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The United Nations and the Evolving Right to Self-Determination

Published online by Cambridge University Press:  17 January 2008

Helen Quane
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Extract

The right of peoples to self-determination is an elusive concept. There is no clear definition of “peoples” or of what the right entails. Instead, there are numerous and at times conflicting interpretations of self-determination. The existence of these various interpretations is not merely of academic or theoretical interest. It can have considerable practical implications.

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Article
Information
International & Comparative Law Quarterly , Volume 47 , Issue 3 , July 1998 , pp. 537 - 572
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Copyright © British Institute of International and Comparative Law 1998

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References

1. There are at least three broad interpretations of self-determination although several variants exist Self-determination can refer to the right of the population of a State to determine their international status and to self-government. It can also refer to the similar right of the population of a colonial territory. According to a third interpretation, self-determination refers to therightof “peoples”, whether or not they comprise the entire population of a State or colonial territory, to determine their international status and to self-government.

2. Cf. the General Assembly debate on “The effective realisation of the right of self-determination through autonomy” in 1993: A/48/PV.36.

3. Higgins, R., Problems and Process.p.111, commenting on some of the interpretations of the Charter principle of self-determination.Google Scholar

4. Vienna Convention on the Law of Treaties, Art.31.

5. Idem, Art.32.

6. Byelorussia, India, Philippines and the Ukraine.

7. Art.77.

8. China, the USSR, the UK and the US. The proposed amendment was in identical terms to the text ultimately adopted.

9. This Committee had the task of drafting the Preamble to and the Purposes and Principles of the Charter. On the committee structure at the San Francisco Conference, see Goodrich, L. M. and Hambro, E., Charter of the United Nations: Commentary and Documents, pp. 12–18.Google Scholar

10. Documents of the UN Conference on International Organisation, Vol. VI, p.296.Google Scholar

11. Idem, p.300.

12. Ibid.

13. Idem, p.704.

14. Ibid.

15. Ibid.

16. Idem, p.700.

17. Idem, p.324.

18. Idem, p.396.

19. Idem, Vol XVII, p.142.

20. Ibid.

21. Ibid.

22. Idem, Vol XVIII.p.658.

23. Idem, p.657.

24. Idem, Vol.XVII, p.143.

25. Ibid.

26. Ibid.

27. Idem, Vol.X, p.441.

28. Russell, R. B. and Muther, J. E., A History of the United Nations' Charter, p.831. The Soviet proposal was dropped in response to a US threat to veto proposals on the composition of the Trusteeship Council.Google Scholar

29. Documents, supra n.10, at Vol.X, p.453.Google Scholar

30. Ibid.

31. Cf. idem, p.497, Vol.III, p.146 and Vol.X, pp.446, 562.

32. Idem, Vol.X, pp.453–454.

33. Idem, p.562.

34. Idem, p.497.

35. Ibid.

36. Ibid.

37. Kelsen, H., The Law of the United Nations: A Critical Analysis of Us Fundamental Problems, p.53.Google Scholar

38. Higgins, .op. cit. supra n.3, at p.112.Google Scholar

39. Cf. Bowett, D. W., “Self-Determination and Political Rights in the Developing Countries” (1966) 60 P. A.S.I.L. 129, 134Google Scholar; Crawford, J., The Creation of States in International Law, p.91Google Scholar; Cristescu, A., Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, The Right to Self-Determination: Historical and Current Development on the Basis of United Nations Instruments, p 39Google Scholar; Lachs, M., “The Law in and of the United Nations” (1961) 1 Indian J.I.L. 429, 430–431Google Scholar; and Sureda, R., The Evolution of the Right to Self-Determination, p.101.Google Scholar

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41. Idem, p.432

42. Idem, pp.432–433.

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44. Cassese, ibid.

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48. Operative para.2.

49. Res.637(VII) refers to the “principle of self-determination of all peoples and nations”: 7 G.A.O.R. 26. An American amendment affirming the universality of the principle was rejected by 28 votes to 22, with 5 abstentions: idem, p.374.

50. The preamble indicates that the resolution was concerned primarily with colonial peoples: paras.3–7, 9, 10 and 12. Operative paras.3 to 5 of the resolution are concerned solely with the implementation of the self-determination principle in colonial territories.

51. To expedite the process of decolonisation and to reinforce the Charter obligations concerning colonial peoples cf. 15 G.A.O.R. 1001–1002, 1042, 1060, 1103, 1234, 1074, 1136, 1152 and 1266.

52. The emphasis throughout the debate was on decolonisation: cf. 15 G.A.O.R. 996. Only seven delegations, out of a total of 72 who made statements, referred to a more expansive definition of “peoples”: cf. idem, pp.1138, 1249, 1136, 1200, 1283, 1104 and 1073.

53. The Special Committee on the Situation with regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples, which was established in 1961 to oversee the implementation of Res.1514(XV), has dealt exclusively with NSGTs, Trust Territories and other dependent territories: cf. Res.1542(XV) and 1747(XVII). This interpretation has also been adopted by the Assembly in a series of resolutions on the implementation of Res.1514(XV): cf. Res.40/56 of 2 Dec. 1985.

54. Operative para.5.

55. Res.66(I): 1 G.A.O.R. Supp.20, pp.124–126Google Scholar; Res.567(VI):6 G.A.O.R. Supp.20, p.61Google Scholar; Res.648(VII): 7 G.A.O.R. Supp. 17, p.34Google Scholar, Res.742(VIII): 8 G.A.O.R. Supp. 17, p.22; and Res.1541(XV).Google Scholar

56. Operative para.6.

57. Cf. 15 G.A.O.R. 1255.

58. Cf. 15 G.A.O.R. 1251, 1153, 1271, 1276, 1277 and 1139.

59. Operative para.2.

60. Operative para.5 and the title of the resolution.

61. Cf. 15 G.A.O.R. 1047, 1102, 993, 1153 and 1042.

62. This is reinforced by Res.1541(XV), Principles VI, VII and IX, which was adopted within 24 hours of Res.1514(XV).

63. On the legal status of G.A. resolutions, see Cheng, “United Nations Resolutions on Outer Space Law. ‘Instant’ International Customary Law?” (1965) 5 Indian J.I.L. 23Google Scholar; MacGibbon, , “Means for the Identification of International Law”, in Cheng, (Ed.), International Law: Teaching and Practice, chap.2Google Scholar; and Mendelson, , “The Legal Character of General Assembly Resolutions: Some Considerations of Principle”, in Hussain, (Ed.), Legal Aspects of the New International Economic Order, Vol.1, p.92.Google Scholar

64. Cf. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Rep. 1986, 14, para.193Google Scholar; and 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. Rep. 1971, 16, para.114.Google Scholar

65. Cf. Nicaragua, idem, para.188; and the TOPCO case (1978) 17 I.L.M. 3, paras.85–86.Google Scholar

66. Cf. Nicaragua, idem, para.203; and TOPCO, idem, paras 87–88.

67. 15 G.A.O.R. 1274.

68. Cf. North Sea Continental Shelf, Judgment, I.C.J. Rep. 1969, 3, para.73; and TOPCO, supra n.65, at paras.85–86.

69. Cf. Nicaragua, supra n.64, at para.188.

70. Cf. 15 G.A.O.R. 993, 997, 1071 and 1098.

71. 15 G.A.O.R. 1003, 1035, 1059 and 1256.

72. Cf. the case of Mayotte, which unsuccessfully attempted to exercise the right separately from the rest of the Comoros: G. A.Res. 47/9 adopted by 126 votes in favour, one against and 40 abstaining. See also the General Assembly's approach to the Banabans on Kiribati (Gilbert Islands): Decolonization, No.15, p.36.Google Scholar The General Assembly has consistently condemned any attempt aimed at the partial or total disruption of the territorial integrity of colonial territories: cf. resolutions adopted between 1963 and 1974 concerning several small territories in the Caribbean, Atlantic, Indian and Pacific Oceans: Decolonization, No. 12, p.16.Google Scholar

73. Morocco attained independence after the merger of the French Protectorate, the Spanish Protectorate and the International Zone of Tangier. Somalia attained independence after the merger of the British Somaliland Protectorate and the Italian Trusteeship Territory of Somalia.

74. India, Palestine, Ruanda-Urundi, the British Cameroons, the Trust Territory of the Pacific Islands and the Gilbert and Ellice Islands Colony.

75. British Togoland formed a union with Ghana. French Sudan joined with Senegal to form the Federation of Mali but Sudan subsequently seceded.

76. The Trusteeship Council initially expressed concern about the break up of the Trust Territory of the Pacific Islands but ultimately decided that it was “for the Micronesians themselves to decide upon their future relations with each other”: Decolonization, No.16, p.41.Google Scholar

77. Cf. G.A.Res.51/430 (Gibraltar) and 46/406 (Falkland Islands).

78. Cf. G.A.Res.2353(XXII).

79. Cf. G.A.Res.51/430, 48/422, 47/411, 46/420 and 43/411 on Gibraltar, which were in identical terms and adopted without a vote, and G.A.Res.46/406 and the resolution adopted by the Committee on Colonial Countries on 29 July 1992 (A/41/23) on the Falkland Islands (Malvinas).

80. At least 42 territories attained independence during this period.

81. Cf. the series of G. A. resolutions calling on the administering powers to foster awareness among peoples of the “possibilities open to them in the exercise of their right to self-determination” (emphasis added): Res.43/36–43 of 22 11. 1988; 44/91–99 of 11 12. 1989 and 45/23, 27–29, 31–32 of 20 Nov. 1990.Google Scholar

82. The Netherlands Antilles and Surinam, Alaska, Hawaii, Tokelau, Wallis and Futuna Islands, British Togoland, the northern part of the British Cameroons, the southern part of the Cameroons, North Borneo and Sarawak, West Irian, the Mariana Islands, and the Cocos (Keeling) Islands.

83. Puerto Rico, Greenland, Cook Islands, Niue, the Marshall Islands, the Federated States of Micronesia and Palau. The UN has recognised these decisions although its position on Puerto Rico has evolved over time: cf. Res.2064(XX) (Cook Islands) and Res.3285(XXlXX)(Niue). The UN's acceptance of the Compacts of Free Association with the US entered into by the Marshall Islands, the Federated States of Micronesia and Palau is implicit in its termination of the trusteeship agreement concerning these territories: see Far East and Australasia, p.757.Google Scholar

84. Cf.Decolonization, Vol.II, No.6, pp.19, 20, 21, 22;and G.A.Res.39/30 of 5 Dec 1984 concerning the Cocos (Keeling) Islands.Google Scholar

85. It was not offered to the inhabitants of the British Cameroons, British Togoland, the Mariana Islands or Niue.

86. Cf. Res.994(X) (British Togoland): 10 G.A.O.R. Supp. 19, p.24.Google Scholar

87. Cf. Decolonization, Vol.II, No.6, pp.20, 21.Google Scholar

88. Cf. the 1973 report of a Visiting Mission to the Trust Territory of the Pacific Islands reminding the US “which had refused to discuss independence as a possibility except under prior conditions, that ‘it is implicit in the Charter and in the Trusteeship System that the goal is eventual independence unless agreement is reached on some other status acceptable to the people of the Territories through an act of self-determination’”: Decolonization, No.16, p.40.Google Scholar

89. Res.1541(XV), principles VIII and IX. See also Res.1608(XV) (British Cameroons); Res.3504(XXIV) (West Irian); Res.39/30 of 5 Dec 1984 (Cocos (Keeling) Islands); and Res.2163(XLIII) (the Mariana Islands).

90. Res.1541(XV), principle VII. See also Res.2064(XX) (Cook Islands). Recognition of the Marshall Islands' change of status is implicit in Res.46/2 of 17 Sept. 1991 admitting the territory to U N membership.

91. Namibia case, supra n.64, at para.52.

92. Op. cit. supra n.39, at p.39.Google Scholar

93. The Development of International Law through the Political Organs of the United Nations, pp.104, 106.Google Scholar

94. Idem, pp.91–104.

95. Op. cit. supra n.3, at p.113.Google Scholar

96. Cf. Sureda, op. cit. supra n.39, at pp. 105–106Google Scholar; Gross, Espiell, op. cit. supra n.47, at p. 15Google Scholar; Emerson, R., “Self-Determination” (1971) 65 A J.I.L. 459, 463Google Scholar; and Crawford, , op. cit. supra n.39, at pp.92, 94.Google Scholar

97. Op. cit. supra n.43, at p.14.Google Scholar

98. Pomerance is not alone in adopting a wide definition of peoples based on the references to alien domination. A similarly broad approach is adopted by Gross, Espiell, op. cit. supra n.47, at p.9Google Scholar, and Koskenniemi, M., “National Self-Determination Today: Problems of Legal Theory and Practice” (1994) 43 I.C.L.Q. 241, 247.Google Scholar

99. The territories listed in Res.66(1). Spanish and Portuguese overseas territories, Rhodesia and New Caledonia.

100. Cf. Higgins, , op. cit. supra n.93, at p. 104Google Scholar; Emerson, loc. cit. supra n.96; Pomerance, , op. cit. supra n.43, at p.18Google Scholar; and Sureda, , op. cit. supra n.39, at p.216.Google Scholar

101. Cf. Cristescu, , op. cit. supra n.39, at p.26Google Scholar; Emerson, (1966) 60 P.A.S.I.L. 135, 138Google Scholar and idem, p.464; Gross, Espiell, op. cit. supra n.47, at p. 19Google Scholar; and Thomberry, , “Self-Determination, Minorities, Human Rights:A Review of International Instruments” (1989) 38 I.C.L.Q. 867, 874–875.Google Scholar

102. op. cit. supra n.43, at p. 19.Google Scholar

103. Pomerance, idem, p.20, cites the cases of Hyderabad, Kashmir, Goa, West Irian, Ifni and Western Sahara.

104. West Irian and Western Sahara.

105. E.g. the General Assembly affirmed the right to self-determination of the people of Ifni but dispensed with the need to hold a referendum in the territory: Res.2229(XXI), 21 G.A.O.R. Supp. 16, p.73.Google Scholar The territory is listed in a UN document as being “Returned to Morocco”: Decolonization, Vol.II. No.6, p.49Google Scholar. Goa was invaded by India. No action was taken by the UN although it is now listed in a UN publication as being “Nationally united with India”: ibid.

106. Op. cit. supra n.39, at p.216.Google ScholarSee also Sanchez, M. A., “Self-Determination and the Falkland Islands Dispute” (1983) 21 Col.J.Trans.L. 557, 562–563.Google Scholar

107. Sureda. idem, p.355. See also Blay, K. N., “Self-Determination versus Territorial Integrity in Decolonization Revisited” (1985) 25 Indian J.I.L. 386, 405Google Scholar. A colonial enclave is defined as “usually a small territorial unit which is surrounded by an independent State on all frontiers except where it is limited by sea”: ibid.

108. Sureda, idem, p.217.

109. Supra text accompanying nn.77–79. Note also, that the issue of the status of the Western Sahara was referred to the ICJ by the UN General Assembly albeit without prejudice to the application of Res.1514(XV): Res.3292(XXIX).

110. Cf. Res.43/35–44 of 22 Nov. 1988.

111. Cf. Res.1743(XVI) (Ruanda-Urundi).

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113. Sureda, idem, p.261.

114. The ICESCR entered into force on 3 Jan. 1976.By 1992 there were 106 parties to it; Bowman, M. J. and Harris, D. J., Multilateral Treaties: Index and Current Status (9th Cum. Supp.), p.181. The ICCPR entered into force on 23 Mar. 1976. By 1994 there were 124 parties to it; CCPR/C/2/Rev.4.Google Scholar

115. Cf. Kiss, , op. cit. supra n.43, at p. 174.Google Scholar

116. Cf. Cassese, . op. cit. supra n.43, at p. 142.Google Scholar

117. Cf. the comments cited in Bossuyt, M. J., Guide to the “Travaux Préparatoires” of the International Covenant on Civil and Political Rights, pp.44–45, 32.Google Scholar Some States did daim that the right was confined to colonial peoples: cf. the references in Eagleton, C., “Self-Determination in the United Nations” (1953) 47 A J.I.L. 88, 90–91Google Scholar; and Cristescu, , op. cit. supra n.39, at p.8.Google Scholar

118. Indian proposal cited in Bossuyt, idem, p.32.

119. Soviet proposal cited in ibid.

120. Yugoslavian proposal cited in ibid.

121. Cited in ibid.

122. Cf. statements by Saudi Arabia, Belgium, Greece, the Soviet Union, India, France, Afghanistan. Ecuador, Venezuela, Yugoslavia, Syria and New Zealand that the draft article was “not concerned with.… the light of secession”: Bossuyi, idem, p.27. See also the opposition of the US and Australia to the deletion of the term “nations” from the article on the grounds that it might encourage separatist movements within States: idem, p.35. India made a declaration when ratifying the ICCPR that Art. 1 does not apply to “sovereign independent States or to a section of a people or nation”: CCPR/C/2/Rev.2 p.22.Google Scholar The Federal Republic of Germany, France and the Netherlands objected to the declaration: CCPR/C/2/Rev. 2, pp.37, 38.Google Scholar The Soviet Union has consistently opposed the application of the principle to independent States: cf. Cassese, , “The Helsinki Declaration and Self-Determination”, in Buergenthal, T. and Hall, J. R. (Eds). Human Rights. International Law and the Helsinki Accord, p.98.Google Scholar

123. The denial of a particular self-determination outcome could possibly be justified in isolated cases, e.g. on the grounds of maintaining international peace.

124. Bossuyt, , op. cit. supra n. 117, at p.34Google Scholar

125. Ibid.

126. AD v. Canada (1989) 79 I.L.R. 261.Google Scholar

127. Kitock v. Sweden CCPR/C/33/D/197/1985.

128. AD v. Canada, supra n.126, at p.265Google Scholar; and Kitock v. Sweden, ibid.

129. CCPR/C/21/Add 3 dated 5 Oct. 1984.

130. Cf. Cassese, A., in Henkin, L. (Ed), The International Bill of Rights, at pp.94–95Google Scholar; Higgins, .op. cit. supra n.3, at pp.114–121Google Scholar; Crawford, , “Outside the Colonial Context” in Macartney, W. J. A. (Ed), Self-Determination in the Commonwealth, pp.3–6Google Scholar; and Kingsbury, B., “Claims by Non-State Groups In International Law” (1992) 25 Cornell I.L.J. 481.Google Scholar

131. Cassese, ibid.

132. Ibid.

133. Idem, p.95.

134. Bossuyt, , op. cit. supra n.117, at pp 32, 34.Google Scholar

135. op. cit. supra n.130, at p.101.Google Scholar

136. Cassese does not cite any State practice in support of these conditions and there is no reference to these conditions in many of the records of the drafting history of the ICCPR: cf. Bossuyt, op. cit. supra n.117 and Cristescu, op. cit. supra n.39.

137. Res.2625(XXV) is somewhat unusual in that a Special Committee on Principles of International Law Concerning Friendly Relations and Cooperation among States was established to draft the declaration. For a history of the drafting of the declaration, see 25 G.A.O.R. Supp. No.18.

138. Idem, p.41.

139. Cf.idem, pp.91 (France), 88(ltaly), 104(Australia), 122(US), XXV G.A.O.R. A/C6/SR. 1182 and Corr.1, para.4 (Portugal), para.28 (Spain), and XXV G.A.O.R.A/PV.1860.5–5 (representative of the “African Group”). Only one State ruled out the possibility that it could apply to independent States: 25 G.A.O.R. Supp. No.18, p.110 (India).Google Scholar

140. Cf. Rosenstock, R., “The Declaration of Principles of International Law Concerning Friendly Relations: A Survey” (1971) 65 A J.I. L 713, 731, in support of this proposition.Google ScholarCf. Cassese, op. cit. supra n.43, at p.144, who questions this interpretation.Google Scholar

141. States which set out their understanding of para.7 did so in general terms: cf. 25 G.A.O.R.Supp. 18, p.100(Poland), p.103(Czechoslovakia)Google Scholar and Bucchtit, op.cit.supra n.45, at p.82 (Ireland). There was no express reference to Southern Rhodesia and South Africa in connection with para.7.Google Scholar

142. Cf. 25 G.A.O.R. Supp.18, p.73 (Chile); 25 G.A.O.R. A/C.6/SR.1182 and Corr.1, para.60( Kenya); A/C6/SR.1178, para 20 (Yugoslavia), para.42 (Lebanon); A/C.6/SR.1180, para.6 (Iraq); AVC.6/SR.U81, para.31 (Greece); and A/G6/SR.1182 and Corr.1. para.40 (Turkey).Google Scholar

143. Cf. the statements made at the time of its adoption by the representatives of the East European Group, 25 G.A.O.R. Supp.18, p.6; Asia Group, idem, p.9; and Africa Group, idem, p.8.Google Scholar

144. Idem, p.51.

145. The Czech and Slovak populations in Czechoslovakia, the Eritreans in Ethiopia, and the Russians, Ukrainians and other nationalities within the former Soviet Union.

146. The Federal Assembly of the Czech and Slovak Federal Republic voted to dissolve Czechoslovakia with effect from 31 Dec. 1992. Czechoslovakia ceased to exist on 1 Jan. 1993 and was replaced by the Czech and Slovak Republics.

The Conference on Peace and Democracy which assembled all the relevant political and social actors in Ethiopia recognised the right of the inhabitants of Eritrea to determine their political status: see (1993) U.N. Yearbook 265.Google Scholar

In the former Soviet Union, the constituent republics agreed to dissolve the Soviet State and form separate independent States: Agreement establishing the Commonwealth of Inde-pendent States concluded on 8 De c 1991 by the Republic of Belarus, the RSFSR, and the Ukraine, and the Protocol to the Agreement establishing the Commonwealth of Independent States concluded on 21 Dec. 1991 by the Republics of Azerbaijan, Armenia, Belarus, Kazakhstan, Kyrgyzstan, Moldova, Tajikistan, Turkmenistan, Uzbekistan, the RSFSR and the Ukraine. The remaining republics, Georgia, Estonia. Latvia and Lithuania, had pre- viously declared their independence but did not join the CIS. For a different interpretation of events in the former Soviet Union, see Cassese, A., “Self-Determination of Peoples and the Recent Break-up of USSR and Yugoslavia”, in Macdonald, R. St J. (Ed.), Essays in Honour of Wang Tieya (1994), pp.131, 133–134.Google Scholar

147. The Secretary-General's Report on the “Request to the United Nations to observe the referendum process in Eritrea”: A/47/544. See also letter dated 11 June 1992 from the Secretary-General to the President of the General Assembly: A/C3/47/5.

148. Secretary-General's Report, ibid.

149. Both States were admitted to membership of the UN on 26 Jan. 1993: G.A.Res.47/221 and 47/222 adopted by acclamation.

150. Reproduced in (1992) 31 I.L.M. 1486.Google Scholar

151. The State should possess a permanent population, a defined territory, government and capacity to enter into relations with other States: Montevideo Convention on Rights and Duties of States 1933, Art 1.

152. For a complete list of these conditions see paras 3 and 4 of the Declaration.

153. Albeit the political principle of self-determination.

154. Cf. President Wilson's speech at the Supreme Council of Principal Allied and Associated Powers, 31 05 1919, reproduced in Papers relating to the Foreign Relations of the United States (US Government Printing Office, 1942), Vol.1, pp.405–408.Google Scholar

155. According to President Clemenceau, it was a principle of “public law of Europe” that when a State was created or concessions of territory made, joint and formal recognition should be accompanied with the requirement that the State should comply with certain principles of government; letter dated 24 June 1919 from President Clemenceau on behalf of the Supreme Council to the Polish leader, Paderewski, M., reproduced in H. W. V. Temperley, A History of the Peace Conference of Paris (1921), Vol.IV, pp.432–437.Google Scholar

156. The essentially political and discretionary character of recognition as well as the limited geographical scope of the Declaration tend to undermine its legal significance.

157. The majority of the republics were admitted to the UN in Jan. and Feb. 1992: cf. Security Council Res. recommending their admission: 732(1992), 742(1992) (Azerbaijan), 741 (1992) (Turkmenistan), 739(1992) (Moldova), 738(1992) (Tajikistan), 737(1992) (Uzbekistan), 736(1992) (Kyrgyzstan), 735( 1992) (Armenia), 732( 1992) (Kazakhstan) and 763( 1992) (Georgia). The Russian Federation succeeded to the seat formerly held by the Soviet Union and the Ukraine and Byelorussia were original UN members.

158. Cf. Security Council Res. 1036 (1996) on Georgia, preamble, para.3.Google Scholar

159. See, contra, Mullerson, R., “Self-Determination of Peoples and the Dissolution of the USSR”, in Macdonald, op. cit. supra n.146, at pp.567, 570–573, who argues that the international response to the independence of the Soviet republics was based on the colonial character of the Soviet Union and the willingness of the new States to adopt a democratic system of government and respect human rights.Google Scholar

160. Treaty of Unification concluded by the GDR and the FRG on 31 Aug. 1990. The Treaty on the Final Settlement with Respect to Germany was conculded by the GDR and the FRG with the Four powers (the US the UK the Soviet Union and France) on 12 Sept. 1990. The Trealy of Unification entered into force on 23 Sept. 1990 following its approval by the GDR and FRG parliments

161. Cf. the statement by the President of the General Assembly on 12 Oct. 1990: A/45/ PV.18 (provisional record).

162. Initially only Denmark and Iceland recognised Lithuanian independence.

163. This process began with the failure of the coup in Aug. 1991 and concluded with the formal dissolution of the Soviet Union by its constituent republics in Dec 1991.

164. Between 25 Aug. and 2 Sept. 1991 the Baltic States were recognised by Norway, Argentina, Sweden, Finland, the EC member States, Australia and the US.

165. Cf. statements by the Latvian and US representatives in the General Assembly in Dec. 1992: A/47/PV.72 (provisional record). On the legality of the integration, see further, Blay, S., “Self-Determination: A Reassessment in the Post-Communist Era” (1994) 22 Denv. J. Int'l Law & Pol'y 275, at pp.292–293Google Scholar; and Cassese, op. cit. supra n.146, at pp.133–134.Google Scholar

166. Cf. G.A.Res. 48/18 of 15 Nov. 1993, preamble, para.7. adopted without a vote.

167. Cf. Security Council Res.661(1990), preamble, para.3.

168. Cf. the statement on the Baltic Republics issued on 26 Apr. 1990 by President Mitterrand and Chancellor Kohl, discussed in Cassese, op. cit. supra n.146, at pp.136–137.Google Scholar

169. See further supra text accompanying nn. 150–156.

170. Only Tanzania, Gabon, the Ivory Coast. Zambia and Haiti recognised Biafra.

171. Buccheit, , op. cit. supra n.45, at pp.169–170.Google Scholar

172. (1970) 7 UN Monthly Chronicle 36.Google Scholar

173. Alexander, and Friedlander, . op. cit. n.43, 318.Google Scholar

174. The idea of a carence de souveraineté was alluded to by India in debates within the UN. It stated that as a matter of international law conditions are suitable for independence when the “mother State has irrevocably lost the allegiance of such a large section of its people … and cannot bring them under its sway”: cited in Buccheit, , op. cit. supra n.45, at p.210Google Scholar. Pakistan expressed puzzlement over this theory: ibid.

175. Cf. Crawford, , The Concept of Statehood, p.116Google Scholar, and Kingsbury, , op. cit. supra n.130, at p.487.Google Scholar

176. Buccheit, , op. cit. supra n.45, at pp. 127, 208–209, 213, refers to a range of factors which influenced the international community, notably the diplomatic relations between the parties, political expediency and the violation of human rights in East Pakistan. The fact that East Pakistan was able to secede physically, albeit with Indian assistance, was also undoubtedly a factor.Google Scholar

177. This is reinforced by the fact that the international community rejected Biafra's secession even though one could argue that Biafra was a distinct geographical/political unit subject to a carence de souveraineté. The requirement of a carence de souveraineté was arguably satisfied by the killing of 10,000 Ibos by government forces between May and Sept. 1966: see Panter-Brick, S. K., “The Right to Self-Determination: Its Application to Nigeria” (1968) 44 International Affairs 254, 262.Google Scholar

178. For a detailed discussion of events in the former Yugoslavia, see Weller, M., “The International Response to the Dissolution of the Socialist Federal Republic of Yugoslavia” (1992) 86 A.J.I.L. 569.Google Scholar

179. Cf. statements made within the UN Security Council: S/PV. 3009 (provisional record). See also Weller, idem, p.570.

180. Cf. the paper presented by the Chairman of the EC Conference on Yugoslavia at its meeting on 18 10 1991: (1991) U.N. Yearbook 216Google Scholar; and the Declaration of the European Community on 8 Nov. 1991: UN S/23203, annex, p.3 (provisional record).Google Scholar

181. Supra text accompanying nn. 150–156.

182. On the basis that the republics but not the autonomous regions in former Yugoslavia were recognised as States.

183. Cf. discussions within the UN Security Council on 25 Sept. 1991: S/PV.3009 (provisional record).

184. On the formation and functions of the Commission see (1992) 31 I.L.M. 1488Google Scholar and Weller, op. cit. supra n.178, at p.589.Google Scholar

185. Opinion No.1 (1992) 31 I.L.M. 1494. In Opinion No.8 it stated that the dissolution of the former Yugoslavia was complete: idem, p.1521.Google Scholar

186. Opinion No 3: idem, p.1499.

187. For a more detailed critique of the Commission's reasoning, see Hannum, H., “Rethinking Self-Determination” (1993) 34 Va.J.I.L. 1, 54–55.Google Scholar

188. Cf. the Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities adopted by the UN General Assembly in 1992.