No Way Out? the Search of an International Legal Response to Northem Ireland's Separatist Nationalists

No Way Out? The Search of an International Legal Response to Northem Ireland's Separatist Nationalists.

O Colm V. Fahy Faculty of Law Institute of Comparative Law McGffl University Montreal.

Thesis Subrnitted in Partial Fulfknent of the Requirements for the Degree of Master of Laws, McCill University, Montreal. 1997. The author has granted a non- L'auteur a accordé une licence non exclusive licence dowing the exclusive permettant à la National Library of Canada ta Bibliothèque nationale du Canada de reptoduce, 10- disûibutc or seil reproduire, prêter, distribuer ou copies of this thesis in microform, vcn&e des copies de cette thèse sous papa or electronic formats. la forme de microfiche/film, de reproduction sur papier ou sur format élecîronique.

The author retains ownership of the L'auteur conserve la propriété du copyright in this thesis. Ncikthe droit d'auteur qui protège cette thèse. thesis nor substantiaî extracts fkom it Ni la thèse ni dcs extraits substantiels may be printed or otherwise de celle-ci ne doivent être imprimés reproduced without the authot's ou autrement reproduits sans son permission. autorisation. Table of Contents

Acknow ledgemcnt vi

List of Abbreviations vii

Table of Cases i x

Abstrüd Resumè x - xi

Inîroduction - Exploring Separatism 3-7

Part 1

Chapter 1 Separatisrn from Se& Detemination to Decolonizatîhn 9 - 20

1. Inrrodttcrion 9- 11

II. Sev-Drremitiuriori: A Peoples Riglit 13 - 15

111. Tite Seif-Derennirlarion of'Peoples atid Deco1oni:urioti 15 - 21

Chapter 2 22 - 30 The Limas of Separatism: Territorial integrity and Uti Possedetis

1. Terriiorid Itiregrin: Cell, Sancrrraw, or Borti 12 - 27

II. Druwirig Lines: Uri Possedetis Jirris 27 - 30 Chapter 3 The Limits of Territorial integrity: Secession

1. Beyond Decoionization

II. Separaiism as Recrfication

Part II,

Chapter 4 Group Rights: Minorities and Indigenous Peoples

I- The Legal Personality of Minorities

II. Indigenous Peoples

Chapter 5 International Law and Practice Relating to National Se& Determination Claims

Irirrïni~tctivnPart II, Chapter 5

I. A State for the Kurds?

II. The Ibo Claim to an Independent Biafa

III. Somalia

IV. The Katangan Secession v. Transkei and the Bantustans

M. Federutions in Crisis: Dissolution, Disintegrution and Separatism 67 - 8 1

UI. Eritrea: Ethiopia Divided 81 - 84

VIII. East Pakrstan (Bangladesh): A Case of Remedial Secession? 84 * 88

IX. Further Contexts 88 - 90 X Conclrcsion to Chupter Four 90 - 95 Part III.

Chapter 6 97-116 No Way Out?: An Aroaiysis of Separaliwn in the Context of Norïhern Ireland

Introduction 97

1. The Legal Personai~tyO! Northern Ireland's Separurisr Nationuiists 98 - 99

(1) fie Absence of lndigenous Title 99 - 101

b) Northern Ireland a DeJnjtely Constiîuted Stare ? 101 - 102

c) Is Norlhern Ireland a Non-Self Governing Siaie? 103 - 106

II. Northem Ireland: A People/ Minorïiy Dichoromy 106 - 109

III. Remdial Secession in Norrhern Natiowlists? 109- 115

I K Conclusion 115 - 116

Cbapter 7 Cortclusion: Understanding Separahm in Northern Ireland and Beyond 117- 122

1. Texts (by Author)

II. Articles (by Author)

[II. United Nations Security Council Resolutions

IV. United Nations Generai Assembly Resolutions

v. WC,Treaties and Conventions

VI. Unsted Nations ikclarations and Agreements

HI. Other National, Regidand International Sources

VIII. United Naiians Onicial Statmmtsl Press hieases Bibliography Continuai

VIII. United Nations Special Reports

IX. International Press 1 Acknowledgement 1

I wish to take this opportunity to express my sincere thanks, for both his patience and helptùl cnticism in Montreal and since 1 returned to Ireland, to Professor René Provost, He was an excellent source of inspiration, providing both helpful argumentation and invaluable suggestions. 1 am gratetùlly indebted to him for his participation and guidance. To my colleagues in the ICL prograrn 19961 97, I extend a sincere measure of indebtedness for an inspirational and intellectually challenging year, not to mention many unforgettable lighter moments. A toutes et a tous, je vous remerci très sincèrement. Go raibh mile maith agaibh go Ièir, agus 30 n-eiri an b8thar libh.

Not least, 1 owe an unspeakable debt to my parents and siblings who have shown immeasurable tolerance and generosity, both fiscal and emotional, over the many years that 1 have taken to reach this juncture.

To my dear farnily and fiiends in Ireland, North and South, and al1 over the world, it's a great pleasure to know such diversity.

1 dedicate this thesis to Banno!k, and the new additions - rny niece and nephews and those not yet amved. I List of Abbreviations ADPE Annual Digest of Public international Law Cases AFDI Annuaire Francaise de droit international

Amencan Journal of international Law

British Yearbook of international Law

CEQ La Centrale de 1'Enseignment du Québec

ClLJ Canadian Journal of Law and Jurisprudence

Columb. J. Transnat'l L. Columbia Journal of Transnational Law

CUP Cambridge University Press

ECOSOC Economic and Social Council

E. Int'l L. R. Emory international Law Review

EU European Union

HMSO Her Majesty's Stationery Office

HRC Human Rights Comminee

ICCPR international Covenant on Civil and Political Rights

ICESCR International Covenant on Economic. Social and Cultural Rights

International Convention on the Elimination of al1 Fonns of Racial Discrimination

iCJ international Court of Justice

ICLQ international and Comparative Law Quarterly

ILM international Legal Materials

IL0 international Labour Organisation

ind. J. Global L. Stud, indiana Journal of Global Legal Studies

Israel L. Rev. lsrael Law Review rYHR Israel Yearbook on Human Rights

Notre Dame L. Rev. Notre Dame Law Review

OAU Organisation of Afncan Unity

OHLJ Osgood Hall Law Journal

ORGN GAOR Official Records of the General Assembly

Ox. U. P. Oxford University Press

PCU Permanent Court of international Justice

Tulsa S. Comp. & int'l L. Tulsa Joumal of Comparative and International Law

UDHR Universal Declaration on Human Rights

UCLA L. RI U. of Cal. University of California Los Angeles Law Review Uni. Chi. L. Sch. Roundtable University of Chicago Law School Roundtable

UN United Nations

UNC United Nations Charter

UN Doc. Unitcd Nations Document

rnGA United Nations Gcneral Assernbly

UNGA Res. United Nations General Assembly Resolution

UN Sec. Co. Res. United nations security Council Resolution

U.N.T.S. Unitcd Nations Treaty Series

Va. J. Int'l L. Virginia Journal of international Law

Wisc. int'l L. J. Wisconsin international Law Joumal

Yale U. P. Yale University Press

YEL Yearbook of European Law 1 Table of Cases: Opinions: Tribunals 1 a Aaland IslandF Case, Report of the International Committee of Jwists on the Aaland Islands Questions, League of Nations O.J.Spec. Supp. 3 (1920).

The Case Concerning the Frontier Dispute (Burkina Faso v. Mali) 119861 ICJ Rep. 554 [Frontier Dispute Case].

Case Concerning the Land, Isinnd and Maritime Frontier Dispute (El Salvador v. Honduras), [ 19921 ICJ Rep. 3597 ILR 266 [El Salvad~rW. Honduras].

Greco- Bulgarian Case 197 PCU Ser. B. No. 17 at 2 1

Island of Las Palmas (Netherlands v. The United States), il R. int'l. Arb. Awards 83 1 ( 1928).

Legal Consequencesjar the States for the Continued Presence ofSouth Afiica in Namibia, Namibia Opinion, [ 197 11 ICI Rep. 16.

Mabo v. Queensland (No. 2) ( 1992) 107 ALR 1.

North Sea Conrinentaf SheifCase (FRD v. Netherlandd Donmark) [1969] ICJ Rep. 3

Notrebohn; Case, [1985] ICJ 20

Temple of Preah Vihear Case (Cambodia v Thailand) Merits El9621 ICJ Rep. 6

Treatmenr of Pofish Nationais in Danzig [ 19321 PCU, ser AA,No. 44.

Western Sahara, [ 19751 ICJ Rep. 12 [Western Sahara Case].

Conference on Yugoslaÿia Arbitration Commission: Opinions on Questions Arisingfiom 0 the Dissolution of Yugoslavia [hereinafter Badinter Opinions][Jan 1 1 & July 4, 19921 No. 3,3 1 ILM 1488 [1992] at 1500. - Abstract 1- - 1

Separatism is at the top of the international agenda. Most recently, the province of Kosovo lias become a matter of concem for Serbia, which aspires to retain the autonomous rtgion within its jurisdiction. However, some such movements have ken identified as having legitimate claims to independence and have rightfully succeeded in those claims. The ex-colonial states of Africa an a case in point. Bangladesh won it independence and global recognition, as did the ex-republics of the Soviet Union - including the Baltic States. Generally though, the proliferation of separatist movements is a cause for concem and political instability. The partitioned india has lived in fiagile neighbourliness with Pakistan since their political division in nineteen-forty-seven. The secessions of the former Yugoslav republics have had woeful human consequences, and Eritrea's jowncy to independence has ken arduous to Say the least. in the midst of such humoil, intemationai lawyers and jurists have ken employing ternis varying hm secession, partition, disintegration, and dissolution and refehg to rights such as selfdetermination, minonty rights, peoples rights and so on. However, there is not always a crystal clarity behind the terminological distinctions and legal issues. The rewlution of various legal issues in separatist confiicts is ofien a complex matter, For instance, it is not possible io respond fully to separatism without understanding the implications of variou undetlying institutions and what appear frequently to be conflicting rights. (What is self-determination and how does it relate to separatism? What is the difference beniveen an indigenous people and a minority? What is the difference between secession and partition?) This paper seebs to understand these institutions and rights as a means to providing a response to the particulas issues raised in the context of separatism in Northcrn Ireland. As Northem beland also represents a territory bom out of what is terd'partition' it is hoped that this paper will reveal any significance between this fom of separation and other fom such as, for example, 'secession'. Resumé

Dans le contexte de droit international et la naissance des nouveaux États, des avocats et juristes continuents a employer des termes légaux, parmis eux, la sécession, la / partition, et la dissolution, pour décrire le facon dans lequel ces nouveaux Etats sont nés En plus, ces experts fonts fréquement des reférences aux droits variés comme le droit a l'autodétermination, des droits minoritaires, et des droits des peuples etc. Mais il n'existe toujours pas une clarité definitive dans plusieurs de ces terminologies différents. Il en résult que la résolution des differentes problémes Iégaux posés par le séparatisme est compliqué par, entre-autre, cette absence de clarité.

Ce thése représent une tentative a comprendre les institutions, les institutions secondaire, et les droits variés qui gouvements le séparatisme en droit international et, plus particuliérement, pour mieux répondre aux problémes specifique qui ses présentes dans le contexte de I'irlande du nord. Puisque I'irlande du nord représent aussi une territoire politique née dans une situation affichée 'la partition d' irlande', nous allons chercher aussi a détenniner s'il existe aucun différence signifique entre la purtition et des autres types de séparation, en particulier la sécession.

I Introduction - Separatism, Northern Irelaad

[n the midst of substantial bloodshed in the early nineteen-twenties, four fifths of the territory of the island of Ireland secured independence from the British Empire: the second ever state to gain such independence afler the United States won its 'cause célèbre' in the iate eighteenth century. However, the degree of independence achieved by Ireland rtsulted in the political division of the territory of the island of Ireland. The popular front of separatist nationalism' that emerged in ireland at the beginning of the twentieth century was not one that captured the allegiance of the whole population of the island. A strong regional claim to unity with Britain existed against the drive for an independent irish island state2. As a consequence, approximately one Fifth of the island, located to the Northeast, succeeded in remaining part of the United Kingdom: the majority of its population opted out of unity with the newly independent state to the south. It did so on the premise that the emerging independent state was based on Gaelic-Catholic exclusivity to the detriment of. Protestant - Anglo-Saxon traditions, which formed the wealthier but less numeric group on the island of the tirne. The outcome was an independent Republic alrnost entirely Catholic in ethos, while Protestants to the north dominated every aspect of the non-seceding region. This latter region is now variously described as Northern ireland, Ulster, or the Six Counties (dependhg on the political perspective taken)'. Whatever ?he title used, each reflects

' Dfivcn by ïhe Celric Revivd; A revivalist and romanticised view of lreland - the rise of romantic nationalism with an idealid cultwai view of Ireland had its mots as fat back as the nationalist uprisings at the end of the tightmth century. For background sec, e.g., Parmariondisr Ireland ai p. 35. Sec aiso. N. M~ll~efagh,The Unresolved quesrion: The Anglo-Irish Serilement and ils Undotng 1912 - 1972 (New Haveni London: Yale U. P., 1991) [Mansmgh]. [The rmowed pocr W.B. Yeats was a prominent figure in the so-called Celtic Revival].

' Promunced by the Proclamruion of the Irish Republic, 24 April 191 6. "[tlhe Republic guarantecs religious and civil liberry. equal nghts and equal oppommity to al1 its citizens, . . . oblivious of Ihe diffcrences fostered by an alien goverment. which have divided a minority hmthe majority in the past.", (Dublin: National Museum of Ireland. EWZL) qroduced as h.IV in M. Hughes, Irelund Divided: The Roou of the Modern Irish Problem (New York. Si. Martin's Press, 1994) [Hughes] ai p. 97 - 8.

3 Unionists are dividcd on ihe appropriate title, although Ulna is a common favourite amongst hem. The 'Si Counties' nmains the exclusive epithet of kish nationalists w+to occasionally add the derisive adjective 'Statlct'. in either case, the implication is that the 'six-counties' are not a nanuai political unit, ratha a divided portion of the legiiimate thirty-two county all-Ireland. 'Northern ireland' is the differing claims as to the legitimacy of the separation of that region fiom a united independent All-ireland or, indeed, the partially successful separation of lreland itself fkom the United ~ingdorn'. The division of ireland certainly reflects the conflicting nationalisms that so often accompany separatist eventss. The conflicting national aspirations in this instance have lingered over the seventy years of separation and have been particularly pronounced since the outbreak of civil unrest in the late nineteen sixties amongst disgruntled nationalists. Despite a recent but tenuous peace agreement ktween the rival groups, the aspiration for irish national unity among Northem nationalists remains. Ksh nationalists who have found themselves inside what they generally refer to as the 'six counties' (by which they mean non- independent) part of ireland promote an hsh unity political agenda which has separatist implications for that region. But how legitimate, if at all, are those claims?

There already exists a vocabulary in international debate surrounding the spes of situations that emerged on the island of ireland at the time of ireland's political division. The term secession is frequently used in the case of an entity in the process of separation fiom a constituted Statc. Partition, on the other hand, is oflen used to describe the further division of the seceding entity (as, for example, in the debates over the potential division of Québec should it secede fiom anad da)^. Hence, the familiar international designation (evcn though tttc ngion is not the North of Ireland geographically. nor does it constitue the whole province of Ulster).

' In the present contes, and in the hope of nmaining as inoffensive to the differing national aspirations as possible (in-so-fat as that is possible), the tenn Northm Ireland will be rmployed in the current thesis givcn the general understanding and recognition that the tenn refen to the part of Ireland not of the Republic.

Hughes notes "Those who detïned themselvcs as Irish and have claimeci to speak for the irish nation have found it particularly hard to acccpt the clah of unionisu, that they are at the sarne tirne Irish and British," at p. 1. Opposition to the notion to a divided ireland was widespnad among al1 political forces. Evcn arnong the political strongmen in Bntain it was not considered the best opposition and serious consideration of it only took hold in a few years before it evennially happened. See, e.g,, Manscragh. esp. at 43 - 78. See also, D. O'Neill, The Partition oflreland: How and 1% it Happened (Dublin: M. H. McGill, 1947) (hertinaficr nie Partition of lreland] at p. 3. Eorly on amongst Unionist groups in Northmi ireland ~hcisland of ireland was not perceived as a divisible temtory. Sec, J. Anderson, "Ideological Variations in Ulster DhgIreland's FUst Home Rule Crisis: An Analysis of Local Newspapers", @p. 133 - 166) (hUiaAa "First Home Rule Crisis"] in Cornmuni@ Conflicr esp. at pp. 133 - 137. Set also P. Bew, Ideologv and the Irish Question: Ulster Unionism and Irish Nationalirm 1912 - 1916 (Oxford: Clarendon Ress, 1994) [Bew], "The Case against Home Rule" at pp. 17 - 52.

See, for example, Sec, C. G. Chmn, La Punition du Québec: De Lord Durham a Stéphane Dion. (Montréal: VLB Éditeur. 1996) [Chmn]. term 'partition' seems appropriate to the irish context. However, the Republic of ireland has consistently maintained a constitutional claim to Northem ireland and 'partition' is seen by many as a wrong cornmitted against an independent territorially united all-ireland bom out of a secession fiom the British Empire. The legal differentiation between secession and partition, however (irrespective of emotional arguments to the contrary), seems unclear'. It is hoped, therefore, in the course of this study to shed some light on these issues, by exploring international law for appropriate responses to the different arguments put forward in the context of separatist politics in Northern Ireland. in the seventy years since ireland's independence, substantial changes have taken place in the wotld order includhg the evolution of a body of international law and practice relating to the type of cvents which occurred in ireland in the early part of this century. The factual division of ireland is beyond question, though with the benefit of hindsight its wisdom may be questioned. Now, however, Northern Leland, caught in continuing conflict between opposing national claims, can hun to intemational law to resolve (at least fiom a legal standpoint) many of the issues confionting the future of that society and its relationship to its southem neighbor. There is a substantial list of enquines relating to Northem ireland. Importantly, the question of self-determination is central. 1s there a right of self-determination in Northem Ireland? Or is it a right of the people of ireland as a whole? 1s there more than one People on the island of ireland? Who id are the People (or, altematively, does the population of Northem lreland constitue a people under international law)?And, Mer,what an the implications of such a right? Could it, for example, entail a legal basis for the separation of Northem ireland (or parts thereof) fiom the United Kingdom in order to faciliiaîc reunification with the independent Republic. 1s there a unilateral right in that respect? What legitimacy have counterclaims against such propositions? These are just some of the enquiries essential to achicving a legal

7 Thus in the prcsent context, thcse separate tcnninologies will be encapsulated together under the broadcr alternative tenn separarism until the point wherc it is necessas) to make a clear distinction in the types of sepantisrn that can &ect States. For these purposes 1 take the tenn separarism to mean - Any act whare aim or intention it is to resuit in the rerritoriai division of already exisring Smta or enriries wirh O clear right to starehood or any oîher eniiry as mighr be relevant ro international lm. response to the demands of separatist forces in Northern Ireland, whether there exists under the standards of international law a 'way out' for nationalists in that province, and whether that 'way out' bares any comection to the partitioned statu of ireland. ln order to fulfil this task, this paper is divided into three parts. Part 1 focuses on three areas pertinent to separatist demands and is divided into three chapters. Chapter One analyses the emergence and evolution of the right of peoples to self-determination and its roie in relation to the legitimization of separatism. The nature or the right and defmitional issues are examined in S. il - Self-determination: A Peoples Right. Particular attention is paid to the emergence of separatism in the form of decolonization in S.IU - Decolonization: A Right of Separtution with the aim of gaining an understanding of the exact contexts in which such a right can apply. Central, will be an understanding of how decolonization bccarne a legitimate form of separatism and how it is that States - in the fonn of Colonial-Empires - could have theu territorial integrity so radically altered. Chapter Two, then, takes on board this question of territory, which seems to have arisen prominently in the context of decolonization. Section 1 covers the principle of territorial integrity and queries the force with which international law applies the standard while examining its implications for sub-state groups. Section il investigates the nature and purpose of the somewhat comected principle of uti possedetis juris. Here is a principle whose importance lies in the fact that it is linked in various ways to temtory, independence, selfdetermination and separatism. Finally, Chapter Three, of Part 1, forms the end chapter of this section with an examination of the notion of separatism in a post- colonial fiamework. It looks into the emergence of notions of separatism such as secession and nmedial secession and their potential implications for self- detemination and territorial integrity.

Part U of this paper has two chapters. Chapter Four examines the legal issues, dcfmitions and extent of rights of minorities, indigenous peoples, and separatist groups arc brought into focus and investigated for relationship to and interplay with the principles of territorial integrity, uti possedetis and, indeed, the right of self- determination (The question of peoples having been alrcady addressed in Chapter One). This tcview provides essential irifomation supplementary to Chapter Five, which provides a practice oriented elaboration of the matters previously raised. This chapter is broadly investigative of the way the international community has responded to cases of separatism which fa11 outside of the strict categorization of "decolonization". This exclusion is justified as decolonization has its own distinct basis of legitimacy in international law above and beyond other types of claims. The chapter aims to investigate whether international practice has followed the restrictions on and potential for separatism permitted and how this practice clarifies the manner in which international Law pertinent to separatism may be interpreted. The examination is undertaken with appropriate back references to section one, the texts of international law and complimentary reference to notable juristic opinion. Some of the instances covered include the Biafra, the Bangladesh case, and the case of the Kurds and Eritrea amongst others. Both law and practice relating to the break-up of the Soviet Union, the disintegration of Yugoslavia and other instances of separatism are considered. in the bringing together of these cases it is hoped that the various aspects of law already covered will gain greater clarity and that a pattern of behavior with regard to separatism can be ascertained so as to determine likely responses especially in the context of Chapter Six. It is the purpose of the penultimate Chapter (Six) to analyze the overall-findings in the context of Northern ireland's conflicting Nationalist and Unionist self-detemination claims and anticipate the propcr legal responses to the main claims. This section investigates elements of municipal law in its relationship to international standards. It addresses the practical difficulties involved including the definitional minority and peoples issues and also seeks to understand the relationship of separatist demands to the current legal status of Northern ireland. Chapter Seven ends with a recapitulation and conclusion of the salient points brought out in the course of this study. in relation to Northem lreland it extrapolates, when if at al1 possible, the legitimate claims fiom those without lcgal foundation and highlights the issues which may indicate a way forward in &aling with separatism in Northern lrcland and beyond, bearing in mind that the problems facing this society and many others arc the consequence of some prior act of temtorial division. Part I 1 Chapter 1 - Separatism from SeWDetermination to Decolonùation

1. Introduction

Political unity in any State may be subject to, inter alia, sociological, economic, political, temporal and geographic elements, which change over time (the history of Europe is ample evidence of this fact). Yei the notion of the nation-state8 rernains central to the challenges affecting the unity of existing States and the peoples within them (not least because of the ambiguities that &en attach to the way in which nations are defined9). Arising €rom it, concentration on predominant cultural, linguistic, or religious traits and other forms of confonnity and unifonnity are c~mrnon'~.In this context, particular populations or those sharing the common features are, by extension, ascribed the term "people" or "nation". Historically, the term nation has evolved to infer reference to the 'State' and, hence, the association of a distinct 'people' or 'nation' with their own exdusive political base, a State. This association lingers to the present even in the instruments of modem international

' It is not the purpose of rhis seaion to exptore thcories of nation-statism but rather to note some important considerations relevant to the smdy of se?mtisrn. in Anaya's words; "The concept of Nationhood emerged in Europe to acknowledge, validate and designate politically conscious groupings that were consolidated by monarchical deand bound by common cultural. sociological, and chic characteristics". Sec, S. J. Anaya, Indigenous Peoples in international Law (New York: Ox. li.P., 1996) [hereinafter Indigenou Pcoples] at p. 14. For example. Wateman says chat "[tjhe rise of the nation-State as the mode1 for Statc formation has provokcd a situation in which once an ethnic group 0 or people identifies itsclf in nationdistic temu, it desires to give expression to these national aspirations in terms of politicai autonomy, ofh dcmanding oumght sovereignty in the fonn of a national State.". See, S. Watcnnan, "Partition and Modem Nationalism" [hminafter "Pmition"] in C. H. Williams & E. Kotinan, eds., Community ConJiet, Partition and Nationalism (London and New York: Routledge, 1989) [hereinafta Communiry Conflic!] at p. 117.

9 Keamey, for example, cites five nation-types: The nation as 'Civic', 'Territorial', ' Ethnic', 'Migrant ', and 'Cultural'. Set, R Kearney, Postnaiionaiisi Ireland: Politicr, Culture, Plrilosophy (London and New York: Routledge, 1997) [hereinafta Posrnaiionolist ireland at p. 3 - 5.

10 One need only nfcr to the legacy of the Slave cradcs of either State. While it appcars the case that the United States today approaches a more 'civic' conception of its nation-statehood, this should not be overstated considering deep racial divisions. The French notion of nation-statehood ccrtainiy reflects ai the political and indeed legal level an ethnic basis. ïhe essence of the 'civic' basis of the State is put in the following words by Delbmck, "Equal citizmship," not ethnic belonging, constitutes the credo of US "civic culture." It is based not only on tolcrance of nligious and cultural divenity, individual fieedom and responsibility. but also on assimilation or intcgntion into the citizenry. Responsible citizenship rcquires the acceptance and socialisation of these highcst constitutional values.", J. Delbruck, 'Global Migration-Mgration-Mdtiahniciry: Challenges to the Concept of ~JIC Nation- State", 2 ind. J. Global L. Stuâ 1. 1994 [Dclbruck] also in Netscape at hrtp~///www.law.indiana.edulglsjlvol.Yde1bnu:k.h~. lad' . It is also this association which lies at the hem of many modern conflicts. What group constitutes a nation? Or a people? Who has the right to statehood? Mat is the group if it is neither? And, importantly, who decides?

Othcc groups who do not confonn to the nation-State in which they are found (the state usually defined by a majority population) become di&cult to accommodate without the 'nation' or the 'people' redefining perhaps the institutions and govemance of the state12. In an unwillingness to accommodate sub-state groups, those particular groups may be the subject of subjugation or exciusion from social, economic and political life and unable to perpetuate their culture or traditions as a result. Either because such conditions exist, or there is a desire for the pursuit of independent controi of social, econornic, political and cultural life, a group rnay seek to extricate itself from the State in which it resides and scek alternative arrangements. In this way, independence/ autonorny generally involves daims over specific territorial regionsI3 with the right of self-determination kquenily invoked to buttress such daims. Typically, The Centrale d' Enseignment du Québec (CEQ)in Québec

" Hannum S~csin relation to the Wied A'aiions Charter, 26 Junc 1945 [hereinafter LYq, bat the equation of the nation and the State is evidenced by "[plaragraph 4 of article 1, which identifies 3s a purpose of the organisation its scrving as a cmter hannonking the actions of nations " in die anainment of quai rights and hicndly relations. H. Hannum, "Rerhinking Self-detmnination", 34 Va. J. Int'l. L. I ( 1993) pcreinaftcr ''Rchhkhg Self-detcmiination"] at pl 1. Tt is note wonhy that there is linle precision on what constiwa a 'people' but it is gmerally agreed fhat thc equation of nation and State is followcd by an equation of peuple and nation. Sec also in the Islamic context, Nabil Jaber "Islam Revisited: Wom(an) ho04 Nationhood, and the legitimating Crisis of Gnda Equaliry" in P.J. White & W. S. Logan. eds., Remakifig ihe Middie Emt (Oxfordl New York: Berg, 1997) jhereinaîler Remaking the Mddie Emj 105 - 128 at 108 - 1 10,

" For a similar vicwpoint se. A. Addis "lndividuaiisrn, Commun tarianism. and the Rights of efhnic Mities" 67 Noue Dame L. Rev. 615 [Addis] 1992 at pp. 619 - 622,633 - 635.64.

" Sec, for cxarnple, J. Crawford. cd., The Righfs of Peoples, (London/ Oxford: Clarendon. 1992) [Crawford]. E.-A. Daes, Stundard Seiiing Acrivities: Evoiution of Stundrudr Concerning ihe Righis of Indigenous Peoples, UN Doc. No. EJCN.4ISub.UAC.4J1996n [Dues Report]. Also sec. J. Deschenes, Propasal concerning a Definirion of the Term "Mhoriiy", IM Doc. EfCN.U Sub.2 19851 3 l-h]. Delbruck States from an historic vicwpoint ihat "It]he ttachings of Geman philosophen like Herder, Fichte, and Schelling had a major impact on thc shaping of ethnonationalism in gencral, ûumany is not the only counuy whert cthnonationalism took rmt. [r is deeply entrenched in the min& of many Europcan people, particularly in central, castcm, and south-eastern Europe. The political uphcaval in the fmcr Soviet Union and in the former Yugoslavia is predominantly duc ro ethnoaationalisi and/or rcligious divisions. On the othcr hana the growing political CO-operation bto~emRussia and the Scrbs in Bosnia-Henegovina is bascd on historically swng ethnic bonds bcncletn ttie two Slavic peopla. Evm the Scdivian comaies, albcit in a milder form, have adhdto the tthnicaily infonned principlc of nationality by birth." Delbruck at p.4. has determined that: "[L]'existence d'une nation et de sa culture nationale distinctive fonde le droit à l'autodétermination et appelle I'indépendence nationale."" Similar views &ove the separatist politics of Irish Nationalism since the late eighteenth century. But, such claims are complicated in that in the attempt to establish new States, they challenge the legitimacy of the former. The basis on which a nation and people is defied and the physical extent of the that nation is subject to alteration or .. . . cven destruction by new claims to statehood. It is not surpnsing then that such situations give rise to conflict. Nor is it always evident that the pre-existing State will have greater legitimacy than a new one seekirtg to emerge 6om within its borders. Self-determination appears to have contributed much to the demise of any such presumption.

As a principle, which Woodrow Wilson is largely credited as having brought to prorninence,'s self-determination formed the basis of legitimacy for the emergence of new sovereign nations afler the First Worid warI6. It did so at a the when the Empires were perceived as illegitimate dynasties or the results of conquest rather than 'natural political units* which sought io emerge in their place'7. Its persistence since then has led it to evolve from principle'8 into fundamental right19 and it is this legacy

" Mémoire de la CEQ à la Commission Parlementaire Élargit sur l'Avenir Politique et Constitutionnel du Qudbec, Indépendence nationale et souvrraineré populaire, (Québec: CEQ, Novembre 1990) at p.20. 'The existmce of a nation and its om national culture is the basis of the right of self- determination and calls for national independence." [My translation].

" Selfdetermination was presented. in the 1Cpoint address. to congress on Jan 6 1918. See for example. Pandemonium at Ch 2.

16 The historicai evolution of xlf-&termination and its anachment to the beeing of nations in the aflmnath of World War 1 is wcll documcntcd. Sec Tor example, A. Cassese, Self-determinarion of Peoples: A Legal Reappraisal. (CambridgeMew York/Mclbourne: Grotius1 Cambridge University Press, 1995) [Cassese] esp. at p. 31 -37. See also, C. Tomuschat. cd., The Modern Law of Self- Determination. (Dordrecht/Boston: Martinus Nijhoff. 1993) [Tomuschat]. l7 Sec, L. C. Bucheit. Secession: The Legitimacy of Self-Derermination (New Haven1 London: Yale U. P., 1978) [Bucheit] at p 4.

" E.g., Report of the International Cornmittee of Jurists on the Aaland Islands Questions. League of Nations O.J. Spa. Supp. 3 (1920) [Raland Islands Care]. The case confirrned, from a judiciai perspective, that at the time the principle was not a positive deof law. in addition the principle has a particularly political function in its invocation for the purpose of frceirig smaller nations Born the yoke of Nmism. Sec. tg., D. Nincic, The Problem of Sovereignry in the Charter and in the Practice of the CN (The Hague: MariinWNijhoff. IWO), at p. 227. Sec also Cassese at p. 37. that bonds self-detemination to the process of Statc creation. Whether self- detemination has the broad sweeping potentiai to justiQ ail claims to statehood, including chose inspired by pure nationalkt sentiment, is one matter, but its invocation in the context of contemporary stmggles for separatism is undeniable.

The attachent of self-detemination to separatism came, prirnarily, in the wake of World War 1. However, notable complications arose because of the difficulty in saparating out nationai groups from those who were not accorded statehood rightsZO. Additionally, the fact that the post Wotld War 1 settlernent~~~were confined to the European arena and self-determination itseif omitted fiom the League of Nations left funhet doubts about the rightZ2.These complications, which lattr formcd a buis for widespread aggression in World War II, led a more wary UN system to focus initially on the rights of individuals while shying away from rights of a group nature such as self-determination had become.

yoke of Nazism. Sa. cg.. D.Nincac, The Pmblem of Sovenignry in the Charter and in the Pracrice of fhe L'.if (The Hague: MarunudNijhoff. 1970), at p. 227. See aiso Cassese at p. 37.

Despite the Lirwersol Declaracion on Human Rights. üN Dac. A/ 81 1. 1948 [GDHR] whcrcin thcre is no mention of the righi to scif&tcminaùon.

'O Tht various schcmer draRcd to aileviate the pmnuc causing wortd war one compnxd spccid mamm for minonues who cwld na< k considucd for a panieular State of rhcir own. Sec. gencraiiy, A. Whclan, "WiIsoniaa Self-Determination and the Versailla Smierncnr". 43 ICLQ (1994) [WhclYiI. See aiso, H. Hannum. "Contcmporary Devehpments in Lhc [nkmauonaJ PmicçtionofthtRigh~ofMinoriticsm,66 NotrsDamcL. Rw. (1991) 1431 at pp. 1432 -1435.

'' The Treary of Versailles with Germany was signed in Junc 1919, followcd by treatia with Austna Hungary. Bdgana and Turkey (Tieaty o/%vns later npldby Treary of lausonne). The atrtmpis io dividc Europe on racial lin= were unable ta owrcome ihe difheulty of isolaicd nauonai minoritics Among the major cttangcs wen the maoration of Alsace and Lonaine io Francc, ihc separarion of Austria and Hungary, The emctgcncc of C~hosl~and Yugoslam and fhc rccreaùon of Poland. Additionaily, Greeee and Romda gawd tmitoncs in the Balkans, Italy on the Adnatic Coasf and Finland Estonia. Lania and Lithuania ail emerged awi tht fonner Russia. Sec, c.g., R M. Rayncr A Conctse Hi~wof Europe: 1789 - 1914 Wiih an Epilogue, 191.1 - 14/51. (londoni New Yorkf Toronto: Longmans. 1958) ai pp. 390 - 395.

I-L -* Treatmeni of Pofish ,Vationais in Danzig fI9321 PCU. set. &B, No. 44 the court noting Lhc e.ittent of the application of the mtics was to thox 10 whom Ihy were dimed only and ihat the lcvels of guanntas were "minimum".At M. il. Sel$Determination: A 'People 's Right

Self-detemination is a right whose exact meaning and geopolitical implications are unclear and, not surprisingly, that ambiguity has been the source of much skepticism about its potential effectsZ3. in addition a fuller legal appreciation of self- determination is complicated by both its politicization and the plethora of groups who lay claim to it. Bennan pointedly notes that: h'[s]elf-determlliation has been adopted by the forces of the political lcfl and right, by liberals and revolutionaries, by Bolsheviks and nazis, by centrists and third world revolutionaries." 24

Through historical and often strategic employment in political rhetoric, there is much evidence to support McCorquodalels view that the idea of self-detemination reflects a widely accepted sense of ''the importance given to communities, collectives and families in many societies and the general coherent cornrnunity quality of Human ~ein~s"~'.international law has not been oblivious to this sensibility. It now provides a solid basis for the assertion that self-determination is a group right and, more specifically, a right of al1 peoples26. But, there is another fornidable problern; attempting to define who the 'people' are. The international court of Justice in the Greco-Biilgarian Case held that a "people" was . . .

" Mwh of hc argument against a right of self-determination was he possibility of it prr-empring statehood. The conflict is that aaditionally only statchood could confer international legal pcrsonality and not groups that had not yet anaincd for themselves the necessary criicria for it. For a complea view of this issue sec N. Bmnan, *'Sovcrcignty in Abeyancc: Selfdetermination and Internatiod Law" @creinaftcr "Sovcreignty in Abeyancc"] in M. Koskenneimi Inrernarional Law (Dordrecht: Maninus Nijhoff, 1992) [Koskenneimi]. Karl Meyer noted in rhc Ncw York timcs that 'rcgardless of its standing in law - E~lyon self-determination was eaming a repuiation of wtiich many were (and arc) not fond. At a tirne Men it was of limited application with but mere politicai ~tatus- the outstanding characteristic and no doubt the root of much misappnhcnsion was the vagw nature of the doctrine." Sn in D. P. Moynihan, Pandemonium: Ethniciry in International Pohlics (Oxford: Ox. U. P., 1993) [hercinaftct Pandemonium] at Ch. 2. McGoldnck, D. McGoldrick. "Canadian indians, Cultural Rights and The Human Rights Cornmittee", 40 ICLQ 1991 [McGoldrick] refen to it as "explosive" at p. 658.

'' .'Sovmignty in Abcyance". See ah,C. Gray, "Self-determination and the Break-Up Of the Soviet Union" 12 Yearbook Of European Law 1992 [hminafla "Break-Up of the Soviet Union"] at p. 466.

'' R McCorquodale, "Self-detemination: A Human Rights Approach". 43 lCLQ 1994 [McCoquodalc]p. 857.

l6 Inlernalional Covenunr on Civil and Polirical Righrs. No. 14668, vol. 999 (1976). p. 171 [hacinaftcr ICCPR] & lnternational Covenanr on Economic, Social and Cultural Rights, U.N.T.S. No. 14531, vol. 993 (1976) [hercinafkr ICBCR], confm through 'Common Article 1 ' that "Al1 people-have the right to selfdetcmiination". "A group of pesons living in a given country or locality, having a race, religion, language and traditions of their own and united by the identity of race religion, language and tradition in a sentiment of solidarity, with a view to preserving traditions, maintaining their form of worship, insuring the instniction and upbringing of their children in accordance with the spirit and traditions of their race and rendering mutual assistance to each other.""

Similarly, Cristescu's view of the term 'peoples' is that it. . .

"[dlenotes a social entity possessing a clear identity and its own characteristics. Tt implies a relationship with territory, even if the people in question has been wrongfully expclled ffom it artificially and replaced by another population"28.

Sir lvor Jennings memorably stated, for reasons such as these, that self-determination is "in fact ridiculous, because the people cannot decide until someone decides who are the people'"9. Jennings' implication seems to suggest the need for an objective definition of the term "people", but clearly any such determination will not be a 'self - determination in the strictest sense (this point is further illustrated with respect to the South Afncan Bantustans later in this paper). On the other hand, if a purely subjective definition is pennitted then we must entertain the thought that any self defming unit (even minuscule local communities) will be able to invoke the right. Such a situation would be problernatic since it is widely acknowledged that statehood is one of the more contentious aspects of the self-determination. There is no reason to assume that tiny self-demg groups would not invoke such a controversial potential. The many

" 197 PCIJ Sn. B. No. 17 at 21.

:' A. Cristescu, The Ri@ IO Self-Determinarian: Historical and nrrent developmenr on the Bais of United Narioas Instruments, W CN. 41 Sub. 2 104 Rev. 1, LIN Publicarion, Sales No. E. 80. XIV. 3, par. 279. mcrcinafîa Crisrescw Report]

29 In a similar vein, Sir Gcrald Fitmauricc has wrinen that the "notion of a legal right to self- detennination is nonsense.', "The Fume of Public International Law" in Liwe du Centenaire Ann. Inri. De Droit Infernational 1973, cited in "Sovcrcignty in Abeyancc". Brownlie, in contrast, is able to suggcst htit has ". . . a core of rcasonable cenainty.". 1. Brownlic, "The Rights of Peoples in Modem International Law" [hereinafta "Peoples in Modem international Law"] in Crawford, p. 5. declarations of municipalities in Québec to separate fiom an independent Québec are indicative3'. But can self-defming communities, however srnall, class themselves as a 'people' with a right to self-determination, let alone with a right to statehood?

A primary constraint arises on the basis that the legai notion of a 'people', relevant to the right of self-determination, may be somehow different to, or at least not necessarily the same as, anthropological understandings of a 'people' such as characterized the definitions of both the Court in the Greco-Buigarian Case and CM Special Rapporteur, Cristescu. This legal vs. anthropological approach to the 'people' issue is strongly supported by the international experience of and approach to the decolonisation of the colonial temtories early in the United Nations era.

m. The Self-determination of Peoples and Decolonizarion

Throughout the decolonization period, most notably in the nineteen si~ties,the association of self-determination with statehood was solidified. However, it was the bordcrs of long established European colonies and not ethnological criteria which determincd the shape of newly independent states3' and the populations within them. The United Nations, through what were termed 'non-self-goveming territ~ries'~~, identified both foreign domination and geographical sepmteness from the imperial powers as the basis of independence for the colonial territories (in other words, decolonization). The Declararion on ~olonies~~,then, emerged as the defuiitive statement on decolonization. On the basis of self-detemination, separatism was

IO For cxamplt, The Edmonton Journal, Sept 2&, 1997, notes that 40 municipalities in Qutibec have now voted for unity with Canada if there is a Québec secession fiom the federation.

11 Humphrey, for example, pu& the dcvelopment in the following words: "[Tlhe colonial State enclosed precolonial culturai groupings within new boundaries, actuaily foregoing a plurai miety. Whatever the pmolonial relationships existing betwecn these culturai groupings, the colonid State changed die relationship of the culture and powcr, placing 'tribes', 'ethnic groups'. 'urban quarters', and 'religious communities in a new social and political order". Michael Humphrey "Civil War, Community and State in the Middle East" in Remaking the Middle East [Humphny] at pp. 251 26.

'' LMC Chapter 1 1, Declararion regarding Non-Self-Governing Territories Article 73 legitimized to give to 'the peoples of non-self governing territories ' the right to determine thcir own destin?. Self-determination, therefore, became a right to independent statehood when the people were 'non-self goveniing' ".

Despite the welcome recognition of the injustices and inequalities of colonialisrn and the view that self-determination rights are violated in the presence of alien subjugation, domination and the Declarutiun on Colonies cannot be viewed as an unequivocal success. It bonded the right of self-determination to separatism but in doing so it embodied conceptual dificulties. in Paragraph 2, the Declararion speaks of self-determination as the basis of freedom3' but through paragraph 438chooses to hint at the shape of the pcoples who will have that eeedom by already refemng to the protection of their national temtory (before it is even achieved). Does this not suggest that the 'Self was predetemined? Despite the General Assembly king "convinced that al1 peoples have an inalicnable right to complete ficedom" [emphasis added], the Declararion on Colonies was clearly not intmded to extend a right of independence through self-determination to al1 peoples in iheir ethnical sense, but to peoples presumed to be such by reference to colonial

" The Proccss marked by the Declararion on the Granring qlndependence IO Colonial Counnks und Peopies, UNGA RES. 1 5 14 (XV) UN Doc. N4684 (1 96 t ) Dec. 14 1960 [hereinafler, Dedaration on Colanies].

" As a result sctf-dctmnination bccame viewcd as a fundamental right but there is division uver whehit represents a pre-emptoty num. h the Western Sahara Cure, [1975] ICJ Rep. 12 [Wesrern Saharo Case] the ICJ notcd that ihe "corpus ius gcnitum had becn considerabiy enriched". Genenl hsembly resolutian 1541 (XV) dcfined "Non-Self-Goveming Tmitories" with hee elements: gcographic scparatcncss. and amal subordination, as well as culturai disrinctiveness. This wu markcd by way of the Declararion on Colonies. Altiiough klmtions do not mark the establishment of binding lcgal noms, the actions of States that folluw rhe principtes found in thcm do give hem considerable weight in legal anaiysis.

" Given that the Dochrution on Colonies applicd io the cause of decolonizacion, McCorquodale mua be correct in his appnrach to the dcclaration that marks out hcsc groups as having a 'preferrcd

anachment " to sclfdcfermiRationat p. 858.

36 Sec.6, Doclmatfan on Colonies al par. 1.

37 "Al1 pcoplcs have the right IO xlf-dctcrmination; by virtue of th right they &ely determine heir political status and freeiy pmuc thcir cconomic, social and culnual development"

'' "Ail arrncd action or nprcssive mmurrs of al1 kinds directed against dependent peoplcs stdl cease in order to enable them to cxercisc pmccfùily and &dy thcir right to complete independence, and the integriiy of theu ~ationilteriltory Ml k respecteci". [My emphasis] b~undarics~~.Thw the era of decolonization, while introducing a firm cornmitment to separatism in the form of decolonization, already demonstrated that the philosophical, theoretical, or sociological notion of the people was different to the concept of the people in international practice. The United Nations resolution 36/46 of the 24th of November, 198 1 on the question of Westem Sahara leaves, prima facie. little doubt that a people - for the purposes of self-determination - are territorially defuied stating specifically at par. 3 that the UNGA

"[T]akes notes of the decision of the Assembly of Heads of State and Govemment of the Organization of Aûican Unity at its eighteenth ordinary session to organizc throughout the Tenitory of Westem Sahara a general and free refetcndurn of the people of Westem Sahara on ~el~detennination.'~~~

19 Since the Kurds and Somali people. by example, span the territories of several different States around them, this is not without go06 remn. Thm are several sources that lead to this reasoning: One maner that is regularly addrwscd is the territorial attachmenr of peoples. Singh, S., noted that %e consultation of the people of the territory awaiting decolonization is an inescapable imperativc".. Western Sahara Cme. ihis view is fiinhci ninforccd in the ICJ opinion that: "Self-detenniriation applies to al1 peoples non-self-govcming..." Legal Comequences for the States for the Continued Presence of South Afiica in Namibia (Namibiu @inion] (1971 ] ICJ Rep. at p3 1. in these cases the peoples faIl within alrcady rccognised temtorial cntities and what is being decided is the nature ofthat entity and the options it can pursue. Additionaüy, the Organisation of African Unity [OAU] repeatedly refm to the decolonization of coloniscd territones for the purposes of them becoming independent States. See, e.g., Accra Declaraiion of 22 Apr. 1958 'tonvinced that a definite date should be set for the attainmmt of independence of each of the colonial tmitories in accordance with the will of the people of the tcrritories." [my mphasis]

40 This resolution . . . "1. ReafXrms the inalienable right of the people of Westem Sahara to self- derennination and independence in accordance wirh the Charter of the United Nations, the Charter of the ûrganization of Abican Unity and the objectives of Gencral Assembly resolution 1514 (XV). as wcll as the relevant rcsolutions of the ûend Assembly and the Organization of Mcan Unity; 2. Welcomcs the efforts made by the Organization of Mcan Unity and its Implernentation Cornmittee on Westcm Sahara 6th a view to promoting a just and dennitive solution to the question of Western Sahara; 4, Welcomcs the stcps taken by the hplcmcntation Commiuee with a virw to otganizing and conducting rhe refmndum; S. Appeals to the two padcs to tha codict, Morocco and the Frente Popular para la Libcracion de Sanguia el-Hawa y de Rio & Oro. to observe a ccase-firc in accordance with the dccisions of the ûrgaiiization of Aiiican Unity and its Implementation Comminee; 6. Urges. to that end, Morocco and the Fmte Popular para la Libcncion de Sanguia et- Ham y de Rio & Oro ro mtcr ho ncgotiations wirh a view to establishg an imrnediatc ceasc-firc and concluding a peace agmmeat pcnnitting the fair conduct of a gencral, ûce and regular refmndum on self-dctcrmiiiltian in Western Sahara; . .. ." The same tone is maintaincd throughwt ail the rrsoluiions to Ihe most rcccnt A/RES/S Ill43 10 Febniary 1997. if the peoples of non-self goveming territories were limited in defmed context of a particular territory, then the question rernained as to where the territory was and how it was to be defined. Generally, non-self goveming territories had already been identified in the context of the draAing of the United Nations Charter fifieen years previous to the Declaration on Colonies and through the United Nations 'list' of entities with a right to self-determination in the colonial context4'. With this basis in mind, the penultimate paragraph the Declaration on Colonies was able to assert without fear of inconsistency that "nothing . . shall be consmed as authorking or encouraging any action which ivould dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent states conducting themselves un compliance with the principles of equal rights and seFdetermination of peoples . . . ". The Declaration on Colonies, itself, was quickly followed by a MerdeclarationJ2 that illuminates tfie issue (although there is no direct reference to the Declaration on Colonies in this second resolution). Resolution 1541 highiighted the nature of a colonial non-self governing entity entitled to independence by virtue of its geographical separateness from the metropolitan state and, as Hannum notes, other factors such as ethnicity and cultural distinctiveness were of Little value on there own in justifying a case for decolonirationJ3.The key element was that the people were non-self govcming and in geographic isolation fiom the power which administered them. This meant that separatism was bom with a seemingly inherent limitation: the implicit presumption of satisfaction of the right of self-determination for peoples in already independent or 'definitely constituted' States and amongst groups who were unable to fulfill the decolonization pre-requisite of geographical separatened4.

The emphasis that attaches to the geographical issw might lead to the implication that the right of self-determination is actually a right of States or temtories. However, to

'' UN Doc. Ai 24 28.

43 Id. at Ptinciple IV. Set also "Rethinking Self-Determination" at p. 13.

44 in 0th words, the populations of dennitely constituted States. Seo H. Hannum, Ruonomy. Sovereigns, and Sel/-Defermination: The Accommodafion of Conflctiag Rights, Rev. Ed, (University Of Pennsylvania Ress: Philadclphia, 1996) breinaftcr, Rutonomy] at p.23. transfer an explicitly "peoples" right to States seems to confer a rneaning which leaves it open to exploitation by unscrupulous govenunents, while to transfer it to territories would be to render the right ineffectual. Rather. seen in the context of decolonization, States inherit obligations for the fulfillment of the right through the wishes of the people in their temtory. In this way the right remains a right of peoples whose effective operation is entnisted to States. nie granting of independence to 'geographically separate entities' seems to have emerged fiom the need to give effective closer expression to the peoples' right of self-determination that was not satisfied by the predominance of distant imperial political and exploitative economic systems. Self-government fiom within more local State administrative units, therefore, becarne a more just means of bringing the peoples closer to the fulfillment of al1 aspects of self-determination including the management of their natural resources* . There is little doubt that the emphasis on 'geographical separateness' - as a guiding principle for entities who might seek independence - was a response to the obvious exploitative character of the relationships between colonizer and the colonized. Hence, the right of self-detenination emerges from the era of decolonization as a right applicable to neither States nor of peoples as anthropological communities, but to peoples seen as populations of the political unit of States and entities awaiting statehood in colonial contexts4'. In this latter context the aim is for the people as a whole together to determine where they bring the temtory rather than

' Intmstingly, the response to the issue of indigenous peoples (dealt with in detail in chapter ihree) demonstrates the same reasoning. The oniy current diffice is the absence of geographical separateness. The intcrmingling of senler culnues amongst many indigenous peoples would render decolonization a most difficult ask. As Hannum has pointcd out elsewhne, the physical displacement of one culture by another making the latter the dominant culturc means that the exercisc of self- detennlliption will aot necessarily involve scpmtisrn at al1 (see below at page 120). Article 32, IL0 169 (in/ia note Il+), for instance, establishes the broad requirernent that "Governmmts shall takc appropriate measwa, includig by means of international agreements, to facilitate contacts and co- operation benvc«i indigcnous and tribal peoples across borders, including activities in the economic. social. cuitraal. spirinial and environmental fields." Uniikc the dismantling of empires and the king of colonies, indigenou peoples an viewd as having a full reghm of entitlements within the cxining rcgimes of sovereign governance.

'' This conciusion is supportcd by hterpretations given to the rneaning of the tm peoples in the Banjul Chma for instance. Sec, R. N. Kiwanuka, "The Meaning of "People" In the Afncan Charter on Human and 'Peoples' Rigfm", 82 A.J.1.L. 80 (1988) [Kiwanuka] esp. at p. 86 - 90. Cassese dso takes the testrictcd view chat the "people" to whom self-detem~inationis to qply are the people of the wholc State. where it brings them in tenns of its affiliation or disaffiliation from colonial ~owers''~. The marriage of self-determination and decolonization, while confirming the dawn of separatism in a legal fiarnework, suggests an exceptional response to particular geopolitical and economic imbalances4' rather than any deep-rooted concem for the communities of colonial lands or a pandering to far away separatist movements. If any loopholes were opened that might encourage the spread of 'decolonization' beyond its intended targets, there still remain a nurnber of limiting principles and standards. indeed hints at such limitations arose du~gthe decolonization process itself. As we have seen, absence of geographical separateness is an implicit barrier. Additionally, for example, although other options to independence offered in the context of decolonization were widely viewed with suspicion, federalism or assimilation with other political units was considered valid ". Indeed, in the Declaralion on Friendly Relations of 1970"'~ statehood was not viewed as the sole option for colonial territoriss. And still other issues would be certain to hamper the spread of separatism outside the colonial paradigm, not least among them a general international consensus on the temitorial integrity of states. The accumuiated effect of these limitations suggests perhaps that even where self-detemination is recognized as a right, it does not necessarily mean that the peoples who enjoy such right are

**If is for the people IO dctcrmine the destiny of the temtory and not the temtoy the destiny of the people." J. DiIlad, Western Sahma Case 12 ai 122.

47 Sec, U. O. Umoairüre, Se$Determination in fnrernarionol Law (Hamden, Conn.: Archon, 1972) [Umonuüte] esp. ai Chapta IV, nocing that amongst 0th- things States, pnor to the UN Charter, were addnssing fair marnent issues and humant conditions of labour in the approach to decolonization., at p. 59

'' Sec, G. J. Naldi, 'The Case Concerning the Frontier Dispute (Burkina Faso v. Mali): Uti Possedctis in an African Perspective", 36 ICLQ 1987 Baidi]. refeming to the dissenring judgment of Judgc Luchah wtio said lhat sclfdetcnnination does not mcan especially independence, but other fonns also apply, at p897. Sec ah, R. Higgins, Prablems and Process: International Law and How We t'se Ir (Oxford: Clarendon Press, 1993) [Higgh] at Ch. 7. Sec ah,Cassese at p. 147.

4Q nie Declarution on Princwies of International Lm Concerning Friendly relations and Co- eeration among States in Accordame with the WC. UNGA Res. 2625(XXV) 24 Oct. 1970 [hminaf'a, The Declaration on Friendly Relafiomj provided an explicit account of the other options in paragraph (ô): it states ihat the fiet integration or association with another state or the emergence of any other political statu hlydetermincd by the people constinitr modes of implernenting setf- detcrminatioa. The implications of this dedaration arc deait with in gnata detail in Chaptu 3 below. recognired as havùig a right to independence" and that self-detemination may be alternatively satisfied.

- - 50 This point is a mana of consensus among nmuous leading commentators on the issue. Sce, T. M. Franck, tt ai., 7'he Territorial Ituegrity uf Quibec in the Event 4 the Ariainment of Sovereignry, Translated hmh French Tidc "L'iiucgritd ttrriionale du Qucbcc dans l'hypothèse & l'accession ih la (~iuveraincté".Commission d' en& des questions ~~ 1 l'accession du Quibec a la souveraimtd. Exposés a Ctudts 1 (Qudxc: Bibliothèque Nationale du QWkc, 1991)., W. Boulet, TM., (Franck ct al.J at par. 1.17 / 3.14. Sealso bclow at Chaptrr 4. Chapter 2 - Limitlng Separatism: Territorial Integrity and Uti Possedetis

L Territorial Integriiy: Cell, Sanciuary or Both?

Separatism in the fonn of decolonization has been given the blessing of international law, but one may ask whether there exists any mechanism to defend against the potential opening out of that nght to newr less explicitiy coionisi contexts. Cassese points to the principle of territorial integrily saying that it occupies a 'sacred' place in international practice5'. The p~cipleof territorial integrity refers to the international standard that acts to guard against the dismemberment of the temtory of an already e~istingstates2. It has been consistently regarded that territorial integrity is a fundamentai element of the sovereign character of States, even where concessions have been made to autonomous regionsS3and as we will see below (Chapter Four), for example, concessions of autonomy to various minority groups and indigenous peoples have not been regarded as concessions of a mariner affecting the legal character of States in their territorial extent. international md regional organizations have made territorial integrity a key line of defense against temiorial dismemberment in their international agreements and cornmitments. The Helsinki Final Act is an notable source of the international communities declaration on territorial intepity5'.

" Cassese at pp. 1 12 and 120.

'' The tcnn tmitorial intcgrity hds expression in a widc varicry of international and rcgional trcatics and charters. It rypically appears in the format included ùi the Declaration on ihe Rights of Persuns belonging ro National or Ethnic, Religiow or Linguistic Minorifies, GA Res. 471135, UN Doc. A/47149 (1993). UN Doc. El CN.41 1992/ 48 + Con.\., Art 8.4, 'hothin8 in the prçsent declamion may be construed as pennitting any activity con- to the pwposcs and principles of the United Nations, includiig sovmign equaliiy, thtorial intcgrity and political indcpendmcc of States". j3 Sce, e.g. Glcock. in H. Miall, cd., Minority Rights in Europe: Praspecis for a Tranrnationol Reginte (London: Royal inst. of Int'l AEairs, 1994) [hercinafter Minorio Rights in Europe] at p. 46. Sce also, Cassese at p. 107.

JJ Article 12 of îhc Charfer of the Chgankuzion of American States: As amendrd by the Protocol of Buenos Aires in 1967, by the Prorocol of Carragena de Indias in 1985 and by the Protocol of ,Monogua in 1993, CTIA: 7063.000, 119 U.N.T.S. 3, 30th of Apr., 1948, 21 üTS 607, [hercinaftcr OAS Charter],specifies that "...Evcn beforc its recognition a Suite is entiticd 10 defend its iniegrity and indcpnidcncc..." ; and "rcspect of the sovmignty and tmitorial intcgrity of each State..." constitues one of thc seven "principler"set forth in the Afiicun (Banjul] Charter on Human and Peopies' Righfs, adopted Junc 27, 1981, OAU Doc. CAB5EG/67/3 rev. 5.21 I.L.M.58 (1982), entmd into force OCL 2 1, 1986 [heteinafler Banjul Charter]. Sec csp. Principle IV of The Final Act ofrhe Conforence on Howevcr, this regulation, which has been Uicorporated elsewhert in international agreements, did not serve the interests of colonial empiress5. in the rame way that the conditions of colonialism had implications for the demise of imperial rule, conditions intemal to States may have implications for the force of the principle of territorial integrity. While the emergence of intemal cultures or sub-state groups seeking separation may present a threat to temtorial integrity ftom within, and while such matters, prima facie, constitute concerns for the State alone to resolve, recent international practice (see below at Chapter Five) suggests that external interference in separatist events may no longer be limited by such regulations as Art. 2(7) of the UN Charter:

"Nothing contained in the present Charter shall authonze the United Nations to intervene in matters which are essentially withui the domestic jurisdiction of any State or shall require the Members to submit such matters to settlement under the present Charter . . ."

Issues ranging from respect for human rights, individual and group rights, and concem over the nature of contemporary conflicts are now widely perceived as falling within the domain of international concern. indeed, numerous cases reveal that the satisfaction of self-determination has relegated temtorial integrity to the province of ineffectua1 dictums. Gexmany, for example, paid little heed to Yugoslavia's right of temtorial integrity in its recognition of the Republic of Croatia. international law, however, docs not recognize a positive right to brcaches of temtotial integrity. In the absence of such provisions, and given, inter alia, Ciennany's reaction to the Yugoslav crisis and the ment dcmise of the USSR, there must bc implicit possibilities. ïhe

- -- - - Security and Co-Operation in Europe, Helsin&i, 1975 14 iLM 1292, 1975, [Helsinki Final Act] on temtonal htegrity.

55 Many Colonisin~powers did not appreciate the internationalisation of mattm thai wete uaditionally considered by thcm to have domestic status. Notable are the various objections of States, such as the Netherlands and France, to the expansion of a right of independent statthood to theu colonies. Sec, e.8.. Niicic at p. 234 - 238. Nonethelcss, by 1970, The Declmation on Friendly Reiutionr stated at Par. 5 "Every State has the duty to nfraii hmany forcible action which deprives peoples . . . of theu right CO self4etcnnination. in their actions against, and mistance to wch forcible action in pursuit of the exercise of selfdetennination. such peoples are entitled to seek and to meive support in accordance with the prrrposes and principles of the Charter." Declaration on Friendly ~elatiom? reaffirming the principle of tenitonal inte&y, provides a intimation as to where a deparhm might be considered:

"Nothing ...shall be construed as authorking or encouraging any action which would dismember or impair, in whole or in part, the territorial integrity and political unity of sovereign and independent States conducting themselves in compliancc 4th the principle of equal rigbb and self-determination of pcoples ...... ***'[my emphasis]

Such wording seems only possible fiom an implicit understanding that some right exists against States failing to comply with the principle of equal rights and selji determination of peoFles58:cchoing the growing intemational concem for such matters as mentioned above. Hence, read in its ordinary meaning, this declaration does not exclude the possibility that States failing to conduct themselves in compliance with the principles of equal rights and self-determination may not be guaranteed, amongst other things, temtorial integrity or political unity. The declaration, however, does not spell out what is rneant by temtonal integrity and political unity. There are, thertfore, at lest two possible alternatives. The first assumes temtorial integrity refers to the continuing physical and sovereign unity of the State. The second meaning suggests that territorial integrity and political unity normally refers to a right of fieedom hmoutside in~rferenceor a right to fieedom over matters within its exclusive jurisdiction (WC Article 2(7) (i.e. border incursions by foreign security forces, economic leverage in the fom of sanctions or embargoes, or any external action likely to cause interna1 division in a State). But it is also the case that the intcrpretation of 'matters wirhin the exclusive jurisdiction' is

- 'ci Supra note 49.

57 Id. at panigraph 7, "The Rinciple of Equal Righu and Self-dadaaon of Peoplts".

58 Ibid. Sce also, for example, l)au ReportT at p. f., "the 1970 Dcclaration on Principles of Intemational Law conceming Friendly Relations and Co-Opemtion among States in accordance with the Charta of the United Nations prohibits the dismcmbennmt of States ''conducting themselves in compliance with the principle of qud dghts and self4ciermination of peoples ... and thu possessed of a govmunent rrpresentùig the wfrole people btlonging to the tmitory withouf distinction as to race, crnd or velour. It would have ken unnec- to make such a qualification unless it was undmtood that the population of a Statc could potcntially consis of othcr 'peoples", possessing thc right of self- dctcrmination". incrcasingly open to argumentation, espccially in relation to human rights issues, or in relation to what is seen or perceived to be a matter of non-compliance. Thus, prima facic, because such ambiguities exist, in addition to at least two interpreations of temtorial intcgrity, the Dedarution on Friendly Relations cannot mean that separatist movements have an automatic lcgal entitlement to dismember the State in which they are fowid whcnever they so wish unless clarification to that effect is available elsewherc in the corpus of international ~aw~~.Such clarification is also required since the Declaration on Friendly Relations is not in itself a binding legal document.

The fact that this declaration is contextual to decolonization and follows a sequence of international treaties and declarations in this regard may suggest that other attempts at separatism or undcrmining the temtorial integrity of States are without justification. if a right against temtorial integrity does exist it is seemingly limited to cases where the State fails to comply with equal rights and self-determination, Colonialism is one context where self-detennination is not cornplied with and it has met with the ultimate sanction of international law. But it would be incorrect to equate this with automatic rights to separatism for any subState group. in particular, the nferences to the alien subjugation, domination and exploitation, in paragraph 2 of the Declaration on Friendly Relations, are hedin the context of a States duty for the promotion of ficedom 'bea~gin mind' that, in the context of colonialism, actions to the contrary are incompatible with the charterm. It is presently clear, therefon, that this declaration embodies only one explicit exception to territorial

5Q Additionally, "It]he right to selfdetermination is a vay genetal, "contextdependent" principle the implications of which are, aiways and evetphen, that a community has the right to panicipate in its fume, but which, except in colonial situations, is an inadquate basis on which to found the nght of a people to achieve independence to the deaiment of the State to which it is joined." See, Franck et al. at par. 1.17

60 "Every State has the duty to promote, thmugh joint and separate action, rcaiisation of the principle of equai Rghu and selfdacrmination of peoples, in accordance with the provisions of the Charter. and to nnder assistance to the Udted Nations in canying out the nsponsibilities entnisted to it by the Charter regaiduig the implemmtation of the principle, in order: (a) to promote bicndly relations and cosperation among States: and (b) To bring a spcedy end to coioniaiism, hnving duc regard to the hely expresscd will of the people concerned; and bearing in mind that the nibjection of peopla to alim subjugation, domination and exploitation constitutes a violalion of the principle, as wcll as a denial of fundamental human nghts, and is conaary to the Charia." integrity and that is in the context of colonialism. Whether the extent of non- cornpliance extends a right of separatisrn outside the strict parameters of colonialism is yet to be verified.

The existence of the principle of temtorial integrity means States may seek to use it as a mechanism behind which they are protected from extemal actors in their intemal actions. As Kohan and Williams note;

"The sovereign control of territory by the State ensures that the dominant culture can circulate freely throughout the space within its boundaries. It cm divide and rule its territory so as to hinder or prevent attempts by subordinate cultures fiom developing a solid base from which to reproduce their own culture.""

Consequently, it may represent a 'prison cell' for national groups unable to tiee themselves from, inter dia, ethnic, cultural, or linguistic dominance. However, temtorial integrity does not guarantet exclusive jurisdiction in al1 matters within a State. On the contrary, it anly ensures jurisdiction over matters "essatially" within domestic jurisdiction. The intqretation of matters which are considered to be essentially within domestic juridiction is continually narrowing. For example, rninority groups now have an extensive buis of recognition in international lawb2and are, therefore, not totally constraincd by the principle of territorial integrity. As a consepuence, temtorial integrity does not entitle a State ta engage in oppressive measures, even against separatist rninonty groups, if those measures contravene international standards on the protection of minority rights. In this context we get an indication that international law dots not view State sovereignty as the absolute instrument of authority it seems to bc in a philosophical context. Indeed, the appearance and reappearance of the principle of uti passe&tis confinns a seeming

E. Kofman & C. H. William, "Culnuc. Cornrnunity and Contlict" Ihcrcinaftcr "Culture, Cornmunily and Conilict"] in Communrty ConJlict t p. S. flexibility around the principle of temtorial integrity and a confirmation that non- colonial separatist entities can succeed in winning international legitimacy. ii. Uri Possedetis: Limiting Sepuration or Facilitaring it?

A State's temtory, while historically a matter lefi to detemination by conquest, discovery or prescription usdly involved jealously guariied fiontiers even if they were open to regular, unpredictable and aggressive alteration, Today, a State without a defined fiontier is a much mer entity than one with, even though it is a suftïcient criterion that al1 States be only 'clearly defined' 63. Hence, the reliance on temtorial integrity stems fiom a desire to leave the legacy of territorial confiict in the past. Uri Possedetis ~uris~is emerging in international law as a mechanism for territorial delimitation as well as a means of petsuadhg the avoidance of conflict over the demarcation of a new State's fiontiers. The principle attributes international character to administrative boundaries of entities coming to independence with the purpose of ensuring stability among neighôoring States. In the Case Concerning the Land, Island and Maritime Frontier ~is~ute~-'the International Cowt of Justice reiterated the mlhg of the court in the Frontier Dispure casedb:

"The essence of the principlc lies in its pnmmy aim of securing respect for the territorial boundaries at the moment when independence is achieved. Such territorial boundaries might be no more than delimitations between diffennt administrative divisions or colonies al1 subject to the same sovereign. in that

" Convention on the Righrs and ùuiies ofSiates [Montevideo Convention] 26 Dec., 1933 T.S. No. 1 881 at An 3. Sa,gencraüy, Crawford, J., The Creaiion of Stares in Inlernarional Law (Oxford: ClatendOa, 1979) (hereinafter Creation of Sfates). Sec aisa Norrh Sea Continental ShevCare (FRD v. Netherian& Denmmk) [[1%9] ICJ Rep. 3, 32, affvming that th= is no nile rquiring the land fiontiers of a State to be Mydelimiteci. a ïhe principle emcrged hmthe Souih Amaican colonies and Captaincies in 182 1. nie new States, previously dcmucated for adminisaative plirposes, inhcrited international bounddes through the principle of uripasederir juris.

6s Ccue Conceming the Land, Island and Mmiiime Fronrier Dispute (El Salvodor W. Hondurcu) [1992] ICJ Rcp. 35,97 UR 266 [El Salvador W. Honduras].

64 The Cme Concerning the Fronrier Dirpute (Burkina Faso v. Mali) [1986] ICJ Rcp. 554 [Fronrier Dispure Cme]. case, the application of the principle of uti possedetis resulted in administrative boundaries being transfotmed into international frontiers in the full sense of the terniv6?.

The principle gained particular strength notably because of the pmcess of decolonization begun in the 1950's and also through its acceptance by the ûrganizarion of Afiicun Uniry (oA@~.me African experience demonstrates how the appiication of uri possedetis, to the old colonial boundaries, becme a stratagem to enable a broadly peaceful transition to decolonization as opposed to one fiaught with conflict. In this way, entities with a recognized right to independence had a mechanism to entrench the extent of that independence. As Bosnia-Herzegovina demonstrates, the alternative of detennining fiontiers on a ethnological basis presents enormous hurdles, not least of which would be deciding the exact criteria for laying down the boundaries and attempting something untried since the collapse of the post- World War 1 treaties. This difficulty bolsters the argument that a firm deof uri posscderis may serve to overcome the potential proliferation of micro-States in the interests of international stability. It may provide a basis for tempering competing temtorial daims by requiring smaller sub-State groups, in otherwise highly heterogeneous border regions, to accept the authority of the State within which they fall. Convetsely, States are discourageci fiom crossing those lines for the purpose of encowaging disunity within the borders of neighboring States. Not surprisingly then, uti possedetis has applied in the emergence of the former republics of the USSR and has gained favor in the international settlement of recent separatist crises. Opinion No. 3 delivered by the Badinter Commission on the collapse of the SFRY supports this view. It stated that

"[elxcept where othenvise agreed, the former boundaries become fiontiers protected by international law. This conclusion follows hmthe principle of respect for the temtorial status quo and, in particular, from the plinciple of iai

67 El Salvador v. Hondurat, p. 299 par. 42. Sec ah,Frontier Dispute Care at p. 567 wticrc, amongst otha things, the court describeci the pmcess as the "wiwit course".

" Chmter of the OrganUation of Apican Uni@,25 May 1963.2 ILM 1963, 766. Art II (c) notes the aim of proîecting tdtorial integrity and this is rcitcratcd again in Art. III (3). possedetis juris . . . toàay recognised as a general principle . . .its obvious purpose is to prevent the independence and stability of new States king

endangered by fiatricida1 stmggles." 69

This position has also been adopted by leading jurists with respect to the potential separation of Québec fiom Canada: "Whatever the circumstances, the right to self- determination mut not involve changes to existing frontiers at the rime of independence (uti possedetis juris) except where the States concemed agree otherwise". "[M~emphasis]. in the application of uri possedetis, the areas prescribcd sovereignty and territorial integrity confirmcd that "natural communities" did not constitute a basis of reference", Hence, if 'group' considerations are to be lefi aside in the interests of promoting territorial stability betwten States, then to what extent does utipossedetis contribute to instability itself? Certainly, its application to the Republics of the Socialist Federal Republic of Yugoslavia (SFRY) revealed some difficulties. At least one might ask whether such a nrle should be expected to apply in al1 circwnstances. The question might be to ask on what exactly does the principle of uti possedetis rely? 1s it any intanal administrative line? Or, the fact that there is an administrative unit prior to separation? And if it is the latter, then how self-administrating does it have to be? These questions expose potential flaws in the principle of uti possedetis. Clearly, as Thomas rightly point out7*, such a standard might only serve to discowage

69 Conference on Yugmlavia Arbilrotion Commission: Opiniom on Questions Rrising jiom the Dissolution of Yugarlrrvia [heMnafter Badinter Opiniom][Jan1 1 & July 4, 19921 No. 3.31 ïLM 148% [l992]at 1500.

Franck ct al. par 3.12.

71 The separate judgcment of J. Torres Beniardez draws particular attention to this aspect. in El Salvador v. Hondurm, noting that uti possedetis applics lcgally not facnially hmcc cxcluding tmitorium nullius and tidcs jus belli; ILR p.551, par. 11. Indccd ihe court as a whole held that "for uti possedetis juris the question is not wheiha the colonial province needcd wide boundarics to accommodate its population but wtim those boundarics acnially wne." Par. 58. " Raju G. C. Thomas, "Nations, States, and Secession: Lessons from the Fonner Yugoslavia" Mediterranean Quarrerly Volume 5 No. 4 Fall 1994 pp. 4065 [Thomasj, "central govenunenu of states dominated by ethnic majonties will be motivd to set up highly cenaalizcd political systerns in tht fÙmc . . . prcventing autonomous self-govanment for provinces"., at p. 52. centralized goveniments from conceding regional autonomy to minorities in their states if they suspect that uti possedetis rnight be invoked in a future separatist attempt. indeed, the Serb dominated renuiant Yugoslavia is acutely aware of its position with respect to the separatist province of Kosovo. However, intolerance of autonomy and interna1 rights for minorities because of fears of scparatism may well ignite the drive for separatism itself. Even taking into consideration the potcntial weaknesses of a rule such as uti possedetis, there is little doubt that a mechanism of its kind is usefui. The menviable task of either carving up temtory (and choosing an appropriate criteria on which to do it) or attempting to avoid such a task by proceeding to cmh a separatist movement are alternative options by far more offensive to international legal standards on temtorial integrity and human rights. Hence, the demands of substate groups and theu rights cal1 into further question the limits and extent of the application of self-determination as a basis for statehood. 1 Cbapter 3 - The Limits of Territorial Iategrity: Secession 1

S.I. Separatism: Beyond Decoloniration.

nie emergence of arguments against confining the right of national self- determination to non-self-goveming temtories, primarily because of neo-colonialism or indeed the arbitrary manner in which it was decided to confer a ri@ of statehood, have gained increasing impetu in recent decades. The Declararion on Friendly Relations is regularly cited as a basis for the implicit extension of self-detennination rights. Equally, the failure to limit the interpretations of such tenns as foreign domination and alien subjugation have meant, objectively, the right could be seen to extcnd to groups previously not considered the victims of colonization but in situations akin to colonization (thereby challenging the application of self- determination solely to the peoples referred to in Chapter One). Many States have looked skeptically on broader interpretations of the right. in the drafting debates over the UN Charter, Belgium, for cxample, expressed a cornmon concem over the use of the terni "peoples" instead of States, in Articles l(5) and 55, clearly demonstrating an unwillingness to entertain conhirion between the two concepts".

States arc willing to acknowledgt the validity of a peoples right to self-determination in a colonial context which may lead to independence but are wary of the extension of that possibility to areas within their own jurisdiction. Initial opposition to decolonization was overcomc primarily by the weight of international pressure, but claims to independence outside the parameters of colonialism are generally faced with broader suspicion. Attempts at independence aiming to deprive a State of control over an maof its jurisdiction, are conmonly refened to not in tems of decolonization but as sece~sions7*.Franck et al have pointed out that "[tlhe right to secede does not exist in international law" while "fiom a legal point of view the creation of a new State in a

Bucheit, at p. 74. Se also, Umozurike at pp. 45 - 47.

74 B. Slancry, "The Paradoxes of National Self-detcrmination", 32 OH% 703 (1994) [Slanerylat p. 706. colonial context is not, strîctly speaking. a ~ecession"~'.The distinction, therefore, between accession to independent statehood by former colonies and the break away of part of a State so as to establish a new State is now required as decolonization has estabfished itself with its own distinct legitimacy.

Secession, alternatively refened to as national self-determination, is typified by claims to a portion of an existing State's temtory on the part of the group within it. Such groups are usually characterized by some predorninant feature. Linguistic factors have been strong in European claims for independence and currently rank hi&, for instance, on the agenda of the Québec separatist rnovement. Ethnic chatacteristics have been at the core of some of the attempts at State formation in Afiica and, again, quite recently in ~uro~e'~,whilc combinations of features are to be found in al1 those contexts as well as in Sri Lanka, Tibet, and, indced, Northern ireland. But, such groups with, inter alia, distinct cthnic, linguistic and/ or religious charactcristics, in a State where they are in a non-dominant position, are entitled to a host of rights under international law of which self-determination, let alone independence. is not explicitly one7'. Nonethelers, the assumption by separatist groups that national self-determination is an implicit right extends tiom assertions of neo-colonialism or the desire to pursue statehood independently. in addition, there is no text of international law explicitly prohibiting secessions of any group. PeaceW agreed secessions, though quitc rare, are thus enabled.

7s Franck et al. par. 3.14

76 Notable examples in this regard arc the Somali Claims to the unification of Somali peoptes gcncmting numerous border codicts with ncii#bowing States Kenya and Ethiopia, Scc Y. Makonnen, Internationai Law and the New Staes of Afiica: A Sfudy of the Inrernatfonal Legal Ploblems of State Succession in the Newly Independent States of Eastern Afiica (UNESCO: Addis Ababd New York/ Parisi Valetta, 1983) [Makonnen] at pp. 462 - 467. in Europe the infamous Icgacy, in rccmt thes, of the Bosnian Serbs is a funha example. Set, P. Glynn, "The Age of Bakanization", Commnitary (July 1993) pp. 21-5. For an excellent study of separatist movemcnts gmcrally, scc A. Buchanan, Secession: The Moraliry of Political Divorce jiom Fort Sumter to Lithuaniu and Québec (Boulder, CO.: Wcstview, 199 1).

" Sec, e.g., CrUtescu Report, csp. at pp. 40 - 41 par. 279, a people with the right to self-datermination ". . . should not be canfused with ethnic, rcligiou or linguistic minoritics, whosc existence and rights am rccogniKd in Art. 27 of the intemationai Covmant on Civil and Political Rights". Recently, the Czech and Slovak Republics split away in laudatory peacefulness. In 1965 Singapore parted tiom the Malaysian Federation. Senegal's departure from Mali and Syria's fiom the United Arab Republics were ahpeacefûl affairs". Earlier examples are to be found in the peaceful Belgian secession fiom the Netherlands in the early nineteenth century and Norway's parting hm Sweden in 1905. Mat is notable is that in al1 these cases the new States were welcomed into the international community (although the manner in which the United States engineered the secession of Panama in 1903 is perhaps an exception7?. Hence, past experience dictates that it is not the act of secession per se that is objected to, rather it is the manner in which it cornes about and the purpose it serves. While there have ken plenty of exmples of unilateral secessions, success is considerably rare. Many have been dogged by warfare and it is in such conflagrations that the term alk ka ni zut ion^^ emerges. The secession of Eritrea, now accepted by the international cornmunity, was preceded by arguments to the effect that, udike the whole of Ethiopia, it had a colonial past justi*g its right to statehood8'. Not even this argument prevented the lengthy conflict before Eritrean independence was ultimately recognized. Eritrea is but one example of how hotly separatism is often challengeâ.

From a purely theoretical standpoint the idea of a universal right of national self- determination satisfying the countless possible claimants is a distant possibilitye2.

" The US did not, howeva, rccognisc Syria until the French handed over significant powcr. See, See a M. Kelly-Malonc, 'The Rights of Newly Emerging Demmtic States Prior Co International Recognition and the Serbo-Croarian Codict', 6 Temple ht'l & Comp. L. J. (1992) [Kelly-Malone] at p. 85.

t9 E.g., 1. Detta - De Lupis, International Lmand the Independeni Siare, 2nd cd., (Aldershot: Gowcr, 1987) [De Lupis] at p. 165

80 Bucheit at p. 28.

81 See, cg., Newswrek, May 3. 1993. Sec ah, M. Haile, "Legality of Secessions: The Case of Eritrca" 8 Emory Int'l. L. Rev. 1994 479. '' Seceuion is "inadqute Io the iask of capniring the full range of historical, political, legal, and moral considerations that arise wiunevcr a national group aueru the right to sccede from an existing State". Slancry ai p733. Cmnotes, about Western Sahaia, the Fdkîands/ Malvinas and Gibraltar, that the composition of the populations in question and the conûicting claims of sovmign States over those ~CBSOIIS maku the ocmal implementation of se~-deteminafionimpracticable at p. 87. Pomerancc thinks not: she has postulatcd thri ultimatcly thc 'metaphysical-selPl individual could ultimatcly join in clah for national sclf-detcrminaiion if suçh a ta& wne ancmpted Sec, e.g.. M. Pomcrance "Selfdetermination Today: The Metamorphosis of an Ideol" 19 Isreel Law Rev. 1984, at p. 257. Cristescu has noted 'To proclah the principle that any tribai, racial, crhnic or rcligious poup The situation of the Tamils is significantly instructive of some of the practical difficulties involved. Addis suggests that were the Tamil to achieve their desired State on the North and East of Sn Lanka, the new State would still retUn a 30% Muslim minority community in the East and a 238 Sinhalese community. He concludes that a secession of the Tamils is not necessarily likely to bring social and political stability which the act might seek to achieven3.It is the general absence of a ptentiiil for appeasement through separtion which rernrtins scpxitisms grcritcst enemy. The fiiilure of nationalists in Northern Ireland to effect any pünial or toial unification of the Island since partition is due in no small measure to the political consciousness that while the jurisdiction of the conflict would be altered by separation from the UK the conflict would rnost certainly continue.

Gcnerally. therefore, international law has preferred special recognition of group identity in a manner that is not prejudicial to the existent of a tat te" and States, themselves, rürely volunteer a right of secession to sections of their populutionsY5. New Zeiilrind, by example, adopted a tïrm position against a right to secession in the debütes covering the inclusion of self-determination in the two hternational Covenants of 1966': Constiturional recognition of a right to secession has appeared among some States, particularly of a socialist persuasion. For instance. a right of secession feütured in early Soviet political policy and in its constitutionid friimework8': it was also piut of the constitutional basis of the SFRY. Although

Hence the promotion of. for example. transborder contacts ktween minority groups. Sre. Human Rights Committee, General Comment 73. Article 37. at par. 3.7 'The enjoyment of the rights ro Article 27 relates does not prejudice the sovereignty and territorial inteprity of a State puty."

Mayrill. for exarnple. says a "rare international consensus" exisis that refutes a right to secession. J. MayaIl, "Sovereignty and Self-determination in the New Europe."[Mayall] in Mirioriry Riglars in Eirropr. See also H. G. Espiell, The Right IO Self-Determination: Implementation Of UN Resoluticins. (1980). UN Doc. W CNI 41 Sub. 3 4051 Rev. 1 sayinp territorial integrity of the State irnpiies i~ non- rirceptince of the right of secession.

86 Bucheit. at p.79

L enin viewed secession as a basic of the Soviet political fabric. The provision covering secession was IO be found in Art 17 of the Constitution. Principk 2. Declararion on die Riglirs of Peopies of Rassia. 1917, cited in Nincic. secession has not had the same profile arnongst Western States, this did not prevent the admission of twelve new members to the UN following the collapse of the Soviet Union in 1989. in contradistinction, the peacefui establishment of Transkei was met with substantial opposition eorn the international cornmunity for reasons to do with the purpose of the act rathcr than the act itself. Yet, some observers like Hurst Hannum still conclude that "a brief survey of attitudes towards several post-colonial secessionist attempts provides little support for any but the geopolitical non-theory of ~cccssion"~~.Nonetheless, secessions would seem to require there own justification and legitimization in order to capture international approval and support. Such attitudes may not, however, be set in Stone. ïhcy may reflec; rather, an unwillingness to support separatism absent certain conditions, and that those conditions occur in- fiequently inpractice.

S. II Separatism as Rectflcarion.

"Ethnicity in and of itself does not necessarily produce separatism, . . . [Oltherwise, it would be expected that no ethnic group could ever integrate with another, and nations comprised of peoples of varied origins couid not survive."89

At some point rhcn, it will be inevitable that something other than, and perhaps more significant than cthnic distinctiveness (the bclief that one's group constitutes a nation or a people), will be the driving motivator for a separatist movement. Alternative justifications for separatism beyond decolonization have a similar argumentation to the legitimization of decolonization. Such arguments hold that secession rnay bc acceptable in instances where it serves to undo an existing wrong: in other worâs a rectification or nmedy. Buchanan's leading work on secession proposes the notion of

" "Rcthinking Self-Detcnnination". at p. 50.

'@E. M. Bjorklund "Culrurai Fcderauon and Sub-Culnual Autonomy: Some Spatial Aspects of Canadian Scparatism" in Williams and Koiinan, at p. 87. "rectificatory justice" as the basis for a right to secessionW. Bucheit offers the following definition employing the phraseology 'remedial secession':

"Remedial secession envisions a scheme by which, corresponding to the various degrees of oppression inflicted upon a particular group by its goveming State, international law recognizes a continuum of remedies ranging from protection of individual rights, to minority right~."~'

A rernedy for what? Is, for example, the political separation of Northem ireland's Nationalists fiom the Irish republic an existing wrong, or the continuation of a past wrong capable of a contemporary remedy by secession? What of entities existing in - strictly speaking - non-colonial contexts? Buchanan considers that arguments for secession based on preserving one's culture, escaping discrimination, and even as a means of addressing past injustices, have considerable moral persuasiveness92. But the argument is moral and iiot legal and its complications are acknowledged. indeed, there are few if any examples of remedial secession arising on the grounds of preserving cultural traditions. Altematively, Tomuschat makcs the point that secession under international supervision or in response to gros and systematic breaches of human rights is prefcrable to an artificial Many States have superviscd there own reconfiguration: the Czech and Slovak Republics king a ment case in point. But, the legality of secessions in the context of human rights violations remains open to question. Franck, would secm to suppon the view that a group

PO Buchanan, at p. 329.

9' Bucheit, p. 220

Bucwesp. ai pp. 38 - 70.

93 Sce, e.g., C. Tomuschat, 88 AJL 831 at p. 833. Set iürtha, for an extensive examination of ihe motal, politicai and lcgal jurtüications for secession up to 1979, Bucheit. Sec also generally, Buchanah See, cg., S. Hoedt And R Lefeber, "Europe - Divided We Stand" [hminafta "Europe"] in R Ltfêùer et al., eds. The Changing Political Smtcture Of Europe: Aspects of International Law (Boston/ Dordrecht: Martinus Nijhoff, 1991) (hereinafta ïhe Chunging Political Structure of Europe] who swest thai a right of secession can be derivcd bom the Declaration on Friendly Reluriom. suffering egregiously may have a clah to sece~sion~~.However, when is suffering egrcgious and when is it not? Are the well documented civil and human rights abuses against the nationalists of Northem Ireland insufficiently grave, thereby explainhg the absence of any separation total or partial fiom the United Kingdom? 1s Tibet not an independent State because there is insuficient suffering? Indeed, its case is made even stmnger by the fact that, apart fiom the well docurnented extent of human rights violations by the Chinese administration, it is also a State which once enjoyed independence prior to invasion. Similar questions might well be applied to the context of East Timor, Chiapas in Mexico, Chechnya and the list continues. Hence, such a basis of legitimization alone may be doubted9'. Additionally, Hurst Hannum says remedial secession in such contexts has a weakness in that "there is no guarantee that new States will be any more protcctivc of human rights han those they replace."% The Croatian human rights record, for example. including the eruption of ethnic clcansing pst-independence, justifies Hannurn's concems9'. For such reasons. hc points out that overthrowing the oppressive govemment and restoring human rights would be as "philosophically and politically sound as secession". Of course, legally, a right of populat revolution is something quite different to a right of secession and not a right which international law has ever pretended to limit. It is not always suficient, however, to rely on the hop that such options will be suficient or curative of the particular problem. Nonetheless, there is sufficient juristic opinion at this point (State practice on this issue is examined in the Chapter 5) to support the assertion that "there does seem to be a growing consensus that the use of excessive force in the suppression of separatism might not be tolerable although how far such

" T, M. Franck "Post-ModcmTribaiirm" in C. Brolman, R Lefcber & M. Zicck eh., Peuples and Minuritles in International Law, (Maninus NijhoE Dordrecht/ Boston/ London, 1993) ["Post-Modem Tribalid] at p. 16.

"Reihinking Self-Determination" at p. 45.

97 in fact, Ui the broadet context of Yugoslavian disintcgration instability and human rights abuses werc exaccrbatcd by the cmcrgmcc of comptin8 territorial claims especially in Bosnia where the govmuncnt of the flcd&g State was vVNally impotent in the mi&t of the ancmptcd carving up of its territory bctwccn, Serbs, Croats and Muslims. See, inter dia, N. M. Procida "Ethnic Cleansing in Bosnia-Hcrzegovina, A Case Snidy: Employing United Nations Mcchanisms to Enforce the Convention on the Prcvmtion and Punishment of the Crime of Gmocidc", 18 Suffoik Tmnat'l L. Rev. 655 at 67 1. intolerance is willing to go, Le. to the admission of new States, is thus far very vague."g8Often the subjects of excessive force are sub-State groups, arnongst whom 'minorities' have a particular place and particular rights under international law.

" Ved. P. Nanda, Denver Part, May 5 1995, at p. E 04. Part II 1 Cbapter 4 - Croup Rigbts: Minoritics and Indigenous Peoples 1

S. L The Legal Personality of Minoriries

One would imagine that a right to secession could not be limited by virtue of the fact that particular groups were not explicitly accorded the right of self-determination. Such a view is implicit when:

"Today's rninority cmbecome tomorrow's majority. Such is the ambiguity of a people-minority relation: the terms are inverted according to temtorial divisions and, particularly, according to the autonorny exercised by each collective entity on the territory assigned to it."99

Howevcr, minoritier, by ltgal defuition'? have no territorial criterion anachhg to them. According to the defrnition of the Italian Professor Francesco Capotorti, minoritics are

"[A] group which is numerically iderior to the rtst of the population in a State, constituting a numerical minonty and in a non-dominant position, whose rnembers possess ethnic, religious or linguistic characteristics which differ fiom those of the rest of the population and who, if only implicitly, maintain a sense of solidarity directed towards preserving their culture, traditions, religion or language."

The central statement on the rights of minorhies in Article 27 of the International Covenant on Civil and Politicai ~i~hts"'omits any reference to sel f-determination.

99 Franck cc al. at par. 3.16.

100 Sec, e.g., F. Capotom, SiuGy on rhe Rights of Persons Belonging ro Efhnic, Religious and Linguistic .Lfiinarities. United Nations publication, Sales No. E.91.XIV.2, Gmcva, 1991, par. 568. A key fea~of a minoriry is thar it is non-dominant. Deschcncs, proposed that thcy wcre. inter dia. a "group of citizms of a State, constiniting a numerical minority and in a nondominant position in Lhat State ..." par. 181. note 12. E.g., Neithcr scholarly snidics by Capotoni. nor that by J. Dcschenes, included in thcir definitions of minoritics this id= oftmitorial attachmmt. Hence, it is a right only explicitly attaching to "peoples". Indeed, there is no reference either to the notion of minorities as groups, nor is the article Medin the context of group rights but rather in tenns of individual rights. Nonetheless, groups once falling within the ambit of the legal tem 'minority* have succeeded in State building begs the question - are al1 sub-State groups minorities? Altematively, Bucheit asks whether secession is a right of minorities?lo2 If there is no right of secession for minority groups then how does international law react to the attempted emergence of States through secession by what appears to be a minority? The case of South Tyrol, given the UN response, would seem to suggest that there is no right of minority secession. On the other hand, the UN recognition of Palestine in 1970 could be tentatively interpreted to the opposite effect in certain contexts. It recognized the legitimacy of the Palestine Liberation 0rganizationlo3.Further, the acceptancc by the PL0 of a two

State solution to the Israeli-Palestine conflict forty years after a UN resolution CO the same effect, now forms a basis of the PLO's involvernent in negotiations over Gaza and the West Bank. in addition, the Soviet Union was, until its dernise, a prominent supporter of Palestine opposition to Israeli dominance in the region, indeed many States continue to support Palestinian independence, even those who have there own separatist issues to deal withLw

This absence of a specific territorial criterion in the definition of minorities enables groups 'in diaspora' to be accounted for and accommodated within international protective standards of rninority rights. Groups, including newer minotities like migrant workers, retùgees and so forth are incapable of availing of a right to national

'O' "In those States in which cthnic, rcligious. or linguistic minorities east pcrsons belonging to such minoritics shall not be denicd the right, in community with 0th- rncmbcrs of thcir group, to enjoy thcù own culnue, to profess theu owreligion, or to use rhcu own Iaguagc." Even usage of the tenn national rninority does not confer national rights on minorities, even though this language is cmployed in the Declamion on the Rights of Persons belonging ro National or Ethnic, Religious or Linguirric Minoriries. That dcclaration malr~a point of diffacntiatiq miiiorities kom States in Art. 1.1 and promotion of a separate basis of rights through transborda contacts in Art. 2.5.

'" Buchcit at p. 59.

'O3 UNGA Res. 2672c XXV of8 Dccanbn 1970.

Mura Maecha, Special Envoy of Comoros hident, for example, stated ''The intemational community must redouble iu efforts to protcct the human rights of people thm, which included respect for the rights of the Palatinians to have a fm and independent State". UNGA, Press Relcase GA/93 13 26 Sept., 1997. self-detemination by vime of their fiquent displacement alone. [ntemational standards such as Article 27 KCPR serve to recogme and validate the existence of groups without a distinct territorial base. Hcnce, the focus on individuah of minority status rather than on rninority groups per se. Nonctheless, not ail minorities are in a constant process of such dcmographic shift between continents or countries. Indeed, not every minority is dispersed among the general population of States at ail, but they are frequently concentrated in specific regions. much like the Geman speaking population of South Tyrol, for instance. It is because ninority groups can have a particular territorial base in fact that they raise issues for international law in the context of separatism, panicularly in relation to how far States and international law can go short of acknowledging national self-determination for minorities.

One of the most consistent feus is that canceding minority rights rnight encourage separatism amongst minorities. Firstly, the "definitionai problems, selective application . . and fèars engendered by [their] association with self-determinati~n"'~'have to be addressedlM. Traditionally, minority rights have becn treated with a great deal of suspicion'b7 However, the Conference (now Organizatton) on Senrrrry and Co-

Operation in Europe, for example tias attcmpted to address these issues'0s Its Copenhagen ~ocrrrnent'~~has taken the brave step of embodying the term 'national minorities', a terminology that now alm features in the Declamt~onon the Rights of Perm beIonging to National or Ethnie, Religroiro or Linguisric h.~inori~ies''~.

'O5 Supra note 1 1, "Rethiniung Self-Detcrmination" ai p. I 1.

IM Hanruun highlighis the bases of the main problems as king: 1 - Minorities do not fit easdy inio ihc notion of thc nation-Suie ôccause of condition, xif~finurcstor cconomic class. 2 - Realiry of heiemgcncity is at adds wiib the unitary concept of the nalion-Sure (as explorcd ai rhe outset of this paper). 3 - Ptrsistcnce of discnmnation. 4 - Tensions fomcnicd ami& fan of idenrity loss ami& icchnological and social advancemnl. In Auionomy al pp. 71 - 72. Woifrum, alm. considers a ierritorial approach IO rhc minontics question as scilving no problcrns only crcating ncw minorities. R. Wolfnim "Thc Emcrgcri~cof New Minoritics as a Mtof Migration" [Wolfnunl in Crawford The Rights Of Peoples, ut p. 133.

Io' Franck et al.. para. 3. 19

IonWoUrum at p. 154 in Crawford The Rightsof Peoples.

109 CSCE. Copenhagen Documenr on the Human Dimension adopteci on lune 29. 1990. 29 [LM 1305 (1940).

110 Full citation ai note 52. However, Lemer suggests the term 'national minority', which might be misconstmed, is intended to represent minorities of an existing State rather than national groups in themse~ves"~.The adjective is, therefore, superfluous, and would seem more an effort to disco~ectthe notions of nation and State in the minority context rather than extendhg national rights to such groups. nie language of UNGA Res. 47/ 135 seerns to support this view. Art 1.1 reads:

"States shall protect the existence and the national or ethnic, cultural, religious and linguistic identities of minorities within their respective temtories, and shall encourage the conditions for the promotion of that identity"

Art 2.5 follows:

"Persons belonging to minorities have the right to establish and maintain, . . .contacts with othcr membcrs of thcir group.,..across fiontiers (to whom they are relatcd by national, ethnic, religious or linguistic ties)."

However, this das not completely exclude a right of self-determination for it is obviously the case that minorities benefit in communion with, as opposed to distinct from, the whole population of, for example, definitely constituted States. The position of the Ukrainian representative, Zomlya Vladyslav, at the UN is demonstrative

"Temtorial secession was conditional upon a number of factors, among which was that it could no! bt given to an ethnic group not living in a close communily. His Goverment was sympathetic to territorial seccssion through autonomy, but therc was confusion as to the definition of the right to self-dctemiaation.d12[myemphasis].

"' N. Lemer, **TheEvolution of Minority Rights in Intemaiional Law" [Lemer] in Brolmau at p. 96.

'12 35 March 19% UNHRC Press Releasc WCNn 1 1. nius it seems that self-determination is a right of which minorities are not explicit bcneficiaries, but al1 minorities are components of the people who generally exercise self4etermination. Being in a minority thetefore wodd not seem to confer or imply any particdar benefits for the purpose of separatism or secession under international law. However, it is not possible to draw a broad conclusion at this point without considering the position of groups that constitute factual minorities but have alternative designations. The matter of 'indigenous people' is demonstrative.

S. II. Indigenous Peoples: New Rights to Statehood?

The rights king sought globally, by what for the moment may be called 'indigenous pe~ples"'~,have created a substantial definitional task for the international community and lawyer alike and for reasons that are strongly related to the issue of separatism. So far there is no internationally agreed dermition as to what constitutes an indigenous Not surprisingly then, there is the possibility that groups may arbitrarily lose the benefits of indigenous status - especially the right to self- determination if they are miscast as 'minorities'. Although they do sais@the criteria for minority statu, it is accepted that indigenous peoples are peoples and not minoritiesH5.For this reason alone, it is impossible to assen that they pose no greater katto States in ternis of separatism than do minorities, or that their right of self-

"SWhile it is difncult to commence a discussion of a group wibut nf&g to sornc characteristic that distinguishes it. most observers agmthat a pmmincnt elcmmt is one of duration in a particular region. Sec, esp., UN Doc. No. WCN.41Sub.ZIAC.4I199513. The basic citeria for definition of indigenous people identifie& h that qon included questions rclating Io historical continuity, distinctive culrurai charactcristics, mdi tional lands, non-dominance, sel f-identification and group consciousness.

114 Numerous efforts to revcai the essence of an indigenou population have bmmade. These have tcnded to highlighi ambiguities rather han to produce any teal pmgress. Nonehless the International Labour Convention has includcd elemenis of a definition in the 1957 n0 Convention 107, UN Doc. No. UCN.4/Sub.2/AC.4/19%/2, whme Article 1 establishts 'distiactiveness' and a history of colonization as essenrial feanim of an indigenou people. The repiacmimt Convomiion Conceming Indigenoru and Tribal Peoplos in Independent Counnics 169 1989,72 IL0 Official Bull. 59, entered inio force Sept. 1991, csiabtishes self-identification as playkg a frnidamcnial role in indigrnous identity. Noneihelcss, subjective factors are maincd in the requirernent that thq am descendants of the inhabitanu of the thtory at the time of conquesr and rhat thcy display at least some of their own unique social, culturai, ecoaomic and political instituions, See, esp., Article 1.1 (b) [IL0 1691.

"' See below Minority Rights. See also M Alfonso-Martinez, Smày on Treafies, Agrecmenfs und orher Consmrc:iw Rrrangemencs Ekmeen States and Indigenou Peoples. E/ CN. U Sub. 2/ 19951 C 7 [Alfonso-Mariinez] esp. at pars. 115 - 1 19. determination should be any las than the- implications of the right elsewhere in international law. Further, it is al1 peoples have the right to fieely determine their political status: is it correct that indigenous peoples should be exempted? Are they?

The distinction between an indigenous people and other legal notions of a people remains unclear. One may readily ask, for example, fiom what point in time indigeneiiy is to be asserted. Conversely, hmwhat point in time is indigeneity not to be asserted? The Cobo report provides the following defmition:

"indigenous communities, peoples and nations are those which, having a historical continuity with pre-invasion and pre-colonial societies that doveloped on their temtories, consider themselves distinct fiom other sectors of the societies now prevaiiing in those tenitories, or parts of them. They form at present non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral temtories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal systems ii .116

The terms, inter alia, ancestral, ancient, and attachrnent to land have al1 been offered, cvidencing aboriginality, cultural and'or soc iological distinctiveness not quite a satisfied within the appellation "rnin~rity"~~'.indeed, indigenous people reject any

Il6 UN DOC. NO., WCN.4/SUb.t/l986n/Add.4,United Nations Publication, Sales No. E.86.XIV.3, par. 379 (This extract is îkom a comprehensive study undmakm by Spccial-Rapporteur J. Martinez-Cobo entiticd The Srudy of the Problem of Ditcriminarion quim Indigenou Peoples, (full reE, E/CN.4/Sub.U1986/ï Add.14) [Cobo Reprr]. AIfonso-Marchez at par. 97, is critical of Cobo's approach saying that in coming IO ihis dennition he tcnded '20 lump together" evidentiy dissimilar situations. Imie Dacs provides the following conclusion on indigenous peoples; (a) Priority in time, with respect to the occupation and use of a specific tcnitory; (b) nie volunias, perpetuation of cultural distinctiveness, which may include the aspects of language, social organization, religion and spiritual values, modes of production, laws and institutions; (c) Self-identification, as wcll as recognition by other groups, or by State authorities, as a distinct collcctivity; and (d) An experience of subjugation. marginalization, dispossession, exclusion or disaimination wherhcr or not these conditions pmist., Daes Report at Chapta III par. 67.

Il7 This factor is saessed by indigemus groups Ihmiselvcs hodo not sec thcmsclves as minoriiies. Although as Alfonso-Maninez points out, at par. 16. thcy do &arc Mme of the characteristics anributcd to horities. suggestion that thcy cocutitute lcgal "minoritie~""~.ney Q not wish to have theV starus diluted while States seem unwilling to entertain the implications which a 'pcoplt'stacus might involve. Howevcr, the factual overlap bttween Cobo's definition and those offered in relation to minorities (Deschenes and Capotoni, abovc) arc evident. Given the levcl of dificulties involved, the desirability of a defmition of "indigenous pcoplcs" is to be questioncd. One UN Rapporteur has pointedly higblighted the parttcular compte~ityof. for example, applying indigenous people statu to groups in African States suggesting it poses an insuperable prob~ern:~ @erhaps because difficulties also arise in relation to States where the general b population clahto k no less indigcnow than othcr grouprj. The self-idmtitcatoy appmach, which holds a prominent place in the international Labour Convention (LO)169Iz0, is cqually capable of generating suspicions of thost whosc idcntity is based solely on self-identification (especially if they have an enhanccd attachent to the potcntially sepmtist right of self-determination). However, these concerns and their temtorial implications have to be more closely viewed within their particular context. sincc they do differ from rninority rights but also somewhat fiom the broader peoples rights issues"'. tndigenous peoples have an establishtd historical daim to be subjects of international lawlu. Such clahs stem from early treaty undertaking with th

'la E.g.. Statcmenc Submincd by the Indian Law Cenue: Principlcs for Guidig rhc Deliberations of the Worüng Group on Indigenou Populations, A. Eide, Study ofrhc Problrm of Discrimina~ionagainrr lndigcnow Populatbnr, E/CN.4/Sub,2/AC.J/I98UR 1, "5. Indigenoiu pcoples arc, in some c- c- under a domination thai is both alicn and colonial in nam. indigenou peoples quai@ as ptopla posscjjing a right of sclf.dctennination: hence, indigrnous peopla have the righr to self- deicrmination, that is, to posscss whatever degru of self-gov«nmm in heu territones the indigenou pmples may choosc.*

t 19 Alfom-Ma~hczai. par. 3 1%.

"O The criterion of self-identification seau CO be widdy acccpied as fonning part of Ihe process of ideiltüicatioa. iL0 169 Statu iu Ari. 2 "SeIf-identificationa indigenous or tribal shall be regardcd as a fundamenul criterion for deterahhg the pupsCO whicb the provisions of this Convenrion apply". Additionaily ihc criteria is noted as not being suûïcicnt in iisclf. Aa. 1.2.

'" Fmck u al. par 3.25. IL0 Conveniion No. 169, AIticle 13 and 14, ais0 guarantcc to membm of indigenous populations a collective or individual right of omhip in thci mditional lands and dtmailds Statc respect fot those culdanaehmenu.

'" Alforuo-Martinrz ai: par. 169. Euopean settlers over much of the late eighteenth and throughout the nineteenth and twentieth centuries, as well as early recognition from notable European philosophers such as Vittoria and Grotius (irrespective of their justifications for conquest)'*'. It is primarily because indigenous peoples are peoples and not minorities that the issue of self-detennination and separatism canies a particular weight and degree of conccrn in the international community. indeed, given that they are recognized as distinct peoples, that they are entitled to self-identification as such, that the persistence of their own unique institutions is accepted, and that they are the cleady subjects of conquest, are they entitled to the most complete expression of self-determination? Statehood? None of the above criteria for identification distinguish them satisfactorily fiom other peoples who enjoy their own statehood, particularly since decolonization.

It is well established since the pend of decolonization that the absence of appropriate structures or ill-preparedness should never hinder a legal entitlement to stateh~od'~~.Arguably, indigenous peoples fa11 within the standards required for decolonization under resolution 1514 (XV) and UN resolution 2625. Evidence of subjugation and maltreatment of hdigenous peoples at the hands of the States in which they live is both histoncal and current. It is not surprishg that one rnight fmd indigenous peoples adamant about an unfettered right to determine their own destiny. However, this fon of application of self -determination to indigenous peoples does appear to carry limitations. Article l(3) of IL0 Convention No. 169 States that

"[tlhe use of the tcm "peoples" in this Convention shall not be constnied as having any implication as regards the rights which may attach to the tenn under international law".

'3 This point is cxtmsively elaborated by Schneider and Furmanski in D. Schneider and L. Furmanski. "The International Pmonality of Indigrnous Ptoples: An Account from North Ammica", International Law and Native Americans 19%. Paper delivertd Co the Amdcan Political science association Annual Meeting, Scptember 19%. hW91 m.ucol.edu

"'Although not irnmediately connected to the issw of self-detemination. it was pointcd out by the intemational Court of Justice in the Noiiehhm Care that the capacity to enta into international relations as part of the pmcess of statehood is m a high rcquiranent. Consequently, one commentator suggests "indigenous peoples . . . are treated in the same way as one would treat a 'vanishing species of non-human fa~na"~'.Practice tends by and large to uphold the view that indigenous peoples are entitled to special treatment and often-considerable measures of autonomy. Additionally, IL0 169 does not attach the critenon of geographical separateness to indigenous peoples that lends legitirnacy to independence in the case of decolonization proper. indeed, despite their claims, indigenous peoples are not recognized any more than any other sub-State group as having a distinct ight to separatc statehood and the international community's wording of the lnrernationai Year of Indigenow People might be interpreted as another implicit rejection of the self-determination aspirations of disparate indigenous groups by the use of the terni 'people' as opposed to recognizing the plurality of indigenous 'peoples"26. At the veîy Ieast, then, the implication is that indigenous peoples are something akin to wards of the State.

Histoncaily, indigenous peoples have found themselves in what might be called a trusteeship position vit. the countnes in which they are located. The often cited US ruling of Justice Marshail in the case of Cherokee Nation W. Georgia referred to indian tribes 'as separate political cntities yet subordinate to the authority of the United states'12'. Sovereign stanis hes, historically, been curtailed with settler communities establishing a superior ciah with respect to the international statu of the territory in question. The concessions made in terms of land rights and compensation fiom New Zealand to Canada do not represent the cession of territory tiom constituted State sovereignty. Furthcr, IL0 169 pointcdly confis the existence of an iudigenous identity within the contcxt of 'ptescnt State boundaries' and declarcs at paragraph 3 that "the use of the term 'peoples" in this convention shall not be

'" Sec, e.8.. "People or Peoples: Equality, Auionomy and Self-detenninauon; The Issues at Stake in the international Decade of the World's Mgmous People" in Ersays on Human Rights and Democraric Development. Papcr No. 5 (International Cena for Human Righu and Democratic Developmmt: Montreal, 1991) at p. 24.

'" 30 U.S. (5 Pet.) 1, 16 (183 1). Cited in Schnicdcr and Furmanski. constwd as having any implications as regards the right which rnay attach to the term undet iutemational law' 9 . 128 nie continuation of a distinctive relationship between sovereign States and indigenous peoples confirms the subordination of indigenous pcoples to the supreme authority of the State. In Australia, the case of Mabo v. Q~eensland'~~was seen to mark a step towards the recognition of aboriginal rights in a rnanner pnviousty prevented by adhercnce to the notion that, on European discovery, Australia was tena nullius. However, the view that aboriginal people inherit land rights from Crown concessions is not totally disappeared. in fact, the case had limited real efFect in advancing any notion of indigenous sovereign rights. While the dispossession of the aboriginals was recognized, the appropriation of traditional lands could not be revcr~edl'~.Land rights tend, therefon, to be trcatcd as property rights rather than as sovereign rights. None of the New Zealand Moaris, the autochthonous peoples of Australia, Amcrican indians, or Canadian Aboriginals (to mention but a few) have yet achieved voluntary political self-determination expressed in statehood ternis. in addition, the international community of States has yet to adopt the International Declaration on the Rights of Indigenow Peoples, thus it is yet to be seen how this may elaborate on the demands of indigenous peoples not fully satisfied under cunent conventions. However, it is unlikely that the position will change greatly with the Declaration on the Rights oflndigenow Peoples, which limits the scope of indigenous peoplcs right of self-determination to the extent that they

"have the right fkly to determine their relationships with the States in which they Iive, in a spirit of coexistence with other citizens . . . and freely pursue their economic, social and cultural devclopment".[emphasis added]

"'iL0 169, Article 1.

lZ9 Mabo W. Queendand (No. 2) (1992) 107 ALR 1. For an in-depth rcview of the significancc of thh ding sec J. Webber, "Thc Jurisprudence of Rcpt: The Search for Stanâards of Justice in Mabo", 17 Sydny L. Rcv 5 (1995) ~~CIChe discurses the belatcd mopition of aboriginal proprierary intacsu [my emphosis]. He also ouggms chat an clcmmt of the dccision was to rccognisc, kom ihc point of vicw of intemationai law. pfior occupation of thc land by indigenaus peoplej.

lJO Sce, e.g., Alfonso-Martinez at pim. 229 23 1. ' , The Dra# Declaration of the InierAmerican Declaration on the Rights of lndigenous ~eo~les"'adopts a similar approach in its preamble, which asserts that indigenous peoples are "entitled to be part of thcu countries' national identity". Canada's position before the Working Group on Indigenous Peoples in Geneva, 2 1 July, 1993 was that, fearing separatism, it had a clear preference for the maintenance of State jurisdiction over indigenous self-determination.

It is broadly possible, therefore, to conclude that indigenous peoples are conceded temtorial rights of a proprietary nature favorable to the accommodation of indigenous culture as opposed to sovereign rights under State practice. However, the fact that certain observen find indigenous peoples are incapable of king disthguished in definitional ternis from othcr 'pe~~les'l~~,in addition to considerable concessions of autonomy in States like an ad al", docs not dispel the contention that a case can be made for indigenous national selfdetermination. Although no evidence supports such a right at present, the tnrstecship nanue of the hdigenous relationship to sovereign States suggests that the continuation of that relationship tests on the fulfillrnent by States of their duties and treaty commitments towards indigenous peoples and respect of their proprietary rights. This is a situation not widely dissimilar from that which prevailed between the empires and their colonies prior to the emergence of a global movement towards decolonization. Further, it seems plausible that given the nature of indigenous peoples relationship to land (a ftndamental element of indigenous identity), the interruption of that relationship would constitute a breach of their rights as 'indigenous pcoples' and as 'peoples' under international law. Any claims to secession fiom the States in which they are found are evidently advanced by the fact that they are a 'people', that they have identifiable territorial attachments (irrespective of their nature), and that they do have a history of conqwst or colonization. Limitations, on the other hand, derive hmthe fact that as a 'people' their right to

------"' O. A. S. Doc. OEA/Sa. 1 W VI II. 90, Doc. 9. Rev. 1 (1995).

"'Dues Report, Conclusions.

133 The emergence of Nunamt as a third autonomow aboriginal temitory in 1999 marks the latcst significant concession of autonomy in Cuiada self-detemination does not extend to a nght to independent statehood. in other words, the term 'people' as it attaches ta indigenous groups has more anthropological than legal significance. A mer limitation extends fiom the fact that indigenous peoples do satisQ the criteria for minority statu which brings in itself, no secession, or statehood rights. In conclusion, therefore, it seems that, since no indigenous peoples independent State has emerged in the United Nations era, the stmggle for an independent State through separatism will probably require some additional justification to those which aheady present themselves in the indigenous peoples context. Self-detemination in itself appears an insufficient basis for indigenous separatism and independent statehood. 1 Cbapter 5 - Separatism: The Emergence of Standards tbrough 1 1 International Practice. 1

1. Introduction.

There are significant and varied sources to lay claim to separatism. There are groups who have challenoed the leoitimacy of an entity's decolonization by claiming their own statehood (as an example, the Katangan movement is addressed bclow). Furthet, there are groups who assert national claims on the basis of neo-colonialism (the awakening of Tamil separatism in Northem Sri Lanka since the 1950's is a case in point, as is the cause of the Hawaiian 'Ka' nationau indigenous movement, as well as indigenous peoples generally). Then there are groups who seek separatism for either ethnic reasons or irredentist claims (Krajina in Croatia or the case of the Bosnian Serbs might serve as examples here, as would the case of Northem ireland's nationalist community). Some observers have chosen to describe the cornpetition for nation-statehood as, at best, Parochialisrn or, at worst, Postmodern ~ribalism"'. But their motivation should not be understated when, as Thomas Franck fmds, for example, the success of Croatia's independence and the rejection of the claim of Krajina represent an 'insupportable differeiitiati~n"~~.More often than not, the employrnent of self-determination as a means to solving intercommunav ethnic tensions, in contexts such as these, has resulted in the replication of disputes rather than the expiration of them. As Klinsberg States:

"[wherever the international communiîy purports to rescue an ethnic group from the 'prisonhouse of nations' by recognizing a new nation, it has probably only created a 'county jail for minorities 1136. II

'" Sec R Higgins, "Post-ModemTribalism and the Right to Secession", in Crawfods The Rights Of Peoples whm Higgins describes the phcnomenon of post modern tribalism as the transfer of defmed parts of population and tmitory of existing multinational Statu to constitue different uninarional or unicultural States.: at p. 29.

136 E. A. Kihberg. MInremarionalHuman Righis Intervention on Behalfof .Minorilies in Posr- World War 1 Earrem Europe and Today: Placebo, Pois04 or Panacea?" 1993 U. Chi. L. Sch. Roundtable 1 [Klinsberg] at p. 1 1. Sn also Humphrey at pp. 19 - 38. However, such an appraisal nins the risk of overlooking the complexities of individual crises as the following cases may serve to demonstrate. il. A State for ~urdr?'~'

The daim to statehood by the Kurds (a distinct groupIJ8with particular ethnological and linguistic traits) could, theoreiically, involve several secessions. They exist over a region crossing the land boundaries of at lest four States (an area of some 230, 000Sq. ile es)"', notably havins never enjoyed a statehood of their own and having ken bypassed in the treaty settlements arising out of World War II". Consequently, in each of the States where they are presently located, they constitute numencal minorities and hence, on the face of it, fa11 under the legal nomenclature of "minority". The standard of self-identification of IL0 164, were it applicable, is of limited benefit to the cause of independence and separatism under present international legal standards. Indeed, whatever the facts relating to their racial or ethnic distinctiveness, theu legal status as minorities is fitting insofar as the satisQ the authoritative 'minority' detinitions of Francesco Capotorti and, subsequently, that of the Canadian jwist Jules es ch en es'^'. Additionally, the most the Kurds have traditionally achicved, as such, is some limited recognition of that statu^'^^. Most measures at implementing regional autonomy for them within the various States

"'The history of the Kurdish peoples is wel documentcd elsewhem: here we deal with the context of theù daims. For fuithm information sec, e.g., P. G. Kreydniek and S. Sperl, eds.. The Kurdr: rl Contemporcuy Overview, (London: Routledge, 1992) [hminafler The Kurds] esp. at pp. 33 - 67. Sec also, G. Chaliand, cd., People wirhout a Country: The Kur& and Kurdiston, tram., M. Pallis, (London: Zed Books, 1982) [Chaliand].

13' The term 'people' is deliberakly ornined at ihis juncnire in ordm not to avoid potential confusion benwen the legal and the anthropological ideas of the tenn. The legal personality of the Kurds is addressed particularly at the end of this section.

The States include Iran, iraq, Sytia and Turkcy and. to a lcsser extent, Armenia and Azerbaijan.

IM Se,e.g., O. Q. Goldman, *'The Need for an indepcndm~Mechanism to Protect Group Righis: A Case Study of the Kwds", 2 Tulsa J. Cornp. & Int'l. L. 45 (1994).

"' Sec supra at note 100 and gcncrally at Chapter 4. S. 1.

112 E.g., through the Treary of Lausanne, 1923 and supra notc 21. when thcy re~ide'~~,especially in Iraq and Turkey, have lacked real content. Consequent dissatisfaction cxpressed through persistent daims for Kwdish national self-determination has led to unrest which has typically been suppressed militarilylJ4. Historically, the international community's position has rested on the need for real and effective measures to be taken for the enforcement of human nghts. There is also a marked absence of any group-specific references - not to mention the use of the term 'people'. The wording of one 1997 UNCHR resolution is typical; it calls on the govemment of iraq to:

"[T'jo abide by its freely undertaken obligations under international hman rights treaties and international humanitarian law and respect and ensure the rights of al1 individuals, irrespective of tbeir origin, ethnicity, gender or religion, witbin its territory and subject to its jurisdiction." '" [My emphasis].

Despite the involvement of an international allied force during the Gulf War, Kwdish grievances did not translate into the emergence of a new State. Hence a Kurdish right of national self-determination involving a secession from, at least, iraq has not corne about even through the combination of distinctiveness and the deliberate and targeted abuse of heir rights here and in other neighboring stateslJ6. Several reasonr might be

'" Notably, these di5culties have tcnded to k cornpoundcd howevcr by interfactional and clan stniggles amongst the Kurds themselves. See Chaliand.

''' Turkish. Iranian, and hqi abuses against the Kurdish popularions arc dctailed in many intemarional human rights reports. Set, inter dia, US Department of State, Iraq Report on Human Righrs fracfices for 1996. Bureau of Democracy, Human Rights and Labour, 30 Jan. 1997. Sec also reports for han and Turkey of the same date. The abuse of rîghts is well documentcd in UN nsolutions on abuses of these peopk. Set SI Red 668,s Apnl 1991: SIRcsJ712, 19 Sept. 1991, Sec dso, Situarion of Human Righrs in Iraq, üNGA Rcs. 481 144.48 UN GAOR Supp. no, 49 at 264, UN Doc ai 481 144 (1993). Also üNGA Rcs. 471 145,18 Dec. 1992. Sec also, Humpky at p. 34.

115 UN Commission on Human Rights, 15 Apr. 1997, UNCHR Res. 1997160 on the Situation of Human Rights in Iraq, S. 3. See also, UN Doc ai 481 144 (1993) including calls for the establishment of independent commissions of inquiry in human rights abuses.

'* Meeting of the CSCE, Moscow 1991. Cited in A. Heraclides, Helsinki II and its /ifrernrufh: 7ne Making of the CSCE inro an lnrernarional Organisation (Printcf Publishen: Londonl New York, 1993) [Heraclides] at p. 139. Sec, P. J. White ''Turkey: From Total war to Civil Ww?" in Remaking the Middle Eart pp. 225 - 257. White considers the effefts of Human rights hbingcmenfs and State intransigence on the evolution of separatirni led by the Kurdish separatist party the PKK. posited for this: The humanitarian intervention of the international comrnunity, under Operation Provide ~ornfort'~',and the establishment of safe havens and nofi zones confinns a reluctance to allow international force to be used for the purpose of directing any external political outcornes, particularly claims to statehood. On the contrary, they amount to what Humphrey describes as "quarantining the impact of civil war and ethnic fragmentation". This is confïrmed through a Security Council Resolution in April 1991 which reaffinned the maintenance of iraqi territorial unity whilst stating its "deep disturbance" ai the magnitude of human s~fferingl~~.The UN Security Council has consistently made a point of insisting on the maintenance of the territorial integrity of that tat te"^. Additionally, because the Kurds do cross numerous States, the establishment of an independent Kurdish temtory would no doubt have exacerbated regional claims for the unification of a Kurdish homeland and the dismembennent of other States in the region for that pwose'sO. The view is Merborne out by iran's concerns over the emergence of new separatist movements following the collapse of the USSR"'. AS a regional player it stated its position in the context of Nagorno-Karabakh to the effect that it was "committed to the territorial integrity of ~zerbaijan""~while Turkey has aiways displayed hostility to the Kurdish

'" See, J. S. Pilkingtan, "Beyond humanitarian rrlicC: cconomic developmmt efforis in northem Iraq", RPN 23 January-April 1997 "In 1993.94, Operation Provide Comfon (OPC), the four nation coalition enforcing and monitoring UN Security Council resolutions in northern Iraq". At http://w.qeh.onac.uklrsp/rpri236.hm

"'UN Sec. Co. S/ Ra./ 688, 5 April 1991,' in 30 LM 888. hporiantly in this regard, the resolution did not invoke Chapta VU of the LM Charter. It rccalled "Anicle 2(7) wtiich precludcs the CM fiom intcrvening in mattm essentially within the domestic jurisdiction of any statc, unless thc applicalion of enforccmeat measirm undm Chapia VI1 is involved. By adapting resolution 688, the Security Council thur decided that iraq's oppression of its civil population was not a mana nsmtiaily within domestic jurisdiction. But it does dot follow that the molution hmfm auhorizcd the use of anncd force to prevcnt the nprcssion by sctting up «iclavw in Northcrn ifsq"., Sec, e.g., J. F. Murphy "Force and Anns" at p. 15 in Christopher C. Joyna, ed., The UN and Intemtional Law (Cambridge: Cambridge University Pnss, 1997).

'"9 Sec, e.g., UN Doc. SI Res.1986 (1995) easing the sanctions set up against [raq in resolution 661 of 1990.

''O "The idea that a Kurdish Statc . . . could gain pater autonorny or independence was seen as a poientiai thrcat to Turkey's tmitorial boundaries". Humphrey at p. 20.

"' Sec, cg., A. Tarock, "üan's Foreign Policy sincc

State practice here reveals a prominent preference for the maintenance of States, although a willingness to challenge the manner in which their regimes behave is also demonstrated. in consequence, the development of a more acceptable and well- behnved intemal polity is a matter for the people as a whole in the State in question and in some cases may merit extemal support in achieving that goal. The US Government, for exarnple, stated bat. while it would provide help for the purpose of removing people fiom war zones, it was limited in its ability to control the intemal events in iraq. lS5. The implication is that the US would not be in a position to fend ifs support to separatist forces if, intemally, the conditions did not make it possible. This view seems to support the contention that there is no right to separatism or statehood in the context of a real threat to general regional stability. While the Kurds might defme themselves as a 'people', they have not succeeded in acquiring sovereignty and independence as have the 'people' of Turkey or the 'people' of Iraq. The fact that they may be a 'people' from an ethnological point of view adds little of value to the actuality of their legal personality. The term 'rninority' is equally capable of appreciating al1 that makes the Kurds unique but in a manner that is not likely to infer substantial sovereign rights prejudicial to the general integrity and stability of the several States spanning the ethnographie region of Kurdistan. But is regional stability a basis to limit self-detemination whcn there is no right to decolonization or when a distinct group is classed as a minority?

153 Sec. P. J. White "Turkey: From Tolal war to Civil W"in Remaking the Middle Emr pp. 225 - 257.

15' Tofik Moussaev: Statement on bchalf of Ambaijm, HRJCNi778.2April 1997.

!''Associatcd h,1996 at http://www.nando.nct. m. The ho Claim to an Independent Biafia The attempted secession of Biafra fiom Nigeria between 1967 and 1970 received liîtle direct intemational intervention on behalf of either Nonetheless, indirect involvement confirmed a broad international preference for Nigerian unity on two levels: the first was the UN decision to regard the problem as an Afiican one, followiag the poor experiences and casualties suffered by the UN previously in the Congo (the case of the Congo1 Katanga is addressed below). nie UN Secretary General had the opportunity to spell out the UN position explicitly: "The United Nations has never accepted and does not accept and i do not belicve it will ever accept the principle of secession of a part of a Member tat te.""'

The Organiration of Afiican Unify (OAU) policy on the Biafhn situation sided unequivocally with the federal powers in Nigeria, relying on LTN standards to justifi its stance. Its adherence to the principle of self-determination as a right of peoples in the fiarnework of already defmitely constituted States on the Afncan continent (resuiting fiom decolonization) was solidified. The OAU was not prepared to extend its interpretation to entities which were not originally identified in the roll-cal1 of decolonization. Reflecting the general concem for stability amongst the newly kd States on the continent of Africa, Nigeria itself considered the Biafia essential to stability in the rest of its temtory. Nigeria itself had recently become one of the beneficiarîes of the standard of uti pssedeiis and the confirmation of the right of self- determination of îhc people inside its territory would have been completely undermincd by a secession,

The independencc of Nigeria fiom the British Empire in 1960, as with rnany new States in Africa, creatcd an entity with a high degrce of heterogeneity. Those differences in population werc particularly regional and cemented through the federation of the independent Nigeria with various ethnic groups king located in lS4 The importance of indirect intervention from other meniben of the intemational community in the forni of arms supplies has ken noted by some witcrs. Sn. cg., C. N. Okekc, Coniroversial Subjecrs ofConremporary lnrernational Luw,(Rottetdam:Rotterdam University Press. 1974) [Okeke] at p. 158.

15' UN Monthiy Chronicle. Feb. (1970) at p. 40. Sec also, J. Dugard, Recognition and the United Nations, (Cambridge: Grotius, 1987) [Dugard] at p. 85. specific interna1 provinces. At the tirne of independence, it was not considered that those ethnic groups should be given primacy in detennining the appropriate unit for statehood. Yet again, the self-detemination unit was identified in the context of the formally demarcated colonial territory at the time of independence, bypassing alternative considerations. The State was effectively defmed in line with the wording of paragraph 4, Declaration on Colonies and in the additional context of the fmal paragraph of the same declaration containing the precautionary words "any attempt at the total or partial disruption of the national unity and temtorial intcgrity of a country is incompatible with the purposes and principles of the Charter of the United Nations". Therefore, any group nume~callyinferior to the dominant population at the cime of independencc could be considered intemal minorities. Effectively, therefore, the Ibo also constituted a minority and a legal right of self-determination as understood at that time would not have applied to them.

Nonetheless, the predorninantly Christian b group, concentrated in the province of Biafra, brought Nigeria's tenuous unity to the bnnk of collapse in 1966. The separatist movement solidified, following violence, with a proclamation of independence in 1967. On May 30, the secession of the Eastern Region was proclaimed and the formation of the Rcpublic of Biafra declared resulting in a conflict until 1970 (by which time the Nigenan federal amiy bad forced Biafia into submission through nithless violence and blockades of food and humanitarian relief). If the declaration of indepndence amountcd to an act of self-identification of Biafra as a people with a right of self-detemination, then the validity of that claim was questionable fiom the outset. Bucheit proposes that Biah may have had a fmn basis to Statehwd (not least dernonstrated through ihm years of war and ~ufferin~~~~)and, indeed, a few mostly Afncan States did recognize Biaîra afkt they considered that the extent of the conflict was becoming intolerab~e'~~.However, the general levels of non-recognition

"'Bucheit P. 174

Is9Gabon, Tanzania and Haiti wcrc among tht fcw Staics to accord recognition witb such reasons. See Okeke. at p. 159. Numemus writers have &cd whrther Bi* was in fact a Statc at some point during the bldy wat that cndurtd Sec, e-g.. Dugard at p. 84. intcmtin@y, wtiile diplornatic relations arc not a condition of mognition, such an cxchanp mi@ be considmd a manifestation of a bona jide mognition; in this instance, no such exchanges wae undertakm It secms the case. thcrcforc, that by the international community suggest that the war had limited Biafia's ability to display or reveal that it had the necessary criteria for statehmd in place. Evidence of the international reaction is fûrther offered by way of approval or disapproval of indirect assistance to the warring parties. For instance, the British position Uisisted on allcgiance to its former colony, Nigeria. Its allegiance was furthet demonstrated through the continuation of pajment of taxes from the Shell-BP Company in Biafra to the Nigerian fedcrai authorities, as well as the shiprnent of anns ta Nigeria throughout the warlM. This reflected the British naditional stand on self- determination: it king normally viewed by them as a principle goveming the relationship between a population and its govenunent, and not as a right justifying xsnrionist rn~vernents'~~.(Indeed, the UK has becn consistent on the same point over many years: it tends to view self-determination as a political principlc rathcr than as a legal rig,td6'.) The operation of self-determination in the context of Biafra confimis that, even with the presence of a distinctive ethnicl cultural group and a strong measure of popdar support evidenced by the lengthy resistancc to the Nigerian army, the OAU and the intemational community confined the expression of statehood to Nigeria and rejected the notion of sece~sion'~~.This seems to have been particularly influenced by fears expressed both by the British and the OAU that acknowledgment of a right to secede would have caused an escalation of similar events both in Nigeria and further afield. Indeed, while France made an official declaration of sympathy to the Biafbn cause it did not go as far as to extend official recognition to it164.

beyond ibe issue of recognition the question of mlving the conflici was fomnon rarha rhan a drive to çec an indcprnd«u Biafra.

IboSec hirihcr, Okckc at p. 169 on British policy in Nigeria.

16' E.g., A. V. Lowe & C. Warbrick, "Recognition of States and diplornatic Relations" 37 ICLQ 1988 ai p. 986.

16' Bucheit at p. 89. Set ah, Nicic, at p. 220. tu Sec especially, Makonnen at p. 23. It alsa appears, gdly,that western support largcly favourcâ ihe intwty of Nigeria

'" Okckc at p. 167. Neither ibos nor Kurds have ever had any significant measure of self-government: they have ken associated with larger political entities, at least in the United Nations era of international law. Neither group satisfies the criteria for a right to statehood in the context of decolonization. This is because both fall either within larger or several different administrative entities identifieci with a right to decolonization. However, given that the post colonial temtorial arrangements seem to have had unsatisfactory consequences for these subState groups (Kurds and çbos), it may be asked whether sovereigaty is, nonetheless, necessary to adequately address their claims. The reactions of the international cornrnunity seem to indicate a negative response to this suggestion even though the resistance to statehood has profound humanitarian consequenccs in both contexts. The reasoning may be linked to territorial concerns addressed earlier: were an independent Kurdistan to emerge fiom iraq, it would, no doubt, involve threats to territorial integrity beyond the borders of iraq alona. The same is true of Biafra to the extent that it may have led to the cornplete disintegration of Nigeria and, not only that, but the spread of sirnilar claims throughout the Açican continent. Hence, there is liale doubt that the need to ensure general stability cames considerable weight in delegitimizing potentially destabilizing secessions and the international community may not be prepaced to consider separatism even where there is extensive bloodshed.

IV. Somalia

It has been argued that the UN Security Council in Resolution 794 lends weight to the right of intervention without govemmcnt ~onsent'~'.Certainly, the consent of the iraqi governent was not rcquircd in the case of the Kurds. But the humanitarian intewention of the UN in Somalia does not negate the possibility any right of separation exists. The mjection of secessions in Somalia lay principally in the fact that it had fallen into cornpiete anarchy. The international community was, therdore, unable to determine the territorial extent and electoral legitimacy of the various groups who sought to carve Somalia up betwccn them and a more pressing concern

163 1. M. Lewis, in K. Clcmcnts dt R W;ird cds., Building Internarionui Cornmunity: Co-operuringfor Peuce: Case Budies (Allen & Unwin cf al.: Canbcm. 1994) [Clcments] at p. 1 19. !ay in the need to avett a humanitarian disaster. Nor was it clear that any one group constituted a victirnized miaority. Rather the general population of Somalia itsetf was king deprived of any semblance of self-determination through interfactional fighting.

The compiicated clan structure of Somali society suggested that an ethnic carve up of Somalia on the basis of regional clan differences would not have represented a favorable problem solving approach fiom an intemal perspective. From an extemal perspective the difficulties would have been equally immense. By nineteen-ninety- one a wide scattering of separatist groups emerged fiom intemal conflict, amongst them groups linked to the former French colony (now Dijbouti), those attached to the Ethiopian Oagaden region, and those in the Notthem Frontier district. The international approach was to temove the rising conditions of anarchy and restore some semblance of statehood to the territos, as a who~e'~~.The prominent Somali National Movement (SNM),one of the several separatist groups, declared secession of the north-western region tiom the rest of Somalia in May 1991. This marked a reaction against the Somali dictator, Moharned Siad Barre (noted for Human rights atrocities against clans throughout n orna lia'^'), with whom the SNM fought throughout the nineteen eighties. The issue of the dictatorial regime aside, Somalia itself has a history of disputes with several of its neighboring States including Ethiopia and Kenya. In fact, at the time of its emergence to statehood, claims made by Somalia for the unification of al1 Somali peoples into one homeland presented a grave threat to the stability of a large region of Eastern Africa and the claims were thus widely rejected especially among African States themselves. Hence, aîler the faIl of the dictatonhip, the regional concems of neighboring States (especially Ethiopia which had corne close to loosing the Oagaden to Somalia in conflicts in the late 19701s), and the collapse of Somalia into a 'failcd State' with the intemal abandonment of humanitarian conccms al1 contributcd to a rejection of the claimcd lcgitimacy of the various separatist groups.

- - -- - '" "Somaliland Leader Rcnouncn Secession" Reutcrs World Service April30, 1994.

"'Reports of Mca Watch, 1990. cited in 1. M. Lemis, in Clmicnts at p. 108. V. The Katangan ~ecession'~~

The United Nations action on the seccssion of Katanga from the Republic of Congo occurred almost simultaneously with the General Assembly's formulation of the guiding principles of decolonization and self-determination in Resolution 15 14(XV). It is surprising, thetefore, that an explicit UN position on Katanga was slow to emerge given that the Congo represented in its entuety a colony of which Katanga was not sepamte but a fidl part. Of course, many European States at the time remained reluctant to surrender there overseas tenitories so there rnay have been some confusion in the United Nations over the process of decolonization. Prior to the declaration of Independence of Congo, by the Belgian Monarch in June 1960, the rumblings of separatism were beginning to awake in the region. Belgium initiaiiy decland Congo independent to avert the possibility of bcing drawn itself into conflict aimed at preventing Congolese independence. The province of Katanga, however, insistcd on Belgian assistance against the Congolese army. The eventual Belgian involvement came to bc scen as one of outside intederence in the interna1 affairs of a sovereign State and having strategic and economic logic behind it. in reaction, the UN Security Council issued a rcsolution calling for the withdrawal of Belgian forces'". Belgian involvement ceMUily diluted any clainu that Katangan secession was self-detemination in its truest sense and fiee of extemal interest. The Soviet Union was also supplying anns to the central Congolese govemrnent and was openly supportive of Congolese national unity and viewed the economic links of Katanga and Belgiurn (pmicularly, Belgium's mining intensts) as leaving questions over the legitimacy of Katanga's 'self determination clai~ns"~.Despite its role, however, Belgium never accorded full recognition to ~atan~a'~'.Subsequently, the CM pretended to remain alwf fiom the intemal aspects of the conflict, - prefehg to neither explicitly favor not disfavor the secession -, although its reaction to the

168 For an authoritative snidy of the Katangan crisis sec, C.B.,Conor Cruise-O'Brien, To Katanga and Back (1962).

"'üN Res. SI 4382, 14 Juiy, 1 %O.

"O Bucheit at p. 145.

"' Dugard at p. 87. Belgian involvement indicates it was, fiom early on, more favorable to the Congolese administration. Probably the more correct view is that the implicit (and later less ambiguous) actions of the UN reveal that the sanctionhg of one self-detemination movement's independence will take precedence over alternative daims. Although the UN avoided direct reference to intemal basic law on the matter (the Constitution of Congo was embodied in the Loi Fondamentale, which designated Congo as a unitary indivisible State), it seems to have regardtd Congo as the appropriate unit for decolonization without having to seek municipal justification fiom the Congo itself. in this case the people of the Congo were identified as having a cight to national self- determination in line with the standards of decolonization.

While the Security Council issued resolutions on the Katangan province declaring that they were not taking sides on the outcorne, the facts dictate otherwise. initially, the Lebanese ~recedent"~was intended to allow mmfor the UN to intervene as a neutral force in the conflict. However, that could have been interpreted as a recognition of the legitimacy of the Katangan secession, Apparcntly, the UN Secrctary General in trying to "walk the thin line" betweea non-interfcrence in the interna1 affairs of Congo and actual prescnce in the separatist province of Katanga "did not confiont the apparent significance of UN intervention as equivalent to a denial of the legality of secession" 17). in pct, this was a result of the takc-over of Belgian positions by UN forces. By faIl 196 1, the UN had become heavily involved on the side of the Congolese govenunent in ousting mercenary forces fighting on behalf of secession in Katanga. Then, following the death of the Secretary General Dag Hammerskjold, the UN became almost unanimously aligned in its determination to end the Katangan secession. It was unambiguous in declaring its support for the Congolese unity in early 1961"'. Dugard maintains that Resolution S/5002 of

ln UN Re. S/ 4389,1960. Lebanese Procedent. by *ch the UN airncd at a policy of neuuaiity despite intervention. ln Buchcit ejp. at pp. 146 - 147. "'W Res. Si 5002, 1% 1. November 24, 196 1 cm bc viewed as promoting the temtorial integrity of Congo and rcjecting any actions aimcd at the contrary or political dis~nit~''~.

The Congo was adrnitted to the UN without opposition marking the legitimacy due to it since dec~lonization"~.Subsequently, Katangan political leaders were unsuccessful in their appeals to the World comrnunity for recognition. The situation gained some clarity as a result of the emergence of Mer secessionist clairns within Katanga itseif, It demonstrated every likelihd of furtbcr disintegration if its independence proceeded"'. It seems valid to anticipate that territories identified as having a right to decolonization have that right as integral political units. The standards of decolonization, (including the application of uti possedetis and temtorial integrity in those contexts) can be expccted to endure in the presence of intemal secessionist attempts wherc the 'self aspect of the self-determination claim cm be called into question. Hence, if there is any prccedential result hmthe Katangan experience it is that any movement for national self-detennination mut at least satisQ the 'self part and not be an extemal construction. Of course, Congo it may be argued was itself the result an extemal construction, Prior to independence, opposition to the Belgian presence was widesprcad throughout the tenitory and although Belgium granted independence, it was supponed by pnor elections which resulted in a coalition govcmment and made Patrice Lumumba's pmy the largcst political grolip (interestingly, he had also represented the Congo at the Ali Afiican Peopies Conference in Accra in 1958 which accepted the principic that independence should apply ta the Afiican colonies as thcy were configured). VI. Transkei and the Bantustans The Bantustans ("homelands"), established by the South Afiican regime, came to bc rccognized by the international comrnunity as an attempt to denationalize the black populations of South ~tiica'~~.The failure of Transkei, a so-called "homelands", to attain statehood was primarily due to the racist policy factor behiid it17'. The apartheid system of govemment coupled with the right of self- detemination inspired the South Afiican regime to attempt, falsely, to acquit its responsibilities with regard to the various ethnic groups in South Afnca. The "homelands", designed to accommodate ethnic groups inside their various traditional regions, were granted independence through South Afncan legislation in an attempt to satisfy international demands on the right of self-determinatiodaOHowever, these acts were overwhelmingly rejectcd by the international ~ornmunity'~',which showed considerable solidarity with the State of Lesotho, for example, as it came under immense economic pressure tkom South Africa to recognize the homelands. nie UN Security Council expressly comrnended the" Govenunent of Lesotho for its decision not to recognize the so-called independent ~ranskei.""' Self-determination was a matter for the whole of South Afiica and not selected units within it. It has ken noted that the international community generally disfavors the establishment of States on ethnonationalist grounds. This stance is clcarly defended by the Transkei experience. Clearly, no govcmmcnt cxercising openly racist and segregationist policies can be said to be complying with the right to self-determination. This view is recognized by the Security Council in its rcsolution S/RES/402 (1976) 22 Deccmber 1976 where it considered Lesotho's position as an

'" Dufiani 98 - 108, especially at pp. 102-103. '" Kelly-Malone at p.88.

"' See, inter dia, UNGA Res. 2775 (XXVI), 29 Nov. 1971, which dictly nierred to the "homelands" policy as king contnuy to the right of peoples to self4etennination. Shonly aî?crwal& the international comrnunity through the United nations adopted the International Convenrion on the Suppression and PirnUhment of the Crime of Apartheid. 34 GA Ra. 3068 (XXVIII) UN Doc. Al 9030 (1 973)See also üNGA Res. 341 1 D (XXX), 28 Nov. 1975. la' S/RES/407 (1977) 25 May 1977 at par. 1. The Security Council was also "Convinced that intemational solidarity with Lesotho, as a neighbouring State of South Mca. is essential to counteract effectivciy South fica's policy to carce Lesotho into recognising the so-called independent Transkei." "[i]mportant contribution to the realization of United Nations objectives in Southem AfXca in accordance with the principles and purposes of the Charter of the United Nations."

The UN General Assembly issued numerous resoMons on the issue that called for the non-recognition of the so-called independent State of Transkei and al1 other Bantustans (homeiands) and called for the refusal of any dealings with themi8'. Clearly these could not qualify as bona fide self-determination movements in that the homclands wen hposed and not the rcsult of popular will. By extension the establishment of independent homelands did not represent secessions based on self- determination but attempts by South-Afnca to nd itself of the homelands. The international community rejected both the wholesale creation of statelessness and the deliberate misapplication of the principle of self-determination. The denial of support serves to point to the tact that, despite the policies pursued by the regime in power in South Afiica, the appmpriate unit for the satisfaction of self-determination was the State as a whole and not various minority and ethnic groups within it. Hence, even if the homelands were a popuiar and well supported idea amongst the various residents within the view that a minority group cannot inhent a right of national self- determination undcr international law is sustained and ensures that the homeland policy would not su~cccd~~~.Such gtoups could not be attributed the characterization e 'people' sincc at the vcry minimum they wcrc not a selfdefining group. Additionally, the enforccd nature of the homelands policy effectively ncgatived the 'self component of the right to self-detennination. The value of selfdetermination had to be protected to entitle the larger excluded population under the South African regime to a full political participation within that political unit. The experience serves to demonstrate the value of excluding minorhies hm a right to national self-

"' UNGA Res. 3 116 A of 26 ûctober 1976. Set also, UNGA Rts. 341 1 D 0 of 28 Novcmber 1975

"'One such "homeland", KwaZuly has supporied a policy of indcpmdcnce, howcver al1 the homelmds mnain wi$iin ttY Statc of South Africa. Se, higard at p.99.

las A conuiuy vitw muid, nodoubt, confiici seriously with ihc ICJ ruling on the peoples right io dctcnninc the d&y of th tmitory and not the otha way ~UOU~ detennination where it rnight be employed to ill-effect. It is clear from international practice that white South Afncans did not constitute a legal minority by virtue of their dominant position in that stateLR6nor did they constitute a people. The white South Afncan population constituted a very small numerical group in the context of the whole South African populace. Further, the regime they controlled violated international law and was therefore incompatible with the exercise of self- detemination. While there are no explicit guidelines on the degree to which a national self-detemination rnovement mut be supported, South Africa lends credence to the viewpoint that such a claim must emanate fiom the people and not fiom a self-appointed regime. Thus, a whoily representative goverrunent appears to be a better demonstration of the effective exercise of self-determination than the establishment or cession of territories to independent statehood. This is especially tcue where statehood is an enforced option rather than a chosen, agreed one.

VTL Federations in Crisis. Dissolution, Disintegrution and Separatism. A. The Soviet LJnionle7

Hannum has stated that the secession of East Pakistan and the collapse of the Soviet Unioc create no real prccedent for cases of contested sece~sion'~~.This might be supported by the fact that military interests played a key role in former Soviet poli~y'89.However, this view must surcly lcad to the conclusion that States an incapable of identifjhg any basis of legitirnacy for secessions othcr than being forced to recolyiize them as a nsult of brute force. This cannot be a correct conclusion if only because the international cornmunity has dedicated so much energy to

Sec above discussion on the minority quesiion at Chapter 3.3.

"'Bcfore its collapse the Soviet Union was a multinational State made up of at least 126 ethnic groups and 200 languages. Sec, e.g., D. Vdl"Ecmmic Devclopment and the Seatch for National Identity in Europe" in Remaâing lhe Middie Emr pp. 175 - 198. Verrall provides a concise analysis of the manner in which the Soviet Union matricd economic cmtralism to national identity. He asscrts that the rnarriage was a tenuous one and that attmpts 10 mate a Sovict idmtity wcrc undcnnùied by the process of eihnic idmtity rcgistration and cultural promotion ovn the life span of the Union (p. 189).

Sec, c-g. Hcraclides pp. 8ûû - 818. controlling and even thwsrting military might for the pwposes of temtorial gain. Despite Soviet constitutional provisions on secession, the Gorbachev regime did initially protest the independence claims of the flaltic States. in fact, few mechanisms actually existed to give meaningful force to such provision^'^^. In December of 1989, the Lithuanian Parliament declared its independence of the US SR'^'. b response, the Soviet Union sent in its military in a display of authority forcing the Baltic State to suspend its declaration. However, a more repressive crackdown met with international disfavor, (including embargoes) which demonstrated an implicit appmval of the Baltic States ~tand.'~.It is gencrally accepted amongst jurists, and opinio juris seems to support the fact, that the emergencc of the Baltic States to independence was more of a rem to sovereignty: a position the Baltic States themselves held. A recent IM resolution fiom the General assembly States explicitly, with regard to the withdrawal of USSR forces from the region, that

"The withdrawal of the armed forces of the former USSR fiom Estonia, Latvia and Lithuania has been one of the major issues of concem to the Baltic States since the restorrition of their independence in 199 1 ."'93[~yemphasis]

This might go some way to explaining international reaction to Soviet military action in the Baltic States. Nonetheless, if the international community was justifyllig its actions on some general historical legitimacy of the Baltic States to independence, it 0 would have been unwisc to do so given that many could easily have opened the doors to more pressing claims closer to home. Rather, it seems, international reaction focused on the consideration that the annexation of the Baltic States during World War ii was an illegal act under international law of the tirne and worthy of a remcdy.

'90 Set, Okcke at p. 47 whSays that thc provision on sccession was a fornial stipulation uiat would have km rcsistcâ in practice. Sec also Quayc at p. 223.

19' The Baitic States meda righ to sratehood duc to the nstoration of independence through de jure legai continuity. Set c.g., UN HRC Press Relcase on Estonia Country Repon, HRJCTl440 24 Octoba 1995.

19* Sec, e.g., B. Pankin, The Lat Hundred dup ofrhe Soviet Union, A. Pankin, tram., (1. B. Tauris: London/ New York, 1996) pankin] esp. Ar Chaptcr 5 - "The Human Righu Conference".

19' 19' LJNGARes. Af491419, 22 September, 1994. Clearly then, if secession is the correct term to describe the separation of the Baltic States, then it is legitirnate where it serves in the restoration of independence. The failure to act on such a remedy at an earlier occasion might best be put down to the cold war and other security htercsts which, in the this context, seem to have ken thawing sufficiently for international pressure to exercise more leverage. in addition, there was evidence of widespread popular support among the peoples of the Baltic States to independence. The rapidity with which international recognition and diplornatic relations were exchanged confms the independence of the States was a welcome event and equally demonstrates that the international community was satisfied that no major secwity threat would bc awoken by such a move.

The fiuther uncertainty and insecurity over the direction of Mikhail Gorbachev's Peresîroika project prccipitated, alongside a liberalization of the Soviet Economy, a parallei economic crisis. The political evolution of events led to a procession towards independence among the constituent States of the USSR, and a more delicate probIem for the international community ai large. Led by the ~kraine'~~,and subsequently followed by other States, thesc events presented the fmt significant challenge for the Soviet constitutional provisions on secession. However, the declaration by rnost States that refenndums would be held to determine the desire for statehood enabled a largely peaceful acquiescence in the process. The collapse of the Soviet Union, therefore, is not so much a stew of contestcd secessions as an array of simultaneous farewells: a procesr of di~solution'~'.

in an effort to appeasc sccurity anxietics during the transition to independence ( some States viewed the security issue diffenntly: Iran, for example, saw the dissolution as a wclcome relief hmregional dominance'"), the community of States impressed upon the newly emerging former cepublics to accept its recognition policies as ernbodied in

- '

19' 19' If is possible to refer to thc usage of tcrms such as "diucoluiion" and "disintegration". Sec gencrally "Break-up of the Sovin Union'*. Sce also Badinter Opinion No. 2 at KM p. 1587. the 1991 EC ~eclaration'~'.The Fornier Soviet States declmd their acceptance of international standards on hurnan rights and non-proliferation of Nuchweapons at Alm AIra in the Agreement Establishing the Commonwealth of Independent ta tes'^'. The United States, subscquently, delayed recognition of six of the former republics because of concems over commitments to such dernomatic principles and human rights standards. The EC information Ofice issued a statement of policy to the sarne effcct that the prospect of recognition could only be envisaged in the content of guarantees oii human rights and protection of minoritiesiYY.At the very leost on the part of European States (and probably on the part of their allies in the international community), the rcquirement of adherence to standards of practice in international relations and noms of international law will be required with regard to any new seIf- determination unit. Ethnonationalist groups with sccessionist agendas will fail on the basis of the international reaction to the collapse of the USSR. Such is the emphasis the intemationai community placcd on the 'lames Baker Principles' of democracy and the deof ladm, a self-thtermination movement will fail where it is unilateral, unsubstantiated by cvidence of dernocratic legitimacy, and not in accordance with the democratic values, practices and principles of the Helsinki Final Act, the same values and principles echad by the EC at the the.

In nineteen ninety four, the world leamed of a thrcat to the newly independent Russian Fedcration. It was syrnptomatic of a pmblem witnessed by many with the collapse USSR:

'*EC Dociaratlon on Yugmiuviu and the Guidelinesfor the Recognition ofNew States, 16 Dcc. 199 1, 31 ILM 1485,1992.

19' 31 LM 138,1991. Su also, Rlm Alta DrcImatIon of 21 Dec. 1991,3 1 LM 143,1992.

XI' For background su, inter dia, S. Goldcnberg, The Priûe of Smdl Nutionr: The CUUCUSand Parr Soviet Disorder, (Zed: London, 1994) [Golcùnbcrg]. M. Bow, cd., îhe North Caucw Bawier, (Hum Pubüsbtrs, Londoh 1992) [Boxrupl. "nie Leninist-Stalinist Soviet Union was welded together by uncomprornising Bolshevik mcthods. . . . .With the Stroke of a pen they were once again converted into masses, who now inhabit the immense temtory of the former Soviet Union, their erstwhile moiberland, and try to find out whose citizens they are, in which anny they serve, who is a native citizen, and who is a national min~tity-''~O~

When it came to Russia the situation was telling:

". . . [They] were in the worst position. If the roughiy 30 million of them who live outside the Russian federation were to become refugees or émigrés, the result could only be chaos on an unprecedented sca~e".~~~

But, therc was more immediate cause for concern emanating fiom inside the Russian federation when Chechnya dcclaied itself a sovereign State.

"The Chechen-ingush Republic is a sovereign State, crcatcd as a result of the self-detemination of the Chechen and ingush peoples 9, .204

The Chechens, a distinct population with language, tradition, culture and custom unique to them and originating in an "obscure and ancient" past205,were incorporated within the Russian Federation approximately two hundred years ago. Unlike the 'Union Republics', such as was the status of those republics which emerged to @ independence fiom the former Soviet Union, Chechnya was an "autonomous republic". The former 1922 Constitution actually served as a basis for the eventual the split in the USSR. The Russian Federation, which emerged itself fiom that split, did not ncognize either politically or in law the right of its 'autonomous republics' to a similar process of secession. Hence, the statu of 'people' with the legal implication

2M Article 1 of the Cheehen Dcclantion of [ndcpcnâcnce citcd in C. Gall & T, De Waal Chechnya: A Small Vic~oriousWm (Pan: London. 1997) [hminafter Chechnyal at pp. 99 - 100.

'O' Ibid., p. 24. of a right to national self-deterrninütion always e~istedfor the Union Republics but not for the 'autonomous republics'. Since international law does not have any interdictions against agreed secession, the Union Republics could also be rightly considered separate self-determination units will the fullest of implications. in fact both Ukraine and Belorus were full United Nations rnembers ever before the collapse of the Soviet Union (and as we have seen the many States never recognized the annexation of the Baltic States).

Contemporüry Russian policy is. however, unsympathetic to separatism in Chechnyu and in general:

"So-called self-determinütion wris often an act of primitive separatism, or an

aggrcssive nationalisrn. to crerite ü Stute for one ethnic group and force out other groups. Sclf-detzrmination only reaçhed its true purpose when the entire

population of ri territory enjoyed al1 its rights fully and took pan in the pr~~e~~."20u

Again. a right of ethnic self-determination is clearly rejected. On the other hand, it seems irnplicit that where self-determinrition's "true purpose" is not reached then self-determination might justify sepwritism in other instances as, for example, it hüd done in the context of Soviet dissolution. Indeed, the dernise of the USSR was a largely solemn affair. In contrast. the Russian government was well aware that the Caucus Region is as infamous for ethnic unresr as that which spawned the terrn Balkanization (the Caucuses is a hotbed of separatist and ethnic conflict from Nagorno-Kwübakh to Moldova, Abkhiuiü, Tudzhikistan, Ossetia and Trans-Dnester to name but a few). Moscow wris least likely to entertain any serious atternpts at secession insofar as it had nothing to do with the 'true purpose' of self-detemination as it saw it. Russia rejected the legitirnacy of Chechen independence on these grouncls and strengthened its arguments on the biisis of the non-participation of ethnic Russians in the region's eleciions, lowl uncertain polls, in addition to the fact that the

m UN GA/SHC/3378.6 November 1996. debotes More the Third Cornmittee. federal elections on the reorganization of the Russian federation had been sabotaged in Chcchnya by the holding of an independence plebiscite'07.

Morally, such a claim of national self-determination might seem to apply to the Chechens given a temtoria! identity, disiinct language, culture and ethnicity and, above all, a history of s~bju~ation'~"ln 1997 that moral claim was coming closer to political reality but not before conflict had ravaged the Chechens. Initiaily, the US showed a favorable response to the increüse in Russian militq in the Caucuses in response to the secessionist threats and that attitude was taken as a rejection of the separntist movement However, the rictual response of the Russion armed forces in Chechnya aroused significant international di~~uiet"~.The use of force led to an unexpectedly bloody wür, with the Chechens demonstrating a fierce resistimce and suffering catastrophic civilian casuülties. The EU was prompted to delay an economic accord with the Russians over the heavy-hmded use of force"' and the US had also begun to express concern over the Russian military offensive. The UN Human Rights Commission

"was deeply concerned that in spite of its urgent call, the disproponionate use of force by the Russian Federation Armed Forces. resulting in a high nurnber of civilian casualties, continued leading to the grive violations of human rights, as well as of international humanitarian I~w."~"

'O7 Yeltsin condemned the Cheçhen congress dedaration of independencc on lune 9th, 1991 saying it was 'openly ant-constitutional'. Cited in Clicclitiyu ai p.98.

2011 See. in generril. C/irc/i:iyu. Gd1 & de Waal provide an excellent background and history of the Chcchens up to and including the recent çontlicl. They provide besides detailcd xçounis of the vürious çontlicts. pogroms and deponations under Stalin. an insight into Chechen culture.

"' See, cg.. D. Quinn-Judge, p.5 The Boslon Globe, May 11 1993.

"O Human Rights Watchl Helsinki, New York, 29 Dec. 1994 noted reports of breaches of both the Iaws governing the conllicl and humanitarian law. See also, J. Bernstein. "Grozny 1s r City Beyond Rrpair". Wall Street Journal. ?O Mar. 1995.

" ' US News and World Report. No. 2 Vol. 118, p.41.

UNHRC Press Release HRJCNl75 1.25 April 19%. By 1996, Chechnya was being spoken of in tems that were less condemnatory of its attempts at separatism. The OSCE was also speaking about the importance of elections to legitimizing the democratic power of the State and in fact participated in that process in early 1997~".However, the fate of Chechnya remains undecided. Chechnya is in many ways in limbo or, as Gall & de Waal point out, in a worse State than prior to its bid for independence: it is shattered both physicaily and economicdiy and still without international recognition214.But shou1d the Chechens qualifi for a right to statehoodi?

Chechnya is neither non-self governing to the extent imagined in the Decfuroiion on Colonies, which refers to dependent peoples of trust and non-self governing peoples in line with the UNC Article 73, and Chapters MI and Xm. Hence, it does not satisQ a basis for national self-determination within the justificatory limits of decolonization. We aiready know from our study of minonties and indigenous peoples that those legal characterizations have no implications in terms of a right to separatism. Irrespective of the degrees of economic and political power conferred by autonomous republic status, Chechens remained numerically inferior in the context of the dominant Russian population. Hence, the legal characterization as 'minority' seems fitting to the ~hechens*". It seems appropriate, therefore, thitt the right of self-determination, which is a right of peoples, had not been singularly extended to the Chechens fiom the vantage point of international practice. Territorial considerations are also crucial in this context. The choice of the Chechens to go independent was not agreed to by their irnrneâiate ethnic cousins the Ingush, thus opening up another territorial debacle over where to draw the Iine between Chechnya and Ingushetia. Already, unsatisfactory attempts were made by the Chechen authorities which contributeci to conhion over the validity of polls. In such circumstances, stabilizing mechanisnu such as uti possedetis would have been utterly useless.

"'T. Goltz, The Nation. Vol. 5 No. 264, Feb 10 1997. "'Chechnya pp. 362 - 37 1

"5 Sœ supra note 100. On the other hand, it is regrettable that independence was so cmelly withheld. As one commentator says:

"The issue wos really one of freedom and hwnan rights of a long-oppressed people. Using the fonnulae 'sovereignty' or 'self-determination', there were plenty of possibiiities for constructive c~m~romise".~'~

It is notable iliat tiie iriilially hardeneci attitude of the international community coincided with an absence of clarity as to the extent the separatist forces and the degree of support enjoyed by the govemment. The war eventually provided ample evidence of the Chechen sincerity over independence. The international change of heart as the confiict dragged on suggests that had the violence persisted recognition of a separate Chechnya rnight not have been unrealistic. The Tact remains however that it did not happen. The context dictates that submission to Chechen separatism would have been a dangerous regional maneuver and, although many Iives were lost in the battle for Grozny, it cannot be doubted that the situation in the Caucuses, in general, would have been exacerbated had Russian authorities capitulated to the unilateral nature of the act. And yet, there remains a likelihood that Chechnya will become a fully recognized State through a lengthy process of compromise2". As it stands, Chechnya has most of the apparati of statehood and appears couched in a period of waiting and quiet(er) transition to independence: (a period of transition that still requires the inph question to be addressed). States, meanwhile, cm appreciate that a military offensive which results in the type of civilian carnage that hit Chechnya only lends greater credulity to a right of secession, if only to escape annihilation.

C. Yugoslavia

The clearest challenge to the integrity of the Yugoslav State came with the Slovene and Cmat declarations of independence, both claiming substantial majority support

2" The Agreement achieved wiîh the Russians by C&chm General Alexander Lebcd envisages a negoliateci solution wiîh a leagthy interim phase to deflect any potential hadeflects hm an instant unilateral secession ûom the Russian fcderation. Sec, e.g., The, 30 Mar., 1998 at p. 38. (in the case of Slovenia, ovenvhelming support). Thus, the break-up of the former Yugoslavia becarne quickly charactenzed by conflicting daims of authority between the federal govemment and the constituent State members of the federation. Unlike the USSR, the federal authorities were less keen to surrender to the demise of tbe federation despite the fact that constitutional provisions also existed providing for sec es si on^^'^. The federal government, for example, ordered Slovenia to surrender control of the borders with ltaly, Austria and Hungary by July 7 of 199l2I9.However, the authority of die federal government may have ken somewhat mispiaced given their gross mishandling of the State fui an ce^^^'. Evidently, nonetheless, Yugoslavia was not prepared to recognize secession in practice. The immediate reaction of the international community and principally the EC, through the Brioni Agreement, was to facilitate negotiations on a peaceful solution, which would, preferably, maintain the integrity of ~u~oslavia~".Indeed. the EC position as of March 1991 was distinctly in favor of the maintenance of uni$22. Hence, opposition to secession did seem implicit from the outset. The independence declarations were, subsequentiy, suspended during which time the international position on the integrity of Yugoslavia was maintained and supported through, inter alia, the declaration on the establishment of the Badinter Commission: with the EC hoping not to be drawn prematurely into the unforeseeable consequences of dissolution. The United Nations Security Councii Resolution 7 13 of 25 September 1991, 3 1 LM 143 1, 1992, par. 7 made clear that it was unable to recognize the Yugoslav republics ôecause of violence and urged States against any action that wodd adversely affect the situation. In this context there is a clear indication that secessions through the use of force are unacceptable, The

211 Sec, e.g.. J. Charpentier, "Les declarations des douze sur la reconnaissance des nouveaux Ctats", % RGDIP 1992 [Charpentier] at p. 350. The right to secession was incffective however - W. Rohs, "Balkan Crisis" in Defense and Foreign Affairs Stratcgic Policy, April-May 1993 at p. 6.

"9 Reponed by Reuters AE, 5 July 199 1.

This is most receniiy demonsmcd in the collapse of the SFRY and the 'looting' of federai fun& by ihc Serb government kforc the break-up of that State. Kelly-Malone at p. 83.

"' The Brioni Accord provided for a themonth moratorium on political and military confhntation; see Pankin p. 19 1.

See, M. Wilson "The Baücans" in CIements at p. 143. Secwity Council put in place an embargo on the whole of ~u~oslavia~~~.This arnounted not only to a denial of separate identity to the constituent tepublics but, in addition, to an implicit acknowledgment that Yugoslavia remained the appropriate entity on which to levy such an embargo. The US position was also adamant; they neither supported nor tolerated secessionist rn~vements'~~.

However, the progress of events in Yugoslavia made break-up appear a real like~ihood"~.Faced with this reality and drafhg its guidelines t'or recognition, the EC made clear that dissolution was going to happen on its terrns. In tandem with this position, there was the clear possibility that the non-recognition of Slovenia, Croatia and others, contrary to the wishes of the peoples involved, would spark the conflict the EC particularly desired to avoid. On the other hand, recognition itself ran the same ri~k~~~.The German move to recognize Croatia had considerable efféct on the EC in this regard. It forced the EC to follow suit to present a show of solidarity on the type of comrnon foreign policy aimed at under the T~eatyof European Union. Subsequent to the political confusion of the period, tfie actions of States appear signifiant in crediting the claim that the force of constitutive recognition is gaining ground, For the purposes of the present inquiry into the legitimacy of secession, such a policy determines the indicia that will deny or at least severely hamper an entity's statchood aspirations. The British position summed up the approach; "One of the major levers we have in order to get people to address fully and properly the question of minority rights is re~o~nition."~'In this way the international community has been able to overwhelmingly recognize Bosnia-Henegovina, whose politicai repmsentatives have given thosc comrnitrnents, even though it is questionable

ru UN Sec. Co. Res. 724.15 Dec. 1991

"' US State Deparhnent, Governments Docs., Position in Relation to Unilateral Proclamations of Independence of Croatia and Slovenia, 26 June 1991. See also J. Salmon, "Reconnaissance des États" 1992 RBDI. p. 232.

3U Bosnia made its parliamentary declaration of independence on October 18 1991. The process of "dissolution"was ncognised by the Badinter commission in its Opinion No. 1, Badinier Opinions.

"* Charpentier at pp. 343 - 4.

" C. Warbrick, "Ciment Developments in Intemational Law Recognition of States" 41 ICLQ 1992 [Warbrick] at p. 476 whether Bosnia constitutes a State given the absence of effective control over its own tenitory2'! The 'Statement of the ~welve"" declüred 'The Community of its members will never accept a policy of a fiiit accompli. They are detennined not to recognize changes of borders by force and will encourage others not to do so", and in this regard international practiee has ken consistent and forceful. But such a position does not exclude other possibilities such as the actual recognition of new entities so long as the emerging borders are not the product of aggression.

The case of Yugoslavia requires recognition of the fact that the federal bonds had disintçgrated in ri münner which the federd government was unwilling to recognize. Much of the initial violeiice in that context also related to the federal authorities and army being Serb dominated (echoing back to a similar situation in East Pakistnn over twenty yeus earlier). The break down in ties was incapable of being sustained at a national level. In other words the process of self-determination in Yugoslaviü had becorne irrepwabl y fractured: the 'set f had effective1y disappeared - the people was no longer identifiable iis the temtory of Yugoslavia was no longer identifiable, Indeed. one observer has made the point that lost fedcrd conlrol turns an intra-State dispute into an international one'3" bst control is cenainly a matter of concem for the international community as the case of Somalin demonstrated. However, in order for federal States or republics io be regarded as parties to an international confiict rather than a civil one, lost federal control has to be such that it is not a matter for a new regime to take over federal control; in other words, the political will to retain the federation must be vanished to the point that no federal authority can be restored. The recognition of the independence of the former Yugoslav republics is a reflection of such collapse. It is also cfear that thcre is na sliding scale of Statehood: an entity is either a State or it is not. It may well be tnie that cenain mrlngements, such as

na Jadranko Prlic, Foreign Minisrer for Busniü and Herzrgovina acknowkdgcd the difficuliicç ihai statc had in cstnblishing itself fully wiihout international CO-operation.'The Presidcncy. Council of Ministers and ~arliarnentwere f~nctionin~,but hiid noi pi reached optimal prforrnoncc. The system of cantonal power and administration was ils0 getting into shape. and through it an equd representotion and participation of different rthnic groups in power-sharing should be secured." See. UNGA Press Rrlease GAI93 L3. 14th Meeting. 26 Sept.. 1997.

'3 ECIS. 29 Aug.. 199 1.

230 Kelly-Malone. at p.83. autonomy etc., may facilitate the path of an entity to statehood but it doesn't change the fact that an entity is not a State without the conditions of statehood as specified in the Montevideo Convention of 1933. Similarly, the argument against the division of Québec in order to allow certain regions remain in in the event of a secession must rest on the extent of the territory and control at the time of independence (assuming that the Canadian federation as it is presently configured dissolves).

D.Yugoslavia: Afler the Full.

"Out of Yugoslavia, only Slovenia emerged as the closest to a nation-state. Croatia, Bosnia, Former Yugoslav Republic of Macedonia, and the remnant Yugoslavia remained multiethnic states of varying degrees." *". Subsequently, the claims of other groups fiom Krajina in Croatia to the Bosnian-Serb dominated regions of Bosnia- Herzegovina and of ethnic Albanians in Kosovo have met with steadfast international rejection. In the case of Bosnia the international community helped to formulate alternative structures to new ~e~aratisrn~'~and in other cases it continues to demand negotiated settlernents to disputes that do not include the separatist option. A number of reasons may be posited for what is a seeming inconsistency between the recognition of the former Yugoslav Republics and the current rejection of recognition for Kosovo and other separatist regions. Firstly, except for Montenego, which chose to remain with Serbia in the wake of the collapse of the SFRY, al1 of the former constituent republics of the SFRY have attained independence. Kosovo, for example, was not a constituent republic of the SFRY and could not, therefore, assert a daim to independence with the same strength of argument as the likes of Slovenia or Croatia

"' Hence, the daim that Québec secession fiom the Canadian federation will justify the portionhg up of Qudbcc (uiereby preventing non-Francophones and those of Cmdian allegiance hmbecoming national and linguistic rninorities within an independent Qudbcc, (as the Qudbecois are presently in Canada), is not sustainable. See contra, e.g.. T. McAlpine, The Purtition Principle: Remapping Quebec der Separarion (Toronto: ECW Press, 19%) WcAlpine].

kdranlro Prlic, Foreign Ministet of Bosnia and Hmgovina, noted, for example, that "The Dayton agreement had set the basis to cirail a constitution for Bosnia and Hcncgovina that took political reality into account, using the only possible formula: ihne peoplcs. tw mtities, one State. lnsti~ionsat the Sîatc lcvel had bcm esiablishcd." UNGA Press Release GA193 13 14th Meeting, 26 Sept., 1997. when the SFRY fell apart. That said. any entity claiming statehood where the characier of boundaries is in doubt leaves any means of new international boundary demucation cornplicated to say the least. In the case of Kosovo, the entitlement to its own international frontiers is hotly disputed by Serbia. More specifically, perhaps, separitism in regions with a predominant ethnic group and that are generilly locatable but with very indistinct tcmtorial limits are certain to render those regions highly volatile. especially where there is contact with other ethnic groups within the region or on its periphcry. Such dilemmas ore likely to fornent temtorial conflict

form ri solid basis for the rejection of statehood claims that are. This is especially true in the Balkan region given thiit it is Iargely a place wherc " [AJssimilation by different east European ethnic groups was often frustrated by the absence of an ovenvhelrning rnajority of any group within a country or region and the inability of any culture to stand out as stronger from either a productivity or spintual per~pective."~~":with the result that States like Bosniic are incapable of further division without becoming a patchwork of ethnically defined enclaves'3s. It is not the likclihood that enclaving on this sale would render such units econornically rtnviuble but the hct that enclaving by its very nature runs in direct contradiction to the international legül standards on discrimination. It rnay be useful to recall that the Ititt~niurionulCoriiwirion on the Eliiriinurion of' al1 jurnis of' Ruciul Discrintinuriori (CERD).which has ken in force since 1969, has the centrül purpose of pursuing " by

riIl appropriate rnans and without delay a policy of eliminating ricial discrimination in al1 its forms and promoting understanding arnong al1 races".2360n this very basis alone, separütisrn with a discriminatory motivation (what may be tenned as discrirrikutory secessiori) cannot have a legal justitlcation. While it is true that many of the former Yugoslav republics behaved reprehensibly in exercising their ethnic and territorial ambitions, it is not absolutely true to suggest that that was the spark to the collapse of the federütion. But, these ambitions appear forernost in subsequent

23'For exarnplr. "carving out a Greatcr Serbia IO encornpass the Serbian diaspora of Bosnia and Croatia within the old Yugosbvia çould have been done no othrr wüy cxcept by punching corridors ihrough Muslim-majority areas and Iaying sieg to Muslim-majority cities." Thomas P. 56

CERD was adopied on kember 21. 1965 and carne inio force in January 1969. Coriveriiion on the Elirnination of al1 for~ttsof Racial Discrir~iindon,660 UNTS 195. separatisms. A countermeasure against such eventualities is that international law seems to insuiate nascent State boundaries in so far as they track delimitations of the former fderal tat te^^', thus lirniting the potential of separatism for separatism's sake. This is tnie of the ex-USSR, and it was a standard applied to the republics of the SFRY also. An obvious caveat is, for instance, that "the continued presence of a federal territorial claim defeats a counterclairn to statehood advanced by a local region seeking independence". The demise of the Yugoslav federation took place in the context of a 'flawed belief that it was intact2". It is clear that international law does not explicitly condemn secession and the fragmentation of the SFRY has ken accepted with the independence of the fonner Republics. The insistence on Bosnian integrity arises agsiinst a background of opposition to discrimincltory secession and aggression frorn neighboring States - both edicts under international Additionally, it may be said that international pmctice will demonstrate less vociferously against the collapse of federal as opposed to unitary States. The tenuous unity now displayed within the Russian federation in relation to Chechnya rnay be an indication of this pattern, and already Chechnya has won the recognition of Turkey. On the other hand the ' indefinite divisibility' of which Bucheit speak~~~'seems avoidable insofar as uti possedetis was a fixed nile applied to the Yugoslavian Republics unlike the predecessor State itself.

WU. Eritrea: Eihiopia Divided?

The claim by Eritrea that there was never such an entity as Ethiopia-inclusive-of- Eritrea sccms to echo claims by other secessionist movements as to the legitimacy of their causes24'. Significantly, the recognition of Eritrea by the United Nations was the

Kelly-Malone ai p. 102,

U' Id. at pp. 101 and 109.

'The United Nations, led by the Security Couacil, stood fmly behind iotcrndionilly icccpted nomand priaclptes in order to open the space for negotiated and peacchil solutions." - J. Prlic - UNGA Rcss Rclcase, GAI 93 13. @nphasis added].

240 Bucheit at p. 5 1. recognition of a State which came about as the result of a long secessionist drive242. Legitimacy was added to the process by virtue of the fact that the referendum for secession was supervised by the United Nations. Thus clearly, the one time assertion that the UN would never conceded a right of secession has been diluted ( See above at Section U of this Chapter).

Eritrea formulated its claims to independence in the frarnework of United Nations standards on decoionization. It ciaimed that as a former coiony of Italy (uniike the rest of Ethiopia) it was entitled to independence via a process of decolonization by virtue of UNGA Res. 1514(XV). Ethiopia seemed to have capitulated to this argumentation conceding that the secession of Eritrea was in order to address the restnicturing of colonial States to allow proper devel~~rnent~~~.It is perhaps also likely that three decades of conflict proved a more convincing argument. If either of these issues are the case then Eritrea might reflect a situation of remedial secession. From a municipal point of law that would seem a comect justification. The legitimization fiorn an international law point of view is less explicit. Implicitly, given its facilitation of the referendum, the international community accepts the reasoning which led Ethiopia to accept Eritrean independence. The significance of Eritrea's fonner colonial status is mitigated by the fact that it joined with Ethiopia in nineteen fifiy two. The secession had more leverage in the fonn of Somalia's backing of the Eritrean Liberation Front and, indeed, Arab aid in the broader context of Middle East conflict.

Since the independence of Eritrea, the Ethiopian Assembly has gone on to become one of the first States in the world to approve a clearly articulated constitutional mechanism for the exercise of the right of self- detennination for al1 nations and nati~nalities'~~.This is no small achievement for a State which has been a driving

'" WGA Res.l47/230,47 UN GAOR Supp. no. 49, UN Doc A/ 471 49 (1 992). Ericrea was granted spedal permission to secede from Ethiopia after a 30-year civil war and a successful independence referendum in Apnl 1993, supervised by the United Nations.

'" Financial Times, London, 51 51 95

'" Articlc 39 of hc drafl ConStinition of Ethiopia, 1994. force behind the Organization of African Unity and a participant with the United Nations in, amongst other places, the Congo Five sub-articles detail the conditions for the right of nations, nationalities and peoples to secede fiom Ethiopia. Under the draft constitution, a two-thuds majority in the legislature of the nationhtionality wishing to secede must approve secession. The federal governrnent is then required to organize a referendum within three months in order to bring the matter to reso~ution~~~.This is not an insignificant event given that Ethiopia has a very heterogeneous ehic population In addition, opponents to the new ciause, who argued that îhere was no need to include the right of secession since the rest of the articles of the constitution would guarantee minority rights, failed to undo overwhelming parliamentary support for the secession provisions. On the contrary, supporters of the secessionist clauses legitimated their stance arguing that a right of secession was a rncans of threatening emergent dictatorial nile or the possibility that minority rights would go unheeded in the future.

The possible future emergence of new States through the constitutional mechanisms of Ethiopia is new in so far as they have a basis for legitimacy. This case demonstrates a departure from the general position of member States of the Organization of Afiican Uniry. But, it is not the first such departure as the case of Biafia demonstrates. Clearly, there seems to be room to argue that secession is gradually gaining ground as a recognizable possibility amongst a growing number of African States. Contrary to Hammerskjold's assertion in the midst of the Biafran crisis, it seems unlikely, given the Ethiopian case and the Biahexpenence, that the OAU's blanket rejection of secession will remain in the long ter~n~~'.Ethiopia's success in stabilizing interna1 relations, through its new constitution, may mark a new route forward for States in AErica and elsewhere plagued by political upheaval and strife. indeed, there is little doubt that the dictatorial regimes, which dominated

"' "Ethiopian Assembly Appmves Right to Secede" Deutsche Presse-Agentur November 23, 1994.

2'6 Religion: Approximately 41% Coptic Christians, 38% Moslems, 16% Tribal religions, 5% lews- Other. Ethnicity: Amhara, Hamitic, Negro, Falashas, Indian, Arab. Amienian, Italian.

''' "Long tm success . . . will depend lcss on idcology hnon its ability to feed the 54 million inhabitants of the world's second poorcst counhy". Se, 'Ethiopia Buries the Ahican Nation-State', Financial Times (London) 5' May 1995 at p.3. Ethiopia up to nineteen ninety-one, were respansible for the determination arnong the people of Ethiopia that such a system of governance should not be allowed to dominate again. It seems the effective exercise of the right of self-determination in Ethiopia has been through the development of a political system suited to the common beliefs and aspirations of the people in the State and that includes a conviction that secession ought to be part of their constitutional framework.

iX.East Pakistarù Bangladesh: A Case of Remedial Secession?

In June 1974, the former province of East ~akistan*" was admitted to the United Nations as a new sovereign and independent tat te*^^. Pakistan (prior to 1971, made up of an eastem and western wing separated by the Indian sub-continent) experienced the first successful act of secession in the UN era. It seems noteworthy that the question of a pre-existing federal structure which was prominent in the break-up of the Soviet union and Yugoslavia was also featured in this context. In addition to the expected intemal administrative divisions among regions found in States of this type, Pakistan was also uniquely divided into hvo distinct and totally separate geographical regions: the Indian continent placing at least a thousand miles between the eastem and western parts. Hence, even if separation were an unlikely event, the distinctiveness of Pakistan's borders was significant in that, as a State, it had two quite separate sets of international borders. Interestingly, the issue of geographical separateness as featured in the context of decolonization would seem relevant to the present context or, at the very least, difficult to exclude fiom consideration2", The only unifying element of the East and West was the existence of a predominmtly Islamic tradition in both regions (thh king the basis on which the two parts became

"'See, cg., Ved P. Nanda, Sel/-Determinarion Outside the Colonial Contexr: The Birth of Bangladesh in Retrospecr, in Self-Determinarion: National, Regional, and Global Dinienrions 193 (Yonah Alexander & Robert A. Friedlander eds., 1980).

Ii9 üN Sec. CO. Res. S/ Res.135 1, 10 June 1974. Although it had become a State by the end of 197 1 its ndmission to the United Nations was delaycd by a Chinese Veto at the Security Council. Set, c.g.. Dugard at p. 75. jointly separated from the Indian sub-continent in 1947). In al1 other respects, differences ktween East and West extended through linguistic, cultural, ethnic, and racial indicators.

Separatism emcrged among the Bengalis through a marriage of several factors, particularly social and econornic. Subsequently, political mobilization led to the development of negotiations over the future of the Pakistani federation. The intention was to give increased powers to the Eastem part and reduce disparities between the two portions of the country which had evolvcd to significant levels in the twenty three year history of the State, (One might be justified in considering such a process as an effective cxercise of self-determination in process). Polarization of positions led to the collapse of negotiations. The Eastem proposais (the Six-Point Plan as it was known) were rejected in the West leading to an outbreak of civil unrest in the East where they werc overwhelmingly supported. In the East, satisfaction of the Six-Point Plan was seen as the only way to relieve significant income disparities, underdevelopment, and extreme and widespread poverty as compared to the test of the country. The Plan was seen in the West as too extensive and posing a real threat to national unity. This prompted the Western dominated federal government to send an army primarily manned by soldiers from the West into East Pakistan. Significantly, an issue which reappears in this context has echoes of the South Açican establishment of the Bantustans. The comparison lies in the fact that the actions of Western Pakistan represented an effort by a minonty western controlled federal govemment to impose a solution on the eastern half of the country where the majority of the whole country's population resided. Such an imposition then clearly amounta to a breach of the standards of self-determination insofar as the majority population (with its own distinctive personality on a variety of levels excluding only a religious one) were king denied an effective input into the political determination of the State as a whole.

In response to the actions of the federal govemment, Bangladesh made a declaration of independence, followed in tu.by an extensive and brutal onslaught fiom the West Pakistani forces. It was an action no less deterrnined than that which led to several recognitions of Biah independence a decade earlier. Once again the question is prompted: to what extent is secession legitimated as a remedial act addressing a legacy of socio-economic neglect and more recent violent conflict, especially the use of excessive force against a civilian population? in addition, would the geographical isolation of East Pakistan bom the West have any significance on the legitimacy of its claim to secession? And further, To what extent (if any) would an East Pakistan secession trigger a wider regional crisis, given that these WO~~Sfeatured in other secessionist çontexts?

initially, the majority of States in the United Nations opposed the secession of Bangladesh. In fact, as Hannwn points out, despite global condemnation of the brutality of the Pakistani Amy's operations in East Pakistan, the thought of a new State was not foremost in the minds of the international comm~ni$~'. It was not until events in Pakistan led the conflict to take on an international character that the attitude of the international community began to change.

One of the Key players in the Bangladesh secession was india: a notable proponent of the principle of temtorial and political unity of sovereign stateszS2.in order to justify the conflict of positions in its defense of Bangladesh, India referred to the crisis in political terms. However, the legal weight attaching to its actions should not be understated. hdia was burdened by a severe refigee crisis leading millions across its borders. These events appear to have taken the conflict out of the realm of intemal Pakistani affairs and made it an international concern affecting, at least, the State of india. indeed, india took the view, in light of the refugee crisis, that it was not in its interest to stand idly by as an unarmed population suffered egregious attackzS3.Some commentators have criticized the indo-Soviet Treaty, which facilitated India's involvement in the conflict, as a mask for a hypocritical position on territorial integrity (the USSR asserted support for Pakistan's integrity while supplying support

2s 1 "RethinlOng Self-Detamination" at p. 49 - 50.

152 Quaye p. 224.

'"Okeke, ai p. 147 to india's military involvement in the war with Pakistan). However, it does not seem hypocritical to support a principie such as territorial integrity while being forced by humanitarian necessity to violate it, and as we have seen previously the principle of territorial integrity is not a sfiield for absolute sovereignty of States parîicularly in humanitarian matîen. Indeed, the general international support for Pakistan seems to have begun to wme as the conflict escalated into a humanitarian disaster. in addition, Pakistan showed no inclination to capitulate to international demands that it resolve the issue politically (such a position would seeni to contravene the niaiuier in wliicli self-detemination would be expected to be exercised internally). The United States consequently ceased its traditional supply of arms to ~akistan~'~.Only China seems to have maintained a strong allegiance to the Pakistani position and this is cerîainly more for strategic reasons rather that any statement as to the illegitimacy of a secession in such circumstances. The invocation of national self-determination for Bangladesh became an inevitable reality and, whatever the various political involvements, it was clear to the international community that the maintenance of peace and order could only be fully secured hugh the acknowledgment of the separation of Bangladesh. in other words, an implicit acceptance of the possibility that any threat to regional stability was lesser than the continuing threat posed by Pakistani uniîy.

It seems therefore that acceptance of the Bangladesh secession, while supported by two international heavyweights in the form of india and Russia, was encouraged predominantly by a massive humanitarian crisis. Additionally, the claim that the self- determination movement of Bangladesh fell within the standards of both the Declaration on Colonies and the Declaration on Friendly Relations has to be taken seriously. The secession was Merfacilitated by the fact that the Bengalis had long endured economic under-valuation by their western counterparts in Pakistan and during the war were certainly severely subjugated. They Mersuffered a clearly injurious example of non-cornpliance by any govemment with the principles of equal rights and self-detemination: unwillingness on the part of the fcderal authorities to negotiate real and effective measures to address the lot of the Bengali people. The Bangladesh case cannot be seen as represeniing a basis for the opening of a general right to national self-detemination or iiny universal ücceptance of such i~ right. However, the secession does represents a practical implernentation of the concept of remedial secession displaying evidence of ri combination of factors which made it possible.

It is still the case that rnany States view with suspicion the territorial interests of sub- state groups. Turkey, takes the unsurpnsing view in relation to the Nagomo- Krirabakh that it is better retained within the temtory of Azerbaijan and that its Armenian nationals rernüin Azeri citizen~'~~.It would, indeed, be a foolhardy exercise for Turkey to advocate separitism in any state given the potential for it within its own borders.

However, not every stritegy contributes to a legal standard. Turkey's presence in northern Cyprus is hardly a matter to be cmulüted by other States. Cyprus has been the subject of international pressure to purscie ils poliiical future as an independeni State free from outside intervention. Turkey. howcver, has maintüined a substantial militnry presence on the island for over twenty years and, given the international opposition to its presence, remains in defiance of international law having uni1;iterally facilitated the division of the island. The Greeks, who maintain close links with the Southern half of the island, maintain that the Turkish Cypriot population, for whose protection the invasion wüs allegedly undenaken, had dramatically dwindled since 1974, as a result of political oppression coupled with the massive influx of setilers from müinland ~urke~~~.The international community has sought the withdrawal of Turkish influence and the establishment of a unitiuy The UN backed settlement of bi-zonal and bi-communal federati~n'~~.

255 Heraclides at p. 53.

~heodorosPangülos. Foreign Minister of Greece, in UNGA Press release GA/ 93 13.

37 Calls that thcy çonsisiently ignore. Sec re: sutemeni of Isrnait CEM. Foreign Minister of Turkey, LJN Press release GAI 9313 to the etfect that 'MTARA MAECHA. Special Envoy of its President, with a single sovereignty and international personality, and with its independence and territorial integrity safeguded through international guarantees has ken promoted as the only acceptable busis for constituting a legril solution. That emphasis arises out of Cyprus's colonial pst. The politicnl divisions enisting there at present are a syrnptom of British colonialisrn and not a pre-existing conditi~n'~'. Hence, the international communiiy seeks to maintain its opposition to secession on the basis that Cyprus is rt political unit in itself and its population constitute a people whose righr to self-determination and independence, 2s one people, is justifiriblc in thc context of the realiziition of decolonization proper: somewhlit similar to the Congolese situation.

Of course the hilure of decoloniziitiun to have its full intended effeci is not uncornmon. The Comoros Islands is tinother situation where separatism hüs iittemptrd to ernerge2b0.The island of ci' Anjou. the center of the separatist crisis, has ken the focus for OAU led negoriations. Agairi, the internationd cornmuniiy has shown pater solidarity with the maintenance of unity on the basis of the proper fulî'illment of decolonizrition. Under the =gis of the Europelin Union. the Organization of African Unity (OAU) and the United Nations, dernocritic dections were held in 1996 for the whole temtory. The international community has continued to play ri part in determining the validity and outcornes of situations where separitism is ii prime considetation and it is Iwgely intemationül consensus ihüt reflects the riccepted legality of a particulnr situation.

The British position on Gibraltar is indicative of a position supported by international law. While its Bnissels Declrrrnrioti of 1984 liffirms the Trraiy of Utretc/lir ris the basis rif the United Kingdom's sovereignty over Gibraltar, the United Kingdom indicates that it would freely accept the sepiiration of the islünd and unification with

The internationid community must redoubte its efforts ta proteçt the human righis of people there. which includcd respect for the rights of the Palesrinians to have a free and independent Siatc.'

Ir' See resolutions of 14771 79.

259 See, e.g.. Humphrey rt p. 26.

'The Comoros' future depcnded on the outçome of cvenis on îhe island of Anjou. which hüd resulted frorn an incornpleie decolonizaiion pruccss.' - GA/ 93 13 supra üt noie 100. Spain but only if the people of Gibriilwr thernselves took that decision freely2". Given its distance and separiteness from the metropolitan State (a condition of colonialism), such an eventuütity would not pose immediate territorial problems for the UK as would, perhüps, a Scottish secession. In fact, the Spanish view that Gibriltar is a colony would render ihat population into a people within the legal context of the term. That, however, would not change the fact that it is for the people to freely decide their political future.

In Sudan wherc there has ken exiended conflict between the State Muslim forces and animist-Christian opposition in the south, a secession of the latter is complicated by a largely unsuccessful Sudan's Peoples liberation Amy (SPLA) capacity to gain full control of the south. In addition, the dicratorially inclined leader, John Gürang, has been heading a force whose interest in the pursuit of human rights is 10 be seriously doubted. In hct, its animosity to the people it was supposed to be liberating has becn well documented. The SPLA, perhüps unsurprisingly, split with violent consequences in 1991. throwing the liberation movement into disarray. Despite current moves at democratization within the regrouping SPLA and its political wing. the south of Sudan is in a strite of crisis with the UNHCR estimating that one and a half million people rire on the verge of starvation, and a clear indication that the political forces of southem Sudan alone are impotent in the face of current difficulties. Funher, there has been little evidence of direct intervention from the international community in support of an independent southem Sudan. Cenainly, rumours of American backing for the southem rebe~s'~'does not confirm its support for national self-determination in the south. Rather, the clandestine manner in which the US operites in this regard, if accuraie, is only cvidence of its reluctance to openly upset the many sympathetic lslamic States in the region.

26 1 Sec, cg., UK staiement (Sir J. Westonl [O the Generril Assembly of the United Nations, GA/ 93 13 - Press Release.

262 The Econoniist. Miuch 28 - April 3, 1998 pp 43 - 44. " Sudan's Rebels Change their Spots". XI. Coticlitsiori

International law has undoubtedly displayed a reluctance to give its blessing to sepüratism in the form of unilateril secession. The reaction of the international community to the threatened dissolution of the USSR and Yugoslavia was - to say the least - reserved, and the admission of Bangladesh to the United Nations, initially blocked by China's veto. might not have succeeded in the absence of any one of the unique features thüt characterised that secession. The prefened approach to self- determination tippellrs ta be that it only serves the interests of statehood in the most limited of contexts und the act of secession derives not from the right of self- determination but from the denial of it. Hence, the notion of remedial secession may be deduced from the emphasis placed on pmicular issues in recent sepmtist events.

Primarily. the question müy be asked, iit what point does the denial of self- determination potentially justify independence'? The emphasis placed on the democratic and human rights aspects of self-determination in the contexts of indigenous peoples, decolonizütion, and in the emergence of the former republics of the USSR and Yugoslavia to statehood, suggest that an effective right of self- determination is denied through a combination of acts and omissions including socio- econornic neglect, cultural oppression (including religious oppression, denial of linguistic rights etc.) and, most prominently, evidence of direct and sustained abuses of human rights targeted ai the particular group. The following points have appemd prominently in one form or onother in the foregoing case studies and they are rccapitualed here. It scems thüt the coinbination of these consideritions, derived from the prescnt survey of state practice and international law, will lcnd legitimacy to a sepüratist movement's cause for independence.

1. 1s tltere a clearly demarcarvd terrirury fonnbg the base of a poIitically seifdefini unit? It has already ken established that indigenous peoples and minorities, for instance, do not satisfy this criterion because of the absence of a defining territorial factor. More specifically however, the Bantustans in South Africa were clearly opposed because the territories in question were not self-defining. Sornaliü, in its state of anarchy, made it extremely difficult for the international cornmunity to concede any secessions given the arbitrary way in which the warring factions attempted to cane up that entity. The potential conflict between Chechnya and Ingushetia was also a point of major concern in Russia's atternpts to halt secession in that region. On the other hand, there was little difficulty in determining the temtorial extent of Bangladesh during the 1970 crisis. not least because of the geographically divided chruacter of ihe pre-existing Pükistün.

2. Do tlir polirical forces rrijqv a rdsupport, ematiurittg froni the people, wirliirl rlrnr hme? Arising, agitin from Transkei. Somalia, Chechnya and

prictice in other areüs, ü prominent focus seems to rest on the democritic legitimacy of sepiiratist regimes. Only a few cases demonstrated unequivocülly that such support existed: nrirnely, Bangladesh. Slovenia, and En trea.

3. Is rhere sigttificurtt curise to beiievr rhut the secessiori will tiot erigetider u rrgioitul crisis or 'virul ~eparriria,i''~.'?The international comrnunity seemed confident that a domino effect was noi about to ensue following its recognition of Büngliidesh. The same could not be said of Chechnya, Kurdistan, Biafri or indeed, Katanga, where in the midst of the latter's secession there was evidence of other ütternpis cornmencing within the region of Katanga itself. Yugoslavia does not represent an exception to this rule. In that context, the state was disintegrating. the international community's role, therefore, was to recognise those entities that emerged and only those entities whose boundaries were not the result of forceful acquisition. Hence, because of the wider consequences of 'virril scpruatism', the international community has insisted on Bosnirin integrity. In many ways this issue is similar to the last and an extension of it. States must be confident that a recognition of secession will not be fatal to regional or on-going interna1 stability. Hence, while the Iranians were happy to see the demise of the USSR as the demise of regional hegernony, Nigeria was adamant thüt a Biafrrin secession would be fatal to the continuance of the rest of the Stüte. Similarly, the international community has insisted on xceptance of stabilising measures by certain States, especially

215' 1 choose the term 'viral separatism' [O describe what is othenvise referred to as the 'domino effect'. 1 feel the former terminology is justiticd in that it rrves to separate out potentially unjustified xparaiist movements from those that have ii clar ltgitimacy. post Yugoslavia and USSR. but have not been keen to extend a similar right of acceptance to other entities within these new States. The non-recognition of Chechnya is exemplary of the implicit recognition that Russia's struggles with separitism will not end if Chechnya is recognised. Thomas has further siated of Kurdistan that "recognition of an independent consolidated Kurdistan incorporating the Kurdish areas of Iraq, Turkey, Iran, and Syria would instantly generite hqi, Turkish, Irünian, and Syrian aggression, provided their forces were siill involved in crushing the various Kurdish sepriratkt mo~ements"~".That itself is an indication of the delicacy with which these issues must be handled in tha what rnay be a civil contlict or even a conflict between two States can easily escalate to a far more ominous situation.

5. Will rliv ubsnlce of' u srcessiorr e-rpose the yrolrp ro cmriiiuorrs o~rd svstenruric abrisr of Iitmiuii riglirs, iri contruventiuri of i~ireniurionalnonm on Iriutiuti riglirs, rendering the situttrion o nratter fur irrteniutionul coricem over an irnforeseeuble period? Both Kurdistan and Bosnia are probably the most outstanding examples of this issue. While the intcmational comrnunity has given guarüntees and put mechanisms in place to safeguard both these communities and the Republic of Bosnia-Herzegovina, it is unlikely that

many countries, either from ;t logistical or political point of view, would want to continue to commit personnel to the long tenn policing of separarist crises. Despite the problems involved, the fact remains that the international community does get involved and considerably so. Some situations clearly demand a continuous international mediation, however, due to the intrüctable nature of certain conflicts and the absence of any clear or likely victors. Sornaliü. the Middle East and Bosnia are a11 demonstrative of this. Significantly, however, the excessive abuse of a human population may reach intolerable levels. It did so in the crise of Bangladesh, for several States in the case of Biafra and, had the conflict continued, ii is not unimuginable thrit

recognitions of ü Chechen right to secession would have started to mount.

Thomas p. 63 6. Are attenipts by the existittg Statv to maUituin the status quo resultirtg in an iciritroving cri si^., ncccinlpariied bv Nitraitsigence on rhe pur? oj'tlir ihat State to resolw the siruritioir~?There crin be no doubting the Turkish and Iriiqi intransigence on the Kurdish question. This füct only reinforces the interconnectedncss of ihe present criteria. West Plikistrin displrtyed its stubbomness to CO-operdtein interna1 constitutional negotiations with West Pakistün. But here too secession müy have friiled were it nor a question thüt the population of Bangladesh (East Pakistan) also constituted the rnrijority of the population of the whole of Pakistün. The collapse of the Yugosliiv federation is slso in pan the result OC the kckless behavior of the Serbiiin led regime in Belgrride. Alternatively. efforts to address the situation in question will erode justifications t'or secession. The Comoros governrnent is currentl y employing the 'good offices' and assistance of several internaiionül orgünisütions to reüch a compromise on the Island of d'Anjou question.

7. Huve dl oriirr remrdies beerr e.u/iairsred? It is cleür from dl of the case

sludics, chut secession is ri vcry limited possibility. It cames into effect at the end of numerous important consideritions, which bctwcen thern suggest al1 possible avenues to reconcilirition should be covered. In such processes, it is often inevitiible thüt the human cost of conflict will continue to nse. This may in itself provide the final necessary answer as in the context of Eritrea and Bangladesh.

In addition to the emergence in recent decüdes of prirticulür stlitehood rights such lis decolonizütion, dissolution, the retum to sovereignty of a pre-existing stüte, it is

suggested that ii right of secession, the primary function of which is rectificatory, may be added to these contexts, It seems that positive answers to the criteria that have emerged in the course of this study will render the entity concerned u legitimiite candidate for the remedy of secession worthy of a positive response from the international community bearing in mind thüt the general standards of international law are not (as Chapters 2 & 3 sought to demonstrate) set in concrete. It appem. therefore, that secession is not synonymous with a pre-existing right of self- determination. Secession derives from an absence of selfdetermination either in the population as a whole, or to sections of the population (who might constitute minorities or indigenous peoples) and, dthough it applies only explicitly to peoples, minorities are entitled to join in the full expression of self-determination as a component unit of the 'people' to whom it applies. If sub-state groups , minonties, or indeed indigenous peoples are denied political participation in their State of residence to the extent that they can fulfill all the present criteria legitimizing secession, then secession emerges as a mechanism whereby they can come to enjoy self- determination in an alterna~ive frdmework. Consequently, then. groups such as minorities, despite not being explicit beneficiaries of the right to self-determination, are not lost to a potential claim of the rectificatory justice or remedial secession spoken of by Buchanan and Bucheit.

It is now possible to examine the separatist context in Northern Ireland. Northern Ireland is, firstly, the result of the political pwtitioning of the island of Ireland during the latter's struggle towards an independent State. Does that event have any bearing on the present day attempts, some eighty years later, by Nationalists in Northern Ireland to bring about unification with the Republic of Ireland and separation from the United Kingdom? Is the indigenous peoples issue relevant? If so, how so? What is the relevance/ significance of the pre-colonial status of Ireland as a whole? And what is Northern Ireland's present status I that regard? Should all of these considerations prove useless to the cause of nationalist separatism, it may then be necessary to explore the conditions in Northern Ireland which may legitimize or not the case of remedial secession. Part III ( Chapter 6 - No Way Out? An Analysis of the International Legal 1 standards governing Separntism in the Context of ~orthern Ireland's Separatist Nationalists.

The foregoing study has atternpted to unrüvel sorne of the cornplex issues which luise in the context of separatisrn. More specifically, it now serves as a means to responding to the various arguments in defense of separatism that rnay be put forward from nationalists in Nonhem Ireland whose allegiance lies with the independent Republican state to the south. Sorne of these arguments are predictiible. Clairns to an inherent right of national self-determination for the Irish people are comrnon enough, some indeed linked to the notion that the Irish people is rr distinct indigenous group. Others suggest that the basis of national unity, and the re-integrrition of Northern lrcland. lies in the füct the island of Ireland rernains panially colonized. Foreign domination is the view taken of Northern Ireland's status mostly by Republican sympüthizers in the rninority carholic-nationalist comrnunity. Yet others contend that, irrespective of whethcr there are national rights to Irish unity. the misrule'" of Northern Ireland coupled with legacy of rights abuses perpetrited against the minoriiy grouping in thut society gives them a right to seek a way out of Nonhern Ireland by way of secession as a rernedy for those wrongs. In the present chapter, it is examined where in view of international law Northem Ireland stands, especially frorn the perspective of Northern Nationalists. This chapter airns to find out whether, in spite of its own genesis in partition, Northem Ireland is an entity now protected from the possibility of further panitioning or secession by those of nationalist persuasion, and if that is the case, why that is so. Taking a similar course to the foregoing sections of this püper, it is probably appropriate to first inquire as to the legal personality of Northern Nationalists and to ascertain where the right of self- determination lies in relation to thern.

:a~ A matter disputed by mostly pro-United Kingdom Unionist parties. However, despite intercommunal rivalries the gcnerally acçepted view amongst impartial; observers is that Northcrn lreland was governed in an unequal manner. Numerous notable sources and reading materials are cited over the following pages. S. I The Legal Personality of Northern Ireland S Separatist Nationalists

Not least because of the ambiguities surrounding it, and therefore the potential it offers in buttressing national claims, there is a desire arnongst the opposing communities in Northern Ireland to have some explicit attachment to the right of self- determination. However, as we have seen earlier (above at Chapter 1, S. IT) the right of self-determination is a people's right. There arc a number of competing views as to what constitutes the 'people' in Ireland. By and large it is the view fiom the Republic and the view of the nationalist cornmunity in Northem Ireland that the 'people' is the population of the whole island. This of course is a view which appeals to the sensibilities of nationalists and a view that is essentially irredentist in nature. It is equally a view which preserves the notion that a 'people' and a 'nation' are one in the same thing. A contrary view of the 'people* in the Irish context, and which negates the 'people'-'nation' paradigm and is usually supported by loyalist and Unionist communities, is that there are two peoples on the island of Ireland: those of the Republic and those of Northern Ireland. Of course this view, much like the previous one, is intended to support a political agenda rather than defend a legitimate set of circurnstances. Yet a third argument exists that there are indeed two 'peoples'; one 'people' king those of the Republic and the other those of the United Kingdom of Great Britain and Northern Ireland as a whole.

It has previously emerged in the course of this study that a people under international law is distinguishable from what one might cal1 anthropological understandings of the same term. The distinction began to emerge, pcrhaps somewhat inadvertently, as early as the Treaty of Versailles in 1919. in that context, the application of national self-determination for the purposes of granting statehood was selective. It was recognized that not every national group could be granted statehood, Minorities would inevitably emerge, but they were to be addressed differently to what were otherwise peoples with States. The German 'nation', for example, extended beyond the state of the 'people' of Germany. The disco~ectionof the concept of the nation from that of the people became a legal issue of fat greater force as the process of decolonization expended through the 1960's. Again self-detennination was recognized as the guiding principle for decolonization but it was not employed on behalf of ethnical nations. What emerged were states whose 'people' were in rnost cases sornething quite different to the 'nations' that rnight have occupied them had the boundünes followed anthropological criteria of clan, linguistic, religious, or ethnical commonality. Indeed, in the meantime there was no question chat self- detemination would be extended as a right of statehood to ethnical groups or nations anywhere. If a population was under a state of governance that was local. (i.e. not adrninistered by a geographically sepwüte rnetropolitan entity such as an empire]. and the govemment was considered not to be foreign and subordinating the whole of the population, then that population was considered to be satisfying the conditions of self-dctermination in so far üs independence was concerned. The proof. of course. is that populations of minoities, indigenous peoples. and many other sub-state groups, who might be unique in their ethnicity and therefore a 'people' in an anthropological perspective, were not recognized as having statehood rights emanating from a people's right of self-determination. Thus the legd status of Northern Ireland's nationalists can be nürrowed down quite substantiülly.

(a) Indig~noirsTitlr ?

Although seprinitism and indigenous title are sornetirncs addressed in tandem'w, such title does not accord any special treatment in terms of sovereign rights:

"Self-determination, in its many forrns, must be recognized as the basic precondi tion for the enjoyment by indigenous peoples of thei r fundamental rights and the determination of their own future [. . .] it constitutes the exercise of free choice by indigenous peoples who must, to a large extent, creaie the specific content of this principle, in both its intemal and extemal

266 Howard. for example. points out that income, education. employment. and other aspects of social disintegration for many indigenous peoples and a legacy of discrimination is so geai that ihcy "now reject the ideals of liberal society and look instead to an independent, reconstituted native culture as the solution to their subordinated status". R. E. Howard, Human Rights und the Smrch for Coninilrnin, (Boulder. Co.: Westview. 1995) [hereinafter T/ic Seurchjbr Conrnrunip] at p. ?W. expressions, which do not necessarily include the right to secede from the State in which they live and to set themselves up as sovereign entitie~."'~~

Significrintly, Franck et al. have also pointed out (in relation to a potentiril Québec secession) that even where an indigenous people were to establish a state, such an event would not derive frorn a prr-r.risti,ig righr2"". Hence, the assertion of indigenous title by Nonhern Ireland nationalists for the purposes of sepmtism would be of little legi\l henetlt in lems of nltering or riffecting sovereignty in Nonhem Ireland. The issue may be put to rest in a number of other respects.

The occasionril nütionalist's perception of their unbroken attachment to Irish soi1 is an embellishrnent of a less rnystical history. That history, in fact, is unlikely to fulfil the international standards enabling the Irish, or any Irish, to qualify as itidigaiorts people. It is true that the element of self-identification is fundamental (and most Irish rire not found wanting in that respect) but it is. ultimately, insufficient on its own to accord the requisite legal title2("'. The question of pre-existence of thosc who self- identify as Irish in Northern lreland is only very vaguely associable with the notion of indigencity: lreland as a whole has ken the subject of numerous permanent inward settlements. including among them the Franco-Normrins (twelfth century) and Nordic Vikings (ninth century). Thus the indigenous Irish are, to say the least a very diluted group, if not indeed wholly non-existent. In riny event. indigcnous title in international Iaw refers to 'peoples' who continue to command a legiicy of unbroken existence over vastly greater penods of tirne than several centurie^"^. It is also generülly üccepted that indigenous peoples display the central ingredient of a spiritual

267 Cobo Repon pu. 37. Sec argumentation on this point above at Chapier Four. S. II)

?6X Adding that such an event would be "complicated by the diffiçulty of detcrmining the exact boundarics of the indigenous territories". Franck et al. par. 3.3 1.

169 See. generally. above ai Chiptrr 3 on hrligrnoiis Peoples.

no The Human Rights Cornmittee in its description of the Lubicon Lake band by comprinson described thcm as . . . "a self-identified. relatively autonomous socio-cultural and economic group. . . whose . . . rnembers have continuously inhabited, hunted. trapped and fished in a large area encompassing approx. 10 sq. Kms in Northern Alberta since lime immemorial." Otrtinayuk & the Lubicon hke &ad v. Canada. HRC rep. Doc. A1541 40 Vol. II. Ann. IX. connecrion to triditional and they are singled out for their uniqueness in their desire to perpeturite their customary way of life, encompassing particularly such mntters as tnditioniil legal systemsy'. Notably, the indigenous system of Iüw (Brchon Lüw) which defined society in Ireland pnor to the 'plantations'273hiis ken abündoned since the liite eighteenth century and is now no more than lin anthropological curiosity itself. It may therefore be concluded that the title of 'Indigeno~speople' is ncilher useful nor relevant to the present context. But the serirch for a me;iningfiil legal 'pople' stiitiis is not concluded. Whether the niitiondists of Northern Ireland rire, or iue part of, a legal 'people' lind whether thiit status suits thcir goals depends on a nurnber of othcr issues not Lelist of which is the status of the tcrritory of Northern Iretand itsell'.

(b) 1s Norilieni Ireluiid ti Drfiriitely Corislirrrtrd Sture wliosr Poptrldon is u 'People' etiiitled ru Self:Derrnniriario~~~

A detïnitcly constituted State under international law is one which. ;it a minimum, satisfies the requiremcnts of the Mur~tevideuConiwritiurt, 1933: displaying a detïned territory and population, a capacity to enter into international relations, and independence. iiistorically. Norrhern Ireland hris never been in such ri position either prior or subsequent to English involvement. Northern Ireland originally came under English sovereign jurisdiction through the 'plantation of Ulster' in the eariy seventeenih century. Subsequently United Kingdom jurisdiction followed with the Westminster Aci of Uiiioit of 1801. Under this legisllition the island of Irelünd wris made an integral legrtl part of the United kingdom of Great Britain and ireland. While the geographical extent of UK sovereignty wris eroded by the Irish secession, the new Westminsrer Governmiir of Irrlarrd Ad, confirmed that the srnaller six

"' Sce. IL0 169. Article 13.

''' Sce above at pye 44 - 45.

273 The lem used to define the system of initial occupanry by the Anglo-Saxons. and displacement of the exisling populaiions, during the sixteenth - eighteenth centuries.

34 Hughes at P. 10 1, Dw. Vii. Covrrnniet~tof IreluriJ Act, 1920, An Acr ro Provide for rite Berter Coverntr~etir 4 Irrldominion temtory of the United Kingdom. Despite the fiict that the 1920 Act provided for ü wide benh of self-government in Northem Irelond, that degree of self-government was limited in several crucial respects in relation to tax levying üs well as defense and foreign relations, but most particularly in the tact that the 1920 Act provided for the repeal of self-government by an Act of Westminster without the consent of the Nonhern Ireland administrütion. These limitations mean that Northem Ireland was not self-eoverning to the extent that ;dl of the Mortievideo criteria could be fulfilled. This point is substantiated by the füct that, following the outbreük of violence in nineteen-sixty-nine, the Westminster parliament exercised the discretion pennitted it under the 1920 Acr and revened govemmental powers to London: thereby reinstaiing Nonhern Ireland as a centrilly governed province of the United Kingdom. As a result, Nonhern Ireland is not now and never has been a definitely constituted State (legilly so-called) entailing a right of self-determination that might accrue to a 'people' of such an entity. The significance of this finding is that if the population of Norihem Ireland do not have the right of self-determination on the büsis that Nonhern Ireland is not a definitely constituted state, then the population as a whole must represent a rninori~yin some other context yet to be determined. At ü minimum it is possible IO conclude that, even if nationalists are yet at a remote distance from any attüchment to self-de~eimination, the Unionist population are equally so deprived in this context. The implicütions of this may not be evident were it not for the fact that Northcm Ireland satisfies a condition which has appeared with significant consequences earlier in this study, and that is the condition of 'geographical remoteness' from a metropolitün state. This begs the question, therefore, whether Northern Ireland is ü Nori-Se!f Goveming Terrirory.

was also set up as a self-goveming province with its own legislature at Stormont with significant powers including control over securicy. (c) 1s Nortlierrr Ireland u Non-Sc~Goverrting Territory whose 'People ' have a Righ to Sel/lùeterniinatiorr/ Decolonization?

The condition of geographical separateness arose in the context of non-self governing territories which were identified as colonies having a right to independence frorn their rnetropolitan goveming states (Chapter One, S. III). It is a condition which is certainly relevant to the context of Northern Ireland's govemance. The uniqueness of this situation is implicit, if not explicit, through numerous sources. Firstly, the New Fr

"British sovemmcnt recognize that it is for people of Ireland alone, and by agreement between the two parts respectively and without exteraal impediment, to exercise their right of self-determination on the basis of consent, freely and concurrently given, to bring about a united Ireland if they so wish."

It is the usage of the terms 'without external impediment' which imply that the exercise of self-determination in communion with my entity other than those rnentioned would involve sorne sort of external element and, hence, there is an implicit admission that the United Kingdom's role in Northern Ireland is an extemal role. It is now appropriate to recall that, self-determination, legally speaking, does not apply to Northern Ireland for the reasons addressed in the previous section (insofar as the right of self-determination applies to the peoples of definitely constituted states, it does not apply on that basis to the population of Northem Ireland). Yet, the

275 New Framework for Agreement: A Shurerl Understanding betwern the British und /ridi Govmmrnrs to assist Discussion and Negotiution involving the Northern Ireland Purfies. Govenunent of Ireland Docs., Department of Foreign Affak, Dublin, 1995 [Frumework Document].

276 Frumework Document at p. 4 par. lqii). Frutnrwork Docitrrirtit still recognizes Nonhem ireland as a distinct self- determination unit. For exmple, the usage of the terms 'North' and 'South' and 'concurrently' means the fact of Northem Irehnd is recognized. The govemment of Ireland recognizes that the right of self-determination is exercised only subject to the consent of the people of Nonhem Ireland, thus some basis for the sepwite exercise of self-determination is implicits7'. One source of clarification üs to the Republic's position in relation to Nonhem Ireland stems frorn its Constitution.

The Constitution of ~reland"~,enacted by referendurn on July 1st 1937, confirms a distinction between the 'Nation' and the 'State'. Article 3 refers to the extent of the jurisdiction of the ~ireachtas'~'üs king thüt of 'Soarstht Eireann' (the State described under the IrisIl Free Srare (Co~~ssirririori)Act, 1922 as not including the north-cistem counties of Down, Fennanagh, Armagh, Antnrn, Tyrone and Derry (Northern 1reland2"). 'The rxtent of that jurisdiction is confirmed by Arficlc 4 of the Constitution, which decliues that the narne of this ruea of sovereign jurisdiction is Ireland. Article 5 describes Ireland as an indepcndent, dernocritic, sovereign State. Funher. the fact that Article 12.9 of the Constitution prohibits the President's right to leave the State without the permission of the ~ovemment'" confirms that the Constitution assigns a geographic dimension to the phrase "the State" excluding what is now referred to as Northem Ireland. In distinction, however, Article 2, in refemng to the national territory, confirms that the nation is ". . .the whole island of Ireland. its islands and territorial seas". It then acknowlcdges that the national territory is divided

in Anglo-Irish Agrrcr)irrir of 1985. 74 ILM 1587 1985. also cited in. J. A. S. Grenville & B. Wasxrstein. Tlie Major Irt~er~iario~talTrearies Sirice 194.5: A Hisrory wirli Gidearrd Texrs (Meuthen: London/ New York. 1987) [hereinaftrr A~iglo-irisliAgreentenr]. The Ariglo Irisli Agreetrieni, 1985 is the principle accord stüting that the rxercisc of self-deiermination on the island of lreland is exercised in this rnanner by two separate communities. See, cg.. D. Coghlan "Anplo-Irish accord sets stage for North" Irisli Tiriies 15 Nov., 1995.

278 Bioireaclir rra 11 Eirearin fConsrifirriori of Ireland). Enacted by the People, July 1. 1937. In Operation as from December 79. 1937. (Govemmcnt Publications S. O.: Dublin, 1990)

279 Oireachtas rneaning - Joint Houses of Putiamenr, Uppcr (Seanadl Senate) and Lower (DaiU Parlimerit).

?W) As provided for in Article I(?) Gowrnment of lrelund Act, 1920.

28 1 Interestingly. this restriction applies to Ireland's current President. Prof, Mary McAleese, who is from Northern Ireland. through the words "pending the re-integmtion of the national territory". Consequently, the Irish Constitution, while recognizing the limits of Irish jurisdiction as definitely constituted only in so fat as 26 of the 32 counties on the island are concemed, recognizes an excluded portion of the lrish nation beyond its jurisdiction to which it also claims jwisdiction as part of its national right. Hence, fiom a Republican perspective, Northern ireland can only be non-self goveming if it is not part of a United ireland and it is only fitting that such a temtory should have a right of self- detennination independent of the state under which it is actually govemed.

British constitutional law is nlso supportive of this position in a number of respects. The Government of lreland Act, 1920, in Article 2(i), foresees an al1 ireland parliament as provided for in Article 3(i) through joint acts passed by absolute majority of the respective North and South parliarnents. Hence, these provisions did foresee self-government within the province and on the island of Ireland. This may be viewed as a tacit understanding that British jurisdiction was an imposed rather than a voluntary order. The issue gains greater validity with the reversal of autonomous rule and the restoration Norihem ireland's non-self goveming status by the NI Constitution (Ac0 1973, which reinstated London rule over the province. This has led some authors to suggest that Northem Ireland is now in fact a non-self-goveming temtoiJa. Lmpoctantly, the NI (Constitution) Ac!, 1973 (replacing the 1920 Act and re-establishing direct nile hmWestminster over the province) constnies the right of self-determination narrowly as a right of the majority 'to remain within the In doing so it explicitly acknowledges that the exercise of self-determination in Nonhem Ireland is independent of the rest of the United Kingdom.

The criterion of geographical separateness fiom the metropolitan State only bolsters this proposition. Further, the fact that Northern Ireland was not originally included on the UN list of colonial territories (a potential basis for maintaining that Northem lreland is not a non-self-goveming territory) may stem from the fact that Northem

212 R J. Weitzer, Tranfming Settler States: Communal Conflict and Interna1 Securiry in Northern Ireland and Zimbabwe (Berkeley: U.Of Cd. Press, 1990) lhereinaftcr Settler States] at p. 210.

"' Settler States at p. 1%. Ireland did have a high degree (although not absolute) of self-government within the UK at the time the list was drafted (See above at page 18). However, its absence from UN Doc. A/ 2428 does not mean it crinnot be chüracterized as a non-self governing entity as subsequent intemational law reveals the "the necessity of bringing to a speedy and unconditional end colonialisrn in al1 its forrns and manifestation^"^^'.

There seem strong arguments to support contentions for Northem Ireland's status as a non-self governing temtory. But what are ihe implications of this tlnding? Northem Nationalists are not any greater beneîïciüries of self-determination chan the rest of the population in this context. They share in the peoples right of self-determination. However, their voice in that sharing may well be muted by the strength of majonty pro-Unionists also in that population. In this context, the issue of non-self government requires closer examination. Alternative options to independence for colonies were often viewed as attempts by the empires to retain an intluence in those regions and hence independence was the preferred option. Why then. if Northern Ireland is truly non-self goveming has it not tüken the independence option'? Thc rnatter is best observed in the conteKt of the people/ minority dichotomy that is Nonhem Ireland.

II. Nonlwni Ireland: A Peopld Miriori', Diclioronty.

Even if the State were clearly a colony the option of remaining within the Union, post decolonization. is totally valid. This is more so the case because, as Hannum suggests, independence is no[ necessarily an option in situations in which "forcible incorporation of adjacent territory has led to the absorption or displacement of the former population, and the resulting exercise of sovereignty has been generilly accepted by the international cornm~nit~"~~~.This is wholly reflective of the Nonhem Irish experience and the situation is concretized by the fact that forcible incorporation began several centuries ago and the resultant settler population has becomc established over a simila length of time. lt is now the case that in regular democratic elections held in the province the rnajority of those retumed after election

Declamrion oti Colouies.

"RethinkingSelf-determination" ai p. 33. continue to reflect a popular majoritarian will that Northem ireland remain under British jurisdiction. This position is not the result of manipulation by a foreign power with vested interests. On the contrary, the United kingdom has agreed that:

"they will uphold the dernomtic wish of the greater nurnber of the people of northern Ireland on the issue of whether they prefer to support the Union or a sovereign united Ireland. On this basis, they reiterate that they have no seifish strategic or economic interest in Northern ~reland.""~[em~hasis added]

Consequently, the notion of alien or foreign domination is also defeated. Additionally, the Declaration on Colonies, which applies to the context of non-self- governing tenitories, does not give a State the right to unilaterally off-load populations that dernocratically seek to remain within their jurisdiction. The creation of statelessness alone prohibits such measures and, as was evident in the Transkei, such acts arnount to a deprivation rather than an exercise of self-determination. It seerns appropriate to conclude in the present context, therefore, that Northem ireland is a non-self-goveming temtory insofar as it is not independent. However, that option is exercised through voluntary union with the United Kingdom. Municipal law gives to the population of Northem ireland the right to exercise self-government if it so chooses. in this context, the population of Northern lreland docs constitute a distinct 'people' with a right to self-determination independently of the United Kingdorn to be exercised at their discretion including the right to remain inside the UK. This is the position which formed the bedrock of the Good Friday Agreement on inclusive govemment which wss accepted by a substantial majority of the population on the island, voting, let it be ernphasized, as two separate peoples: those North and those South of the partition line.

Such arguments as the foregoing have proved to contain little of comfort for the aspiring separatist nationalist. Are there daims without any legitimacy? Are their demands to be met with al1 sorts of responses stiort of the goal they seek? Within Northern ireland there are nationalist dissenters who do not recognize the legitimacy of that unit. Firstly, they oppose the view that the Northern irish (nationalist and unionist combined) consti~ea separate people since their separatist daims are defeated within the majority controi of Northern Ireland. Nor do they accept that the populations of Northern lreland constitute minoritits within the broader United Kingdom hmework as their claims are similarly defeated. Rather they assert that Northern nationalists are a portion of the people of ireland as a whole and only in îhis respect are kirwishes for unification with the Republic and separation from the UK likely to be hitful. It is a common element for daims to separatism to be founded on historic claims to nationaI unity and Northern hland is no exception'87. Here is a national ideology with mots extending back seveml centuries, but whose original ideologies of republicanism have becorne submerged under a less appealing and more exclusivist Gaelic nationalist sentiment (even if it continues to cal1 itself republican). Part of its folklore rebukes the act of partition at the time of irish independence. The reality, however, is that act was democratically endorsed by the people of the newly independent republic at the time. However, there is an inherent danger in historic claims to national selfdetermination, particularly in sensitive athnic zones. This fact fias ken graphically demonstratcd by recent irredentist claims in the Balkans. International Law does not support such rhetoric. It has, therefore, rejected irredentist claims in Kosovo and those of White South Afrikmuiers to a 'Volkstaat' in that they have no legitimate basis in law. Equally, at no tirne in the last thirty years, in particular, did the paramilitary front-fine of Irish nationalisrn gain any sympathy or recognition hmthe international community. By and large it has been accepted îhat the prablem is substantially more pmfound than a case of erasing borders, no matter how recently or arbitrarily drawn.

'*WCdeny that any section of our people cmgive away hesovereignty or alienate any pari of this notion's icrritory. If this grneration should bc base cnough to give thun away, the right to win them back remains unimpaircd for those to wbom the future dlbring the oppaminity." President Eamon de Valcm, cited in O'Neill, Partition of Ireland at p. 30."[T]he development of the concept of a distinctive Irish people in ihc latter part of the nineteenth cenhiry led cventudly, as in many other parts of Europe, to the crcation of a new Staie in the 1920s. But the Protestant community in Norihem Ireland had no nal cmpaihy with thc CaUiolid Irish volksgeist". "Northcm Ireland", at p. 26. A positive outcome to nationalist ambition at this point would render the unionist population of Northem ireland a national minority within a united Ireland: a position they do not occupy within the present fiame work. Nationalists, however, do not have a legal basis for claims that they are a legal constituency of the irish 'people'. Irish constitutional law might consider them part of the 'nation' but, under international law, the right of self-detennination is not a right of ethnically construed nations. Hence, the inevitable conclusion is that Northem nationalists constitute a minority both within the Northern ireland context and that of the UK as a whole, and they do not have an immediate, or explicit attachment to self-determination rights, and that the determination of Northem Ireland's future is dependent upon the exercise of self- determination by the population of Northern Ireland of whom the nationalists are a minority grouping. But then this is not a context which has ever been about straight fonvard democratic politics. It is also a society dreadfully affected by years of conflict. It is in this context that the rights of the nationalists are brought in sharper focus. We can now draw on the findings which emerged especially out of Chapter Five above to assess what likelihood there may be for naiionalist withdrawal fiom the United Kingdom of Great Bntain and Northem Ireland: The last way out for separatists perhaps? m. Remedial Secession for Northern Nationalists?

The right of remedial secession for the Catholid nationalist minority in Northem Ireland leading, to a further division of Northem ireland and subsequent unification with the Republic, would have to demonstrate that the minority population in question was a) irretrievably excluded from the political life of Northern lreland b) sufficiently grouped so as to make the seceding territory identifiable c) likely to result in the advancement rather than the deterioration of the human rights situation d) desired and supported by the population in question e) unlikely to lead to instability in the neighboring States hcluding the avoidance of enctaving f) capable of facilitating the implementation of uti possedetis and g) not the result of deliberate external influence. On practicaily al1 of these fronts the rernedial daim does not stand up to scrutiny. The nationalist population, numbering some six hundred and forty thousand of a total population of over one million seven hundred thousand, is undoubtedly a politically self-defining unit whose political culture is expressed through their support for the two nationalist/ republican parties'". It is a community, however, widely scattered across Northem Ireland: often tightly concentrüted in urban and rural enclaves. Thus any legitimization of secession would be complicated by the inability to identify a seceding territory with any degree of clarity, or without having to acknowledge the potentiril of enclaving. Internally, Nonhern Ireland is administered as a sinele province. Thus, apart from historical county lines which seprinite one county uea from another, there are no significant interna! administrative divisions to which the principle of uti possedetis might be effectively uttached in the event of secession. It has been suggested thüt two of these counties with a clear nationalist majority. Tyrone and Fennanagh, might be in a position to secede from the North seprirately using those historical divisions as temtorial markers. However, even on this level the presence of substantial unionist rninorities within those counties, and remaining nationülist minorities in the rest of 'the North', renders this an unsatisfiactory proposition. The only fully effective means of sotving the dilemma would be to engage in some form of orgünised dernographic reorganization, so that the various minority groups were clustered togcthcr to facilitate a single unitiiry act of secession. Such processes, however. have ken rightly scomed in the modern era and through the instruments of international Iaw, most recenily in the Balkan crisis, as 'ethnic cleansing': an act which serves in f-act to delegitirnize secessions and territorial rearrangements.

The absence of a single temtorial base for the nationalist communities in Nonhern Ireland has not thwarted their ability to organize a representative political front. The two political parties of a nationalist/ republicûn persuasion enjoy almost absolute support of the nationalist population (and the Catholic population in that the two,

Catholicism and nationalism, iire effectively synonymous in Nonhem Ireland). They retum in general elections representatives to the House of Commons ai Westminster. The aforementioned SDLP's two members of parliament take there seats in London.

-- ""he Socialist Democratic Lribuur Pÿrty (SDLP) and Sinn Féin respectively. while the representatives (usually two) from Sinn Féin (Socialist-Nationalist Militants) do not recognise English jurisdiction. The most ment elections of 1997 returned Sinn Fein with seventeen percent of the overall poll in Northern Irelünd and the SDLP with a slightly greater twenty six percentage points. However, despite the strong political representation, nationalists continue to rnaintain a cause for complaint.

The neglect of humün and civil rights issues rimongst the rninority populüriori in Nonhem lreland did much to foment the growth of sepüritism in thnt province'"'. Effective rneasures for the protection of the Catholic minority in Nonhem Ireland were prictically non-existent prior to 1973 leüving them in an "ineffectual position"'90. Other issues varied from the Flags arid Eniblcnis AC?^' that outlawed al1 lrish symbols in the Nonhem Provincc to the Bloocly Sioiduy Massricre of thirteen unürmed civilinns in 197 1, which drcw international condcmnîition'". Hence, what begün as a civil rights process soon turned into ri separatist movement whose original demands. posed little challenge to the integrity of the tat te'", Nationalisi leaders point out that, despite having al1 the institutions of democracy following the lrish secession, Nonhern Ireland was a one-party slate whose administrators had little regard for the minority community, The conditions for a tlc fucro disenfranchisement were achieved, and nationaiistl Catholics in that province continue to remain ovenvhelmingly underrepresented in policing, education, civil service and local

- - -- 219 There is a substantial body of work detailing the abuses of human rights in Northern Irehnd partiçularly affecting the minority population. Sec, e.g.. A. lennings Jirstice itrider Fire: The Abirse of Civil Liberries i~iNorrlirrri Irelcind (Phoio Press: London. 1988). See also. K. Boyle, T. Haddcn & P. Hill yard. Lm-micl rlie Stare: Tlie Cctsc of Norrlirrri Irelarid. Law in Society Series. C. Campbell et al.. eds., (Martin Robertson: London. 1975 ).

290 Serrler Srrires at p. 191.

19' Hughes p. 73.

'9' Despite the decision by London to return Northem Ireland to Westminster conirol in the wake of a massive ami-civil rights reaction amongst unionists. the collapse of the 'settler regirne'(the ferm ascribed Northem Ireland by Weitzer - Serrler States) and the amvrl of the army to protect besieged Cittholic areas, little chringed. In fact. Northern lreland and the British Security forces eniered a pend where they facrd frequent reprimand before the United Nations. The European Court of Human Rights and fmrn International Human Rights NGO's and obscrvers.

293 Sce, generdly. Ci. Hogan & C. Walker, Polirical Violerice and rlie Law in Ireland (Manchester University Press: Manchester. 1989) government, as well as in privaie industry2'? Since the nineteen sixties, the focus of minonty distrust has also encompassed the administrütion of justice in Nonhem 1reland2". The courts and secunty systems have bern the subjects of intense criticism: " The Diplock syrern in essence is a courirerinsirrge~icprocess. Wirlt u brutal utid corrirpr police jorw ...... ntiscurriuges of jitstice ... la~igitisIiingin juils ....blutmtf rruvesrks oj ~~tstice...v?% .

The behavior of the Staie towards the nationalist minority hüd the explicit riim of stamping out Guerrilla warfare and pwimilitary üitacks on State security forces, but many decisions taken by it hitd adverse affects on community relations. The UK rejected the recommendations of the Rrpon of the Conmittee of ltiqrriry into Police, lnterrogctrio,~ Procedures iri Nonlreni lrelund9', which recommended changes ünsing from the only interStüte comptüint to proceed before the European Coun of Human ~ights"~.Addi tionall y, the securiry force's purponed links to sectarian 'Death-squads' and 'Shoot-to-Kill' policies~g9,amongstother things, has hardened the resolve of nationalist gro~ps3*.

As regrettable as thcse issues ue, it is unlikely that they are of such a nature as to render a right of nationalist secession legitimate. Undoubtedly, the British reaçtion to the emergence of a widely supported sepriratist agenda wiis a matter for concem. The

'9JSee, Standing Advisory Commitiee on Human Rights. Religious alid Poliricd Discrirribicitioti nrid Eqiralin of 0pporrirriir.v iti Norrlirrri Ireloricl. Repon uri Fair E~~iployrrierir(WSO: London. 1987).

295 See especialiy A. Jennings "Shoot to Kill: The Final Courts of Justice" in A. Jennings. ed., Justice Utider Fire: The Abirse of Civil Liberries iri Nonlieni Irelund. (Pluto Press, 1989)ai pp 1 13 - 114.

2% Extracts from an article 'Frunre-Ups of tire Diplock Sysrari: Travesties of Jirsrice', An Phoblachtl Republican News June 9. 1994.

"' CMND 7497, March, 1979. See. Sder States iit p 207 - 23.

298 Ireland V the United Kingdom ofGreat Britain and Northern Ircland ECHR 1979

See F. X. Clines. "A Report on Ulster Killings Asuils British Use of Force" New York Times, 28 June. 1988 at p. 77 cites Amnesty International repurt 1988 to the effect thi~t"Britnin has been so permissive in the use OC farce in Northem Irelrnd and so lax in investigating abuses that it lent credibility to charges of ol'FiçiaI involvement in delibente police killings of unarmed civilians".

MO Widgeq Report 197 1 - 72 HC 220. cited in G. Hop& C. Walker. Politicul Violence und ilte kirv in Irelmd (Manchester: MUP. 1989)[Hogin & Walkerl exonerated the Amy in the Bloody Sunday massacre despite there kingno evidence thÿt the wmy hnd corne under tire tirsi. presence of Diplock (single Judge - no Jury) courts were less deliberate attempts to ride rough sliod over civil and human rights as a response to the almost unstoppable threat of militürisrn. Recent developments have, however, seen successive British governments attempting to develop accornmdatory mechanisms rather than secessionist resolutions. The task is indeed complicated. Northern Ireland is one of the world's most notorious zones of conflict, characterised by deep divisions in political. cultural, nationalistic allegiances and, not least, through religious polürizatinn. Sectarianism is nfe and has been a characteristic of the tliolcncc in Northem Ireland in the last thirty years. A brief account of the numbers of so-called piuarnilitary organisations in operition is demonstritive of the problem: Unionist/ Loyulist Purclniilituries: UVF (Ulster Volunteer Force). üFF (Ulster Freedom Fighters). LVF (Loyalist Volunteer Force). Red Hand Commando (Loyalists). N~tiortuli.st/Repirblicuri Purumilituries: IRA (Irish Republican Amy): INLA (Irish National Liberation Organisation: IPLO (Irish Peoples Liberation Organisation): Continuity Council ( Break-awuy IRA group). These vluious anned insurgents have done much to create divisions in Nonhem Irish society. The so-called 'peace-line' (a ten-foot high metal bder runs several kilometers through housing estates dividing pans of Cütholicl nationalist West Belfast from the Eastern Protestant Unionist zones) is evidence of the physical separition of local communities in Nonhern Ireland.

It is difficult to suggest that a reversal of the current 'double minority' situation would see an end to ihe nature of conflict that has affected Northern ireland. After all, the Republic af Ireland employs a legal system that mirrors that of the United Kingdom and would be as likely to react to Unionist insurgency in its jurisdiction in the manner which hu brought the latter State to the attention of the European Coun on several occasions. In fiict, the Rcpublics Special Critriinal Court, established under the Emergenq Powers (Criniinal Justice) Act. 1976, is an almost identical institution to the controversial northern Diplock Court.

The outstanding feature of Northem Ireland, however, is that most of the abuses there have ken highlighted because of recourse to higher courts, in Brîtiiin itself and at the Eirropeutt Coirt? of Hirrtiart Righrs. Imbülünccs in social representation have also ken highlighted through govemment lippointed commissions such as the Standing Committee ori Htrmari ~i~lirs-'~'.This arguabl y dernonstriites the availabi lity of mechanisms of redress thüt did noi Iippear to feüture, at least as prominently, in relation to inany of the other cases of sepririitisrn encouniered elsewhere. Considering the bel of abuses and the extent of instability that ernerged pnor to recognition in the Biafrün or Bangladesh coniexts, the rcmedial case for secession in Northern Ireland seems für from estahlished. Indeed. it is further limited by the inability to point to a specific temtory that might secede. British efforts üt üccommodüting nüiionalist concems is also added to by the recent govemmental üpology for the

Crmr ~umitie'"', the establishment of ü new public inquiry into the Bloody Sioday rna~sücre~~~,the cstüblishment of a new inclusive police complüints üuihority, and the continuing and increüsing involvement of the Irish govemment in the üffairs of northern Ireland under the inter governmental conference established by the Anglo- Irish Agrrenterit and subsequent bi-laterd arrangements.

Conclirsion overieasf

301 See generally in Hogan & Walker. Note also comments on the Crinicrori Conirriissiott at p 9. See also at P 16, 17. 35 and 38 of same repurt on implicaiions of religious denomination for employment opponunity in Northern Ireland that reveded i gross disparity in employment statistics bctween Catholics and Protestants.

'O' Irish Tirnrs. 14 Feb. 1997

'O3 Irish Times. 10 Jan. 1998. International Iaw would seem to suppon the view that Nonhern Irelünd is a non- divisible entity given, in part. the international and constitutional recognition of the Nonh / South Border. It would, therefore, seem to support the view that the exercise of self-determintition on the island of Irelünd is twofold and not ethnically rclated to the Irish nation. The aitrichment in international law to tenitorid integrity is not defcated simply because II reginn is said to he partitioned. The extraordinary di fficulty with which Bringliidesh seceded from Pakistiin is cleürly demonstrati ve of this fiict, and wu fxilitated in the end in no small measure by irs particular border con figuration. Niitionalist and anti -pinitionists. then. w ho point to the historical upset of partition in the forrnritive period of Ireland's independence are not legally justified in using it as a blisis to forward further secessionist claims in the current international climate.

Such cliiims. as with those of various federalist enclaves in present day ~uébec)~,

fail on the büsis that the Iarger self-determining unit is ri) in control of its temtory and

b) its temitory is delineated with the assistance of the international legal nom of id pussederis rit the tirne of indepcndence. ln such circumstances. minonty groups who seek further territorial dissection are acting outside of the extent of their positively identified legül rights. This is not to deny that ail people rue not entitled to the right of self-determination ris has ken noted earlier. Rüther, not al1 groups are peoples and not al1 peoples have an identical claim to the manner in which self-determination is to be expressed. Despite this, the partition debate has begun ta gain a considerable degree of air and prini ~~ace'~'.For example, the argument has proponents who contest that a Québec secession from Canada is no different from the secession of Montréal (or parts thereof} from ~uébec~~.Further, there are those who say that "the

McAlpine has ncited in retatian to Québec that the "Sectioning off territory frorn what is today recognizcd as the province of Quebec as part of the terms of the agreement chai woutd allow the province to secede Irgally tiom the Canadian fiderrition is çurrently described ris partition". McAlpine. at p. 9.

305 Although there are such discussions dating bück to eulier times. see, r.g. Charron La partition du Québec ai pp. 13 - 73.

306 The divisibility of Quebec is often raised in response to the separation of Qudbec from Canada. See. Charron La purtiiio~tdu QurTbrc, "Stkphane Dion. . . . déclarait que 'si le Canada est divisible. le Québec l'est aussi' . . ." at p. 13. Federd govemment must State cleürly and unequivocally that "partition is a legitimite federnlist recour~e."~~~Such conjectures as are also be üired by nationalists in Northem Ireland (especially in relation to the counties of Tyrone, Derry, and Fermrinagh where nationalists constitute numerical müjonties) are, however, without legal foundation. Cbapter 7 - Conclusion - Understanding Separatism

Separatism in the form of a right to decolonization, the disintegration or dissolution of a State, or a retum to sovereignty and secession are al1 capable of king described as partitionist events. However, it may come as no surprise that 'partition' like secession tùids no explicit mention in the texts of international law. Certainly, any State that suffers the full consequences of secession might be described as partitioned, but on closer inspection we find that rnost States which have been subjected ta secession are not now referred to as partitioned entities. The present Commonwealth of independent States does not have the alternative title 'The Partitioned USSR'; nor are such States as the Netherlands and Belgium referred to as partitioned regionsl entities. However, the division of Québec in the event of its departore from the Canadian federation is king spoken of not as secession but rather as partition. Waterman provides the following definition which seems to offer a clarification:

"Partition can be said to have occurred when two or more new States are created out of what had previously been a single entity and when at least one of the new units claims a direct Ihk with the prior State, as in the cases of Gerrnany, india, Ireland or Palestine. 9, 308

It is possible, therefore, that partition acts to divide or separate an entity with a legal right to self-determination: i.e. division of a colonial entity, a legally seceding entity (such as the Baltic States), or any other entity justifiably emerging to statehood. This is so unless, of course, the partitionist region also has a legitimate right to secession, in which case the distinction between seccssion and partition is effectively redundant. Our analysis seems to support this position in that partition has not arisen as an independent legitimate basis of separatism in itself. Certainly, international law extends its protections to cntities, - (the result of partition), - insofar as they have achieved international recognition (thus for example the partitioned region of india, subsequently Pakistan, has the full rights of statehood under international law). As a result, the historical wrong of partition (which is usually a politiccil perception) will not justify a similu future claim. Cyprus is an illustration of the converse position: here both partition and secession rire regürded as illegal acts (due 10 Turkish intervention) whose enactment would effectively have the süme consequences since neither piut of the island is said to have a right to self-determination independent of the other.

"[a) Cyprus settlement must be based on a State of Cypnis wiih a single sovereignty and international personality and a single citizenship, with its independence and temtorial integrity safeguarded, and comprising two politically equal communities as described in the relevant Security Council resolutions, in a bi-communal and bi-zonal federation. and that such a settlement must exclude union in whole or in part with any other country or any form of partition or ~ecession."~""

It must be concluded therefore thut partition is in hct secession by another name and crin be equally justified where the conditions for legitimücy of secession, so-called, are satisfied. The current opposition to the territorial changes incurred in Irish and lndian independence resulting in the employment of the term 'partition' reinforces the view that the term has no greriter or lesser significancc than that which iitiaches to illegal secessions. As Thomas puts it:

"When Catholic-majonty Ireland seceded from Britain in 192 1, the Proiestrint- majority areas of Nonhern lreland were dislodged from [reland and retained by Britain ngainst the protests of Ireland and the Critholics of Northern ireland. When Pükistün seceded from India in 1947, Punjab and Bengril were divided between India and Pakistan against the protests of Pakistan. When Yugoslaviü and the Soviet Union broke up in 1991, no such temtorial and bundary

309 UN Sec Co. Rrs. 11 17 (19971, Adopted by the Security Council ;it its 3794th meeting, 77 June 1997 par. Il. changes in their interna1 republics were allowed by the international

c~rnrnunit~."~l2

The distinction in the use of the terms may have more to do with the political circumstances and perceptions surrounding the act rather than any profound legal significance. Certainly, the case of Northern Ireland lends some legitimacy to this view in the manner in which various perspectives are applied to that context. The significance of the potential argument that secessions are self-generating whilst partitions are the product of external influence is lost if one considers the German recognition of Croatia as extemal influence or that of India in the Bangladesh crisis: neither of those states are now referred to as partitioned entities. In the Canadian context, 'partition' of Québec in the event of secession is a much a product of federalist Québecois as any hint of support coming fiom outside that province. Evcn if differentiation were valid, the presence of external influence in fomenting separatism thereby resulting in partition is as illegal an act under international Iaw (having nothhg to do with 'self-determination' as the Cypnis case demonstrates) as an unjustified unilateral secession.

In between the potential causes of collapse and re-emergence of new States (a spectrum stretching from legally justifiable processes of decolonization to the less certain ambitions of ethnonationalism), the reasoning for particular international reactions to separatism is a prime concern. ?t should not be surprishg that an international legal system, which chooses to focus on individuai rather than collective rights (as in the Universal Dedaration of Human Righfs and Article 27 ICCPR) would involve legal definitions that are disconnected fiom alternative politicai, anthropological and ethnical definitions. Thus, the legal right to self-detemination does not automaticdy extend to a group which bares the socio-anthropological or ethnic characteristics of distinctiveness, nor those who have historicd attachments to other States. [n this way international law is free to accepr the legitimacy of decoIonization, undoing of alien domination (e.g., Namibia) and the Iegitirnate interests of constituted States and also, where appropriate, extend it to ethnic groups.

"'Thomas, p. 60. Many cases of separatism have only emerged in the last decade, hence it is only in relatively recent times that full scope of self-determination is being put to the test. International law has responded contextually and imaginatively through, inter alia, the recognition of decolonization, the exclusion of the Bantustans from rights of self- determination and the admittance of Bangladesh and Eritrea to the United Nations. Hence, the absence of explicit definitions of peoples and minorities as well as the right of self-determination have not impeded al1 independence movements.

Such flexibility, however, runs the risk of exposing inconsistencies in the recognitions and non-recognitions of new statehood claims. Nowhere is this more explicitly revealed than in relation to the Balkans. The right of self-determination, which does not apply, per se, to ethnic groups, served exactly that purpose for numerous of the new States arising out of the collapse of the SFRY.Consequently, the distinction between Kosovo and Slovenia, for example, tests the limits of credibility and the fact that a State such as Bosnia is supported by the international cornrnunity begs the question as to why an independent Kosovo should not be so supported. However, the potential for conflict of the type that ensued following the recognitions of the Former Yugoslav republics in the early nineties has resulted in a lesson for the international comunity, however unhappy its legacy, and that is a fear of the re-balkanization of &he Balkans. Though the policy of recognition of the republics of the SFRY friiled on the stability fiont, the immediate international reaction was to rely on international standards of human rights and prohibitions on force for territorial gain to bring the crisis under control. Thus, the need for some basic standards of legitimacy in relation to separatism is reinforced. The Bosnian situation has served to bring home the view that normative standards on human and minority rights are a central concem. The present international resistance to the Merpartitioning of Bosnia-Henegovina suggests that a recognition of the once- autonomous ethnic Albanian province of KOSOVO'" would be an entirely retrograde

"' initial autonomy provisions wcrc included in tbe 1945 Yugoslav Constitution and strengthened and broadmed unda a re-ncgotiated Constitution in 1974. However, thc extent of autonomy was revened back to the 1945 status by ihe Serbian led Regime in 1989 aila it becamc clear that the Kosovan authorities werc assuming greata sepmtisi tendencies. undertaking potentially leading to the Uistitutionalisation of ehically pure political territ~ries''~.

International lads primary objectives in the legitimization of separatism and the denial of it have been the maintenance of stability. The international attachent to stability, however, must also entail a right to secession, since such an option may be the only way to serve the interests of stability. (Certainly, this was the eventual view of the international community, and especially the EU afier the Croat and Slovene declarations of independence, although whether the withholding of recognition would have prevented the war that unfolded is a matter for speculation). The absence of textual legal clarity enables the application of such a contextual prescription as secession, However, the vacuum left by the absence of an explicit 'salt-water test* for the recognition of some separatist claims and the rejection of others may feed into

separatist agendas of the 'iffhey can have independence, so con we ' variety. The central question in the context of Kosovo is whether the interests of stability and hurnan rights are best served by the implied prescription of secession. The remedies availabie must match the illness and not exceed the necessary dosage. In other words, in addition to the potential offered by the textual non-ciarity of self-determination in international law, there remains a clear requirement for a test to assess the practical implications of secession. If secession is an option it must emerge as a panacea and not as an attractive addiction.

In the interest of human rights, international law needs to be able to identiS, not only the right of secession itself, but equally the legitimate separatist movements to whom it should apply. in tum, its effectiveness can oniy be safeguarded through parallel appropriate responscs and alternative mechanisms for those denied the remedy of secession. The unequa1 relationships that defined the colonizer and the colonized have already been challenged, but neo-colonidisrn and other forms of oppressor- oppresseci retationships remain largely subject to, at bat, political whim or, at worst, sheer ambivalence. However, if the rights of sub-staie groups, such as ethnic

"' international objection to the longer tam consideration of Kosovar independence has been Riaintained on the grolinds that it would be "destabilising". See, e.g., N. Malcolm "The past MW not bc a Prologue: Kosovo ChaJlagur the West to Leam fiom the Mistaka ma& in the Bosnian Conûict" in Time 30 Match, 1998 at p.38. Albrinians in Kosovo, rire to be üdequately addressed without the continual re- emergence of conflict, non-dominant groups need to have access to institutions that do not refer them back to the States with whom their grievances lie. International treaties and consensus on the treritment of non-dominant groups will continue to fall shon on effectiveness if they mat thesc issues in tcms of individual rights while, at the same time. dominant groups continue to employ the organs of States to speak with the voice of a 'people'. Undoubtedly the growing emphüsis on the human rights aspect of self-detenninütion and the dilution of the standard of non-intedèrence through consolidated policies on collective humanitarian intervention (as with Oper(rrions Provide Comfon and Rr~tor~Hope and the international and UN trisk forces in, inter ah, Bosnia and Lebrinon) ;ire positive developments that may, crirefully handled, pave the way for new untried solutions to the complex problems of ethnic conRict and sepüratisrn. Whiit has ernerged in the course of this study is that

ri brisis for the legitimacy of separütism rilready exists in internri~ionallaw detennined by the requirements of humrin rights standards. Hence, sepürdtism will not ultimately find legitimiicy arising out an inierprettition as to whether there is a 'people' or a 'minority' or an 'indigenous people' or an 'eihnic group' or religious group' or any other trait specific collective. The legitimücy of sepwatism or secession or partition rests on the prernise thrit the interests of human rights rire best served by it, boih inside the sepwtist group and beyond it, be it in Nonhem Ireland or elsewhere. Bibliography

P. Alston. cd., The United Nations and Human Rights,(Cambridge: Cambridge University Press, 1992)

S. J. Anaya, Indigenous Peoples in International Law, (New York: Oxford University Press, 1996)

P. Bew, ldeology and the Irish Question: Ulster Nationalism and Irish National ism 191 2 - 1 91 6, (Oxford: Clarendon Press, 1994)

G. D. Boyce, Nationalism in Ireland, (Routledge, 1995)

M. Boxrup, ed., The Norfli Caucus Barrier, (Hurst Publishers: London, 1992).

C. Brolman, R. Lefeber, Peoples and Minorifies in International Law, (Mattiflus/ M. Zieck, eds., Nij hofE Dordrecht/ Boston/ London, 1 993)

C. Brown, ed., Political Restmcturing in Europe: Ethical Perspectives, (London; New York: Routledge, 1994).

1. Brownlie, Basic Documents in Internarional Law, 4th ed., (Oxford: Clarendon Press, 1 995)

1. Brownlie, Principles of Public International Law, 4th ed., (Oxford: Oxford University Press, 1990)

A. Buchanan, Secession: The Morality of Political Divorce from Fort Sumter to Lithuania and Québec (Boulder, CO.: Westview, 199 1).

Secession; The Legitimacy of Sev Determination (New Haven: Yale University Press, 1978)

R. Carnemn, Self-defermination: A Question mer Must Amer, (Ameron Publications, 1992)

S. Caney, National Rights and Iniernational Obligations, (Westview, 1996) J. H. Carens, ed., 1s Québec Nationalism Jurt? Perspectives from Anglophone Canada, (McGill-Queen's University Press, 1995)

A. Cassese, Self-determination of Peoples: A Legal Reappraisal, (CarnbridgeiNew Yorkhlelboume: Grotius/ Cambridge University Press, 1995)

A. Cassese, ed., The Current Legal Regulation of the Use of Force, (Dordrecht Boston/ Lancaster: Martinus Nijhoff, 1 986).

G. Chaliand, ed., People withotlt CI Country: The Kwris and Kttrriisian, trans., M. Pallis, (London: Zed Books, 1982)

C. G. Charron, La Partition du Québec: De Lord Rurham à Stéphane Dion, (Montréal: VLB Éditeur, 1996)

D. Clark & Self -determination International Perspectives. (London: R. Williamson, Macmillan, 1996)

K. Clements & Building International Commrtnify: Co operating for R. Ward, eds., Peace: Case Studies (Allen & Unwin et al.,: Canberra, 1994)

J. Crawford, The Creation of States in international Law, (Oxford: Clarendon Press, 1979)

J. Crawford, ed., The Rights of Peoples, (LondonIOxford: Clarendon, 1992)

Conor Cruise O'Brien, To Katanga and Buck (1962).

F. S. Demers & European Union: A Viable Mode1 For Québec Canada?, M. Demers, (Ottowa: Centre for Trade and Policy Law, Carleston University, 1995)

1. Detîer De Lupis, Internutional Law and the Independent State, 2nd ed., (Aldenhot: Gower, 1987)

J. Dugard, Recognition and the United Nations,( Cambridge: Grotius, 1987)

S. Dunn, ed., Facets of the Conjlict in Northern Irelrind, (London: Macmillan, 1995)

T. M. Franck, et al., The Territorial Integrify of Québec in the Eveni of the Anainment of Sovereignfy, W. Boulet, trans., "L'iniegrité temtoriale du Québec dans l'hypothèse de l'accession à la souveraineté", Commission d' hde des questions afférentes à l'accession du Québec ii la souveraineté, Exposés et études 1 (Québec: Bibliothèque Nationale du Québec, 1992).

C. Gall1 & Chechnya: A Small Victorious War (Pan: London, 1997) T. De Waal,

F. Gallagher, The Anglo - Irish Treaty, T. P. O'Neill, ed., & intro., (London: Hutchinson, 1965)

A. Gerson, Iurael, The fist Bank and International Lcnv (Londoni Totowa: Frank Cass, 1978)

S. Goldenberg, The Pride of Small Nations: The Cauctcs and Post Soviet Disorder, (Zed: London, 1994)

J. A. S. Grenville & The Major International Treaties Since 1945: A History B. Wasserstcin, with Guide and Texts (Meuthen: London/ New York, 1987)

H. Hannum, Autonomy, Sovereignty and SelJ-Determination: The Accommodation of Conjlicting Rights, Revised ed., (Philadelphia: University of Pennsylvania Press:, 1996)

A. Heraclides, Helsinki II and its Ajiermath: The Making of the CSCE into an Internat ional Organiration (Printer Publisbers: London/ New York, 1993)

R. Higgins, Problems and Process: International Law and How We Use it (Oxford: Clarendon Press, 1993)

R. E. Howard, Human Righrs and the Search for Community (Boulder, Co.: Wcstview, 1995)

M. Hughes, M. Ireland Divided: The Roots of the Modern Irish Problern (New York: St. Martin's Press, 1994)

Christopher C. Joyner, The UV and International Law (Cambridge: Cambridge ed,, University Press, 1997)

R. Keamey, Postnationalist Ireland: Polirics, Culture, Philosophy (Landon and New York: Routledge, 1997)

P.G. Kreycnbruek & The Kurds: A Contemporary Overview, (London: S. Sperl, eds., Routkdge, 1992)

W. Kymlicka, ed., The Rights of Minoriry Cultures (Oxford: Oxford University Press, 1995) L. Lamont, Break-Up: The Coming End for Canada and the Stakes for America, (New York: Norton, 1994)

R. Lefeber et al, eds., The Changing Political Structure Of Europe: Aspects of International Law (Boston/ Dordrecht: Martinus NijhofT, 1991)

J. Lemco, Turmoil in the Peaceable Kingdom: The Québec Sovereignty Movement and Its implications for Canada und the United Stntes (Toronto: University of Toronto Press, 1994)

Y. Makonnen. International Law and the New States of Africa: A Siirdy of the International Legal Problems of State Succession in the Newly Independent States of Eastern Afiica (UNESCO: Addis Ababa. New YorW Paris1 Vaietta, 1983)

N. Manseragh, The Unresolved Question: The Anglo-Irish Settlement and Ils Undoing 1912 - 1972 (New Haven and London: Yale University Press, 199 1)

T. McAlpine, The Partition Principle: Remapping Québec Afer Separation (Toronto: ECW Press, 1996)

D.P.Moynihan, Pandemonitrm: Ethniciry in International Politics (Oxford: Oxford University Press, 1993)

Ved P. Nanda, Self-Determination Outside the Colonial Context: The Birth Y. Alexander & of Bangladesh in Retrospecr, in SelfDetermination: R. A. Friedlander, eds., National, Regional, and Global Dimensions ( 1980).

D. Nincic, The Problem of Sovereignp in the Charter and in the Practice of the UN (The Hague: MartinusNijhoff, 1970)

Controversial Subjects of Contemporary hternational Law,(Rotterdam: Rotterdam University Press, 1974)

J. Packer & The Protection Of Ethnic and Linpistic Minorities in K. Myntii, Europe (Abo: Abo Akademi, 1995)

People or People: Equality, Autonomy and Selfdeterminaiion. The Issues at Stake of the International Decade of the World's Indigenous Peoples (Montreal: International Centre for Human Rights and Dernomtic Development, 1996).

C. O. Quaye, Liberation Snuggles in International Law (Philadelphia: Temple University Press, 199 1) O, Schacter, international Imu in Theory and Practice, (Dordrecht: Martinus Nijhoff, 1991)

A. Rigo Sureda, The Evolution of the Right of Self-determination:A Study of UN Practice (Leiden: SijthofT, 1973)

M. N. Shaw. International Lm, 3rd ed., (Cambridge: Grotius, 1993)

K. E. Schulze, Nafionalism and Minorities and Diasporas: Identities and M. Stokes, & Rigl~tsin the Middle East, (Londod New York: 1. B. Tauris C. Campbell, Publishers, 1996)

P. Thornberry, International Lm and the Protection of Minorities, (Oxford: Clarendon Press, 1991)

C. Tomuschat, ed., The Modern Law of Self-Determination. (Dordrecht/Boston : Martinus Nijhoff, 1993)

Self-Determination in International Law (Hamden, Corn.: Archon, 1972)

R. J., Vincent, Human Rights and lnfernafional Relations, (Cambridge: Cambridge University Press, 1986)

Tmforming Settler States: Communal Conflict and Interna1 Securi~ in Northern Irelund and Zimbabwe,(Berkeley: University Of California Press, 1990)

P.J. White & Remaking the Middle Easr (Oxford/ New York: Berg, 1997) W. S. Logan, eds.,

C. H. Williams & Cornmuniîy Conflict, Partition and Nationalism (London E. Koûnan, eds., and New York: Routledge, 1989) A. Addis, "individualism, Communitarianism, and the Rights of Ethnic Minorities", 67 Notre Dame L. Rev. 61 5 (1 992)

M. Akehurst, "Custom as A Source of international Law", XLWi B.Y.1.L 1974 - 75

P. Alston, "The United Nations Hurnan Rights Record: From San Francisco to Vienna and Beyond", 16 Human Rights Quarterly (1 994)

S. 1. Anaya, "The Capacity of International Law to Advance Ethnic or Nationality Rights Claims", Hurnan Rights Quarterly 403 (1991)

"The European Convention on Hurnan Rights and the Protection of Minorities under International Law", 8 Conn. J. int'l L. 227 (1993)

S. J. Barkin & "The State and the Nation: Changing Noms and the Rules B. Cronin, of Sovereignty in international Relations", international Organization 107 (Winter 1994)

N. Berman, "Sovereignty in Abeyance: Self-determination and international Law", 7 Wisc J. int'l. L. 51 (1988)

A. Buchanan, "Self-determination and the Right to Secede", Journal of International Affairs 347 (W inter 1992)

1. Charpentier, "Les Declarations des Douze sur la Reconnaissance des Nouveaux Etats", 96 RGDIP 1992

Jost Delbriick, "Global Migration-Immigration-Multiethniciv:Challenges to the Concept of the Nation-State" 2 Indiana Journal of Global Legal Studies 1, Fa11 1994.

1. Dore, "Self-determination of Namibia and the United Nations: Paradigrn of a Paradox", 27 Harvard int'l L. J. 1986.

A. Eide, "Minority Situations: in Search of Peaceful and Constructive Solutions", 66 Notre Dame L. Rev. 131 1 (1991)

Dr. G. Fitzgerald, "The David Davies Mernorial Lecture 1987" (London: David Davies institute for International Studies, 1987) T. M. Franck, "The Emerging Right to Democratic Governance", American Journal of international Law 46 (1 992)

N. Gdets, "The Limits of Self-determination", New Perspectives Quarterly pinter 1992): pp. 50-3.

0. Q. Goldman, "The Need for an Independent Mechanisrn to Protect Group Rights: A Case Study of the Kurds", 2 Tuha J. Comp. & Int'l. L. 45 (1994)

C.Gray, "Self-determination and the Break-Up Of the Soviet Union" 12 Yearbook Of European Law 1992

M. Hsile, "Legality of Secessions: The Case of Eritrea", 8 Emory int'l. L, Rev. 479 (1994)

H. Hannum, "Contemporary Deveiopments in the international Protection of the Rights of Minorities". 66 Notre Dame L. Rev. 1431 (1991)

H. Hannum, "Rethiig Selfdetermination", 34 Va. S. Int'l. Law 1 (1993)

E. Hobsbawm, "Whose Fault-Line 1s It Anyway?" New Statesman & Society 23, (24 April 1992)

F. L. Kirgis Jr., "The Degrees of Self-determination in the United Nations Era", 88 A.J.I.L. 304 (1994)

R. N. Kiwanuka, "The Meaning of "People" In the Afncan Charter on Human and 'Peoples' Rights, 82 A.J.I.L. 80 (1992)

B. A. Klinsberg, "International Human Rights Intervention on Behalf of Minorities in Post-World War 1 Eastern Europe and Today: Placebo, Poison, or Panacea?" 1993 U. Chi. L. Sch. Roundtable 1.

''Liberalkm and the Politicization of Ethnicity", 4 CJLJ 239 (1991)

"Secession and the Modem State", http:// www.csra. net Lrand IdwlivO 1.htm (üepartment of Philosophy, Emory University, December 1996).

A. V. Lowe & "Recognition of States and Diplomatic Relations" 37 ICLQ C. Warbrick, 1988

M. "Ethnicitv is not Enoupti: Kcflections on Protracted Simpson, Secessionism in the Third World", International Journal of Comparative Sociology (Jan./April 1992): pp. 5-25.

J. Mayall, "Sovereignty and Self-determination in the New Europe" in, H. Miail, Minorify Rights In Europe: The Scope For a Transnational Regime, (London: Royal institute of international Affairs, 1993)

R. McCorquodale, "Self-determination: A Human Rights Approach", 43 ICLQ 1994

D. McGoldrick, "Canadian Indians, Cultural Rights and The Hurnan Rights Conunittee", 40 ICLQ 199 1

R. K. McMullen, "Ethnic Conflict in Russia: Implications for the United States", Studies in Conflict & Terrorism (July 1993): pp. 201-218.

G. J. Naldi, "The Case Concerning The Frontier Dispute (Burkina Faso V. Mali): Uti Possedetis in an African Perspective", 36 ICLQ 1987

A. Pellet, Wote sur La Commission d'Arbitrage de la Conference Europèene pour la Paix en Yugoslavie", 37 A.F.D.I. 1991

A. Pellet, "L'Activitè de la Commission d'Arbitrage de la Conférence Europèene pour la Paix en Yugoslavie", 38 A.F.D.I. 19%

J. S. Pilkington, "Beyond Humanitarian Rclief: Economic Development Efforts in Norihem Iraq", RPN 23 January-April 1997

M. Pornerance, "Self-deterrnination Today: The Metamorphosis of an Ideal" 19 israej Law Rev. 257 (1984)

N. M. Procida, "Ethic Cleansing in Bosnia-Henegovha, A Case Study: Employing UN Mechanisms to Enforce the Convention on the Prevention and Punishment of the Crime of Genocide" 18 Suffolk Transnat'l. L. Rev 655.

A. Sajo, "Protecting Nation States and National Minorities: A Case for Modest Nationalism in Eastern Europe", U. Chi. L. Sch. RoundtabIe 53 (1 993)

J. Salmon, "Reconnaissancc des Etats" 1992 RBDI.

D. Schneider & "The International Personality of hdigenous Peoples: An L. Furmanski. Account hm North America", international Law and Native Americans 1996, Paper delivered to the American Political science association Annual Meeting, September 1996. http:// www. ucok.edu.

M. N. Shaw, "The Definition of Minorities in International Law", 20 Israel Yearbook on Hurnan Rights 199 1

B. Slattery, "The Paradoxes of National Self-Determination", 12 OHLJ 32 (1993)

Standing Advisory Committee on Human Rights, Religious and political Discrimination and Equality of Opportunity in Northern Ireland. Report on Fair Employment, (London: H.M.S.O.,1987)

C. Walker & "A Peace Deal For Northem Ireland? The Downing Street R. L. Weaver, Declaration of 1993" 8 Ernory Int'l. L. Rev. 817 (1994).

"Cwrent Developments in International Law: Recognition of States" 4 1 ICLQ 1992

J. Webber, "The Jurisprudence of Regret: The Search for Standards of Justice in Mabo", 17 Sydney L. Rev 5 (1 995)

A. Wilson, "Wilsonian Self-Determination and the Versailles Settlement", 43 ICLQ (1994). United Nations Sources

United Nations Security Council 4382, 14 July, 1960. Resolutions: SI Res.1 4389,1960.

351.10 June, 1974

407 (1977) 25 May, 1977.

7 12, 19 September, 1991.

724.1 5 December, 199 1.

1 1 17,27 June, 1997.

Ceneral Assembly Resolutions/ 2672c XXV of 8 Decernber 1970. UNGA RESI 2775 (XXVI), 29 November, 197 1.

34 1 1 D (XXX),28 Novernber, 1975.

3 1/6 A, 26 October, 1976.

47f 145, 18 December, 1992.

47/ 230,47 üN GAOR Supp. no. 49, CTN Doc A/ 471 49 (1 992).

481 144,48 Situation of Human Rights in Iraq, UN GAOR Supp. No, 49 at 264, UN Doc a/ 48/ 144 (1 993). A /49/4 19,22 Septernber, 1994.

GA/SHC/3378,6 November, 1996.

UN GAOR /T,Fiflieth Session, Supp. No. 44 (AfS0/44), Report of the Committee against Torture. United Nations Charîer, Trenties und Conventions

International Covenant on Economic, U.N.T.S. No. 1453 1, vol. 993 (1976). Social and Cultural Rights.

Interttational Covenant on Civil and No. 14668, vol. 999 (1 976). Political Rights,

IL0 Convention 107, UN Doc. No. E/CN.4/Sub.YAC.4/1996/2

Convention Concerning Indigenous and 72 IL0 Official Bull. 59, entered into Tribal Peoples in Independent Corrntries force Sept. 199 1. (IL0 No. 169) 1989,

UN DedaratidAgreements

Universal Declaration on Human Rights, UNGA Doc. A/ 8 1 1, 1948.

Declaration on rhe Granting Of UNGA RES. 15 14 (XV), 15 UN GAOR Independence to Colonial Countries and Supp. (No. 16) at 66, UN Doc. N4684 Peoples, (1961) Dec. 14 1960.

Dra8 Declaration on Permanent G.A. res.1803 o,17 üN GAOR, Sovereignty over Natural Resources, Supp. (No.17) at 15, UN Doc. A15217 (1962).

Declaration on Principles of WGA Res. 2625(XXV) 24 ûct. 1970. International Law Concerning Friendly relations and Co-Operation among States in Accordance with the United Nations Charter.

Declaration on rhe Righrs of Persons G.A. res. 4711 35, annex, 47 UN GAOR Belonging to National or Ethnic. Supp. Wo. 49) at 210, UN GA Doc. Religiour or Linguistic Minorities, Al47149 (1993) üN Doc. E/ CN.4/ 1992/ 48 + Corr. 1.

Vienna Declaration and Programme of Adopted by the World Conference on Action, Hwnan Füghts, 25 June 1993, U.N. Doc. A/CONF. 1571 23 (1993), 32 I.L.M.1661 (1 993) Other NationaV Regional and International Sources.

Convention on the Rights and Duties of 26 Dec., 1933 T.S. No. 1 881 States [Montevideo Convention],

African [Banjul] Charter on Human and adopted June 27, 1981, OAU Doc. Peoples' Rights, CAB/LEG/67/3 rev. $21 I.L.M.58 (1982), entered into force Oct. 21, 1986.

Alm Alta Declaration. 21 Dec. 1991,31 iï,M 148, 1992.

Anglo-Irish Agreement of 1985, 24 ILM 1582 (1985).

Charter of the Organisation of African 25 May 1963,2 LM 1963,766. Uni@,

Charter of the Organization of American Cm:7063.000, 119 U.N.T.S.3,30th of States: As amended by the Protocol of Apr., 1948,21 UTS 607. Buenos Aires in 1967, by the Protocol of Cartagena de Indias in 1985 and by the Protocol of Managua in 1993,

Canudian Charter of Rights und Freedom, Part 1 of the Constitution Act, 1982, king Schedule B, to the Canada Act, 1982 [Canadian Charter],

The Final Act of the Conference on Security and Co-Operation in Europe, Helsinki, 19 75,

EC Declaration on Yugoslavia and the 16 Dec. 1991,31 ILM 1485, 1992. Guidelines for the Recognition of New States,

Position in Relation to Unilateral US State Department, Govemments Proclamations of Independence of Docs., 26 June, 1991. Croatia and Slovenia,

US State Department, Iraq Report on Bureau of Democracy, Human Rights and Human Rights Practices for 1996, Labour, 30 Jan. 1997.

Pmceedings of the Second Joint (DordrechtlBoston: Martinus Nijhoff, Conference Held in the Hague, 1994) Contemporary International Law Issues: Qvportunities at A Time of Momentous change: NstherlPads, July 22 - 24, 1993, Mémoire de la CEQ à la Commission (Québec: CEQ, Novembre 1990) Parlementaire Élargie sur l'Avenir Politique et Constitutionnel du Québec, Indépendence Nationale et Souveraineté Populaire,

United Nations Official Statements and Press Rehses

Human Rights Committee, General UN Doc. WGEN/l/Rev. 1 at 12 (1 994). Comment 12, Article 1 (Twenîy-first session, 1984),

Human Rights Committee, General UN Doc. HRYGEN/l/Rev. 1 at 38 (1 994). Comment 23, Article 27,

UN HRC HRlCTl440 24 October, 1995.

WRC HR/CN/751,25 April, 1996.

UNHRC HR/CN/7 1 1,25 March, 1996.

UNHRC HR/CN/778,2 April, 1997.

UNHRC HR/CN/796,10 April, 1997. United Nations Special Reports

Mr, Enrique Report on the Question of the Use of WCN.4/1995/29, 21 Bemales Mercenaries as a Means of Violating Human December, 1994. Ballesteros, Rights and Impeding the fiercise of the Right of Peoples to Self-determinaiion.

F. Capotorti, Study on the Rights of Persons Belonging tu United Nations Ethnic, Religiotrs ond Linguistic Minorifies, Publication, Sales No. E.9 1 .XiV.2, Geneva, 199 1.

Mr. S. Working Paper on the Definition of EICN.4ISub.2IAC.5 Chernichenko, Minorities, / 1996iWP. 1 and corr. 1

J. Martinez- The Study of the Problem of Discrimination EiCN.USub.211986 Cobo against Indigenous Peoples, /7 Add.1-4. United Nations Publication, Sales No. E.86.XIV.3.

A. Cristescu, The Right to Se~Deterrninarion: Historical El CN. 41 Sub. 2 and currenr developmenr on the Basis of 4041 Rev. 1, ülU United Nations Instruments, Publication, Sales No. E. 80. XiV. 3.

J. Desclienes, Proposai concerning a Definition of the Term UN Doc. ElCN.41

"Minority ", Sub.21 19851 3 1

E.-A. Daes, Standard Setting Activities: Evolution of UN Doc. No. Standards Concerning the Rights of E/CN.4/Sub.2/AC.4 fndigenous Peoples, / 199612.

A. Eide, Study of the Problem of Discrimination EKN.4ISub.UAC.4 against Indigenotrs Populations, / 1982iR. 1

H. G. Espiell, The Right to Self-Determination: UN Doc. E/ CNI 4/ Implementation Of W Resolufions, (1 980), Sub. 21 4051 Rev. 1.

M. Alfonso- Sfzrdy on Treaties, Agreements and other E/ CN . 4 / Sub. 2/ Martinez, Constructive Arrangements Between States 1995/ 2 7 and Indigenous Peoples, News/ Press Sources

V. Alksinis, "Suffering fiom Self-Determination", Foreign Policy 6 1 (Fall, 1991)

J. Bernstein, "Grozny is a City Beyond Repair", Wall Street Journal, 20 Mar. 1995.

B. Crossette, "What is a Nation?: C hechnya Case New York Times, 26 Revives U.N. Debate about Sovereignty Dec. 1994, p. A5. and Minorities",

L. N. Cutler, "The Dilemma of Secession", Washington Post, 2 1 July 1991, C7. "Ethiopia Buries the Nation-State", Financial Times, London, 5/ 5/ 95

"Ethiopian Assembly Approves Right to Deutsche Secede" Presse-Agent tir November 23,1994.

P. Glynn, "The Age of Bakanization", Commentary (July, 1993): pp. 21-5.

T. Goltz, Comment The Natiori, Vol. 5 No. 264, Feb 10, 1997

G. Gottlieb, ''Nations without States",

D. Quinn- The Bosm Globe, May 11, 1993 p.5. JU&%

Ved. P. p. E 04. Denver Post, May 5 Nanda, 1995,

W.Roberis, "Baikan Crisis", Defice and Foreign Afairs Sfrategic Poliq, Apri 1- May 1993 at p. 6.

"SomaIiland Leader Renounces Reuters World Secession" Service April 30, 1994.