. 93-94 and FRD, principle V, para. 7 safeguard clause; 155 David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002), page
318; 156 James Crawford, The creation of new states in international law (Oxford University Press 2007), page 119; 157Antonio Cassese, Self-determination of people (Cambridge University Press 1995), pages 118-119;
32
is no “likelihood”158 to be reached, thus racial or religious groups may attempt to separate
through secession. The same stance is taken by Rygaert and Griffoen who establish certain
condition, which need to be satisfied prior to the invocation of external self-determination.159
There should be “people” with distinct identity from the rest of the population and to amount
to “clear majority”160 ; discrimination and massive violations of human rights, exclusion from
political discussions and unfruitful negotiation between the oppressed people and the sovereign
State.161
If we embrace the idea of two different approaches of self-determination162: the one human
rights oriented and the other territorial oriented, here leading will be the latter. As Neff
describes, there are two ways of creation a state through secession: “high and low road” or also
called “positive and negative paths”.163 The high or positive path refers to the inherited and
collective right to self-determination, while the negative or low road refers to a remedy for
violations committed by the mother state or the dominant population.164 Neff states that
international law does support only the latter way of achieving independence, and not the
former: as “free standing right” of secession.165 Taking into consideration the FRD and its
safeguard clause, the Vienna Declaration 1993 and the Helsinki Final Act166 which all in some
way repeat the FRD’s clause (safeguard clause: Principle V(7)) can deduce that they refer more
to the so called negative (low) road, than to secession as separate right entitled to all the
population of one State. These documents impose that States should resist such attempts of
unilateral secession if they do not meet the conditions provided above167 and that remedial
158 Antonio Cassese, Self-determination of people (Cambridge University Press 1995), page 120; 159 Cedric Rygaert and Christine Griffoen The relevance of the right to self-determination in Kosovo Matter: in
partial response to the Angora Papers,2009, Oxford University Press, page 575; 160 Ibid. page 577-578 Taking into account the term “minority” does not receive any clarification on international
legal sphere; 161 Ibid, p. 575-576; 162 Stephan Neff, 'Some considerations on secession and independence: the cases of Kosovo and Georgia' [2009]1-
2(1) Amsterdam Law Forum, p. 33; 163 Ibid. 164 Ibid. 165 Stephan Neff, 'Some considerations on secession and independence: the cases of Kosovo and Georgia' [2009]1-
2(1) Amsterdam Law Forum 1, p. 33 and 37; 166 Vienna Declaration and Programme of Action adopted by the World conference on Human Rights in 1993;
Helsinki Final Act of OSCE from 1975; See Cassese, Self-determination of people (Cambridge University
Press 1995), page 286; 167 Marcelo Kohen Secession, International law perspectives, Cambridge University Press, 2006, page 106
33
secession can be seen as aim to “safeguarding“the peoples ‘identity168. Kohen defines that kind
of secession under exceptional conditions as “qualified secession doctrine”.169
9.1.Quebec and Aaland Islands cases and their contributions
The support of remedial secession is observed also from some judicial decisions. In order to
be able to trace whether self-determination encompasses secession, one should look into article
38 of the ICJ Statute170 and examine the judicial decisions.
Turning back to the Aaland Islands case from 1920s, we can see some contributions to the idea
of qualified remedial secession. The Aaland Islands case was concerning Finland and Sweden,
questioning whether secession should be granted to the inhabitants of these islands and
subsequently, to unify Sweden.171 The case provides some valuable remarks: firstly, it states
that secession is to be a matter concerning domestic fora, rather than international. However,
if there is an abuse of sovereign power from the State, the domestic character can be overcome,
and become a matter within the scope of League of Nations. Secondly, it does not grant an
absolute right to secession by imposing the prevailing role of stability and states’ order.172
However, the fact that it does not provide a right to secession under all circumstances does not
mean that it negates the possibility of secession in general. But the opposite, the Commission173
notices that separation of minorities can be exercised only as “exceptional solution, as a last
resort” when the State lacks the power or lacks abilities to guarantee freedom174 to territories
that are greatly oppressed and “misgoverned”175 by the parent State. The dispute was ruled
within the Council of the League of Nations taking the Finnish stance, and supporting the view
that it should grant rights to such groups of minorities.176 Therefore, unilateral secession was
168 Marcelo Kohen Secession, International law perspectives, Cambridge University Press, 2006, page 106; 169 David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002) p. 321
the aouthr defines it as qualified right to secession; 170 Article 38 of the ICJ Statue describes the sources of international law which will take into account when
deciding cases, namely: international conventions, international custom, general practice of law and judicial
decisions and the teachings of the most highly qualified publicists as subsidiary means. 171 The case was discussed by two Commissions appointed by the Council of League of Nations: Commission of
Jurist and Commission of Rapporteurs, in order to provide advisory opinions on the matter. For more elaboration
on this case, see S. Driest Remedial secession, A right to external self-determination as a remedy to serious
injustices? School of human rights research series, vol. 61, 2013, pages 123-127; and D Raic, Statehood & the
Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002) p. 328-330; 172 David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002) p.198-
199 Provides elaboration on the Aland Islands question, LNOJ, Spec. Supp. No. 3, 1921, para. 27-28; 173 Ibid. para. 28; 174 Ibid. 175 James Crawford, The creation of new states in international law (Oxford University Press 2007) page 111; See
also Simone Driest- Remedial secession; A right to external self-determination as a remedy to serious injustices?
2013, Schools of Human Rights Research Series, Volume 61, page 127; 176 James Crawford The creation of new states in international law (Oxford University Press 2007), p. 108-111;
34
seen more as a last resort due to the inability of State to provide freedom for their groups within
it, than as to absolute right belonging to such groups.177
9.2.Is remedial secession allowed under specific circumstances?
The view of remedial secession as a possible outcome for separation, as well as the
conditions which need to be met in order to evoke the doctrine of secession, were supported by
the case of Quebec as well. Although the Supreme Court of Canada determines that
“normally”178 self-determination is exercised internally179, it does not exclude a possibility to
exercise it externally as well. The Court argued that international law provides a right to
external self-determination to former colonies and when peoples are oppressed or denied access
to participate in the governmental decision processes.180 Therefore, it is possible only, when a
right to exercise self-determination internally181 has been denied, to exercise determination
through secession. The Court defines that general, international law does not grant a legal right
to unilateral secession to parts of a state by providing greater importance to the principle of
territorial integrity.182 But under specific circumstances, it is possible to evoke the concept of
secession as remedy to gross violations.183 It argues that the right to secession is not prohibited,
177 James Crawford The creation of new states in international law (Oxford University Press 2007), p. 108-111,
see also Simone Driest- Remedial secession; A right to external self-determination as a remedy to serious
injustices? 2013, Schools of Human Rights Research Series, Volume 61, page 127; 178 Re secession of Quebec, Supreme Court Judgement, 1998, Report (1998), 2 SCR 217, Case number 25506,
Canada, para. 126; 179 Ibid. para 2; See Evan Brewer, To break free from the tyranny and oppression: proposing a model for a remedial
right to secession in the wake of the Kosovo advisory opinion, 45 Vand. J. Transnat'l L. 245 2012, page 259; See
also James Crawford, Modes of the Creation of States in international law, Oxford University Press, 2006, page
119; 180Re secession of Quebec, Supreme Court Judgement, 1998, Report (1998), 2 SCR 217, Case number 25506,
Canada, para. 138; 181 Ibid. para 134-138 See also Hermann-Josef Blanke and Yasser Abdelrehim, 'Catalonia and the Right to Self-
determination from the perspective of international law' [2015] 1(1) Koninklijke brill nv, Leiden, page 554; 182Re secession of Quebec, Supreme Court Judgement, 1998, Report (1998), 2 SCR 217, Case number 25506,
Canada, para. 108 and 109; See Roya M. Hanna, Right to Self-Determination in Re Secession of Quebec, 23 Md.
J. Int'l L. 213 (1999), p. 221; Although as Hermann-Josef Blanke and Yasser Abdelrehim 'Catalonia and the Right
to Self-determination from the perspective of international law' [2015] 1(1) Koninklijke brill nv, Leiden, p.556
state the case of Quebec does not amount of instance of breach of human rights; 183 Re secession of Quebec, Supreme Court Judgement, 1998, Report (1998), 2 SCR 217, Case number 25506,
Canada, para. 112 and 133; See also I Libarona, 'Territorial integrity and self-determination: the approach of the
international court of justice in the advisory opinion on Kosovo ' [2012] 1(16) REAF, page 110 Hermann-Josef
Blanke and Yasser Abdelrehim, 'Catalonia and the Right to Self-determination from the perspective of
international law' [2015] 1(1) Koninklijke brill nv, Leiden, p 554; See Evan Brewer To break free from the tyranny
and oppression: proposing a model for a remedial right to secession in the wake of the Kosovo advisory opinion,
45 Vand. J. Transnat'l L. 245 2012, page 259, the author argues that it might be justified unilateral secession of
peoples, who are denied to exercise self-determination externally, thus as a legitimate last resort: through referring
to para. 112 of Re Secession of Quebec;
35
but also not allowed for every group of peoples within one State.184 The Court supports the
view that the matter of creating of a new state, should be dealt primarily within the domestic
fora, and thus it is a matter of the jurisdiction of the Sovereign state, rather than of the
international law as such. The Court elaborates that a right to secession under self-
determination is happening when “peoples” are defined as a governed under colonial rulings,
subject to form of domination, or subject to denial of any internal exercise of self-
determination.185 Thus, although on first stance a matter of domestic law, secession can be
evoked as a last resort, when a state is violating its obligations, the Court argues that there
exists a possible right to secession as a last resort of decolonization, “alien subjugation,
domination or exploitation outside the colonial context”186 and cases of denial of internal self-
determination.187 Thus, the Supreme Court recognizes a qualified right to secession.188
10. Who is entitled to the right of secession as a remedial right against gross human rights
violations?
The Supreme Court of Canada argues that as long as it refers to internal self-determination,
it applies to minority peoples within one State.189 However, when it comes to external self-
determination, the Supreme Court of Canada concludes that it does not have to define the term
“peoples” in the context of the present case, because the subject of external self-determination,
i.e. secession, should be considered as: people governed as part of colonial empire, where “a
people” is subject to alien subjugation (…) and possibly where “a people” is denied any
meaningful exercise of its right to self-determination within the state of which it forms a part.
(…)”190
184 Re secession of Quebec, Supreme Court Judgement, 1998, Report (1998), 2 SCR 217, Case number 25506,
Canada, para. 135 and 109, See Roya M. Hanna, Right to Self-Determination in Re Secession of Quebec, 23 Md.
J. Int'l L. 213 (1999), page 221; 185 Re secession of Quebec, Supreme Court Judgement, 1998, Report (1998), 2 SCR 217, Case number 25506,
Canada, para. 138; 186 Ibid. para. 132 and 133 see Daniel Thurer and Thomas Burri, 'Secession' [2015] 1(1) Oxford University Press,
Max Plank Encyclopaedia of public international law, para. 34; 187 David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002) page
332; 188 Hermann-Josef Blanke and Yasser Abdelrehim, 'Catalonia and the Right to Self-determination from the
perspective of international law' [2015] 1(1) Koninklijke brill nv, Leiden, page 554 189 Re secession of Quebec, Supreme Court Judgement, 1998, Report (1998), 2 SCR 217, Case number 25506,
Canada, para. 126; 190 Ibid. para. 154;
36
10.1. Who are the people entitled?
This question in fact is one of the major criticisms of scholars191, as many of them confirm
the lack of clarity and sometimes the unwillingness of States to define who exactly is entitled
to the right to secession.192 A main reason for this is that States consider that a clear-cut
definition of peoples might lead to dismemberment of their territoriality and would
automatically lead to right to secession.193
It is clear that self-determination is valid beyond the decolonisation period194, and from
international documents it can be concluded that self-determination as internal form is entitled
to the collectivist entity195 of “all peoples”196. Cassese confirms this, by arguing197 that the
entire population is perceived as subject to the internal self-determination. However, the
concept of “peoples” does not include ethnic, cultural or linguistic minorities of one State,
therefore it is a limitation of the idea of all peoples referring only to racial or religious groups198.
191 Antonio Cassese, Self-determination of people (Cambridge University Press 1995) page 326, the author argues
that some commentators claim that the legal regulation of self-determination does not refer to nations and
minorities, it is more a one-sided and it does not regard the “representative democracy” requirement. He examines
two major criticisms: the content of the legal regulation and the second: that the legal regulation “does not define
the units of self-determination”. The second critique (referring to Emerson, Pomerance, Schwebel, etc) leads to
the issue of defining exactly who are the “peoples”, “nation” or “ethnic groups”, etc. However, Cassese is on the
view that even if there is not a legal definition, it does not mean that there can be interpret depending on the
context. Cassese argues that thus, international law does specify indirectly the units of self-determination. See
page 327 for more elaboration on the matter. 192 Lee Buchheit, Secession: the legitimacy of self-determination (New Heaven: Yale University 1978) page 19,
the author argues that most of the independent States fear that the claims of secession can become a threat to intra-
State balance and will destabilize their systems. See also Cassese Self-determination of people, Cambridge
University Press 1995, page 319; 193 Cedric Rygaert and Christine Griffoen The relevance of the right to self-determination in Kosovo Matter: in
partial response to the Angora Papers,2009, Oxford University Press, page 576 See also Tomuschat, Yugoslavia’s
Damaged Sovereignty over the Province of Kosovo, in G. Kreijen et al. State, Sovereignty and International
Governance (2002) 344; 194 David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002) page
243; 195 David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002) page
242, refers to the question of what collectivities are to be considered “peoples”; p.248 refers to “raison d’etre of
self-determination which imposes that concern the protection of the collective identity of a “people” as a group”;
On p.262 Raic defined the criteria for peoplehood for the sake of collective identity as follow: it consists of group
of individuals which share the same threat as historical connection, common history, ethnic identity, language,
culture, religion or ideology or a belief that they are distinct group; The author states that is a group find itself in
some of these features, it will be hold the right of internal self-determination (p.264) Raic defines peoplehood as
requirement when it comes to unilateral secession: see p. 366, Chapter 7, section 4; See also Hurst
Hannum, 'Rethinking of self-determination page' [2011] Vol 34(1) Virginia Journal of International Law, Vol.
34:1,p.17; 196 See common article 1 of the ICCPR and ICESCR; Which Raic elaborates as referring to the entire population
of one state. See page 245; See also Helsinki Final Act which support the view that the entire population is entitled
to internal self-determination. 197 Antonio Cassese, Self-determination of people (Cambridge University Press 1995) by referring to the Helsinki
Final Act (Cassese elaboration) and to the African Charter art. 20(1); 198 See Antonio Cassese Self-determination of peoples, Cambridge University Press, 1995, p.114; See as well
David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002) page 247
37
That stance is supported by Buchheit199 who claims that in this context “the peoples’ right to
self-determination” should be understood as equal to national groups, rather than the entire
population of a state.
Turning to sub-groups within one state, there are different elaborations by some scholars. On
one hand, Cassese reads the FRD as imposing a right to internal self-determination to racial
and religious groups200 and with the conditions of representatives, capable of acting as such.201
He considers this as limitation, excluding the linguistic and national groups form the right to
internal self-determination.202
An opposing view is presented by Raic who has rather inclusive opinion than to Cassese’s
exclusive view. Raic recognizes that subgroups are entitled to internal self-determination and
they are not limited to racial or religious groups.203 Nevertheless, there is no unified stance on
who are the bearers of the right to internal self-determination, and as above demonstrated some
scholars embrace different view on the matter taking also the fact that States primarily are
unwilling to define it. Thus, maybe it is more correct to determine that question on case-by-
case basis, than to search for general criteria for “peoples”.
The question who is entitled to self-determination becomes even more complicated when it
comes to external self-determination, i.e. remedial secession. From the FRD safeguard clause,
Aaland Islands case and Quebec case can be deduced that in general the peoples, who are
entitled to the right to remedial secession are the ones under colonial domination, under
oppression or denial of internal self-determination or subject of human rights violations. So
where the author confirms the view of limitation by ignoring the ethnic, cultural and linguistic treats by which the
groups are differed. 199 Refer to the UN Charter art. 2 and 55; 200 Antonio Cassese Self-determination of peoples, Cambridge University Press, 1995, page 114; the author
supports that view by examining the practice of the Security Council and the General Assembly regarding the
Apartheid by the white minority government of South Africa and in South Rhodesia. See p. 120-125; 201 Ibid. page 147; 202 Ibid. page 114; 203 David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002) p. 255-
257 He examines the Katangese Peoples’ Congress v. Zaire as well as support its view by referring to the Supreme
Court of Canada and Constitutional Court of the Russian Federation which elaborates more broad definition of
who is entitled to internal self-determination, see page 256; p. 250 The author traces the meaning of “without
distinction as to race” through elaborate the definition of race, by referring to the Convention on the Elimination
of All Forms of Racial Discrimination from 1966 and to UNESCO Declaration on Race and Racial Prejudice in
order to support the view that the prohibition of racial discrimination refers to the prohibition of acts of
discrimination based on racial nature. See page 252-253 for more elaboration on that matter;
38
thus, people must be considered as a separate entity of the entire population, and “must have
an identity that distinguishes it”204, thus to be a part/group of the entire state’s population.
10.2. Does it include minorities?
Raic defines that the right to unilateral secession belongs to “minority-people as separate
part of the territory”205 who also have connection with the land they inhabit206which means
that national or ethnic minorities can also have the right to unilateral secession.207 When it
comes to minorities, Rygaert and Griffioen argue that sometimes “people” and “minority” can
be considered equal.208 They provide the same elaboration as Raic on the basis of the criteria
of “peoplehood”.209 If a minority has a “collective identity” it can be entitled to the right to
unilateral secession.210 But according to Cassese even if they have collective identity, the
external self-determination should be done by some type of representation of the whole people
according to the customary international law.211
11. Legality of Secession
Secession can be evoked as a right to people against oppression, domination and gross
human rights violations and should be in a legal manner. Remedial secession will be evoked
only when all local remedies have been exhausted.212 If so, then the only option available for
the people entitled is to secede unilaterally as a remedy against the oppressor (usually the parent
State). Raic defines unilateral secession as “ultimum remedium” to fight against repression.213
204 David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002) page
557, through UNESCO, International Meeting of experts on further study of the concept of the rights of peoples,
final report and recommendation, see note 15; The authors state that the people should also be a majority of the
territory; See Simone Driest- Remedial secession; A right to external self-determination as a remedy to serious
injustices? 2013, Schools of Human Rights Research Series, Volume 61, p. 115 the author supports the view that
entire population and subgroups of one state are entitled to internal self-determination. 205 David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002), page
367; See as well Rygaert and Griffoen The relevance of the right to self-determination in Kosovo Matter: in partial
response to the Angora Papers, 2009, Oxford University Press, page 576, the authors argue that people includes
a” portion” of the population which is entitled for unilateral secession. 206 Ibid. 207 David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002) page
242 See also Simone Driest- Remedial secession; A right to external self-determination as a remedy to serious
injustices? 2013, Schools of Human Rights Research Series, Volume 61, p. 117; 208 Cedric Rygaert and Christine Griffoen The relevance of the right to self-determination in Kosovo Matter: in
partial response to the Angora Papers,2009, Oxford University Press, page 577; 209 David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002) page
262 the author argues that the criteria for peoplehood in ethnic sense means a group of people which share the
common history, identity and origin, language, culture, religion or ideology. 210 Ibid. page 578; 211 Antonio Cassese, Self-determination of people (Cambridge University Press 1995) page 147; 212 Ibid. Page120, See also D Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law
International 2002) page 370; 213 Ibid. D. Raic page 370, Chapter 7, Section 4.4;
39
All local as well as international solutions should be exhausted in order to evoke the principle
of qualified right to secession.214 This means that all peaceful remedies should be sought,
before considering whether the other three conditions are met in order to evoke the right to
secession namely: human rights violations and oppression, exclusion from the domestic
political process, and no “reasonable prospect for peaceful” settlement215. If all local remedies
are exhausted and thus “internal self-determination is beyond reach” the secession can be
legitimate216, but if not, this act can be considered as illegal and a violation of the principle of
self-determination.217
When it comes to a unilateral act of secession, thus changing of the territorial limitation of the
state, without its prior consent, then it comes to a different point, which touches upon the
sensitive international principle of territorial integrity. In general, the acts of separation aiming
to change the territorial boundaries of an existing state, will breach the principle of sovereign
equality and territorial integrity. However, according to Raic a denial of the right to exercise
internal self-determination218, might lead to forfeit the States from their right to preserve
territorial integrity and hence people can have a right to unilateral secession as a remedy to
gross violations. And moreover, territorial integrity applies only to intra-state relations, thus it
might be overcome in a context of secession, as these acts primarily refer to sub-groups entities.
12. Conclusion
The legal framework of self-determination drawn above and its elaboration by scholars’
prove that the question of remedial secession remains really controversial. On one hand, this
question does not receive much clarity from international provisions; on the other, it can be
regarded as a political matter. International law states that self-determination in its
contemporary form is a principle belonging to all people and is exercised first internally. If
self-determination cannot be exercised or denied internally and all internal remedies are
exhausted, then self-determination might take an external form. The external forms can be
secession, dissolution, merge and union, but all of them should be exercised peacefully with
214 Ibid. p. 371 and 447; According to the author qualified secession doctrine exists only if there are harmful acts
against minorities, serious violations of human rights and denial of right to internal self-determination and when
all other possibilities to exercise self-determination within the boundaries of the State, have been exhausted. 215Antonio Cassese, Self-determination of people (Cambridge University Press 1995) page 120; See Rygaert and
Griffoen The relevance of the right to self-determination in Kosovo Matter: in partial response to the Angora
Papers,2009, Oxford University Press, page 576; 216Antonio Cassese Ibid. page 120 217 Ibid. See also David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law
International 2002), p.109,106, 371; 218 Ibid. D. Raic page 447
40
the consent of the parent state. From this point, it is logical to deduce that self-determination
might include remedial secession but as a peaceful way of determination. Although considering
secession implicitly as a form of contemporary external self-determination, some obstacles as
the absence of consent of the parent states and the lack of clarity on who are entitle to right to
remedial secession, hinder to define a legal concept of remedial secession. And international
law remains reluctant to clarify precisely whether remedial secession exists legally, when there
are gross human rights violations and a denial to participate in the political life of the State.
Despite the judicial decisions and scholars’ interpretation which acknowledge the existence of
remedial secession, there are still no legal provisions which confirm it. The idea of remedial
secession linked to the conditions of gross human rights violations, has historical motives even
from the Decolonization period. Remedial secession might be allowed under the following
circumstances: gross human rights violations, denial of internal determination and exhaustion
of all internal ways of participation in the political life. In this context remedial secession will
be a reaction as remedy against these conditions, and will primarily lead to dismemberment of
the state’s boundaries. From international law perspective, this will breach the principle of
territorial integrity. Thus, it cannot be concluded that there is a positive entitlement for remedial
secession under the contemporary framework of self-determination. However, regardless of
the fact that international law remains really cautious when it comes to defining or clarifying
possible ways of creation or separation of new states, a valuable source can be the judicial
practice. As it will be seen in the subsequent chapters, the practice and judicial decision might
provide some new insights and add value to the idea of remedial secession in its contemporary
development. Whether this practice might amount to state practice which with opinio juris can
create customary law, according to article 38 of ICJ Statute, will be a relevant question in the
present research. Whether it can amount to state practice and ascertaining a legal principle of
remedial secession based on customary international law will be a question at stake in the next
chapters. On that point, it is worth noticing that self-determination does not provide positive
entitlement for remedial secession. It does impose that there might be a possible secession as a
way of exercising self-determination, but primarily peaceful and with the consent of the parent
state.
41
Section III
CHAPTER II: THE KOSOVO ADVISORY OPINION
1. Factual Background
The advisory opinion by International Court of Justice (from now on ICJ) regarding the
legality of the unilateral declaration of independence of Kosovo from 2008 was provoked by
series of events in the late twentieth century. In 1998 the United Nations Security Council
decided to intervene in the territory of Serbia and by recalling Chapter VII219 of the UN Charter
to take measures regarding the conflict in Kosovo. The UN adopted series of resolutions220
which called for political solution of the issue of Kosovo.221 The NATO bombing campaign
over Serbia led to the establishment of the Security Council Resolution 1244 (1999) which
aimed to authorize the UN to take interim measures in order to place Kosovo under
international control of the UN. Resolution 1244 from 1999222 provided the establishment of
“(...) International civil presence for Kosovo ... and which will provide transitional
administration while establishing … the development … of self-governing institutions to ensure
conditions for a peaceful and formal life (...) ”223 The United Nations Interim Administration
Mission in Kosovo (from now on will be used as UNMIK) aimed to stabilize the situation, to
end the armed conflict and to provide provisional institutions to facilitate “(…) the political
process (…)”224 toward establishment of self-government and deciding the future status of
Kosovo.225 The process continue with the appointed of Martti Ahtisaari by the Security Council
as special Envoy for Kosovo226 which aim was to facilitate a settlement of mutual agreement
and discussion between Kosovo and Serbia. However, he did not succeed with the
219 Chapter VII of the UN: Actions with respect to threats to the peace, breach of the peace, and acts of aggression 220 UN. Doc. S/RES/1160 para.4 obtained from http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-
6D27-4E9C-8CD3-CF6E4FF96FF9%7D/kos%20SRES1160.pdf and RESOLUTION 1244 (1999) obtained from
https://documents-dds-ny.un.org/doc/UNDOC/GEN/N99/172/89/PDF/N9917289.pdf?OpenElement 221 UN. Doc. S/RES/1160 para.1 222 Which is considered as the UNSC framework regarding Kosovo Interim Administration Mission (UNMIK)
information obtained from official UN page:
http://www.un.org/en/peacekeeping/missions/unmik/background.shtml 223 RESOLUTION 1244 (1999) para.10 224 RESOLUTION 1244 (1999) para.10 e) in accordance with the Rambouillete accords (S/1999/648) although it
was rejected by Serbia, however it has been given effect by SCRES 1244 225 RESOLUTION 1244 (1999) para.11 (e) states: “Decides that the main responsibilities of the international civil
presence will include: e. Facilitating a political process designed to determine Kosovo's future status, taking
into account the Rambouillet accords (S/1999/648);” 226 UN Doc. S/2005/709 from 2005
42
Comprehensive Proposal for the Kosovo Status Settlement227 to the Secretary-General and
regardless of the subsequent effort by the Troika of the Contact Group228 to settle a mutual
agreement regarding the status of Kosovo, a progress was not achieved, neither an agreement
was reached.
On the 17th of February 2008 the Parliament of Kosovo issued a unilateral declaration of
independence of Kosovo as a sovereign state.229 Although the independence was recognized
formerly by the US, France, Germany and other EU countries, Serbia denounced the
declaration and proclaimed it as illegal because it is breaching the territorial integrity of Serbia.
Moreover, Serbia aimed at gaining more attention and support for its position by putting230 this
internal issue on international scene. Another suggestion is that Serbia wanted to support its
interest and not to give a motive to Kosovo to secede unilaterally and one of its supporter was
Russia which took the Serb’s position. Thus, the General Assembly on behalf of Serbia,
adopted Resolution 63/3, and recalling Article 65 of the Statute of the ICJ asked for its advisory
opinion on the following question: “Is the unilateral declaration of independence by the
Provisional Institutions of Self-Government of Kosovo in accordance with international law?”
2. Kosovo Advisory Opinion
On 22th of July 2010 the International Court of Justice gave its advisory opinion231 on the
question regarding the unilateral declaration of independence of Kosovo. Without examining
the controversial aspects of the advisory opinion, it could be determined that the outcome of
the opinion is not problematic. The importance of the opinion derives from its ambiguous
227 Comprehensive Proposal for the Kosovo Status Settlement from UN Doc. S/2007/168/Add.1 obtained from
http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-
CF6E4FF96FF9%7D/Kosovo%20S2007%20168.Add1.pdf 228 The Contact Group consists of representatives of the EU: United Kingdom, France, Germany, Italy, United
States and Russia and was set up as a facilitator; 229 Official website of the Government/Municipality of Kosovo, it states in its constitutions that on 17 February,
2008 in Kosovo was declared a sovereign and independent state (…) Information obtained from: https://www.rks-
gov.net/en-US/Republika/Pages/Kushtetuta.aspx 230 Accordance with International law of the Unilateral Declaration of Independence in Respect of Kosovo,
Advisory Opinion, I.C.J. Report 2010, paragraph 53: The resolution 63/3 of the General Assembly with which
was requested the advisory opinion, it has been proposed by the Republic of Serbia which was described as the
sole sponsor of resolution 63/3; 231The Court can hear two different types of cases; first can hear legal disputes between States which they submit
to it and can receive requests for advisory opinions on legal questions, as the Court referred in its opinion to
Article 65231, paragraph 1 of its Statute: “it may give an advisory opinion on any legal question at the request of
whatever body may be authorized by or in accordance with the Charter of United Nations to make such a request.”
The advisory opinions of the Court do not have legally binding character, however they can be a strong legal
burden and to have moral effect. They can even be used as a first step before using diplomacy or establishing
peace-keeping missions.
Information based on the Official website of the International Court of Justice/ Jurisdiction; obtained at
http://www.icj-cij.org/jurisdiction/index.php?p1=5&p2=2
43
elements, which ultimately led to the uncertain outcome. The question was not about whether
Kosovo has achieved independence, neither was about the validity and the legal effects of
possible recognition of Kosovo, and the Court remained silent for the legal consequences of
the declaration.232 The ICJ reached its conclusion that the declaration does not violate general
international law, or UNSC Res. 1244(1999)233 and the Constitutional Framework, neither
breached the applicable role of international law.234
3. The importance of Kosovo Advisory Opinion
The importance of Kosovo advisory opinion derives from the fact that for the first time such
an internal issue235 was brought on the international legal sphere, which makes it a sui
generis236 case. The subsequent advisory opinion was long-awaited for the sake of providing
clarity on the legal practice for future attempts for dissolution and secession. This is one of the
reasons why the Kosovo advisory opinion is so widely and in-depth analysed by many
scholars237. The controversial aspects of the ICJ’s reasoning proves that the Court was unable
to give clear response to such a highly political question. Aiming to preserve its integrity and
reputation, the Court concluded in divisive way to exercise its jurisdiction instead of using its
discretionary power and declined providing an answer. By deciding to issue advisory opinion
232 Accordance with International law of the Unilateral Declaration of Independence in Respect of Kosovo,
Advisory Opinion, I.C.J. Report 2010, paragraph 51: “(…) It does not ask about the legal consequences of that
declaration. In particular, it does not ask whether or not Kosovo has achieved statehood. Nor does it ask about
the validity or legal effects of the recognition of Kosovo by those States which have recognized it as an independent
State. The Court notes that, in past requests for advisory opinions, the General Assembly and the Security Council,
when they have wanted the Court’s opinion on the legal consequences of an action, have framed the question in
such a way that this aspect is expressly stated (…)Accordingly, the Court does not consider that it is necessary to
address such issues as whether or not the declaration has led to the creation of a State or the status of the acts of
recognition in order to answer the question put by the General Assembly. The Court accordingly sees no reason
to reformulate the scope of the question.” 233 The United Nations Security Council Resolution 1244 (1999) obtained from https://documents-dds-
ny.un.org/doc/UNDOC/GEN/N99/172/89/PDF/N9917289.pdf?OpenElement 234 ICJ Advisory Opinion; Accordance with International law of the Unilateral Declaration of Independence in
Respect of Kosovo, Advisory Opinion, I.C.J. Report 2010, Conclusion para. 122; 235 Interesting aspect here is that according to the jurisdiction of the ICJ their advisory opinions must be more
focus on “elucidation and development of international law (…) and strengthening of peaceful relations between
States.”, than to determine internal conflicts. Information based on the Official website of the International Court
of Justice/ Jurisdiction; obtained at http://www.icj-cij.org/jurisdiction/index.php?p1=5&p2=2 236 In the separate opinion of judge Trindade paragraph 45 which will be elaborate later on, recalls the fact that
some participants characterize the Kosov situation as sui generis. In paragraph 146 he refers to the established by
the ICTY (Trial Chamber) in the Milutinovic et al. case (2009) that described the situation of Kosovo as unique
and sui generis. Also Judge Trindade points the fact that Poland is not the stance that the mass violations and
ethnic cleansing in the 19th century must be taken into consideration when evaluating the Kosovo declaration of
independence. 237 Hurst Hannum, Ralph Wilde, Jure Vidmar, Christian Pippan, Doc Jacobs, Yanik Radi, Ryngaert and Sobrie;
44
regarding an act performed by non-state actors the Court lost its ratione personae- regarding
only states and international organizations.238
For the sake of tracing the added value of self-determination and remedial secession after the
Kosovo Advisory Opinion, it is worth noticing how the Court described as irrelevant the
questions of self-determination and remedial secession. With the aim to elaborate the scope
and the meaning of the question posed by the General, the Court noted that the question does
not refer to the consequences of the Kosovo declaration of independence, neither whether
Kosovo has achieved statehood.239 The Court differed the Kosovo case from the case of Quebec
and the opinion provided by the Supreme Court of Canada, on the basis that the question put
to the Supreme Court of Canada was referring directly to the “effective secession” and asked
whether there is an international rule that allows it. Which according to the Court is different
from the question asked by the General Assembly, which refers only to whether the applicable
international law prohibited the declaration of independence. Hence, the Court did not
elaborate the question as whether according to the norms of international law the Kosovo
unilateral declaration of independence, is allowed. Moreover, the Court considered that it is
possible a unilateral declaration of independence not to be in violence of the international law
and in the same time not to impose explicitly the right conferred by it.240
Furthermore, the Court acknowledged the contribution of the 20th century in regard to the
development of the concept of self-determination which creates a right to independence for
238 David Jacobs and Yacob Radi: Waiting for Godot- An analysis of the Advisory Opinion on Kosovo, Leiden
Journal of International Law, 24 (2011) pp. 312, pp. 343;
Here should make a note regarding the difference between a requesting party and the matter of the request.
According to the official website of the ICJ, does not provide explicitly what king of matters the UN organs can
request an advisory opinion, neither whether can be regarding states, non-state actors or international
organizations. Advisory Opinion can be requested by 5 major organs of the UN and by 16 Specialized Agencies
of the UN. The UNGA and UNSC can request an advisory opinion on “any legal question”. Any other agencies
can request opinion only in regard to a questions within their competence and their activities. Regarding non-
governmental international organizations, it is stated that the only one authorized by the ICJ was regarding the
International Status of South West Africa. However, the Court rejected such a requests by private parties.
However, it states that the Court can create a list of States and international organization which can receive
information regarding the question imposed before the Court. Also notes that the proceedings are between States
and only States can present statements. Information obtained in ICJ official page-How the court works:
http://www.icj-cij.org/court/index.php?p1=1&p2=6
Another point of view is that according to the statute of ICJ article 34 (1) rationae personae, only states can be
parties to a case before the Court. So therefore, there is no explicitly mentioned what kind of reference for advisory
opinion can be made and regarding what issues and concerning what king of actors. 239 Kosovo Advisory Opinion paragraph 51 although this contradict to article 11 e of the Res. 1244 (1999) which
states that the one of the main purposes is to deal with the future status of Kosovo, which implicitly involve the
question of achieving statehood; 240 Kosovo Advisory Opinion, Accordance with International law of the Unilateral Declaration of Independence
in Respect of Kosovo, Advisory Opinion, I.C.J. Report 2010, paragraph 56;
45
peoples of non-self-governing territories and people subject to domination and exploitation.
Hence, the Court embraced the view that outside such context the state practice did not lead to
emergence of a new rule in international law which prohibits the making of declaration241and
furthermore, that self-determination allows the right of population to separate from State.242
Regardless of this conclusion, the Court considered as not relevant to resolve the questions
whether international law provides the right to “remedial secession” and whether it is
applicable to the Kosovo case. The ICJ supports the stance that this is beyond the scope of the
question posed by GA which focuses only on whether the declaration violated general
international law and lex specialis created by the SC Resolution 1244.243 Regardless that these
points were neglected in the Court’s reasoning, the judges’ separate opinions and the
subsequent recognition of Kosovo by some states, provide significant insights on the matter of
self-determination and remedial secession. This will be elaborated elsewhere in this chapter as
a crucial point of the Kosovo Advisory Opinion and will defend the stance that remedial
secession might not be a lost cause.244
4. Legal analysis of the Kosovo advisory opinion
4.1.Legality of the declaration of independence
The first elements of the advisory opinion which will scrutinize, is the legality of issuing a
unilateral declaration of independence. The Court did not addressed the nature of the
declaration itself, but rather evaluated it in conjunction with the Resolution 1244 (1999) 245 and
the Constitutional Framework. The ICJ concluded that the Resolution 1244 did not impose any
prohibitions from issuing declaration of independence. The arguments of the Courts are that
the purpose of the Resolution was primarily to establish an interim regime in Kosovo, which
241 Accordance with International law of the Unilateral Declaration of Independence in Respect of Kosovo,
Advisory Opinion, I.C.J. Report 2010, paragraph 79 and 82; 242 Ibid. paragraph 82; 243 Ibid. paragraph 83, lex specialis refer to special law that repeals general laws, information obtained from:
http://www.oxfordreference.com/view/10.1093/acref/9780195369380.001.0001/acref-9780195369380-e-1303 244 A notation drawn to the article of Hurst Hannum (2011), The Advisory Opinion on Kosovo: An Opportunity
Lost, or a poisoned chalice refused? LJIL 24, pp.155-161 is that Kosovo advisory opinion is an opportunity lost
as it did not provide the needed clarity over the concept of remedial secession. 245 UNSC Resolution 1244(1999) was passed on 10 June 1990 and it is considered as the base document in the
Kosovo case. It led to the authorization and establishment of the UNMIK and the implementation of PISG
(provisional institutions of democratic self-government); The Court in its Kosovo Advisory opinion paragraph
83, described Res. 1244 as lex specialis; In paragraph 58 The Court states that: “Resolution 1244 (1999) was
adopted by the Security Council, acting under Chapter VII of the United Nations Charter, on 10 June 1999. In
this resolution, the Security Council, “determined to resolve the grave humanitarian situation” which it had
identified (see the fourth preamble paragraph) and to put an end to the armed conflict in Kosovo, authorized the
United Nations Secretary-General to establish an international civil presence in Kosovo in order to provide “an
interim administration for Kosovo . . . which will provide transitional administration while establishing and
overseeing the development of provisional democratic self-governing institutions” (para. 10). “
46
did not intent to resolve the question of the final status of the Kosovo, neither to define the
conditions under which this can be achieved. 246 The declaration of independence on the
opposite site, was aiming to determine the final status of Kosovo. Therefore, according to the
Court this differed from the Resolution’s purpose and furthermore, the lack of evidence that
the Security Council will try to impose beyond the resolution’s scope any additional obligations
led to conclude that there were no prohibitions for issuing the declaration.247 A further
evaluation of the Court was that this Resolution did not apply to the authors of the declaration
as they acted not as part of the PISG248. The status of the authors of the declaration will be
addressed in the next section, but here is sufficient to mention that the Resolution did not
impose obligations or prohibitions to acts of such sub-state actors, according to the Court.249
4.2.The Constitutional framework of the Provisional Self-governance
The other question at stake is the compatibility of the declaration with the Constitutional
Framework. It should be noted that the Court is entitled to review only the lawfulness of
international provisions. In a normal context a Constitution is formed under national law and
therefore, cannot be a source of international law.250 In the context of Kosovo, The
Constitutional Framework is created by the international territorial administration UNMIK and
by the Special Representative of the Secretary-General.251 Due to the fact that the legal
authority of the Special Representative derives from the Resolution 1244 of UNSC, the Court
concluded that the binding character of the Constitutional Framework is based on the above
resolution as well, hence based on international law. However, this framework although
proclaimed by an International organization, is supposed to have primary and exceptional
power only over this domestic sphere. Hence, this puts under doubt the real legal status of the
Constitutional Framework. Following the approach of the Court, we can assume that the
246 Kosovo Advisory Opinion, Accordance with International law of the Unilateral Declaration of Independence
in Respect of Kosovo, Advisory Opinion, I.C.J. Report 2010, paragraph 99, 114; 247This paragraph represents the Courts’ stance: Accordance with International law of the Unilateral Declaration
of Independence in Respect of Kosovo, Advisory Opinion, I.C.J. Report 2010, para. 88, para.110-121; 248 Ibid. paragraph 105, PISG is the Provisional Institution of Self-Government established in Kosovo; 249 Accordance with International law of the Unilateral Declaration of Independence in Respect of Kosovo,
Advisory Opinion, I.C.J. Report 2010, p.115; The Court notes that Res. 1244 impose obligations and
authorizations to UN Member States and UN organs, with the mark that it also refers to only KLA and other
Kosovo Albanian groups. Based on that the Court concludes that SC Res. 1244 do not impose obligations or
prohibitions to other actors. See Christian Pippan, 'The international Court of Justice's Advisory Opinion on
Kosovo's declaration of independence: an exercise in the art of silence ' [2010] Vol3 (3-4) EJM 159; 250 Cedric Ryngaert (2010), The ICJ’s Advisory Opinion on Kosovo’s declaration of independence: A missed
opportunity? Netherlands International Law Review, LVII: pp. 481-494, 2010 T.M.C. Asser Instituut and
Contributors; DOI: 10.1017/S0165070X10300052, 484-486; 251 Accordance with International law of the Unilateral Declaration of Independence in Respect of Kosovo,
Advisory Opinion, I.C.J. Report 2010, p.403; UNMIK is the United Nations Mission in Kosovo;
47
Framework can be valid on international and national surface as well. Thus this dual nature of
the status of the Constitutional Framework could have been applied in the other way around252
to the Resolution 1244(1999) which is adopted under Chapter VII. Therefore, in that logic it
could be concluded that the resolution had internal application only (emphasis added).
Nevertheless, by concluding that the Constitutional Framework had international
applicability253, the Court converted this highly domestic event into a matter of international
concern. More importantly, when this is a matter of external form of self-determination, the
legal framework would play the major role in achieving it. By concluding that neither
Resolution 1244 nor the Framework do not constitute clauses of terminations254, the Court
accepts to reply to the question asked by the General Assembly and by this, it stepped one more
time behind its jurisdiction regarding only matters concerning state entitles and international
organizations.255
4.3.The legal status of the authors of the declaration
This led to another essential point in establishing self-determination and the concept of
remedial secession in the Kosovo Advisory Opinion-the question who has the right and power
to proclaim unilaterally a secessionist attempt, and what kind of legal status should be obtained,
in order to achieve independence. The ambiguity of the Court’s advisory opinion derives from
the uncertain legal status of the author of the declarations as well. The ICJ embraced the view
that the authors of the declaration were acting as representatives of the will of the Kosovars256
rather than as part of the PISG.257 Thus, the Court concluded that the authors did not act in the
252 Christian Pippan, 'The international Court of Justice's Advisory Opinion on Kosovo's declaration of
independence: an exercise in the art of silence ' [2010] Vol3 (3-4) EJM, page 160; 253 Accordance with International law of the Unilateral Declaration of Independence in Respect of Kosovo,
Advisory Opinion, I.C.J. Report 2010, paragraph 88 Court states that: “In particular, it has been argued before
the Court that the Constitutional Framework is an act of an internal law rather than an international law
character. According to that argument, the Constitutional Framework would not be part of the international law
applicable in the present instance and the question of the compatibility of the declaration of independence
therewith would thus fall outside the scope of the General Assembly’s request.” 254 Accordance with International law of the Unilateral Declaration of Independence in Respect of Kosovo,
Advisory Opinion, I.C.J. Report 2010, paragraph 91; 255 David Jacobs and Y.acob Radi: Waiting for Godot- An analysis of the Advisory Opinion on Kosovo, Leiden
Journal of International Law, 24 (2011) pp. 332; 256 Accordance with International law of the Unilateral Declaration of Independence in Respect of Kosovo,
Advisory Opinion, I.C.J. Report 2010, p.403, paragraph109; 257Christian Pippan, 'The international Court of Justice's Advisory Opinion on Kosovo's declaration of
independence: an exercise in the art of silence ' [2010] Vol3 (3-4) EJM 159; See also Judge Skotnikov in his
separate opinion, para. 15 is on the stance that by considering the authors as acting outside the legal order
established in Kosovo, the Court circumvents the Constitutional Framework. He emphasizes that there is a
difference between acting outside and breaching the legal order. Judge Skotnikov in para.14 elaborates the
interpretation of the the Res. 1244 and the UDI as from one side the resolution creates binding obligation to all
and applies in full to the Kosovo Albanians citizens, taking into account Res. 1244 paragraph 11 (e) which states:
“Decides that the main responsibilities of the international civil presence will include: € Facilitating a political
48
framework of the self-government of Kosovo258 and this lands the most controversial feature
of the authors’ identity.259As the ICJ stated they were not “random”260 Kosovars but
representatives of the people’s will261 and here the question emerges: from where they gained
that capacity to represent the whole Kosovars community. It is logical to say that this capacity
derives from the fact that Kosovo was under provisional control for three years. However, the
Court did not consider that question, or even silently neglected it, as concluding that the authors
were not part of the institutional framework, but they had the capacity deriving from the same
framework.262 The conclusion of the Court lacks logic because of the fact that if the authors
of the declaration had the capacity to act on behalf of the Kosovars, deriving from the PISG,
so thus they are acting on the behalf of the institutional framework, and not the opposite.263 If
they acted outside the institutional structure, thus they did not have the capacity.264
4.4.Is the secessionist attempt in accordance with international law provisions?
Having defined the legal capacity of the authors, the following section will turn to the
question how such an attempt of self-determination through proclaiming declaration of
independence, can occur legally and in accordance with the general rules of international law.
process designed to determine Kosovo's future status, taking into account the Rambouillet accords (S/1999/648);”
and on the other side Judge Skotnikov emphasizes on the main purpose of determination of the final status of
Kosovo. However, the Court finds that the Resolution does not impose any obligations for the authors of the
declaration and the circumstances should be evaluated on case-by-case base. So hence, the Judge Skotnikov points
out that through this was the Court concludes that the effect of this political process of determination of the final
status of Kosovo stated in article 11 (e) of the Res. 1244, can be terminated by unilateral act by the authors of the
declaration257. And the Judge describes this as “a giant loophole in the régime it established under resolution
1244 by allowing for a unilateral “political settlement” of the final status issue”. 258 Ibid. 259 Accordance with International law of the Unilateral Declaration of Independence in Respect of Kosovo,
Advisory Opinion, I.C.J. Report 2010, para. 102- 106, The Court determines that status of the authors based on
the language of the declaration, the circumstances under which was proclaimed and on the silent reaction of the
Special Representative of the UNSC. Based on these examination the Court concludes that the authors are acting
on different surface, from the one of the Resolution 1244: they acted with the aim “to resolve” the status of Kosovo
(by recalling par. 1 and 30 of the Preamble of the Declaration) which demonstrates that they act outside the legal
order of UNMIK and PISG. Separate Opinion of Judge Karoma, paragraph 4 “Moreover, the Court’s conclusion
that the declaration of independence of 17 February 2008 was made by a body other than the Provisional
Institutions of Self Government of Kosovo and thus did not violate international law and it is legally untenable,
because it is based on the Court’s perceived intent of those authors”. 260 Jure Vidmar, Kosovo Advisory Opinion scrutinized, Leiden Journal of International Law, 24 (2011), pp. 355–
383; page 361 He uses this wording: “Thus, the concept of a unilateral declaration of independence presupposes
that independence is not declared by a random group of people. (…)” 261Accordance with International law of the Unilateral Declaration of Independence in Respect of Kosovo,
Advisory Opinion, I.C.J. Report 2010, para. 107: “(…) “We, the democratically-elected leaders of our people . .
.” (…) “para. 109 the Court concludes that the authors are acting as representative of the people of Kosovo outside
the framework of UNMIK and PISG; 262 Ibid. The author refers to the Constitutional framework for PISG REG/2001/9,15 From 2001 and refers to
Kosovo Adv. Opinion para. 109; 263 Jure Vidmar, Kosovo Advisory Opinion scrutinized, Leiden Journal of International Law, 24 (2011), pp. 355–
383; page 361; 264 Ibid.
49
Self-determination as already established in Chapter I primarily belongs to people or group of
people and it is closely related to the principle of territorial integrity.265 According to the UN
Charter, the latter concept is linked to the prohibition of use of force and considering only inter-
state relations. The principle of territorial integrity and respect of sovereignty are considered
to be one of the main obstacles in cases of secessionist attempts because these principles are
precluding the principle of self-determination which is protecting the borders of the States.266
The principle of territorial integrity is also codified in the Friendly Relations Declaration,
where it is stated as element of the principle of state sovereignty.267 The FRD makes a clear
relation between the territorial integrity and self-determination, stating in paragraph V (7) of
the FRD 1970 that actions of States should be in accordance with the principle of respect of
territorial integrity and in compliance with the principle of equal rights and self-determination
of peoples.268 This draws the link between the two concepts and the fact that the principle of
self-determination imposes to respect the territorial integrity of other states. The above
statement, also supports the fact that the principle of territorial integrity applies in general to
State relations. However, Ryngaert269 argues that the above mentioned paragraph from the FRD
establishes some “intra-state dimension” that people are in general not allowed to violate the
territorial integrity of a State where they reside. Ryngaert claims that territorial integrity in such
a context of self-determination is referring to states which are acting in compliance with
international law provisions.270 A similar view was expressed by the Court, defining territorial
integrity as mainly referring to interstate relations, therefore it is not considered to be bound to
265 See Chapter I p. 31-33 of the present research; see also Simone Driest- Remedial secession; A right to external
self-determination as a remedy to serious injustices? 2013, Schools of Human Rights Research Series, Volume
61, Chapter IV Traces of a (Remedial) Right to Unilateral Secession in Contemporary International Law?, p.
157;and art. 2 (4) UN Charter, Charter of OAS art.1,12,20; Charter of OAU preamble; Helsinki final act, principle
1,2,4,8; 266 Simone Driest- Remedial secession; A right to external self-determination as a remedy to serious injustices?
2013, Schools of Human Rights Research Series, Volume 61, page 145; and Chapter I, p. 25 of the present
research. 267 Friendly relations declaration (FRD), principle 1,5 p.7 and 8; principle 6; Preamble “Considering it essential
that all States shall refrain in their international relations from the threat or use of force against the territorial
integrity or political independence of any State, or in any other manner inconsistent with the purposes of the
United Nations” 268 Friendly relations declaration, preamble, para. 5(7) “Nothing in the foregoing paragraphs shall be construed
as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial
integrity or political unity of sovereign and independent States conducting themselves in compliance with the
principle of equal rights and self-determination of peoples as described above and thus possessed of a government
representing the whole people belonging to the territory without distinction as to race, creed or colour” 269 Cedric Ryngaert, The ICJ’s Advisory Opinion on Kosovo’s declaration of independence: A missed
opportunity? Netherlands International Law Review, LVII: pp. 481-494, p. 491 emphasis added 2010 T.M.C.
Asser Institute and Contributors; DOI: 10.1017/S0165070X10300052, 484-486; 270 Ibid. page 491;
50
non-state actors as the authors of the declaration.271 Therefore, according to the Court the
declaration of independence of Kosovo does not preclude the territorial integrity of Serbia. The
main reason why this is so important for the emerging concept of remedial secession and self-
determination is that through this deduction, the Court confirms that non-state actors are not
restricted by the principle of territorial integrity.272 Thus, in such cases as in Kosovo, where a
secessionist attempt happened, the Court embraces the view that the principle of territorial
integrity is not applicable, as the authors of the declaration are a non-state entity. Therefore,
there was no general prohibition of unilateral declarations273, according to the Court’s view.
Based on that conclusion it can be assumed that it is possible a non-state entity to proclaim
independence and might not be opposing to the international law.274 This is supported by
Wilde’s view that “state’s right to territorial integrity is not opposable to groups within it at
all, and so whether they have right to self-determination is irrelevant as they are not subject to
an obligation to respect this territorial integrity in the first place”.275
The above section of the research describes and discusses how the Court concludes that the
notion of self-determination and remedial secession were irrelevant276 and how territorial
integrity did not apply to non-state entities. Following the logic of the Advisory Opinion, it
highlights some of the ambiguity elements in relation to how a self-determination can be
achieved through Kosovo opinion’s perspective: the legal framework of proclaiming
declaration of independence and who bears the right to declare it. The Courts converts such a
domestic issue, into a matter of international concern-by interpreting the established
Constitutional Framework and Resolution 1244, determining that general international law is
271 Accordance with International law of the Unilateral Declaration of Independence in Respect of Kosovo,
Advisory Opinion, I.C.J. Report 2010, para. 80, conclusion supported by R.Wilde, Self-determination, secession,
and the Dispute settlement after the Kosovo Advisory Opinion, Leiden Journal of International Law, 24 (2011),
pp. 149–154, page 152-153; Jure Vidmar Kosovo Advisory Opinion scrutinized, Leiden Journal of International
Law, 24 (2011), p. 368; and H. Hurst, The Advisory Opinion on Kosovo: An Opportunity lost, or a poisoned
Chalice Refused?, Leiden Journal of International Law, 24 (2011), pp. 155–161,page 157; Christian Pippan, 'The
international Court of Justice's Advisory Opinion on Kosovo's declaration of independence: an exercise in the art
of silence ' [2010] Vol3 (3-4) EJM, p.17; Simone Driest- Remedial secession; A right to external self-
determination as a remedy to serious injustices? 2013, Schools of Human Rights Research Series, Volume 61,
Chapter IV Traces of a (Remedial) Right to Unilateral Secession in Contemporary International Law? pp. 97-184; 272 Simone Driest Ibid. page 146-147 the author notes that the Serbia’s territorial integrity was not violated,
because of the fact that the declaration was proclaimed by non-state actors; 273 Accordance with International law of the Unilateral Declaration of Independence in Respect of Kosovo,
Advisory Opinion, I.C.J. Report 2010, para. 81; 274 Ibid. para. 56 275 Ralph Wilde, Self-determination, secession, and the Dispute settlement after the Kosovo Advisory Opinion,
Leiden Journal of International Law, 24 (2011), page 152 276 In the wording of ICJ, they are “beyond the scope of the question posed by the General Assembly”. Accordance
with International law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion,
I.C.J. Report 2010;
51
not imposing obligations or prohibitions to non-state actors and that the principle of territorial
integrity does not apply to them. This leads to the conclusion that there might be a room left
for domestic issues on an international level. Following ICJ’s approach, it can be observed that
it is possible local endeavours for achieving independence, separation or dissolution to be
resolved not within the domestic fora, but rather within the international sphere. Moreover, a
unilateral act of declaring independence would be a way to internationalize such a thrive.277
Despite the fact that the ICJ did not implicitly add value to the notion of self-determination and
respectively remedial secession, the separate opinions of some of the judges attached to the
general conclusion proved the opposite. The following section will differ from the Court’s
general conclusion, and will elaborate the judges’ descending opinions, which offer distinctive
aspects on the concepts of self-determination and remedial secession. They provided a
differentiated attitude towards the interconnection between human rights, self-determination
and territorial integrity; and important insights whether a concept of remedial secession under
self-determination could be ascertained.
5. Separate opinions of judges
5.1.Judge Trindade
Contrary to the lack of attention given by the ICJ on the historical intensity in the region of
Kosovo, in the separate opinions of the judges, some of them recognize the fact that the case
of Kosovo, should be elaborated from a broader historical perspective. As Judge Trindade notes
in his opinion, declarations of independence are not happening in a “social vacuum”278 , thus
it requires a more in-depth analysis, including the historical tension which led to thrive of
proclaiming independence. He gives the needed attention to the factual background, defining
it as “humanitarian crisis”, “humanitarian catastrophe”279. Moreover as some scholars280
277 Jure Vidmar (2011) Kosovo Advisory Opinion scrutinized, Leiden Journal of International Law, 24 (2011),
pp. 355–383; pages 360-361: The author makes important observations regarding the authors and how can a
declaration of independence to be proclaimed unilaterally. He refers to the fact that unilaterally means an act
without the consent of the “mother” state, the fact that this act requires entitlement for representation the will of
people, which should derive legal capacity from somewhere. He pointed as major concern is how the Court
separates the authors’ capacity to act as representative of Kosovars from the institutional self-government, which
primarily established their capacity. 278 Accordance with International law of the Unilateral Declaration of Independence in Respect of Kosovo,
Advisory Opinion, I.C.J. Report 2010; KAO, ICJ Separate Opinion of Judge Trindade paragraph 12; 279 Ibid. 280 Evan Brewer, To break free from the tyranny and oppression: proposing a model for a remedial right to
secession in the wake of the Kosovo advisory opinion, 45 Vand. J. Transnat'l L. 245 2012, page 273;
52
define the opinion of Judge Trindade as more human rights based281 rather than states’
sovereignty-based. Judge Trindade notes:
“(…) that grave humanitarian crisis, as it developed in Kosovo along the nineties was marked
by a prolonged pattern of successive crimes against the civilians, by grave violations of
International Humanitarian Law and International Human Rights Law, and by emergence of
one of the most heinous crimes of our times, that of ethnic cleansing. (…) “282
Thus, although the fact that the Court examines the case in isolation, the opinion of Judge
Trindade confirms the historical pressure of Kosovo and most importantly, recalls the “droit
des gens”283 vision and that more attention should be put on the people under oppression and
subject to serious violations. Through his assessment, Judge Trindade establishes a path to trace
the right of unilateral secession284 by emphasizing that such a humanitarian crises as in Kosovo,
led to attempts of remedial secession and thus they are interconnected. He does not elaborate
explicitly the notion of remedial secession; neither provides explicitly how it should be done.
However, through recalling the self-determination after the decolonization period, he confirms
the validity of remedial secession in cases of gross violence285. This line of Judge Trinidade
can be linked to the view which Judge Yusuf embraces.
5.2.Judge Yusuf
Judge Yusuf is on the stance that the exceptionality of the Kosovo case derives from the
historical tension of the case and the State’s gross violations committed towards part of its
281 Evan Brewer, To break free from the tyranny and oppression: proposing a model for a remedial right to
secession in the wake of the Kosovo advisory opinion, 45 Vand. J. Transnat'l L. 245 2012, page 273; 282 Ibid.; See also Accordance with International law of the Unilateral Declaration of Independence in Respect of
Kosovo, Advisory Opinion, I.C.J. Report 2010, Separate Opinion of Judge Trindade paragraph 44; 283 Accordance with International law of the Unilateral Declaration of Independence in Respect of Kosovo,
Advisory Opinion, I.C.J. Report 2010, Separate Opinion of Judge Trindade paragraph 72; Droit des gens from
Latin refers to the law of nations; 284 S Simone Driest- Remedial secession; A right to external self-determination as a remedy to serious injustices?
2013, Schools of Human Rights Research Series, Volume 61, Chapter IV, page 153; The author defends the view
that although implicitly, judge Trindade makes reference to right to unilateral secession and that he recalls the
principle of self-determination of people. I his wording and his argument outlines a clear support to the existence
of remedial secession under international law. 285 KAO, Accordance with International law of the Unilateral Declaration of Independence in Respect of Kosovo,
Advisory Opinion, I.C.J. Report 2010, Separate Opinion of Judge Trindade paragraph 175: “(…) The principle of
self-determination has survived decolonization, only to face nowadays new and violent manifestations of
systematic oppression of peoples (…) It is immaterial whether, in the framework of these new experiments, self-
determination is given the qualification of “remedial” or another qualification. The fact remains that people
cannot be targeted for atrocities, cannot live under systematic oppression. The principle of self-determination
applies in new situations of systematic oppression, subjugation and tyranny. “
53
population, which amounts to circumstances of unilateral secession.286 He defines the advisory
opinion of the ICJ as failure and missed opportunity to provide clarification about the scope
and content of the right to external self-determination in a post-colonial aspect.287 Moreover,
he considers that this limited approach of the Court could be misinterpreted as a legitimating
declarations under international law by other ethnic or secessionist groups.288 He is on the view
that the right of people to determine their political, social or economic fate is mainly within
States thus, an exercise of internal self-determination.289 When it comes to the other aspect:
external self-determination, Judge Yusuf describes it as a challenge to the international law and
to the States. According to him the general right of external self-determination is associated to
the peoples of non-governing territories and people under alien subjugation, but should not
mean that all ethnical groups within States have a right to unilateral secession.290
However, Judge Yusuf takes into account the fact that there are some exceptional cases when
States breach their obligations toward its population: as denying right to external self-
determination, or committing gross violations of human rights towards its population. He
considers that if these conditions291 imposed by international law are met, is possible a claim
of separation of people to be supported and “the law may encourage it”.292 Thus, Judge Yusuf
claims that as long as the State is in compliance with its duties of equal rights and self-
determination of people and as long as the claim does not violate international law, the
286 Accordance with International law of the Unilateral Declaration of Independence in Respect of Kosovo,
Advisory Opinion, I.C.J. Report 2010, Separate Opinion of Judge Yusuf paragraph 12; 287 Ibid. paragraph 17; 288 Ibid paragraph 4 “To accept otherwise, to allow any ethnic, linguistic or religious group to declare
independence and break away from the territory of the State of which it forms part, outside the context of
decolonization, creates a very dangerous precedent. Indeed, it amounts to nothing less than announcing to any
and all dissident groups around the world that they are free to circumvent international law simply by acting in
a certain way and crafting a unilateral declaration of independence, using certain terms. The Court’s Opinion
will serve as a guide and instruction manual for secessionist groups the world over, and the stability of
international law will be severely undermined.” 289 Ibid. paragraph 9; 290 Ibid. paragraph 10; 291 Ibid. Judge Yusuf in para. 5 he notes that international law in general does not regulate declaration of
independence. However, he recalls that under conditions of situation of decolonization or people subject to
subjugation, domination and exploitation, the law may encourage it. He uses different international legal
instruments as Declaration on Principles of International Law Concerning Friendly Relations and Co-operation.
It recalls the safeguard clause, regarding equal rights and self-determination of people: “Nothing in the foregoing
paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair,
totally or in part, the territorial integrity or political unity of sovereign and independent States conducting
themselves in compliance with the principle of equal rights and self-determination of peoples as described above
and thus possessed of a government representing the whole people belonging to the territory without distinction
as to race, creed or colour.” 292 Ibid. para. 5 Judge Yusuf states: “(…) If such a claim meets the conditions prescribed by international law,
particularly in situations of decolonization or of peoples subject to alien subjugation, domination and exploitation,
the law may encourage it; but if it violates international law, the latter can discourage it or even declare it
illegal, (…)”
54
territorial integrity will remain the leading in examining the possibility of granting self-
determination. However, if the State fails to do so293 it could be considered as exceptional
situation, and a claim of external self-determination can be successfully exercised.294
5.3.Judge Karoma
On the contrary Judge Karoma takes a different approach, more state sovereignty-based in
interpreting the right of self-determination. In his assessment of the case, he emphasizes on the
concepts of sovereignty and territorial integrity295 as crucial and that the declaration of
independence is in breach of these legal principles. By referring to the Declaration on Principles
of International Law concerning Friendly Relations and Cooperation among states in
accordance with the UN Charter296 and Resolution 1244 (1999), Judge Karoma emphasizes on
their primary role in such “attempts of disruption”297. He considers that the equal rights and
self-determination are not precluding the territorial integrity and do not allow for secession of
existing State298, which differs from the Trindade’s humanist vision.299
293 Accordance with International law of the Unilateral Declaration of Independence in Respect of Kosovo,
Advisory Opinion, I.C.J. Report 2010, Separate Opinion of Judge Yusuf, paragraph 16 “To determine whether a
specific situation constitutes an exceptional case which may legitimize a claim to external self-determination,
certain criteria have to be considered, such as the existence of discrimination against a people, its persecution
due to its racial or ethnic characteristics, and the denial of autonomous political structures and access to
government. A decision by the Security Council to intervene could also be an additional criterion for assessing
the exceptional circumstances which might confer legitimacy on demands for external self-determination by a
people denied the exercise of its right to internal self-determination. Nevertheless, even where such exceptional
circumstances exist, it does not necessarily follow that the concerned people has an automatic right to separate
statehood. All possible remedies for the realization of internal self-determination must be exhausted before the
issue is removed from the domestic jurisdiction of the State which had hitherto exercised sovereignty over the
territory inhabited by the people making the claim. In this context, the role of the international community, and
in particular of the Security Council and the General Assembly, is of paramount importance.” 294 KAO, Accordance with International law of the Unilateral Declaration of Independence in Respect of Kosovo,
Advisory Opinion, I.C.J. Report 2010, Separate Opinion of Judge Yusuf paragraph 12; 295 KAO, Accordance with International law of the Unilateral Declaration of Independence in Respect of Kosovo,
Advisory Opinion, I.C.J. Report 2010, Separate opinion of Judge Koroma- paragraph 13; He emphasizes that
these concepts are enshrined in the Resolution 1244(1999), Friendly Relation Declaration and set out in Helsinki
Final Act; these concepts impose obligations to respect the definition, delineation and territorial integrity of an
existing State (according to paragraph 21 of his opinion: “The Declaration further stipulates that “[t]he territorial
integrity and political independence of the State are inviolable”.) 296 Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States
in accordance with the Charter of the United Nations, adopted by the General Assembly on 24 October 1970
(FRD) 297 KAO ICJ, Separate opinion of Judge Koroma- paragraph 21; 298 Ibid. paragraph 22; 299 Judge Trindade in his Separate opinion- para. 180 and 206,208, assesses the equal rights and right of self-
determination of people applicable beyond the decolonization period. By referring to paragraph 5(7) of 1970 UN
Declaration of Principles: “Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging
any action which would dismember or impair, totally or in part, the territorial integrity or political unity of
sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-
determination of peoples as described above and thus possessed of a government representing the whole people
belonging to the territory without distinction as to race, creed or colour.” he emphasizes on the fact that if a State
undertake gross and systematic violations of human rights, ceases to represent the people victimized. Moreover,
55
Turning back to the elaborations of Judge Karoma, he underlines the fact that under the interim
admirations, the Kosovars can enjoy “substantive autonomy within”300 the territory of Federal
Republic of Yugoslavia (Serbia), so thus it does not provide any basis to determine the final
status of Kosovo, nor provide any legal basis to amend the FRY’s sovereignty.301 One of his
critiques is regarding the authors of the declaration, which ICJ defined as acting outside of the
PISG and therefore does not violate international law, which conclusion Karoma describes as
“untenable”302. Judge Karoma stated that this examination is based on the Court own
perception303 of the authors: evaluate their identity mainly by their perceived intent to be
legitimate leaders and representatives of the Kosovo’s population. Another critique refers to
the position of the ICJ that international law neither prohibits nor authorizes unilateral
declaration of independence, because it will be logical only in abstract way304 according to the
judge. Based on that, he describes the outcome as “absurd”- as to circumvent the international
law.305 Therefore, referring to the Supreme Court of Canada’s examination on the Secession of
Quebec from Canada306, he concludes that the resolution does not permit any unilateral
declaration307 of independence or secessionist attempts without the consent of the mother
he refers to the Vienna Declaration from 1993 which recognized the denial of the right of self-determination as a
violation of human rights. Hence, based on the above documents, Judge Trindade concludes that no State can use
territory to destroy population or after committing violations of human rights including denial of right of self-
determination, to pretend to profit from its territorial integrity299. Territorial integrity goes closely related to the
human integrity299 particularly in intra-State relations according to him. Thus territorial integrity is mainly related
to respect of human integrity in “intra-State dimension” and self-determination is associated to the people which
are under a form of oppression or assimilation. Therefore, every act breaching that respect should amount to
breach of the Law of the United Nation according to Judge Trindade. 300 Resolution 1244 (1999) para. 10 states: “Authorizes the Secretary-General, with the assistance of relevant
international organizations, to establish an international civil presence in Kosovo in order to provide an interim
administration for Kosovo under which the people of Kosovo can enjoy substantial autonomy within the Federal
Republic of Yugoslavia, and which will provide transitional administration while establishing and overseeing the
development of provisional democratic self-governing institutions to ensure conditions for a peaceful and normal
life for all inhabitants of Kosovo; (…) “ 301 KAO Accordance with International law of the Unilateral Declaration of Independence in Respect of
Kosovo, Advisory Opinion, I.C.J. Report 2010, Separate opinion of Judge Koroma- paragraph 14; 302 Ibid. Separate Opinion of Judge Karoma p.467 abstract and para. 4; 303 Ibid. paragraph 4; Furthermore, he is on the view that international law does not confer a right on ethnic,
linguistic or religious groups to break away from territory of a State, without its content. 304 Judge Karoma refers to the Advisory Opinion of the Supreme Court of Canada, reaching such a conclusion in
the abstract with respect to secession in international law, Reference by the Governor in Council concerning
Certain Questions relating to the Secession of Quebec from Canada, 1998, 2 SCR, Vol. 2, p. 217, para. 112 305 Separate opinion of Judge Koroma- paragraph 5; 306 Reference by the Governor in Council concerning Certain Questions relating to the Secession of Quebec from
Canada, 1998, 2 SCR, Vol. 2, p. 217, para. 111; 307 KAO ICJ, Separate opinion of Judge Koroma- paragraph 20; He consider the declaration of independence to
amount to unilateral secession;
56
State.308 Hence, the unilateral declaration of independence is not in accordance with
international law according to judge Karoma.309
5.4.Judge Simma
A different view is elaborated by Judge Simma who supports the major elements of the fact-
finding and the final conclusion of the ICJ that international law does not prohibit unilateral
declaration. However, Judge Simma adds some personal elaboration regarding the scope of
the Court’s analysis which led to unsatisfactory answer to the imposed question310 and to an
“exercise of a mechanical jurisprudence”.311 He criticizes the wording of the General
Assembly and the fact that it excluded from the Courts analysis the possibility whether
international law may permit or foresee an entitlement to declare independence when specific
conditions are met.312 But the most important part of his separate opinion is the fact that he
considers crucial and relevant to address the issues of self-determination and remedial
secession, in order to deal with the broader problematic matter of Kosovo. Thus, a wider scope
of interpretation and examination by the Court and more comprehensive answer is necessary
in order to elaborate the issue of remedial secession and all legal uncertainties which derive
from such attempts of secession.313 Although, he does not examine the legal status of the
authors of the declaration of independence, he notes that they are the ones who represent the
“will of their people” which according to him is a reference to the exercise of self-
determination.314
6. Conclusion
By looking into the separate opinions of the judges, it cannot be concluded that they support a
common view on the exercise of self-determination. However, some features can be drawn
which demonstrate the added value of the separate opinions. Both Judge Trindade and Yusuf
turn back to the historical pressure of Kosovo, in order to elaborate the issues imposed there.
They both are on the stance that the case cannot be examined in isolation and furthermore, the
gross violations committed there should not be disregarded by the Court. On one side, if we
take the human-rights based view of judge Trindande it might be possible to trace implicitly
308 KAO, Accordance with International law of the Unilateral Declaration of Independence in Respect of Kosovo,
Advisory Opinion, I.C.J. Report 2010, Separate opinion of Judge Koroma- paragraph 18; 309 Ibid. paragraph 25; 310 KAO, Accordance with International law of the Unilateral Declaration of Independence in Respect of Kosovo,
Advisory Opinion, I.C.J. Report 2010, Separate opinion of Judge Simma- paragraph 3; 311 Ibid. paragraph 10; 312 Ibid. paragraph 1; 313 Ibid. paragraph 6 and 7; 314 Ibid.
57
the right to remedial secession to such a people subject to oppression. And this stance is
overlapping with the view elaborated by Judge Yusuf that the matters of self-determination and
remedial secession could have been considered by the ICJ in its advisory opinion, in order to
resolve the broader issue considering the historical background of Kosovo. On the other side,
if we take a more state sovereignty approach as Judge Karoma, we will conclude that unilateral
attempts of secession are breaching the principle of territorial integrity315, and thus violate
international law. Nevertheless, it can be seen after the Kosovo Advisory Opinion that the
notions of self-determination and remedial secession gain more attention. Even though the
Court to remains reluctant to consider them in its evaluation, the separate opinions provide
valuable evidence that there is a room316 left on the international law’s surface. It can be seen
after the Kosovo case, that remedial secession is considered in the sphere of external self-
determination as a remedy or a last resort of gross human rights violations mainly committed
by the “mother state”. Hence, remedial right of unilateral secession is triggered by subjugation
and it can be an entitlement of oppressed people.317 On the contrary, remedial secession if
breaches peremptory norms as territorial integrity is prohibited by the law, according to Judge
Karoma. The Court differs from this opinion by stating that territorial integrity does not apply
to non-state actors. Therefore, from Kosovo case’s perspective we can deduce that it should be
considered as an evidence for a form of entitlement of a right to secede rather than as
prohibition to do so.318 Here a note should be made: according to Crawford international law
is neutral regarding secession: neither prohibiting it nor allowed. He notes that secession is
neutral, which consequences can become a matter of internationalize concern.319 Therefore, the
above elaborated added value is more referring to the consequences of an entitlement to have
a right to secede of oppressed people: thus, how to achieve legally recognition by other states.
315 This conclusion differs from the Court view, that territorial integrity does not preclude the unilateral declaration
of independence, due to the fact that it is a cat of non-state actors. The Court considers the principle of territorial
integrity to be applicable only in interstate relations. 316 Simone Driest- Remedial secession; A right to external self-determination as a remedy to serious injustices?
2013, Schools of Human Rights Research Series, Volume 61, Chapter IV Traces of a (Remedial) Right to
Unilateral Secession in Contemporary International Law?; 317Jure Vidmar, 'Remedial secession in international law: Theory and (lack of) practice ' [2010] Review 6(No 1) St
Antony's International Review 43;
318 Here should be noted the difference between having the prohibition to remedial secession and the entitlement
to secede according to James Crawford. He emphasizes that it is connected to the effectiveness of successfully
attain a statehood and to be recognized. Thus, according to him the difference lies in the consequences of creating
a state: in making it easier or harder to do. 319 James Crawford, The creation of new states in international law (Oxford University Press 2007) page 390;
58
Nevertheless, to consider the elaborations of the judges as a clear and strong evidence to trace
the unilateral secession and a right to remedial secession, will be a hastier determination than
a logical conclusion. It can be noted as well that, the Kosovo case does not provide clear
guidelines how a right to self-determination can be exercised. However, the added value of the
advisory opinion and the separate opinions of the judges is that they tend to ascertain the
question of remedial secession mainly concerning people suffering oppression.320 But perhaps
the advisory opinion, considering the external form of self-determination, is a challenge to
international law and mainly to States in the cases of states’ non- compliance with the
obligations imposed by the law. Therefore, after the Kosovo case self-determination does not
entail a guideline how to be exercised, but provides some important insight that the right to
remedial secession and its success will continue to oscillate between the state compliancy and
state recognition321 and how statehood can be achieved in accordance with the mother state
entity.
Whether external self-determination by culminating into recognition by other state entities, can
provide evidence from a right to remedial secession I will elaborate in the next chapter. Some
states322 recognized Kosovo on the basis of its sui generis character which confirms that the
case provides valuable elements. I will try to connect these elements to the case of Abkhazia
in order to trace new challenges or new value added to the notion of self-determination and
remedial secession. A further intention is to trace whether these cases can amount to state
practice, which along with opinion juris might allow to ascertain a legal principle of remedial
secession on the basis of the customary international law.
320 Jure Vidmar, 'Remedial secession in international law: Theory and (lack of) practice ' [2010] Review 6(No
1) St Antony's International Review 4, page 40: the author refer to Buchanan theory: If the state persists in serious
injustices toward a group, and the group’s forming its own independent political unit is a remedy of last resort for
these injustices, then the group ought to be acknowledged by the international community to have the claim-right
to repudiate the authority of the state and to attempt to establish its own independent political unit. See Allen
Buchanan, Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law (Oxford:
Oxford University Press, 2004), 335. 321 Ibid. The author refers to The Quebec case (1998) (n 5) [155] page 39, which provides valuable contribution
on the matter of remedial secession. 322 Simone Driest- Remedial secession; A right to external self-determination as a remedy to serious injustices?
2013, Schools of Human Rights Research Series, Volume 61, Chapter VI A customary right to remedial secession?
Page 245, the author notes that some of the states show support implicitly or explicitly for the existence of remedial
secession as Albania, Germany, Ireland, Netherlands, etc.
59
Section IV
CHAPTER III: REMEDIAL SECESSION IN THE CASE OF
ABKHAZIA
Abstract
The Abkhazian episode was described by some scholars as a recent instance of secessionist
conflict from the mother state in order to acquire independence and sovereignty.323 As this
chapter will be more practical oriented, thus the above legally examined theoretical framework
including the contributions of the Kosovo case will be applied to the case of Abkhazia. The aim
of this chapter is to examine whether it can be applied to the conditions of remedial secession,
and whether Abkhazians can claim a right to remedial secession. A remark in the conclusion
will be on the recognition by third parties as possible outcome to secessionist movements. This
will subsequently lead to an examination whether the case of Abkhazia contributes to the
concept of remedial secession, and last but not least where we stand in its aftermath.
1. Introduction
A recent case which raise the question of the existence of right to remedial secession is the
case of Abkhazia and its attempt to separate from Georgia. From historical and territorial points
of view the case of Abkhazia goes together with the case of South Ossetia, as both regions
within Georgia. However, for the sake of this research the focus will be only on the case of
Abkhazia, because it demonstrates on one side the controversial relations with the Georgian
Government, and on the other the wide influence by the Socialist block. These relations play
major role in the further international attempts of negotiation and mediation in the Caucasus
region.
1.2.Historical overview
The region of Abkhazia achieved a degree of autonomy as “autonomous republic”324 within
Georgia Union Republic since 1936 after the dissolution of the Transcaucasian Soviet
323 Bruno Coppieters, Europeanization and conflict resolution, case study from the European
periphery (Academia press 2004) 191 See also David Raic, Statehood & the Law of Self-Determination (Vol 43
edn, Kluwer Law International 2002) p. 372 the author describes Abkhazia as unsuccessful unilateral secession; 324 Bruno Coppieters, Europeanization and conflict resolution, case study from the European
periphery (Academia press 2004) page 193; See also Christian Axboe Nielsen (2009) The Kosovo precedent and
60
Federated Socialist Republic.325 Although this autonomy lasted until 1991, it can be defined as
more declarative which impose unequal and “subordinate” relation with Georgia (which at
time was under the Soviet structure), than to grant any particular degree of sovereignty or right
to secession to Abkhazians. A wide influence and “systematically manipulation”326 of the
Soviet bloc from the destalinization to the democratization process, and the declaration of
independence of Georgia in 1991 were all considered as a threat of assimilate327 by the
Abkhazian population. This can be argued as a turning point in the attempt of Abkhazia to
acquire right to self-determination.328 A subsequent events of: abolishment of the autonomous
status of Abkhazia, a military coup which led to change to communist leadership and
abolishment of the constitution and replacing it with Soviet oriented one escalated in a war in
1992-1993 which was solved by the intervention of the Russian forces.329 In the afterwards,
led to unilateral acts of Abkhazia declaring its sovereign status.330
2. A possible analogy with Kosovo case
This will be the starting point in applying the already established legal framework of self-
determination and a possible remedial secession in the case of Abkhazia. Before that, it should
be sketched whether there are similar features in both cases, which could define a model or
pattern in the attempts to secession, e.g. relations between these regions and the respective
“metropolitan states”331 or previous historical tensions and their response on international
level. This will be further developed in the next section of the present chapter, where will apply
the rhetorical deployment of former Yugoslav analogies in the cases of Abkhazia and South Ossetia, Southeast
European and Black Sea Studies, 9:1-2, 171-189, DOI: 10.1080/14683850902723595, page 175; 325 Bruno Coppieters, Europeanization and conflict resolution, case study from the European
periphery (Academia press 2004) 193; 326 Christian Axboe Nielsen (2009) The Kosovo precedent and the rhetorical deployment of former Yugoslav
analogies in the cases of Abkhazia and South Ossetia, Southeast European and Black Sea Studies, 9:1-2, 171-189,
DOI: 10.1080/14683850902723595, page 175; 327 On the contrary, that fear of the population of Abkhazia was described by Ch. Nielen, Ibid. page 176 (see note
3) as “mutual victimization” of South Ossetia and Abkhazia at the time of democratization under the Bolshevik
and Menshevik parties. 328 Christian Axboe Nielsen (2009) The Kosovo precedent and the rhetorical deployment of former Yugoslav
analogies in the cases of Abkhazia and South Ossetia, Southeast European and Black Sea Studies, 9:1-2, 171-189,
DOI: 10.1080/14683850902723595, p. 193-196; As turning points was argued the Destalinization period from
1950 and the democratization policies under the Gorbachov ruling in the 1980s led to to tension between the
Abkhazian community and the government of Georgia. Thus a wide influence of Socialist block can be traced
since that period, which later on will continue to play major role in the future attempts to resolve the issue of
Abkhazia self-determination. 329 Bruno Coppieters, Europeanization and conflict resolution, case study from the European
periphery (Academia press 2004) pages 196-199; For more detailed overview of the historical events can see also
M. Kohen, Secession, International law perspectives, Cambridge University Press, 2006, page 113; 330 later on in the present chapter will be elaborated on the unilateral acts of Abkhazia to declare its independence 331 Term used by J. Crawford, Modes of the Creation of States in international law, Oxford University Press,
2006, p. 258 and 330 which term refers to the mother/ parent state.
61
the legal framework and will trace whether the case of Abkhazia satisfy the conditions of
remedial secession, outlined in chapter I and II.
The historical pressure in Kosovo and in Abkhazia exercised by the parent states, is considered
as a driving force for the worsening in their relations with the mother state and for the
subsequent escalations. To both regions have granted a certain degree of autonomy by Serbian
and Georgian government, although Kosovo had more expanded rights and degree of self-
government while Abkhazia had more declarative autonomous status within the Socialist
Federative Republic of Georgia.332 Both territories were autonomous regions, but as response
to repression by their parent states, their autonomy status was terminated in 1990s.333 These
acts led to unilateral acts of declaring independence by Kosovars and Abkhazians, proclaiming
themselves as sovereign states.334 Furthermore, both declared their independence based on a
referendum in 1991 in Kosovo and in 1999 in Abkhazia.335 The population of both regions can
be defined as ethnic minorities within their respective nations. In both regions there were a
series of violations which subsequently escalated in repression. Moreover, there were
allegations for committing genocide336 in the region of Kosovo and Abkhazia during this
period. The oppression by the Serbian government emerged in war between Kosovo and Serbia
in 1998, as did between Abkhazia and Georgia after series of events which led to the war from
1992. In both cases an extensive use of force was used as main reason for outside intervention-
in the case of Kosovo: by the United Nations and NATO, while in the case of Abkhazia an
implicit support by Russian troops. The use of force and the series of events in both regions
332 Bruno Coppieters, Europeanization and conflict resolution, case study from the European
periphery (Academia press 2004) page 198; see also M. Kohen Secession, International law perspectives,
Cambridge University Press, 2006, page 113, where the author states that Abkhazia had signed a “contract
alliance” with Georgia, under which Abkhazia keeps its status of autonomous republic within Soviet Georgian
Republic. Abkhazia adopted its constitution in 1925 with the influence of Soviet bloc, where clearly it states its
status. 333 Ibid. See also Crawford, The creation of States in international law, Oxford university press, 2006, page 408
and Bruno Coppieters, Europeanization and conflict resolution, case study from the European
periphery (Academia press 2004) p. 198; 334 Bruno Coppieters, Europeanization and conflict resolution, case study from the European
periphery (Academia press 2004) pages 197; See David Raic, Statehood & the Law of Self-Determination (Vol
43 edn, Kluwer Law International 2002) p. 380-381:” the Abkhazian Supreme Soviet declared Abkhazian
sovereignty in 1992”; 335 See A stability pact for the Caucasus, A Consultative document of the Center for European Policy Studies task
force on the Caucasus, page 50; obtained from
http://aei.pitt.edu/32563/1/2._A_Stability_Pact_for_the_Caucasus.pdf ; See also Constitution of Kosovo art. 2(1)
and Constitution of Abkhazia Preamble; 336 Christian Axboe Nielsen (2009) The Kosovo precedent and the rhetorical deployment of former Yugoslav
analogies in the cases of Abkhazia and South Ossetia, Southeast European and Black Sea Studies, 9:1-2, 171-189,
pages 178-179, See also Mikulas Fabry (2012) The contemporary practice of state recognition: Kosovo, South
Ossetia, Abkhazia, and their aftermath, Nationalities Papers, 40:5, 661-676, page 668;
62
provoked the unilateral acts of Kosovars and Abkhazians to declare their sovereignty. The
intervention of NATO and the UN in Kosovo was a driving force in the negotiation and in the
process of acquiring a higher level of autonomy and independence, while this was not the case
in the region of Abkhazia where 3rd state intervention played a major role. Under the heading
of UN Interim Provisional Administration and after the ruling of the ICJ, Kosovo acquired a
degree of independence and recognition; in Abkhazia the UNOMIG337 and the Soviet Union
involvement did not have the same outcome. Nielsen defines Abkhazia as the “stalking-horse
for the Russian interests”338 in the Caucasus region, as non-governmental reports and scholars
analysis provide evidence for Russian support for Abkhazia.339 Also Abkhazia has open access
to Russia by railway connection and the fact that since 1990s started a process of granting
Russian citizenship to the Abkhaz population340 can be argued as evidence of a favoured
attitude. Based on this overview of the historical devolution of the both regions can be argued
that they both can be placed on the same surface, based on the above examined common
features.
3. The application of the legal framework of secession
As already examine in Chapter I the legal framework of self-determination, it argues
implicitly that there is a possible existence of remedial secession as a mode of exercising self-
determination but only when the necessary conditions are presented. It claims that remedial
secession can be seen as not absolute right, but as limited to certain criteria which need to be
met in order to apply remedial secession. The Second Chapter by examining the case of
Kosovo advisory opinion, outlines the controversial evaluation of the existence of remedial
secession. Even though, the case of Kosovo to be defined by some scholars as “sui generis”
337 The United Nations Observer Mission in Georgia (UNOMIG); 338 Christian Axboe Nielsen (2009) The Kosovo precedent and the rhetorical deployment of former Yugoslav
analogies in the cases of Abkhazia and South Ossetia, Southeast European and Black Sea Studies, 9:1-2, 171-189,
page 176; 339 See M. Kohen Secession, International law perspectives, Cambridge University Press, 2006, page 115 the
author states that Georgia accused Russia for supporting Abkhazia by providing military equipment. See Human
Right Watch Helsinki Report from 1995, on Georgia/Abkhazia: violations of the laws of war and Russia’s role in
the conflict, page 7; See also Helge Blakkisrud & Pål Kolstø (2012) Dynamics of de facto statehood: the South
Caucasian de facto states between secession and sovereignty, Southeast European and Black Sea Studies, 12:2,
281-298, DOI: 10.1080/14683857.2012.686013, page 290; 340 Bruno Coppieters, Europeanization and conflict resolution, case study from the European
periphery (Academia press 2004) pages 199-200; See also Christian Axboe Nielsen, 'The Kosovo precedent and
the rhetorical deployment of former Yugoslav analogies in the cases of Abkhazia and South Ossetia ' [2009] Vol
9(9:1-2 edn) Southeast European and Black Sea Studies 174, Page 178; See also Littlefield, Scott, Citizenship,
Identity and Foreign Policy: The Contradictions and Consequences of Russia's Passport Distribution in the
Separatist Regions of Georgia, Europe-Asia Studies, Vol. 61, No. 8, (2009), 1461-1482, p. 1461;
63
and which cannot be used as standard for any further attempts to secede341, it does contribute
to the development of remedial secession and question its existence under international law
provisions. It is argued that remedial secession in the aftermath of Kosovo advisory opinion, is
not allowed neither prohibited, but neutral.342 Therefore, this research takes the view of self-
determination as inalienable human right, belonging to every nation343, but remedial secession
is limited by certain conditions, which impose a particular threshold in order to define a case
as instance of remedial secession. Thus it will require theoretical examination whether the
episode of Abkhazia can amount to case of remedial secession by analysing the applicability
of remedial secession conditions imposed in Chapter I.
3.2.People/peoplehood
The first condition defined by some scholars344 which need to be satisfied before evoking a
possible right to remedial secession is that the group should be considered as “peoples” for the
sake of remedial secession. As was outlined in Chapter I there is not unified stance on who can
be defined as “peoples”.345 However, a collective entity which share common treats as history,
culture ethnic identity, language, religion and culture may satisfy this condition.346 This
collective identity will be a characteristic which should distinguish the group, from the rest of
the population and it should be a majority within the territory. Even though, that Kosovars can
clearly be defined as majority within Kosovo region, as they share common treats and identity
which distinguish them from the rest of the population. However, within Serbia it is doubtful
whether they amount to majority. On the other side, the Abkhazian population was a minority
group in Georgia, prior to the hostilities.347 They also have collective identity which is deeply
rooted in the historical development of Georgia since the time when Abkhazia receive a statute
341 Christian Axboe Nielsen ibid. page 174, the author refers to Havier Solana as High Representative for Common
Foreign and Security Policy who also defines it as sui generis case. 342 James Crawford, The creation of new states in international law (Oxford University Press 2007) page 390; 343 See Bruno Coppieters, 'Secession and War: A moral analysis of the Russian Chechen Conflict' [2003] XII (4)
Central Asian Survey, p. 380 the author states a “choice approach” which assume that every nation has the right
to self-determination. Also see Rygaert and Griffoen The relevance of the right to self-determination in Kosovo
Matter: in partial response to the Angora Papers, 2009, Oxford University Press, page 575 refer to self-
determination as universal human right. 344Cedric Rygaert and Chrstine Griffoen The relevance of the right to self-determination in Kosovo Matter: in
partial response to the Angora Papers,2009, Oxford University Press, page 575; 345 See Chapter I p.30-33 for more elaboration on the question who can be considered as “peoples” ; 346 See Chapter I p. 17, p. 24-25, p.30-33 of the present research; also see David Raic, Statehood & the Law of
Self-Determination (Vol 43 edn, Kluwer Law International 2002) page 220; See L. Laurinaviciute, L. Biekša- the
relevance of remedial secession, International Comparative Jurisprudence 1 (2015) 66–75, page 69; See Cedric
Rygaert and Chrstine Griffoen The relevance of the right to self-determination in Kosovo Matter: in partial
response to the Angora Papers,2009, Oxford University Press, page 575; 347 Marcelo Kohen Secession, International law perspectives, Cambridge University Press, 2006, page 113;
64
of autonomous region.348 Thus, it can be argued that although a sub-group within Georgia, it
has an internal right of self-determination based on the fact that they share common collective
identity. According to the ICJ judgement this might even counterweigh and preclude the lack
of majority within one territory.349 When it comes to external self-determination, i.e. remedial
secession, this condition will be one of the obstacles, but if we embrace the Court’s stance,
then this criteria might be neglected if all the remaining condonations are met.350
3.3.Oppression/segregation and gross human rights violations
Some scholars351 support the view that remedial secession refers to episodes of systematic
oppression and segregation, when secession is perceived as remedial countermeasure. The
question what amounts to systematic oppression or how grave the human rights violations
should be in order to evoke remedial secession, was not considered in scholars’ interpretations.
However, in the case of Abkhazia it cannot be argued that there was a systematic oppression,
nor gross human rights violations. Even if takes into account the war in 1992 and in 2008
between Georgia and Russia, one can claim that both sides committed atrocities.352 Moreover,
there is no clear evidence that there were systematic human rights violations towards the
secessionist- Abkhazian populations, even though that Russia used it as justification for its
intervention in the region.353 The historical tension between Abkhazia and Georgia, the
abolishment of Abkhazian autonomous status prior to the war in 1992 and moreover, the
subsequent depopulation of Gali region and general denial of the right to return there of all
refugees after the war354, triggered accusations of ethnic cleaning by some international
organization as the OSCE and non-governmental organization.355 Therefore, it can be argued
that there was a degree of oppression, but whether it amounts to systematically, is uncertain.
The other element of gross and widespread human rights violation directed to the Abkhazian
348 Marcelo Kohen Secession, International law perspectives, Cambridge University Press, 2006, page 113; 349 Accordance with International law of the Unilateral Declaration of Independence in Respect of Kosovo,
Advisory Opinion, I.C.J. Report 2010, KAO by ICJ, See Chapter II p. 43-45 of the resent research; 350 Cedric Rygaert and Chrstine Griffoen The relevance of the right to self-determination in Kosovo Matter: in
partial response to the Angora Papers,2009, Oxford University Press, page 575; 351 David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002) page
311, the author refers to Lee Buchheit and E. Vattel The law of nations,1916, Ch. 4, para 54; 352 L. Laurinaviciute, L. Biekša- the relevance of remedial secession, International Comparative Jurisprudence 1
(2015) page 72; 353 Christian Axboe Nielsen (2009) The Kosovo precedent and the rhetorical deployment of former Yugoslav
analogies in the cases of Abkhazia and South Ossetia, Southeast European and Black Sea Studies, 9:1-2, 171-189,
DOI: 10.1080/14683850902723595, page 179; 354 According to Bruno Coppieters, Europeanization and conflict resolution, case study from the European
periphery (Academia press 2004) p.199 the author there was a deny to return back in the region. 355 Ibid. 199; See also Human rights watch report from 1995, on Georgia/Abkhazia: violations of the laws of war
and Russia’s role in the conflict, page 7, obtained from https://www.hrw.org/reports/1995/Georgia2.htm ;
65
population was not present prior to the secessionist attempts. One can claim that in the case of
Abkhazia the conflict was a consequence but not a reason for secession.356 Hence, the second
condition is partially fulfilled.
3.4.A denial of internal self-determination, exclusion from participation in the political life
and exhausted all possibilities to resolve the issue peacefully
The last two criteria which need to be satisfied so to invoke the doctrine of remedial
secession will be examine in conjunction, as they are interrelated. The first is that there was a
denial of internal self-determination and the second: that all peaceful remedies for settling or
negotiating were exhausted, that there is no visible future possibility to be solved peacefully
e.g. “the negotiation leads to nowhere”.357 In the case of Abkhazia there is no evidence for
denial of political participation, Abkhazia had status of autonomous republic since 1925, which
status was defined as subordinate to the Georgian Union Republic from 1936 to 1991. Abkhazia
had its own constitution, even though that it was temporary cancelled in 1990s by the Georgian
government. Worth noticing is that the status of Abkhazia as autonomy was not legally
enshrined in the constitution of Georgia from 1921 which was substituted under the ruling of
Shevrdnadze. Thus, Abkhazia had a degree of self-ruling, although in a more declarative sense,
as subordinate to Georgia. However, there was a negative attitude toward the Abkhazian
population during the destalinization and democratization of Gorbachov, which include a
degree of Soviet influence in Georgia, including Abkhazia.358 After all, this subordinate
relation and the Russian attempts to influence were perceived as a threat by Abkhazians.
However, it cannot be argued that there was a denial of participation or exclusion from the
political life of the state.
Regarding to the question whether all possible ways of settling the issue were exhausted, the
series of attempts by the Georgian government to negotiate based on a “two-tier federal
framework”, did not lead to a positive outcome.359 Under the ruling of Shevardnadze there
were series of attempts to negotiate the final status of Abkhazia based on a federalization within
356 L. Laurinaviciute, L. Biekša- the relevance of remedial secession, International Comparative Jurisprudence 1
(2015) page 72; 357 Cedric Rygaert and Chrstine Griffoen The relevance of the right to self-determination in Kosovo Matter: in
partial response to the Angora Papers,2009, Oxford University Press, page 576; 358 Bruno Coppieters, Europeanization and conflict resolution, case study from the European
periphery (Academia press 2004) p.199; 359 Ibid. page 200;
66
asymmetric relations with Georgia.360 However, this endeavour was met by rejection of the
Abkhazian authorities, which considered as possible outcome only full recognition of their
sovereign status. This was visible by the second Abkhazian act of proclamation, by reinforcing
the Constitution of 1925 and subsequently in 1999 by unilaterally declaring its
independence.361 Furthermore, there are some scholars’ analysis which emphasize that the
international involvement of the UN, Russia and the OSCE to facilitate the process of
negation362, is in fact after the unilateral declaration of independence. Thus, this does not fall
under the criteria of exhausted all possible peaceful remedies prior to the act of secession.
Furthermore, taking into account the “unwillingness”363 of Abkhazia to negotiate any
possibilities below their demands, is another factor which preclude the applicability of the last
condition364. Therefore, it can be argued that the last two conditions of remedial secession were
not fulfilled.
3.5. Sub-conclusion
Nevertheless, even if it were possible to define Abkhazian as group which share common
features and identity, it is uncertain whether the fact that it is a minority within Georgia will
pass the threshold for “peoples” for the sake of remedial secession, according to Kosovo
advisory opinion. There is clear sign of negative attitude towards them by the Government, but
still this cannot be defined as systematic nor widespread, and it is questionable whether it
amounts to gross human rights violations prior to the hostilities. Furthermore, in the Abkhazian
episode there were series of opportunities to resolve its final status, which were met with
hesitancy by the Abkhazian authorities. Consequently, even if Abkhazian are to be defined as
peoples, the rest of the conditions are not satisfied and thus, there are obstacles which preclude
the applicability of right to remedial secession. Furthermore, the Abkhazian reluctance to
negotiate, confirm the assessment that all peacefully remedies were not exhausted prior to the
360 Bruno Coppieters, Europeanization and conflict resolution, case study from the European
periphery (Academia press 2004), page 200; 361 Ibid. page 198, where that authors states the previous attempt constituted an unilateral act of Abkhazia to
reinstate the constitution of 1925 which define Abkhazia as independent state; 362 There were attempts to negotiate in order to preserve the territorial integrity of Georgia and in the same time
to respect the self-determination. M. Kohen Secession, International law perspectives, Cambridge University
Press, 2006, p.115 outlines the UN talks in 1994 with the mediation of Russia and OSCE, referring the status of
Abkhazia. See also Bruno Coppieters Europeanization and conflict resolution, case study from the European
periphery (Academia press 2004), p. 207, the author refers to Boden document drafted in 2001, which is after the
unilateral act of Abkhazia in 1999; All of them where met with the Abkhazian “unwillingness” to cooperate. 363 Marcelo Kohen Secession, International law perspectives, Cambridge University Press, 2006, page 118; 364 This stance is also supported by Cedric Rygaert and Chrstine Griffoen The relevance of the right to self-
determination in Kosovo Matter: in partial response to the Angora Papers,2009, Oxford University Press, p. 583
and L. Laurinaviciute, L. Biekša- The relevance of remedial secession, International Comparative Jurisprudence
1 (2015) 66–75, p. 72;
67
declaration of independence. This, along with the lack of evidence for gross human rights
violations are further obstacles to define that Abkhazian have a right to remedial secession.
4. External intervention and procedural rules
When it comes to secession, some authors argue that three procedural rules can be outlined:
no foreign support, which is linked to the principle of non-intervention; the consent of the
majority of the population by referendum and third-to respect the uti possidetis
principles.365These procedural rules refer to how a secessionist states can be created and not
whether it exists.366 In that sense, before delving into these rules, some common traits of the
cases of Kosovo and Abkhazia should be outlined. Both of them were widely influenced by
major international organizations or at least tried to provide mediation in the case of Abkhazia.
In the case of Kosovo, the UN and NATO were aiming to facilitate the process of transition to
democratic governance and to “secure the rights of an ethnic group suffering from prosecution
based on racial ground”367; in Abkhazia-the UN in a role of monitoring actor368 to verify the
compliance with the ceasefire agreement between Georgia and Abkhazia, in the aftermath of
the war in 1992.369 Other actors involved in the Abkhazian episode were the Russian Federation
as co-mediator and the OSCE as third interested party. Both interventions by the UN differ by
context, but their common goal was to preserve peace as in Kosovo context was for the sake
of preserving international peace and security in the region, while in Abkhazia it emerged
primarily as an observation mission.370 The UNOMIG mission’s scope in Abkhazia
subsequently was extended, including to strength the parties to Moscow agreement on cease
fire and separation of forces in the region.371 Both missions were authorized by the Security
365 Marcelo Kohen Secession, International law perspectives, Cambridge University Press, 2006, page 14 the
author elaborates the view of Tancredi, presented in Chapter 6, page 171 of Secession, International law
perspectives, Cambridge University Press, 2006: Antonello Tancredi ‘A normative ‘due process’ in the creation
of States through secession’; According to Kohen, page 15, uti possidetis is a customary rule referring to respect
the territorial boundaries as they were at the moment of independence. 366 Marcelo Kohen Secession, International law perspectives, Cambridge University Press, 2006, page 14; 367 Ibid. page 38; 368 It was established the UNOMIG as The United Nations Observer Mission in Georgia in 1993 by UN SC
Resolution 858 in order to provide help in the Gali region and to facilitate the return of the peoples to their homes. 369 Susan Stewart, The role of the United Nations in the Georgian-Abkhazian Conflict, Journal on Ethnopolitics
and Minority Issues in Europe, Issue 2/2003, page 11; 370 Ibid. p. 11-13 the author states that UNOMIG was originally aiming to verify the compliance the ceasefire
agreement reached by the Georgia and Abkhazia. See the note below; 371 Moscow agreement is signed between Georgia and Abkhazia regarding the ceasefire and separation of forces
in 1994. According to UN official page, it was agreed to place peacekeeping forces (CIS and UNOMIG) there in
order to monitor the compliance with the agreement. Information obtained from
http://www.un.org/en/peacekeeping/missions/past/unomig/background.html For further information, see Susan
Stewart, The role of the United Nations in the Georgian-Abkhazian Conflict, Journal on Ethnopolitics and
Minority Issues in Europe, Issue 2/2003, p. 21; The context of Abkhazian war is really consistent in events and
68
Council, thus the principles of non-intervention may argue that refer to third states only and
not to international interventions.372 In fact, it can be argued that the intervention of the UN in
Abkhazia took rather territorial integrity-oriented stance, than neutral.373But as we saw in the
Kosovo Advisory Opinion, the court defined that territorial integrity might be overcome in a
secessionist context, as the entity seeking secession is not a legal entity for the sake of
international law.374 So the applications of this standard is debatable as it was argued that it
refers to inter-states relations only.375
This challenges the extent of UN mission and whether it was valuable for Abkhazian attempt
to secession. The answer is partially linked to the application of the principles of territorial
integrity, self-determination, non-use of force and non-intervention.376 As was outlined in
chapter II, if we take the stance of the ICJ, the principle of territorial integrity will not play
major obstacle in Abkhazian context. However, the UN intervention was argued to be rather
territorial oriented in order to preserve the sovereignty of Georgia, than to take a neutral
stance.377 For the sake of preserving peace as mediator in such a primarily domestic conflict, it
should be from impartial position, which is not present in the context of Abkhazia. Therefore,
this played a major problem in the negotiation process since 1994 between the UN, Georgia
and Abkhazia. Furthermore, this led to the Abkhazian unwillingness to cooperate and to
compromise since the end of the war in 1993.378 During the negotiation attempts the Abkhazian
administration gradually refused to settle for nothing less than full recognition as
independent.379Although, that there was occasionally good will on behalf of Georgia to settle
foreign interventions. Thus, for more information see UN official web page
http://www.un.org/en/peacekeeping/missions/past/unomig/background.html
and also Marcelo Kohen Secession, International law perspectives, Cambridge University Press, 2006, page 115-
119, also The role of United Nations in the Georgian-Abkhazian Conflict, Susana Stewart, Issue 2/2003, Journal
on Ethno politics and minority issues in Europe, pp. 1-31, p. 11; 372 See Marcelo Kohen Secession, International law perspectives, Cambridge University Press, 2006, page 11; 373 Ibid. page 116, See also D Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law
International 2002) page 384; 374 Chapter II of the present research, p. 43-45 On Kosovo case and ICJ’s advisory opinion on Kosovo; 375 Chapter I p. 24-26, Chapter II p. 43-45 of the present research; 376 Principles enshrined in the GA Res. 2625; 377 Marcelo Kohen Secession, International law perspectives, Cambridge University Press, 2006, p. 117; David
Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002) pp. 1-485, p. 383; 378 See Marcelo Kohen Secession, International law perspectives, Cambridge University Press, 2006. p. 118; 379 For more elaboration on the stance of Abkhazia during the negotiation process see David Raic, Statehood &
the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002) pp. 1-485, Chapter 7, page 381-
286,p. 383 emphasis added, See also Susan Stewart, The role of the United Nations in the Georgian-Abkhazian
Conflict, Journal on Ethnopolitics and Minority Issues in Europe, Issue 2/2003, p.19 and 22 in 1999 there was
another attempt to settle called “Boden document” which was aiming to settle the constitutional distribution of
power between the two capitals and to provide “comprehensive settlement”, but again emphasizing on the
territorial integrity of Georgia. See M. Kohen Secession, International law perspectives, Cambridge University
Press, 2006, p. 118 where the author describes it as consistent rejection of Abkhazia;
69
this conflict, the proposed federation settlement was indifferently neglected by Abkhazia.380 It
is argued that this rejection demonstrates how Abkhazia is unwilling to exhaust the peaceful
methods prior to evoke secession.381 A response to these events, Abkhazia proclaimed
unilaterally its status of independent state under international law in 1999.382
The last obstacle which can be outlined and argued to be the major hindrance to consider the
case of Abkhazia as remedial secession, is the 3rd state involvement. Thus, it seeks to examine
its lawfulness taking into consideration the applicability of the principle of non-intervention,
and focusing on the cases when 3rd state intervenes on behalf of the opposition groups to the
sovereign.383
The provisions of GA Res. 2625 impose that all states should reframe to intervene directly or
indirectly in internal or external affairs of any other States.384 This can be understood as
imposing on states to abstain from involvement in domestic affairs including not supporting
any attempts for disruption or impair the parent state’s integrity. This in general can be seen as
obstacle when it comes to secession as well, because the principle of non-intervention rejects
a third states support to such secessionist attempts, and thus precludes the right to self-
determination. In the context of the Abkhazian event, this requires more elaboration since
Abkhazia is influenced by the Russian federation since the early 1990s.385
As was outlined above Abkhazia tended to be favoured by Russia, since it was an autonomous
republic which status was granted by the Soviet Union.386 It is argued that the involvement of
Russia in the Abkhazia case is demonstrated by fact that Russia was sending troops, providing
assistance and equipment to both sides in response to the war from 1992.387Subsequently the
fact that Russia was granted a status of “facilitator” and “co-mediator” during the UNOMIG
380 David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002) page
383 and Marcelo Kohen Secession, International law perspectives, Cambridge University Press, 2006, page 118; 381 Marcelo Kohen, Secession, International law perspectives, Cambridge University Press, 2006, page 118; 382 Ibid. the author defines it as “formal declaration of independence”; 383 Ibid. page 93 the author points out that in fact more import is the involvement of 3rd state but on behalf of the
opposite group to the Sovereign. 384 United Nations General Assembly Resolution 2625 on Friendly Relations para.3 (1); 385 Bruno Coppieters, Europeanization and conflict resolution, case study from the European
periphery (Academia press 2004), page 193; 386 Susan Stewart, The role of the United Nations in the Georgian-Abkhazian Conflict, Journal on Ethnopolitics
and Minority Issues in Europe, Issue 2/2003, p. 2; 387 Although, there is no clear evidence for the Russian support, the author in UN in Abkhazia page 3 elaborates
that Russia in fact was supporting both sides of the conflict; Georgia as former Soviet state and Abkhazian claims
as well. In p.22 the author even claims that the act of granting citizenship can be described as a “manoeuvre” of
Russia to increase its influence in the region. See M. Kohen Secession, International law perspectives, Cambridge
University Press, 2006, page92 and D Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law
International 2002) pp. 1-485, page 381;
70
and CISPKF388 can demonstrate that Russia was involved during the whole process of
negotiation and is supporting the Abkhazian claims.389 Their claims differ from the Kosovo
context of fighting against persistent human rights violations, which was the primary reason
for the UN and NATO intervention.390Thus by supporting Abkhazians, Russia in fact violate
the principle of non-intervention and it can be argued that it is hindering the secessionist
attempt of Abkhazian. This turns us back to the provisional rules imposed above391, among
which is the non-support of foreign states, and it can deduced that in this context, this rule is
clearly not respected.
The other procedural rules on how a secessionist state is created are that there should be the
consent of the majority of the population by referendum and that the principle of uti possidetis
should be respected. A referendum in Abkhazia was held in 1999 regarding their independence
which led to a unilateral act of proclamation of independence. This plebiscite held in Abkhazia
disregarded the majority of the population and this constituted the major issue when it comes
to recognizing the episode as remedial secession. Moreover, it did not involve the rest of the
population thus, it was held in isolation. Due to these factors it was regarded as illegitimate by
Georgian government and international organizations392 and it can be claimed that it does not
satisfy the second procedural rule, neither. The third provision to respect the uti possidetis
principle refers to cases of exercise external self-determination of majority group within one
state, by respecting the territorial limits393 and “with regard to that administrative unit”.394 But
this principle operates mainly when the two parties agreed to apply it and in absent of such an
agreement, thus can be seen as “temporary measure in regard to boundaries in process of
succession of States”.395 This principle cannot be considered as applicable in the context of
Abkhazia as they do not amount to group entitled for secession, as it was outlined above.
388 This is the peacekeeping mission under CIS Commonwealth of independent states, forces authorized in 1994
by UNSC Res. 937, information obtained from http://peaceoperationsreview.org/wp-
content/uploads/2014/10/2007_abz_geor_mission_notes.pdf 389 Ibid. page 3 and 12 of Susan Stewart, the role of the United Nations in the Georgian-Abkhazian Conflict,
Journal on Ethnopolitics and Minority Issues in Europe, Issue 2/2003; See also Nielsen How Russia used Kosovo,
p. 175-176 the author by referring to Hunter 2006/14 and states the “Soviets were manipulated systematically
ethnic groups in Caucasus in a way of divide and rule, in order to maintain control”. 390 Marcelo Kohen Secession, International law perspectives, Cambridge University Press, 2006, page 92; 391 See page 61 of the present chapter; 392 Marcelo Kohen Secession, International law perspectives, Cambridge University Press, 2006, page117, Bruno
Coppieters B, Europeanization and conflict resolution, case study from the European periphery (Academia
press 2004), p.202; 393 Marcelo Kohen Secession, International law perspectives, Cambridge University Press, 2006, page 15; 394 David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002), p. 304; 395 David Raic, Statehood & the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002), page
305;
71
The procedural rules are not considered as general principles but more as orientation how
secessionist states can be created. The major obstacle is the external intervention of 3rd state
which in this case although implicitly, did support the secessionist aspiration of Abkhazians.
From the examination of the main conditions of remedial secession as well as the procedural
rules in this chapter, it can be deduced that it is hard to define the Abkhazian context as identical
to the Kosovo case. Moreover, the unilateral act on behalf of Abkhazia cannot be considered
as legitimate because there is evidence that they were performed while there was a degree of
autonomy within Georgia, thus a right to internal self-determination was already exercised. As
the legal framework outlined, external self-determination may be evoked only if there is a
denial of its internal form. And moreover, the claim cannot be legitimate because as the parent
state did not provide any consent and all local remedies were not exhausted. Therefore, it can
be argued that Abkhazians are not entitled to the right of external self-determination as this is
valid only when they are denied to exercise it internally, neither to remedial secession as this
case do not pass the threshold. Thus, to define the case of Abkhazia as episode of remedial
secession will be rather premature and legally not justifiable.
5. Conclusion
A series of events and deterioration in the relation between Georgia and Russia led to the
wake of Georgia-Russian war in 2008.396 Some argued that a direct attempt of de-escalation
can be more valuable for successful secession than the UN stabilization attempts in Abkhazian
region.397 And this is partially demonstrated as in the context of the 2008 war, when Russia
used the Kosovo event as justification in order to recognize South Ossetia and Abkhazia as
independent states.398 This leads to the question of recognition, which is primarily linked to
secession, and whether such 3rd state involvement will facilitate or deteriorate the secessionist
attempts. In the context of Abkhazia, the unilateral act of recognition by Russia did not entail
396 Adam Eberhardt, 'The 2008 Russia-Georgia War over South Ossetia - the Policy of the Russian Federation and
Its Consequences' [2008] 17(3) The Polish Quarterly of International Affairs, page 52 the author argues that the
war was a result of long deterioration of the relationship between Georgia and Russia; Prior to the war, the Rose
revolution and “colour revolution” are among the predecessors of the escalation in 2008 which lasted no more
than a week. This war was conducted in the territory of South Ossetia, where is argued that is committed ethnic
cleansing. This provoke the Russian act to recognize both South Ossetia and Abkhazia as independent states, as
an act of defending its citizens. 397 Susan Stewart, The role of the United Nations in the Georgian-Abkhazian Conflict, Journal on Ethnopolitics
and Minority Issues in Europe, Issue 2/2003, p. 21 398 See how Christian Axboe Nielsen (2009) The Kosovo precedent and the rhetorical deployment of former
Yugoslav analogies in the cases of Abkhazia and South Ossetia, Southeast European and Black Sea Studies, 9:1-
2, 171-189, page 179; See also Helge Blakkisrud & Pål Kolstø (2012) Dynamics of de facto statehood: The South
Caucasian de facto states between secession and sovereignty, Southeast European and Black Sea Studies, 12:2,
281-298, page 290;
72
any effects on the international field as Russia might have expected or at least secretly have
desired to. Whether this act was driven by Russian generous attempt to defend their citizens in
Abkhazia and South Ossetia where acts of “ethnic cleansing”399were alleged, or to support
political interests in the region is a controversial question.400 One can argue that international
recognition regardless the international criteria for recognizing a statehood401, remains more a
political act, than based on legal justifications.402 Beside Russia, Abkhazia was recognized by
six other states: Nicaragua, Venezuela, three microstates Tuvalu, Nauru and Vanuatu; and
South Ossetia. Their acts were considered to support the Russian claim but nevertheless, these
countries do not have any further interest in these Georgian regions.403 Thus, this degree of
dependency of Abkhazia from Russia did not provide further valuable clarity for the sake of
achieving full independence neither recognition. The number of states recognizing Abkhazia
do not constitute any considerable number and is far from achieving any significant level of
international recognition de jure404. It can be argued that the Russian involvement even
deteriorated the relationship between Abkhazia and Georgia did not facilitate the Abkhazian
attempt to secede. Therefore, Abkhazia, even though partially de facto recognized by some
states, its legal status under international law remains doubtful. And even if we take the ICJ
stance that territorial integrity does not preclude the secessionist attempt of Abkhazia, they
cannot be defined as entitled for exercising external self-determination based on the above
unfulfilled criteria. Furthermore, the 3rd state involvement in the conflict is another obstacle
which precludes any secessionist attempts. The questions whether the Abkhazian episode can
be compared to Kosovo and whether Abkhazia passes the threshold for remedial secession
should be answered in negative. Nevertheless, it can be claimed that a possible outcome for
399 M. Jishkariani, Russian-Georgian war crimes and its outcomes; European Psychiatry, 33S, 2016, S114-S289,
introduction; The accusation of ethnic cleansing was referring only to the region of South Ossetia; 400 Christian Axboe Nielsen (2009) The Kosovo precedent and the rhetorical deployment of former Yugoslav
analogies in the cases of Abkhazia and South Ossetia, Southeast European and Black Sea Studies, 9:1-2, 171-189,
DOI: 10.1080/14683850902723595, p. 178 the author refers to the the protection of citizens; As the war in 2008
was conducted mainly in South Ossetia, where acts of ethnic cleansing were alleged to the Georgian government
and subsequently were used as justification to intervene in the conflict by Russia. In the aftermath of the war,
Russia by recalling the Kosovo case, recognized both South Ossetia and Abkhazia as independent states. 401 See article 1 of the Montevideo Convention on the right and duties of States, singed December 1933, in force
from 1994; See M. Kohen, Secession, International law perspectives, Cambridge University Press, 2006, page 98; 402 Marcelo Kohen Secession, International law perspectives, Cambridge University Press, 2006, page 13 403 Christian Axboe Nielsen (2009) The Kosovo precedent and the rhetorical deployment of former Yugoslav
analogies in the cases of Abkhazia and South Ossetia, Southeast European and Black Sea Studies, 9:1-2, 171-189,
DOI: 10.1080/14683850902723595, page 179; See as well Helge Blakkisrud & Pål Kolstø (2012) Dynamics of
de facto statehood: The South Caucasian de facto states between secession and sovereignty, Southeast European
and Black Sea Studies, 12:2, 281-298, p. 292; 404 De facto recognition refers to cases where the government does not have sufficient stability and where the
recognition is more a provisional act; The recognition de jure means formal and legal recognition where the state
in question satisfy all the criteria imposed by the law;
73
Abkhazia will be either to settle in a form of asymmetric division of power between the
governments of Georgia and Abkhazia, in a form of federation; or as in Kosovo happened- a
recognition by major international organization as the UN or the EU might be more fruitful for
a future de jure recognition by majority of the other states, than to third state unilateral
recognition.
Section V
General Conclusion
The contemporary legal framework imposed that self-determination is exercised primarily
in the domestic sphere. Thus, the internal self-determination within the borders of the titular
state is the main form of self-determination. Only when that internal self-determination cannot
be reached or achieved, the external form might be evoked. According to the contemporary
frame of external self-determination, its exercise can take different modes including secession.
However, all of them are primarily considered as peaceful means which prior to their exercise
have received a consent of the titular state. This theoretical basis proves that the consent of the
metropolitan state is essential for the successful separation. But this scheme left the door open
for the questions who is exactly entitled to the right of external self-determination and what it
should be done if there is no consent of the mother state. The subject of self-determination
through the whole evolution of this concept did not receive any clarity from international
provisions neither from state practice. Therefore, there are some obstacles which preclude to
define clearly to what, in reality secession amounts. They remain also when it comes to
remedial secession in response to gross human rights violations. Self-determination is a more
territorial oriented concept which application is limited to the principle of territorial integrity.
The latter principle is limited to states acting in conformity with international law. If not, then
a remedial secession might arouse. Secondary sources of international law elaborate this by
stating that there are certain conditions which need to be satisfied in order to evoke the doctrine
of remedial secession. Hence, self-determination contains remedial secession as conditional
method and defines that the dependency of the criteria will mostly be evaluated on case-by-
case basis. Accounting the outlined obstacles, it can be concluded that self-determination does
encompass a form of positive entitlement of conditional remedial secession. But does not
amount to legal doctrine of remedial secession and remain cautious when it comes to secession
74
of religious groups. Whether this might be seen as evidence for consistent existence of state
practice granting entitlement of remedial secession to religious group405 will remain doubtful.
The outlined practice in the Kosovo case and the ICJ’s advisory opinion, on a first sign did not
provide any clear cut definition of remedial secession or general guidelines how to be
exercised. However, a closer look into the Court’s opinion and the judges’ separate opinions,
it can be deduced that the context of gross human rights violations is a condition for evoking
the principle of self-determination as right of remedial secession. The Court’s view
demonstrates that remedial secession can be triggered by subjugation and violations committed
by the parent States. According to the Court this context might even preclude the force of the
principle of territorial integrity. From legal point of view this principle was seen as obstacle
precluding the exercise of self-determination. However, from the Court’s view an act of non-
state actors might preclude the principle of territorial integrity as it is applicable to inter-states
relations mainly. The Kosovo advisory opinion questions the states’ non-compliance with the
obligations imposed by the law, and the effect of the principle of territorial integrity over the
States’ subjects. Thus, this conclusion questions the whole frame of self-determination, the
principles enshrined in the UN Charter and who is the concrete subject of remedial secession.
The fact that the judges’ separate opinions took into account the possibility that an answer to
the question imposed to ICJ might be remedial secession, demonstrates that there is a room left
to ascertain a legal doctrine of remedial secession in the future. However, the threshold for
remedial secession remains blurred as neither the states, neither international organizations are
willing to define it unambiguously. Therefore, after the Kosovo advisory opinion, the right to
self-determination and a possible doctrine of remedial secession will continue to oscillate
between the states’ compliancy on one side, and state recognition and achieving statehood in
accordance with mother state entity on the other side. Furthermore, in the aftermath of the
Kosovo advisory opinion the question of remedial secession and the theoretical conditions will
still be examining on case-by-case basis.
The case of Abkhazia is a recent attempt to secede from the metropolitan state without its prior
consent. This in practice might be described as remedial secession, but in theory the conditions
imposed in the legal framework of self-determination are not fully applicable. The lack of clear
405 As was defined in this present research, there is difference between religious and ethnic groups. The religious
groups are the one which share same religious treats, while ethnic groups share same cultural which differ them
from the majority of the population. So therefore, here the focus in on religious groups, rather than ethnic as the
law does not impose any entitlement for ethnic groups.
75
definition who is entitled to remedial secession and whether there is a precisely defined conduct
of remedial secession are issues still persistent in the Abkhazian episode. Even though that
theoretically Abkhazia did not amount to episode of remedial secession, it points out valuable
features. The further attention on this case brought by the unilateral act of recognition of
Abkhazia and South Ossetia by Russia, reminds us that the question of remedial secession is
more controversial and cannot be seen in a vacuum. On one side, the primary goal of secession
is to achieve independence and statehood. This, on the other side is linked to the act of
recognition mainly de jure. The act of Russia recognizing Abkhazia did not entail what maybe
Kremlin was hoping: to have repercussion on international sphere which might preclude the
lack of Georgian consent and the fact that will change the territorial indivisibility. However,
this is more a conjecture than legal conclusion. But still it reminds us that recognition even as
declaratory act is continuing to be more political, than legally justifiable act. And so secession
might be. Although, to have some general provisions on succession of states406, the law remains
reluctant to define unambiguously how a new state may be created. The lack of clear definition
and the lack of consistent practice might be argued as demonstration that remedial secession
will remain more in the sphere of political acts, than acts imposed by the law. But still the lack
of definition is justified by reasonable motive: a precise determination on who is entitled and
how to secede successfully might provoke such a desires in many sub-states’ entities.
International custom consists of state practice and of the sense of obligation to accept it as law-
opinion juris.407 Therefore, new customary provisions can be created, based on the general
belief that it is necessary to create such a legal principle- opinio juris which is supported by
evidence of a general state practice.408 Some scholars argue whether both components are
equally relevant for the emerging of new custom.409 For the present paper will take neutral
point, defining both elements as equally important in order to define whether a remedial
secession can be ascertain from customary law. If we take the stance that state practice must
be a long repeated and consistent410, then the above mentioned cases will be hard to define as
such. The cases of Kosovo and Abkhazia do provide valuable contributions and elaborations
406 Vienna Convention of succession of states in respect of Treaties 1978, in force from 1996; 407 Article 38 of ICJ Statute; Nicaragua case the ICJ 1986, Rep. 14, 98, par. 186; 408 Book review of B Lepard, 'Customary International Law. A New Theory with Practical Applications- book
review '[2010] 1(1) Cambridge University 795, done by Niels Petersen; See also B. Lepard, Customary law,
Cambridge Univeristy Press 2010, p. 97-98; 409 Ibid. See B. Lepard Necessity of opinion juris in the formation of customary international law, Discussion
paper for panel on “Does Customary international law need opinion juris?” the author argues that opinio juris is
the essence of the creation of new custom, p.8; 410 Jack Goldsmith and Eric Posner, A theory of Customary international law’ (1999) 2nd series (No. 63) John M
Olin Law & Economics Working Paper, page 5;
76
on possible existence of remedial secession under international law, but do not amount to a
consistent neither repeated practice. Furthermore, the fact that remedial secession is more
elaborated on case-by-case basis demonstrates that might be premature to consider the cases as
state practice.411 The general state practice is also the element which leads to the second one-
the belief of obligation to establish new provisions- opinio juris. It is perceived that state
practice in fact is the evidence of opinio juris, which is the “belief that a practice is already
requiring it”.412 Taking into account the above examined cases of secession and the advisory
opinion, will be hard to define as state practice and to trace a valid opinio juris, respectively.
As the main argument for this, is that remedial secession refers to acts which primary do not
include the consent of the mother state. This oppose to opinio juris which represents an
indicator of states’ belief and intention.413 And furthermore, the ambiguous advisory opinion
and the rather negative attitude of the metropolitan states towards such attempts of secession,
might lead us to conclude that cannot be defined as such a general acceptance.414 Unifying this
with the absence of consistent state practice and the lack of expressed perception that the
practice is requiring it, indicate that remedial secession cannot be ascertain as customary norm
of international law.
Although, the many instances of cases challenge the framework of self-determination and
question the existence of remedial secession, international law does not establish a legal
doctrine of remedial secession. This is due to the lack of consistent practice and more
importantly a general belief that such a practice is necessary. Furthermore, considering that
states “comply with norms of customary law because pursuit of self-interested policies”415, it
should be concluded that it is almost a ‘dead end street’ to ascertain remedial secession from
customary law. This demonstrates that States are either unwilling to establish it, or do not
believe that they are obliged to do so.416 Secession as a concept remains controversial as it
depends on subjective elements which are defined mostly case-by-case. Therefore, it is
411 There are other cases of secessionist attempts: South Sudan, Rhodesia, East Pakistan as mentioned in page 23
of the present research; 412 See B. Lepard Necessity of opinion juris in the formation of customary international law, Discussion paper for
panel on “Does Customary international law need opinion juris?”, p. 7; 413 Jack Goldsmith and Eric Posner, ‘A theory of Customary international law’ (1999) 2nd series (No. 63) John M
Olin Law & Economics Working Paper, page 5 although the to elaborate that UNGA resolutions are often an
evidence of customary international law, this cannot preclude the requirement of the states’ intention and belief
to be oblige to create a custom. 414 Ibid. 415 Jack Goldsmith and Eric Posner, ‘A theory of Customary international law’ (1999) 2nd series (No. 63) John M
Olin Law & Economics Working Paper, page 3; 416 Ibid.
77
uncertain whether a future attempt for generalization and validation of a doctrine of remedial
secession would be fruitful or the opposite. Furthermore, the fact that remedial secession
touches upon sensitive principles as territorial integrity, makes the attempts for creation of new
states and their future recognition even more unachievable. Therefore, international law will
remain reluctant to establish a legal doctrine of remedial secession as long as violates territorial
integrity and state sovereignty. But whether a group can secede without the consent of the
mother state and in accordance with international law is an open question? Nevertheless, an
effective approach of the international community might be to shed some light on all the
instances of human rights violations which in fact are evoking the principle of remedial
secession. Through this an awareness of the states will be raised that in fact the practice requires
it- thus to establish opinio juris as prevention to limit the perpetration of human rights violation
and their escalation.
78
Section VI
Bibliography Primary sources of law
International treaties and documents
African Charter on Human and Peoples’ Rights, adopted in 1981, United Nation Treaties Series
1988;
Charter of Organization of American States (OAS)
Charter of Organization of African Unity (OAU)
Declaration on the Granting of Independence to Colonial Countries and Peoples General
Assembly Resolution 1541
Declaration on Principles of International Law concerning Friendly Relations and Co-operation
among States in accordance with the Charter of the United Nations, adopted by the General
Assembly on 24 October 1970 (FRD)
International Covenant on Civil and Political Rights (ICCPR)
International Covenant on Economic, Social and Cultural Rights (ICESCR)
International Court of Justice Statute
Helsinki Final Act, Final Act of the 1st CSCE Summit of Heads of States or Government from
1975, OSCE
Montevideo Convention on the Rights and Duties of States, 1933
Rambouillete accords peace agreement (S/1999/648)
Vienna Convention on the Law of Treaties of 1969 (VCLT), UN;
Vienna Convention on succession of states in respect of Treaties 1978, in force from 1996, UN;
Vienna Declaration and Programme of Action, adopted by the World Conference on Human
Rights in Vienna, 1993;
United Nations Charter, 1945;
79
Resolution 1188 (XII) Recommendations concerning international respect for the right of
peoples and nations to self-determination, 1957
UN Resolution 1160 (1998) Doc. S/RES/1160;
UN Resolution 1244 (1999);
Comprehensive Proposal for the Kosovo Status Settlement from UN Doc. S/2007/168/Add.1
obtained from http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-
8CD3-CF6E4FF96FF9%7D/Kosovo%20S2007%20168.Add1.pdf
UN Resolution Doc. S/2005/709 from 2005;
UN Human Rights Committee, General Comment 12, CCPR, The right to self-determination
of Peoples, 1984;
UN SC Resolution 858 established UNOMIG-United Nations Observer Mission in Georgia in
1993;
UN Res. 637 (A/B/C) from 1952 regarding recognize and promote the realization of right to
self-determination;
UN Res. 742 (VIII) from 1953 regarding the guiding factors in determining whether a territory
is within the scope of Chapter XI UN Charter;
Cases and judicial decisions
Accordance with International law of the Unilateral Declaration of Independence in Respect of
Kosovo, Advisory Opinion, I.C.J. Report 2010, obtained from http://www.icj-
cij.org/docket/files/141/15987.pdf ;
Barcelona Traction, Light and Power Company, Limited, arret, C.I.J. Recueil 1970, obtained
from http://www.icj-cij.org/docket/files/50/5387.pdf ;
Katangese Peoples’ Congress v. Zaire, African Commission on Human and Peoples’ Rights,
Comm. No. 75/92 (1995); http://www.achpr.org/files/sessions/13th-
eo/comunications/321.06/achpreos13_321_06_eng.pdf ;
http://opil.ouplaw.com/view/10.1093/law:ihrl/174achpr95.case.1/law-ihrl-174achpr95 ;
80
Namibia Legal Consequences for States of the Continued Presence of South Africa in Namibia
(South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory
Opinion, I.C.J. Reports 1971 obtained from http://www.icj-cij.org/docket/files/53/5595.pdf ;
Re secession of Quebec, Supreme Court of Canada Judgement, 1998, Report (1998), 2 SCR
217, Case number 25506 obtained from https://scc-csc.lexum.com/scc-csc/scc-
csc/en/item/1643/index.do ;
The Aaland Islands question, LNOJ, Spec. Supp. No. 3, 1921 obtained from
https://www.jstor.org/stable/pdf/2187689.pdf?refreqid=excelsior%3Aaa0fd9df56801ce26f77
e7450644a193 ;
Western Sahara, Advisory Opinion, I.C.J. Reports 1975, obtained from http://www.icj-
cij.org/docket/files/61/6195.pdf ;
Secondary sources of law
Books
Buchanan, Allen. Justice, Legitimacy, and Self-Determination: Moral Foundations for
International Law. Oxford: Oxford University Press, 2004.
Buchheit, Lee. Secession: the legitimacy of self-determination. New Heaven: Yale
University 1978.
Coppieters, Bruno. Europeanization and conflict resolution, case study from the European
periphery. Academia press 2004.
Cassese, Antonio. Self-determination of people. Cambridge University Press 1995.
Crawford, James, The creation of new states in international law. Oxford University
Press 2007.
Driest, Simone. Remedial secession. A right to external self-determination as a remedy to
serious injustices? 2013, Schools of Human Rights Research Series, Volume 61.
Klabbers, Jan. International law. Cambridge University Press 2013.
Kohen, Marcelo. Secession, International law perspectives. Cambridge University Press, 2006.
81
Lepard, Brian. Customary law, Cambridge University Press 2010.
Raic, David. Statehood & the Law of Self-Determination. Vol 43 edn, Kluwer Law
International 2002.
Shaw, Malcolm. International Law. , Sixth Edition, Cambridge University Press 2008.
Journal Articles
Brewer, Evan. 'To break free from the tyranny and oppression: proposing a model for a
remedial right to secession in the wake of the Kosovo advisory opinion' [2012] 45(245) Vand
J Transnat'l 257.
Blakkisrud, Helge and Kolstø, Pål. Dynamics of de facto statehood: The South Caucasian de
facto states between secession and sovereignty, (2012) Southeast European and Black Sea
Studies, 12:2, 281-298, DOI: 10.1080/14683857.2012.686013.
Blanke, Hermann-Josef and Abdelrehim, Yasser. 'Catalonia and the Right to Self-
determination from the perspective of international law' [2015] 1(1) Koninklijke brill nv,
Leiden.
Cop, Burak and Eymirlioglu, Dogan. 'The right of self-determination in international law
towards 40th anniversary of the adoption of ICCPR and ICESCR' [2015] 1(1) Perceptions.
Coppieters, Bruno. 'Secession and War: A moral analysis of the Russian Chechen
Conflict' [2003] XII (4) Central Asian Survey.
Coppieters, Bruno. Conflict resolution after the 2008 Georgia–Russia War: The Taiwan and
Kosovo models as tools for mobilization and comparison, (2012) Nationalities Papers, 40:5,
677-701.
Coppieters, Bruno. The politicization and securitization of ethnicity: The case of the Southern
Caucasus, Civil Wars, (2001) 4:4, 73-94.
Cornell, Svante E. Religion as a factor in Caucasian conflicts, Civil Wars, (1998) 1:3, 46-64.
82
De Wet, Erika, Jus Cogens and Obligations Erga Omnes (January 15, 2013). Dinah Shelton
(Ed), the Oxford Handbook on Human Rights (OUP 2013) Forthcoming. Available at
SSRN: https://ssrn.com/abstract=2279563
Eberhardt, Adam. 'The 2008 Russia-Georgia War over South Ossetia - the Policy of the
Russian Federation and Its Consequences' [2008] 17(3) the Polish Quarterly of International
Affairs.
Fisch, 'Jorg. The right of self-determination of peoples' [2015] 1(1) Cambridge University
Press.
Fabry, Mikulas. (2012) The contemporary practice of state recognition: Kosovo, South Ossetia,
Abkhazia, and their aftermath, Nationalities Papers, 40:5, 661-676, DOI:
10.1080/00905992.2012.705266.
Gzoyan, E. and Banduryan, Lilit. 'Territorial integrity and self-determination: contradiction or
equality'[2011] 2(10) «21st CENTURY»,
Goldsmith, Jack and Posner, Eric, ‘A theory of customary international law’ (1999) 2nd series,
No. 63, John M Olin Law & Economic Working Paper;
Jacobs, David and Radi, Yacob. Waiting for Godot- An analysis of the Advisory Opinion on
Kosovo, Leiden Journal of International Law, 24 (2011).
Jishkariani, Mariam. Russian-Georgian war crimes and its outcomes; European Psychiatry,
33S, 2016, S114-S289.
Harzl, Benedikt. Nationalism and Politics of the Past: The cases of Kosovo and Abkhazia,
Martinus Nijhoff publishers, Review of Central and East European Law 36 (2011) 53-77.
Hannum, Hurst. H. 'Rethinking of self-determination page' [2011] Vol 34(1) Virginia Journal
of International Law, 3.
Hannum, Hurst, The Advisory Opinion on Kosovo: An Opportunity lost, or a poisoned Chalice
Refused? Leiden Journal of International Law, 24 (2011).
Hanna, M. Roya. Right to Self-Determination in Re Secession of Quebec, 23 Md. J. Int'l L.
213 (1999), p. 221.
83
Laurinaviciute, Lina and Biekša, Laurynas. The relevance of remedial secession, International
Comparative Jurisprudence 1 (2015) 66–75.
Littlefield, Scott, Citizenship, Identity and Foreign Policy: The Contradictions and
Consequences of Russia's Passport Distribution in the Separatist Regions of Georgia, Europe-
Asia Studies, Vol. 61, No. 8, (2009), 1461-1482;
Libarona, Inigo. 'Territorial integrity and self-determination: the approach of the international
court of justice in the advisory opinion on Kosovo ' [2012] 1(16) REAF.
Lowe, Vaughan. International law, Oxford University Press, 2007.
Neff, Stephen. ‘Some considerations on secession and independence: the cases of Kosovo and
Georgia' [2009]1-2(1) Amsterdam Law Forum.
Nielsen, Christian Axboe. 'The Kosovo precedent and the rhetorical deployment of former
Yugoslav analogies in the cases of Abkhazia and South Ossetia ' [2009] Vol 9(9:1-2
edn) Southeast European and Black Sea Studies.
Pippan, Christian. 'The International Court of Justice’s advisory opinion on Kosovo’s
declaration of independence: an exercise in the art of silence' [2010] 3-4(9:1-2 edn) EJM.
Raddan, Peter. 'Post-secession international borders: a critical analysis of the opinions of the
Badinter Arbitration Commissions' [2000] Review 50(24) Melbourne University Law.
Rygaert, Cedric and Griffoen, Christine. The relevance of the right to self-determination in
Kosovo Matter: in partial response to the Angora Papers, 2009, Oxford University Press.
Ryngaert, Cedric. (2010), The ICJ’s Advisory Opinion on Kosovo’s declaration of
independence: A missed opportunity? Netherlands International Law Review, LVII: pp. 481-
494, 2010 T.M.C. Asser Instituut and Contributors; DOI: 10.1017/S0165070X10300052.
Vidmar, Jure. 'Remedial secession in international law: Theory and (lack of) practice
' [2010] Review 6(No 1) St Antony's International Review 43.
Vidmar, Jure. Kosovo Advisory Opinion scrutinized, Leiden Journal of International Law, 24
(2011).
Stewart, Susan. The role of the United Nations in the Georgian-Abkhazian Conflict, Journal on
Ethnopolitics and Minority Issues in Europe, Issue 2/2003.
84
Thurer, Daniel and Burri, Thomas. 'Secession' [2015] 1(1) Oxford University Press, Max
Planck Encyclopaedia of public international law.
Tomuschat, Christian. Yugoslavia’s Damaged Sovereignty over the Province of Kosovo, in G.
Kreijen et al. State, Sovereignty and International Governance (2002).
Wilde, Ralph. Self-determination, secession, and the Dispute settlement after the Kosovo
Advisory Opinion, Leiden Journal of International Law, 24 (2011).
Case notes and reports
Book review of Lepard, Brian. 'Customary International Law. A New Theory with Practical
Applications- book review '[2010] 1(1) Cambridge University 795, done by Niels Petersen.
Lepard, Brian Necessity of opinion juris in the formation of customary international law,
Discussion paper for panel on “Does Customary international law need opinion juris?”.
Human rights watch report from 1995, on Georgia/Abkhazia: violations of the laws of war and
Russia’s role in the conflict, obtained from: https://www.hrw.org/reports/1995/Georgia2.htm
Report of the International Committee of Rapporteurs, 16 April 1921, Council Document paras
22-23, (foot note 13).
UN General Assembly, Report - A/69/272 Promotion of a democratic and equitable
international order an interim report of the Independent Expert on the promotion of a
democratic and equitable international order, Alfred-Maurice de Zayas, submitted in
accordance with Assembly resolution 68/175.
Other sources
A stability pact for the Caucasus, A Consultative document of the Center for European Policy
Studies task force on the Caucasus, page 50; obtained from
http://aei.pitt.edu/32563/1/2._A_Stability_Pact_for_the_Caucasus.pdf
Constitution of Kosovo art. 2(1) and Constitution of Abkhazia Preamble;
85
Official website of the Government/Municipality of Kosovo, it states in its constitutions that
on 17 February, 2008 in Kosovo was declared a sovereign and independent state (…)
Information obtained from: https://www.rks-gov.net/en-US/Republika/Pages/Kushtetuta.aspx
Oxford Reference: http://www.oxfordreference.com/
86
Statement of Integrity
87