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The Virtues of Bright Lines: Self-Determination, Secession, and External Intervention

Published online by Cambridge University Press:  06 March 2019

Brad R. Roth

Abstract

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The United Nations Charter-based international order sought to reconcile the self-determination of peoples with the inviolability of state boundaries by presuming sovereign states to be manifestations of the self-determination of the entirety of their territorial populations. This presumption, albeit nationally rebuttable, traditionally prevailed even where states could only by a feat of ideological imagination be characterized as “possessed of a government representing the whole people belonging to the territory without distinction.” But the international reaction to fragmentation in the former Yugoslavia—regarding both the initial “dissolution” and the subsequent struggle over Kosovo—called into question the rigid doctrines of the past and opened the door to secessionist claims theretofore dismissible as beyond the pale. Although no vindication of Russian intervention in Ukraine can properly be drawn from the Yugoslav cases, the Ukrainian crises help to surface the hidden dangers of an emerging jurisprudence that would allow previously inadmissible considerations—whether ethnic, historical, constitutional, or “democratic”—to compromise the territorial inviolability norm.

Type
Research Article
Information
German Law Journal , Volume 16 , Issue 3: Special Issue - The Crisis in Ukraine , July 2015 , pp. 384 - 415
Copyright
Copyright © 2015 by German Law Journal GbR 

References

1 U.N. Charter Preamble, art. 1(2).Google Scholar

2 See International Covenant on Civil and Political Rights art. 27, Mar. 23, 1976, 999 U.N.T.S. 171 [hereinafter ICCPR].Google Scholar

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4 See, e.g., G.A. Res. 1514 (XV), annex, ¶ 2 (Dec. 14, 1960); Declaration on the Rights of Indigenous Peoples, supra note 3, art. 3 (ascribing to indigenous peoples the right to self-determination, nominally including the right to “freely determine their political status,” though pointedly excluding any impairment of existing states’ “territorial integrity or political unity”); id. at art. 46. This qualification apparently assuaged African states that had theretofore insisted that the “principle of self-determination applies only to peoples under colonial and/or foreign occupation.” African Group, Draft Aide Memoire on United Nations Declaration on the Rights of indigenous Peoples (2006), http://www.ipacc.org.za/uploads/docs/Africanaidememoire.pdf.Google Scholar

5 G.A. Res. 2625 (XXV), Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations (Oct. 24, 1970) [hereinafter Friendly Relations Declaration].Google Scholar

6 See Roth, Brad R., Secessions, Coups, and the International Rule of Law: Assessing the Decline of the Effective Control Doctrine, 11 Melbourne J. Int'l L. 393, 402-09 (2010) (showing that immediately following the decolonization of the bulk of the Non-Self-Governing Territories, the dominant conception of self-determination was tightly bound up with non-intervention in the internal affairs of emergent states); see, e.g., G.A. Res. 2131 (XX), Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty (Dec. 21, 1965); G.A. Res. 36/103, Declaration on the Inadmissibility of Intervention and Interference in the Internal Affairs of States (Dec. 9, 1931) [hereinafter 1981 Non-intervention Resolution] (an especially provocative 1981 non-intervention resolution, passed 120-22-6 over the opposition of many western liberal states, asserting that “[t]he duty of a State to refrain from the exploitation and the distortion of human rights issues as a means of interference in the internal affairs of States”).Google Scholar

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8 See, e.g., Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, 2010 I.C.J. 403, ¶ 82 (July 22) [hereinafter Kosovo Advisory Opinion] (noting that states have expressed “radically different views” on the doctrinal issues central to determining Kosovo's status: (1) “[w]hether, outside the context of non-self-governing territories and peoples subject to alien subjugation, domination, and exploitation, the international law of self-determination of peoples confers upon part of the population of an existing State a right to separate from that state”; (2) “whether international law provides for a right of “remedial secession” and, if so, in what circumstances”; and (3) “whether the circumstances which some participants maintained would give rise to a right of ‘remedial secession’ were actually present in Kosovo”).Google Scholar

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10 See, e.g., Friendly Relations Declaration, supra note 5 (“Every State shall refrain from any action aimed at the partial or total disruption of the national unity and territorial integrity of any other State or country.”).Google Scholar

11 See, e.g., G.A. Res. 68/262 (Mar. 27, 2014) (reaffirming Ukrainian territorial integrity against the purported transfer of Crimea to the Russian Federation, by a vote of 100 to 11—though disappointingly, there were 58 abstentions and 24 absences). As Mikulas Fabry's contribution to this symposium notes, the vote count understates the extent of expressed legal disapproval of Russia's action, as reflected in the comments of several states that saw fit to withhold an affirmative vote on the resolution. Mikulas Fabry, How to Uphold the Territorial Integrity of Ukraine, 16 German L.J. 416, 422 (2015).Google Scholar

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14 Friendly Relations Declaration, supra note 5 (“Every State has an inalienable right to choose its political, economic, social and cultural systems, without interference in any form by another State,”), The International Court of Justice famously noted in the Nicaragua case that to hold a state's adherence to any particular governmental doctrine a violation of customary international law “would make nonsense of the fundamental principle of State sovereignty, on which the whole of international law rests, and the freedom of choice of the political, social, economic and cultural system of a State.” Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Judgment, 1986 I.C.J. 14, ¶ 263 (June 27) (emphasis added).Google Scholar

15 See Roth, Brad R., Sovereign Eguality and Non-Liberal Regimes, 43 Neth. Y.B. Int'l L. 25, 44–48 (2012).Google Scholar

16 By the logic of self-determination that grounds the effective control doctrine, even a still-recognized government—at least, where its recognition had been essentially attributable to its having achieved effective control through internal processes—would appear to lack standing to invite foreign forces to resolve a full-blown crisis of governmental authority. See, e.g., Louise Doswald-Beck, The Legal Validity of Military Intervention by Invitation of the Government, 56 British Y.B. Int'l L. 189, 233-34 (1985); see generally Institut de Droit Int'l, Resolution: The Principle of Non-intervention in Civil Wars, Aug. 14, 1975, http://www.idi-iil.org/idiE/resolutionsE/1975_wies_03_en.pdf. This limitation has, concededly, not held up well in practice, especially where the government has had other indicators of popular approval or the opposition has been tainted by unlawful foreign assistance or peculiarly bad conduct.Google Scholar

** Moreover, even where a given governmental order as a whole can speak unilaterally for the state, there is often reason to question whether a head of state or head of government can speak unilaterally for that governmental order in inviting foreign troops onto national territory. Where an elected president is unconstitutionally ousted by an elected legislature (as In Honduras in 2009 or Ukraine In 2014) there is guaranteed (almost irrespective of the actual language of the constitution) to be an “objectively evident” constitutional doubt about such Presidential authority—let alone (as in the Crimea example) where exercised with the effect of ceding national territory to a foreign power.Google Scholar

17 States retain their international legal personality, as well as obligations previously incurred, notwithstanding fundamental changes of governmental order. The political community is not understood to be re-founded when there is constitutional discontinuity; in Gabcikovo-Nagymaros, it is not that democratic Hungary succeeds to the international legal obligations of communist Hungary, but that the obligations incurred by Hungary's communist government are those of Hungary tout court. See Case Concerning the Gabcikovo-Nagymaros Project (Hung. v. Slovak.), Judgment, 1997 I.C.J. 7, 64, ¶ 104 (Sept. 25) (“profound changes of a political nature”—the collapse of communism—did not amount to a “fundamental change in circumstances” affecting treaty obligations).Google Scholar

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19 Unfortunately, the Badinter Commission's opinions on the 1991-1992 Yugoslav crisis introduce confusion by conflating issues of domestic-constitutional and international law. The Commission reasoned that because the very existence of the Yugoslav state presupposed functioning federal institutions, the collapse of these institutions and the recourse to force entailed nothing less than “a process of dissolution” of the Yugoslav state into its component republics. See Conference on Yugoslavia Arbitration Commission, Opinions on Questions Arising from the Dissolution of Yugoslavia, Jan. 11, 1992, July 4, 1992, 31 I.L.M. 1488, 1496-1500 [hereinafter Badinter Commission Opinions]. However, this rationale of the European community's arbitral commission arose in response to unique circumstances, and thus far, no general trend has emerged to support any ambitious extrapolations from the logic of the Badinter judgments.Google Scholar

20 Herszenhorn, David, Crimea Votes to Secede From Ukraine as Russian Troops Keep Watch, N.Y. Times, March 16, 2014, http://www.nytimes.com/2014/03/17/world/europe/crimea-ukraine-secession-vote-referendum.html (last visited June 18, 2015). But see C. J. Chivers & Patrick Reevell, Russia Moves Swiftly to Stifle Dissent Ahead of Secession Vote Times, N.Y., Mar. 14, 2014, http://www.nytimes.com/2014/03/15/world/europe/pressure-and-intimidation-sweep-crimea-ahead-of-secession-vote.html (last visited June 18, 2015) (“With a mix of targeted intimidation, an expansive military occupation by unmistakably elite Russian units and many of the trappings of the election-season carnivals that have long accompanied rigged ballots across the old Soviet world, Crimea has been swept almost instantaneously into the Kremlin's fold.”).Google Scholar

21 Crimea Referendum: Voters ‘Back Russia Union,' BBC, March 16, 2014, http://www.bbc.com/news/world-europe-26606097 (last visited June 18, 2015) (“Some 58% of people in Crimea are ethnic Russian, with the rest made up of Ukrainians and Tatars.”).Google Scholar

22 Kosovo Advisory Opinion, supra note 8, para. 82.Google Scholar

23 See generally Fox, Gregory H. & Roth, Brad R., Democracy and International Law, 27 Rev. Int'l Studs. 327 (2001).Google Scholar

24 As noted famously by Ivor Jennings: “[T]he people cannot decide until somebody decides who are the people.” Ivor Jennings, The Approach to Self-Government 55–56 (1956), quoted in Vidmar, supra note 9, at 243.Google Scholar

25 It is sometimes suggested that the pattern of recent Security Council's Chapter VII edicts in response to in internal conflicts establishes a norm against recourse to violence to resolve internal political disputes. See, e.g., Kalkidan Obse, The Arab Spring and the Question of Legality of Democratic Revolution in Theory and Practice: A Perspective Based on the African Union Normative Framework, 27 Leiden J. Int'l L. 817, 828-29 (2014). But the Security Council's extemporary decrees, even if they could be said to comprise such a pattern, do not by themselves establish norms applicable in the absence of Chapter VII resolutions.Google Scholar

26 As the ICJ in the Kosovo Advisory Opinion noted, the “illegality attached to the declarations of independence [of Southern Rhodesia, Northern Cyprus, and Republika Srpska] 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).” Kosovo Advisory Opinion, supra note 8, para. 81.Google Scholar

27 See, e.g., Friendly Relations Declaration, supra note 5 (“[N]o State shall … interfere in civil strife in another State.”).Google Scholar

28 See generally Roth, Brad R., Sovereign Equality and Moral Disagreement (2011).Google Scholar

29 The preceding section was adapted from the written version of panel remarks delivered at the October 2014 annual meeting of the American Branch of the International Law Association. Roth, Brad R., The Neglected Virtues of Bright Lines: International Law in the 2014-15 Ukraine Crises, 21 ILSA J. Int'l & Comp. L. 317 (2015).Google Scholar

30 Radan, Peter, The Serb Krajina: An Unsuccessful Secession from Croatia, in The Ashgate Research Companion to Secession, 523, 523 (Aleksandar Pavković & Peter Radan eds., 2011). From the standpoint of many of Croatia's Serbs, withdrawal from the federation represented an existential threat, vitiating that community's consent to the boundaries of the republic. The new Croatian proto-state officially characterized itself as “the national state of the Croat nation,” with Serbs relegated to the status of a national minority rather than a constituent nation. Id. For good measure, it adopted some of the same historical symbols of Croatian identity employed by World War II-era Nazi-backed Independent State of Croatia (NDH), which encompassed roughly the territory of both Croatia and Bosnia-Herzegovina and which orchestrated mass killings of Serbs.Google Scholar

31 Prosecutor v. Martić, Case No. IT-95-11-T, paras. 161–336 (Int'l Crim. Trib. for the Former Yugoslavia June 12, 2007) (showing factual findings and details of the character of the Serb-nationalist military and paramilitary campaign in Croatia).Google Scholar

32 See, e.g., Vidmar, supra note 9, at 79.Google Scholar

33 Declaration of Yugoslavia, European Political Cooperation Extraordinary Ministerial Meeting, No. 4b/64 of 27 Aug. 1991, reprinted in European Foreign Policy: Key Documents 363 (Christopher Hill & Karen E. Smith eds., 2000) (emphasis added), http://hist.asu.ru/aes/EFP_Documents_0415158222.pdf.Google Scholar

34 Weller, Marc, The International Response to the Dissolution of the Socialist Federal Republic of Yugoslavia, 86 Am. J. Int'lL. 569, 575 (1992).Google Scholar

35 The official Serbian counter-narrative was as follows:Google Scholar

** The Serbian people … demanded respect and protection of their legitimate national and civil rights. When Croatia decided to secede from Yugoslavia and form its own independent State, the Serbs inhabiting their ethnical territories in this republic decided to break away from Croatia and remain within Yugoslavia. … Faced with the serious danger of a more widespread conflict, the Presidency of the SFRY instructed the Yugoslav People's Army to prevent such conflicts by standing as a neutral force between the parties in conflict. However, the Croatian authorities, instead of accepting such a mission of the YPA [JNA], openly attacked not only the Serbian people which it branded as a band of outlaws, but also … the Yugoslav People's Army which it termed an army of occupation. This is how war was thrust upon Yugoslavia. In such a situation it was essential to protect the Serbian people from extermination.Google Scholar

** S.F.R.Y. Collective Presidency Chair Borisav Jovic, Address at the Assembly of the Socialist Federal Republic of Yugoslavia (Mar. 19, 1992), reprinted in Rev. Int'l Affairs 11–12 (1992), guoted in Weller, supra note 34, at 574.Google Scholar

36 For trenchant criticisms of the Badinter Commission opinions, see, e.g., Miodrag Jovanovic, Constitutionalizing Secession in Federalized States: A Procedural Approach 83–114 (2007); Waters, Timothy William, Contemplating Failure and Creating Alternatives in the Balkans: Bosnia's Peoples, Democracy, and the Shape of Self-Determination, 29 Yale J. Int'l L. 423, 438-44 (2004); Fabry, Mikulas, International Norms of Territorial Integrity and the Balkan Wars of the 1990s, 16 Global Soc'y 145 (2002); Radan, Peter, Yugoslavia's Internal Borders as International Borders; A Question of Appropriatreteness, 33 E. Eur. Q. 137 (1999); Pomerance, Michla, The Badinter Commission: The Use and Misuse of the International Court of Justice's Jurisprudence, 20 Michigan J. Int'l L. 31 (1998); Hannum, Hurst, Self-Determination, Yugoslavia, and Europe: Old Wine in New Bottles? 3 Transnat'l. L. & Contemp. Probs. 57 (1993).Google Scholar

37 Badinter Commission Opinions, supra note 19, at 1495, No. 1, para. 1(d).Google Scholar

38 Id. at 1496–97, No. 1, para. 2.Google Scholar

35 Id. at 1493, 1500, No. 1, para. 3.Google Scholar

40 Id. at 1498, 1500, Nos. 2 & 3. Although the Commission did not predicate its framework of decision on constitutional interpretation, it asserted that the principle by which the boundaries were internationalized applied “all the more readily to the Republics since the second and fourth paragraphs of Article 5 of the Constitution of the SFRY stipulated that the Republics’ territories and boundaries could not be altered without their consent.” Id. at 1500, No. 3. This statement rather conveniently omitted mention of the provision of Article 5 that required consent of all Republics to the changes in SFRY frontiers.Google Scholar

41 See Convention, Montevideo, supra note 18, art. 2 (“The federal state shall constitute a sole person in the eyes of international law.”).Google Scholar

42 See, e.g., Jackson, Robert H. & Rosberg, Carl G., Why Africa's Weak States Persist: The Empirical and Juridical in Statehood, 35 World Pols. 1 (1982).Google Scholar

43 See generally Trbovich, Ana S., A Legal Geography of Yugoslavia's Disintegration (2008).Google Scholar

44 See, e.g., Brierly, J.L., The Law of Nations 138 (C.H.M. Waldock ed., 6th ed. 1963) (“[S]o long as a real struggle is proceeding, recognition is premature, whilst, on the other hand, mere persistence of the old state in a struggle that has obviously become hopeless is not a sufficient cause for withholding it.”), quoted in David A. Ijalaye, Was “Biafra” At Any Time a State in International Law?, 65 Am. J. Int'l L. 551, 558 (1971).Google Scholar

45 See, e.g., Pomerance, supra note 36, at 50–57.Google Scholar

46 See Radan, Yugoslavia's Internal Borders as International Borders, supra note 30.Google Scholar

47 See Jovanovic, supra note 36, at 107.Google Scholar

48 Badinter Commission Opinions, supra note 19, at 1497–1500, Nos. 2 & 3.Google Scholar

49 For a summary of the Serb grievances against the emergent Croatian state, see Hayden, Robert M., Nationalism in the Formerly Yugoslav Republics, 51 Slavic Rev. 654, 657-58 (1992).Google Scholar

50 Badinter Commission Opinions, supra note 19, at 1495–96, No. 1, para. 1(e).Google Scholar

51 See Prosecutor v. Martić, supra note 31, paras. 161–336.Google Scholar

52 Whereas the international system had once accepted “papulation transfer” as a legitimate means of sorting out rival self-determination claims, see, for example, Timothy William Waters, Remembering Sudetenland: On the Legal Construction of Ethnic Cleansing, 47 Va. J. of Int'l Law 63 (2006). That system was now coming to understand both the end and the probable means of such transfer as “crimes against humanity.” See, e.g., UN Doc. A/CONF. 183/9, Rome Statute of the International Criminal Court, Art. 7 (1998) (enumerating crimes against humanity: A “widespread or systematic attack … against [a] civilian population”); Prosecutor v. Blagojević and Jokić, Case No. IT-02-60-T, ¶ 595 (Inr'l Crim. Trib. for the Former Yugoslavia Jan. 17, 2005) (“[D]isplacements within a state or across national borders, for reasons not permitted under international law, are crimes punishable under customary international law.”).Google Scholar

53 See, e.g., Watch, Human Rights, Croatia: impunity for Abuses Committed During ‘Operation Storm’ and the Denial of the Right of Refugees to Return to the Krajina, 8 Reports 13 (1996), http://www.hrw.org/reports/1996/Croatia.htm (“The offensive … resulted in the … displacement of an estimated 200,000 who fled in the immediate aftermath. … These abuses by Croatian government forces, which continued on a large scale even months after the area had been secured by Croatian authorities, included summary executions of elderly and infirm Serbs who remained behind and the wholesale burning and destruction of Serbian villages and property.”).Google Scholar

54 On October 14, 1991 Bosnia's Parliament declared the Republic's sovereignty, with the support of parties associated with the Bosniak plurality (an estimated 44% of Bosnia's population) and the Croat minority (17%), albeit without the participation of the parties associated with the Serb minority (31%). In its January 11, 1992 Opinion (No. 4), the Commission concluded that “the will of the peoples of Bosnia-Hercegovina to constitute the [Republic] as a sovereign and independent State cannot be held to have been fully established. …” Badinter Commission Opinions, supra note 19, at 1503, No. 4. But then, curiously, it added: “This assessment could be reviewed if appropriate guarantees were provided by the Republic applying for recognition, possibly by means of a referendum of all the citizens of the [Republic] without distinction, carried out under international supervision.” Id. The non sequitur was entirely overlooked: the first sentence invoked “the will of the peoples” severally, whereas the second evidently eschewed peoplehood as a relevant category, indicating that the will of a simple majority of individual citizens can override a dissenting “people,” however cohesive.Google Scholar

55 See, e.g., Radan, Peter, The Badinter Arbitration Commission and the Partition of Yugoslavia, 25 Nationalities Papers: J. Nationalism & Ethnicity 537, 543 (1997).Google Scholar

56 Vidmar, supra note 9, at 234.Google Scholar

57 According to notions predominant in Slovenia and Croatia, the federation represented a historically contingent agreement of its several constituent territorial republics, the boundaries of which conceptually preceded rather derived from the union; in this view, each republic maintained, as an inherent right of self-determination, a latent sovereign capacity to exit the arrangement with its borders intact. Support for that position might be drawn from leading SFRY jurist Edvard Kardelj's Socialist-era understanding of self-determination in the Yugoslav context. For Kardelj, “the legitimacy of Yugoslavia [was] only derivative and tentative”—a mere epiphenomenon of the socialist project that subsequently disappeared. Zoran Oklopcic, Beyond Empty, Conservative, and Ethereal: Pluralist Self-Determination and a Peripheral Political Imaginary, 26 Leiden J. Int'l L. 509, 518-19 (2013). Yet Kardelj's conception—however popular with his fellow Slovenes—did not have the field to itself. More importantly, there was still less accord on the alternative. As Oklopcic indicates, “While all Yugoslav constitutions affirmed the various nations’ right to self-determination, including the right of secession, a fundamental ambiguity remained as to whom exactly this right belonged—to South-Slavic Yugoslav ethnoi, or the demoi of Yugoslavia's component republics.” Id. at 520. The distinction, while appearing to set an ethnic against a civic brand of nationalism, in reality merely determines which ethno-national aspirations will be satisfied or frustrated once secessionism seizes the agenda.Google Scholar

58 Serb nationalists would likely express the point in a one-word rejoinder: “Jasenovac,” the concentration camp in the World War II-era Independent State of Croatia (NDH)—an entity that encompassed roughly the combined territories of present-day Croatia and Bosnia-Herzegovina—in which an extraordinary number of Serbs perished (along with Jews, Roma, and others). See Site, Jasenovac Memorial, List of Individual Victims of Jasenovac Concentration Camp, http://www.jusp-jasenovac.hr/Default.aspx?sid=6711.Google Scholar

59 See, e.g., Paxton, Robert O., The Anatomy of Fascism 189-90 (2004) (“[P]inning the epithet of fascist on Milosevic … seems appropriate”).Google Scholar

60 Ironically, while the Commission's early judgments sought to establish the legal status of the entities in question, the Commission advised the withholding of diplomatic recognition to Croatia, pending reform of its legal standards regarding the treatment of minorities. Contrast Badinter Commission Opinions, supra note 19, at 1503, 1505, No. 5, with id. at 1507, 1517, No. 7. However, the crucial question of legal status having been taken as resolved, this further advice was ignored.Google Scholar

61 Kosovo Advisory Opinion, supra note 8, paras. 74–76.Google Scholar

62 Non-Self-Governing Territories are, by definition, non-integral to the sovereign states that govern them. See, e.g., G.A. Res. 1541 (XV), supra note 4.Google Scholar

63 See generally Independent International Commission on Kosovo, The Kosovo Report: Conflict, International Response, Lessons Learned (2000) (“Goldstone Commission Report”).Google Scholar

64 See S.C. Res. 1160 (Mar. 31, 1998); S.C. Res. 1199 (Sept. 23, 1998); S.C. Res. 1203 (Oct. 24, 1998) (invoking Chapter VII powers in addressing the Kosovo situation).Google Scholar

65 Interim Agreement for Peace and Self-Government in Kosovo (Feb. 23, 1999), http://peacemaker.un.org/sites/peacemaker.un.org/files/990123_RambouilletAccord.pdf [hereinafter Rambouillet Accords].Google Scholar

66 See Release, Press, Security Council, U.N. Press Release SC/6659 (Mar. 26, 1999) (reflecting that Russia, China, and Namibia support draft Security Council resolution, defeated 3-12-0, characterizing NATO's “unilateral use of force” as “a flagrant violation of the United Nations Charter” and demanding “an immediate cessation”).Google Scholar

67 S.C. Res. 1244 (June 10, 1999) (demonstrating a vote of 14-0-1, with China abstaining).Google Scholar

68 See id. The Resolution speaks of “the people of Kosovo” enjoying “substantial autonomy within the Federal Republic of Yugoslavia. Id. at para. 10. It also speaks of “[p]romoting the establishment, pending a final settlement, of substantial autonomy and self-government in Kosovo, taking full account of annex 2 and of the Rambouillet accords.” Id. at para. 11(a). The annex, in turn, discusses a “political process towards the establishment of an interim political framework agreement providing for substantial self-government for Kosovo, taking full account of the Rambouillet accords and the principles of sovereignty and territorial integrity of the Federal Republic of Yugoslavia.” U.N. Doc. S/1999/648, Annex 2, para. 8 (June 7, 1999). The Rambouillet document itself provides that “national communities” therein recognized “shall not use their additional rights to endanger … the sovereignty and territorial integrity of the Federal Republic of Yugoslavia.” Rambouillet Accords, supra note 65, at Framework, Art. 1(2).Google Scholar

69 In 2007, the U.N. Secretary-General's Special Envoy, former Finnish President Martti Ahtisaari, authored a Comprehensive Proposal for Kosovo Status Settlement, expressing the unsatisfactoriness of preserving the status quo indefinitely. Comprehensive Proposal for Kosovo Status Settlement (Mar. 26, 2007), http://www.unosek.org/docref/Comprehensive_proposal-english.pdf; see generally Jean d'Aspremont, Regulating Statehood; The Kosovo Status Settlement, 20 Leiden J. Int'l L. 649 (2007).Google Scholar

70 G.A. Res. 63/3 (Oct. 8, 2008).Google Scholar

71 Cf., Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. Rep. 36 (July 9).Google Scholar

72 The resolution was passed on 8 October 2008. The dates of recognitions of Kosovo can be found, inter alia, on the webpage of the Kosovo's Ministry of Foreign Affairs, http://www.mfa-ks.net/?page=2,33 (last visited June 18, 2015).Google Scholar

73 As the Court noted, the “illegality attached to the declarations of independence [of Southern Rhodesia, Northern Cyprus, and Republika Srpska] 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).” Kosovo Advisory Opinion, supra note 8, para. 81.Google Scholar

74 In the Court's words, “[T]he scope of the principle of territorial integrity is confined to the sphere of relations between States.” Kosovo Advisory Opinion, supra note 8, para. 80.Google Scholar

75 See, e.g., Reference re Secession of Quebec, [1998] S.C.R. 217, 290, para. 144 (Can.), http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1643/index.do (“It may be that a unilateral secession by Quebec would eventually be accorded legal status by Canada and other states, and thus give rise to legal consequences; but this does not support the more radical contention that subsequent recognition of a state of affairs brought about by a unilateral declaration of independence could be taken to mean that secession was achieved under colour of a legal right.”).Google Scholar

76 Judge Simma's separate opinion ascribes the Court's presumptive neutrality to “an old, tired view of international law, which takes the adage, famously expressed in the 'Lotus' Judgment, according to which restrictions on the independence of States cannot be presumed because of the consensual nature of the international legal order.” Kosovo Advisory Opinion, supra note 8, para. 2 (separate opinion by Simma, J.). Apart from failing to note that the supposed “Lotus principle” by its nature has no application to sub-state units, Simma's ascription misconstrues the doctrinal point: The non-judgmentalism stems not from absence of law, but from an affirmative norm regarding (for better or worse) the outcome of such struggles as “matters essentially within the domestic jurisdiction.” See Declaration, Friendly Relations, supra note 5.Google Scholar

77 See Opinion, Kosovo Advisory, supra note 8, para. 82 (showing that states have expressed “radically different views” on the doctrinal issues central to determining Kosovo's status: (1) “Whether, outside the context of non-self-governing territories and peoples subject to alien subjugation, domination, and exploitation, the international law of self-determination of peoples confers upon part of the population of an existing State a right to separate from that state”; (2) “whether international law provides for a right of ‘remedial secession’ and, if so, in what circumstances”; and (3) “whether the circumstances which some participants maintained would give rise to a right of ‘remedial secession’ were actually present in Kosovo”).Google Scholar

78 See Opinion, Kosovo Advisory, supra note 8, paras. 102–09.Google Scholar

79 Id. at para. 109. To infer any legal conclusions about Kosovar “peoplehood” on this basis would be to overread what Zoran Oklopcic properly calls “a seemingly off-the-cuff remark.” Zoran Oklopcic, Preliminary Thoughts on the Kosovo Opinion, EJIL: Talk! (July 26, 2010), http://www.ejiltalk.org/preliminary-thaughts-on-the-kosovo-opinion/#more-2505. The use of that the term “people” may refer merely to the declarants’ subjective understanding of their “capacity.” Id. Google Scholar

80 For arguments in favor, see the Statement of Federal Republic of Germany filed with the International Court of Justice in connection with the Kosovo Advisory Proceedings, at 34–37, available at http://www.icj-cij.org/docket/files/141/15624.pdf. See also Written Statements of Albania, Estonia, Poland, and Ireland, available at http://www.icj-cij.org/docket/index.php?p1=3&p2=4&k=21&case=141&code=kos&p3=1. But see, e.g., Written Statements of Cyprus, Spain, and the Russian Federation. For a study of these submissions, see Milanovic, Marko, Arguing the Kosovo Case, in The Law and Politics of the Kosovo Advisory Opinion (Marko Milanovic & Michael Wood eds., 2014), http://ssrn.com/abstract=2412219. As Milanovic reports: “Perhaps the most remarkable item from the first round is that one state in the pro-Serbia camp did explicitly endorse the right to remedial secession—Russia—while claiming that Kosovo did not satisfy its requirements on the facts. It was indeed the only member of the P-5 to do so.” Id. at 25.Google Scholar

81 Jeremy Lott, In Defenseof Hypocrisy 60 (2006).Google Scholar

82 See generally W. Ofuatey-Kodjoe, The Principle of Self-Determination in International Law (1977).Google Scholar

83 G.A. Res. 1514 (XV), supra note 4, at para. 2. The Security Council reaffirmed the statement in S.C. Res. 183, paragraph 4 (Dec. 11, 1963), and the language is repeated verbatim in Common Article 1 of the 1966 Human Rights Covenants. ICCPR, supra note 2, art. 1. International Covenant on Economic, Social and Cultural Rights, Jan. 3, 1976, 993 U.N.T.S. 3, art. 1.Google Scholar

84 G.A. Res. 1514 (XV), supra note 4, at para. 5.Google Scholar

85 G.A. Res. 1541 (XV), supra note 4, Annex, Principles I, IV, V.Google Scholar

86 See id. at Principles II, VI VII, VIII, IX.Google Scholar

87 Id. (containing at some points plural references (e.g., “the territory and its peoples”) thereby implying that a single Non-Self-Governing Territory can contain more than one people, though this plurality is given no operative significance).Google Scholar

88 G.A. Res. 1514 (XV), supra note 4, at para. 6.Google Scholar

89 Friendly Relations Declaration, supra note 5 (emphasis added).Google Scholar

90 See, e.g., Antonio Cassese, Self-Determination of Peoples: A Legal Reappraisal 115-13 (1995) (discussing the preparatory work to the safeguard clause, which reveals concessions to non-liberal-democratic states).Google Scholar

91 See G.A. Res. 50/6, supra note 7; United Nations World Conference on Human Rights, Vienna Declaration and Programme of Action, supra note 7.Google Scholar

92 Friendly Relations Declaration, supra note 5.Google Scholar

93 G.A. Res. 60/1, para. 139 (Sept. 16, 2005) (affirming the Security Council's authority to intervene forcibly in the internal affairs of sovereign states, in furtherance of the “responsibility to protect,” where “national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity”).Google Scholar

94 For example, coups in Haiti in 1994 and Sierra Leone in 1997 drew not only international condemnation, but also continued recognition of the ousted government-in-exile, leading ultimately to a forcible restoration. In these cases, there had been a landslide victory of the ousted President in a very recent, internationally-monitored election, as well as notorious brutality and demonstrable unpopularity on the part of the forces involved in the coup. As a result, a vast diversity of international actors, cutting across the international system's plurality of interests and values, were able to perceive in common a population's manifest will to restore an ousted government. See Brad R. Roth, Governmental Illegitimacy in International Law 366–87, 405-09 (1999).Google Scholar

95 The establishment of Bangladesh as a result of India's 1971 intervention in East Pakistan is a rare instance of such fracturing. Even there, the initial U.N. General Assembly indirectly repudiated the external use of force that enabled Bangladesh's independence. G.A. Res. 2793 (XXVI) (Dec. 7, 1971) (calling “upon the Governments of India and Pakistan to take forthwith all measures for an immediate cease-fire and withdrawal of their armed forces on the territory of the other to their own side of the India-Pakistan borders”).Google Scholar

96 See Convention, Montevideo, supra note 19.Google Scholar

97 Convention on Duties and Rights of States in the Event of Civil Strife, May 21, 1929, 134 LN.T.S. 45, art. 1 (codifying an Inter-American treaty forbidding “the traffic in arms and war material, except when intended for the Government, while the belligerency of the rebels has not been recognized, in which latter case the rules of neutrality shall be applied”).Google Scholar

98 See, e.g., Malcolm Shaw, International Law 383 (5th ed. 2003); Lauterpacht, Hersch, Recognition in International Law 45–46 (1947) (“[T]he sovereignty of the mother country is a legally relevant factor so long as it not abundantly clear that the lawful government has lost all hope or abandoned all effort to reassert its dominion.”).Google Scholar

99 “Successful revolution sooner or later begets its own legality.” Stanley A. de Smith, Constitutional and Administrative Law 66–67 (3d ed. 1977).Google Scholar

100 1981 Non-Intervention Declaration, supra note 6, Annex, art. 2(f) (affirming “[t]he duty of a state to refrain from the promotion, encouragement, or support, direct or indirect, of rebellious or secessionist activities within other States, under any pretext whatsoever, or any action which seems to disrupt the unity or to undermine or subvert the political order of other States” (emphasis added)).Google Scholar

101 A complicated question arises when insurgent forces achieve such efficacy as to achieve the status of “belligerent,” thereby establishing the existence of a full-fledged “civil war.” Since a government's standing traditionally hinges on its maintenance of effective control through internal processes, the inability of a regime to maintain control by its own devices calls that standing into question, thereby arguably triggering an obligation of foreign states to observe neutrality. See, e.g., Institut de Droit International, Resolution: The Principle of Non-intervention in Civil Wars (Aug. 14, 1975), http://www.idi-iil.org/idiE/resolutionsE/1975_wies_03_en.pdf; see generally Louise Doswald-Beck, The Legal Validity of Military Intervention by Invitation of the Government, 56 British Y.B. Int'l L. 189 (1986). For a recent assessment of this issue, see Akande, Dapo & Vermeer, Zachary, The Airstrikes Against Islamic State in Iraq and the Alleged Prohibition on Military Assistance to Governments in Civil Wars, EJIL: Talk! (Feb. 2, 2015), http://www.ejiltalk.org/the-airstrikes-against-islamic-state-in-iraq-and-the-alleged-prohibition-on-military-assistance-to-governments-in-civil-wars/ (last visited June 18, 2015).Google Scholar

102 See Oklopcic, Zoran, Constitutional (Re)Vision: Sovereign Peoples, Constituent Powers and the Formation of Constitutional Orders in the Balkans, 19 Constellations: Int'l J. Critical & Democratic Theory 81, 95 (2012).Google Scholar

103 It Is telling that the Canadian Supreme Court's decision in Reference re Secession of Quebec, supra note 75, perhaps the most elaborate contemporary judicial opinion anywhere on the topic, pointedly sidestepped the question of what counts as a “people,” jumping ahead conceptually to the non-violation of self-determination, The Court thus avoided having to determine whether the relevant “people” was comprised of (a) the entire Quebec papulation, (b) the entire Quebec population minus the indigenous communities; (c) Francophone Quebecois, or (d) all Francophone Canadians, let alone (e) all Canadians. Id. at 282, para. 125.Google Scholar