State and territory 2

1. Chapter 1,2 and 5, The creation of States in International Law, James Crawford, Second Edition, Oxford 2. Chapter 4, Cases and Materials on International Law, DJ Harris, Sixth Edition. 3. Chapter 5, International Law, Malcolm N Shaw, Fifth Edition. 4. Chapter 5, 6, International Law, A South African Perspective, John Dugard, Third Edition.

Self- Determination, Statehood and Secession

The right of self determination features prominently in contemporary international law-decolonization and creation of states Does the right of self determination give a politically disaffected ethnic minority within a fully independent state the right to determine its destiny by seceding from that state and creating a new state?

 The right of self determination is affirmed in Article 1 of UNC and in the Declaration of Granting Independence to Colonial Countries and Peoples, the Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States in Accordance with the Charter of UN of 1970

 Acknowledge as norms of international law in the context of decolonization by ICJ in the Namibia Opinion and the Western Sahara case Outside the decolonization context by International Covenant on Civil and Political Rights In the East Timor Case, the ICJ accepted that it has a special status as one of essential principles of contemporary international law and enjoys an erga omnes character

 Art. 1 of ICCPR provides that: 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.

 Article 20 of African Charter on Human and Peoples Rights: All peoples shall have the right to existence. They shall have the unquestionable and inalienable right to self determination. They shall freely determine that political status and shall pursue their economic and social development according to the policy they have freely chosen

 The Declaration on the Granting of Independence to Colonial Countries and Peoples proclaims that: All peoples have the right to self determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development

 But it qualifies the right by declaring that: Any attempt aimed at the partial or total disruption of the national unity and territorial integrity of a country is incompatible with the Purposes and Principles of the Charter of United Nations

 The Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States in Accordance to the Charter of United Nations of 1970: Nothing in the foregoing paragraphs [asserting the right of self determination] 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 independent states conducting themselves in compliance with the principles of equal rights and self determination of peoples..

. and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour

The meaning of the rules

Product of the process of decolonization The principle legal instrument of the colonial peoples in their struggle for independence ICJ recognises the right of self determination to the colonial context in its advisory opinion on Namibia and Western Sahara.

 The term people or peoples is often interpreted to mean all the people within a state and not the different ethnic groups or peoples that comprise a heterogeneous population (minorities within a state are not accorded with the right of secession)-Rosalyn Higgins In the case of Reference Re Secession of Quebec, the Supreme Court of Canada held that it is clear that a people may include only a portion of the population of an existing state

 The peoples within an existing state do not normally acquire the right to external selfdetermination (the right to secede) They have the right of internal self determination: that is the right to choose their own political status, to freely pursue their economic, social and cultural development, and to choose and participate in the government of the state

Reference Re Secession of Quebac

the international law right to self determination only generates, at best, a right to external self determination in situations of former colonies; where a people is oppressed, as for example under foreign military occupation; or where a definable group is denied meaningful access to government to pursue their political, economic, social and cultural development.

such circumstances are manifestly inapplicable to Quebec under existing conditions. Accordingly, neither the population of the province of Quebec, even if characterised in terms of people or peoples, nor its representative institutions, the National Assembly, the legislature or government of Quebec, possess a right under international law, to secede unilaterally from Canada.

a) There must be a people which, though forming a numerical minority in relation to the rest of the population of the parent state, forms a majority within an identifiable part of the territory of that state; b) The people in question must have suffered grievous wrongs at the hand of the parent state from which it wishes to secede consisting of either

i. A serious violation or denial of the right of internal self determination of the people concerned (through for instance, a pattern of discrimination), and ii. Serious and widespread violations of the fundamental rights of the members of that people iii. There must be no (further) realistic and effective remedies for the peaceful settlement of the conflict

Failed states
A state may descend into anarchy and lawlessness to such an extent that it ceases to meet the requirements of statehood as provided in the Montevideo Convention Lacks an effective, central government authority Unable to maintain order or to provide basic services to people

Recognition of governments
Once entity becomes a state, it acquires international personality and participates in the affairs if international community Conducted by the government of the state Changes in the government do not affect the personality of the state or its rights and obligations Problem arise if the change of government is unconstitutional

 The new government may have uncertain control over its territory, unwilling to comply with its international obligations, may be challenged by rival claimant, maybe controlled by a foreign power, may have poor human rights record Recognition of government is left to the government of other states Recognition by major powers plays an important legitimizing role

De facto and De jure recognition

When a new government assumes effective control of a territory with a likely prospect of permanency, it should be given full recognition as a de jure government. Lesser form of recognition-de facto government where the government is not firmly established or fails to show willingness to comply with its international obligations

 In practice, de facto recognition has been accorded in two situations:a) When the recognizing state has doubts about the stability and the ideology of the new government. Thus, Britain recognized the Soviet government de facto in 1921 and de jure in 1924 b) When there are two rival governments competing for power. In the Spanish Civil War (1936-9) Britain continued to recognized the Republican government as the de jure government, but granted de facto recognition to General Franco as he extended his control over the country