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The role of referendum and non-referendum mechanisms for state-framing processes by Pataramon Satalak LLB (Hons) Chulalongkorn University 2004 LLM Sheffield University 2006 A THESIS SUBMITTED FOR THE DEGREE OF DOCTOR OF PHILOSOPHY (PhD) IN THE LAW SCHOOL, LANCASTER UNIVERSITY, UNITED KINGDOM May 2018 Table of Contents DECLARATION 1 ABSTRACT 2 ACKNOWLEDGEMENTS 3 TABLE OF CASES 4 LIST OF ABBREVIATIONS 6 INTRODUCTION 8 1. GENERAL BACKGROUND 8 2. THE RESEARCH QUESTION 20 3. RESEARCH METHODOLOGY 25 3.1 DOCTRINAL RESEARCH 25 3.2 DATA COLLECTION AND ANALYSIS 26 4. THEORETICAL FRAMEWORK OF THE RESEARCH-REPUBLICAN LIBERAL THEORY 27 5. CONTRIBUTION TO THE FIELD 30 6. OVERVIEW OF CHAPTERS 32 CHAPTER 1 THE EXPRESSED WILL OF THE PEOPLE DURING THE EXTERNAL SELF- DETERMINATION PROCESS 35 1. INTRODUCTION 35 1.1 Legitimacy and legality in the law of secession 38 1.2 Moral reasoning and secession process 44 1.3 The inclusion of public participation into democratic governance 46 2. Colonial and post-colonial legal frameowrks for the right to self-determination 50 2.1 Self-determination as a process for legitimizing decolonization 50 2.2 Post-colonial legal frameworks for external self-determination 53 2.2.1 International Covenant of Civil and Political Rights 1966 53 2.2.2 United Nations General Assembly Resolution 2625 55 2.2.3 Badinter Commission Framework 1991 57 2.2.4 The European Commission for democracy through law guideline 1999 59 3. Why use republican liberal theory to assess the practical application of external self- determination 61 3.1 Nationalist theory 61 3.2 Liberalist theory 63 3.3 Communitarian theory 64 3.4 Liberal nationalist theory 65 3.5 Republican liberal theory 66 4. Conclusion 69 CHAPTER 2 REFERENDUMS AS A MECHANISM FOR EXPRESSING EXTERNAL SELF- DETERMINATION 71 1. INTRODUCTION 71 2. THE TYPOLOGY OF INDEPENDENCE REFERENDUMS 78 2.1 CONSENSUAL-BASED REFERENDUMS 79 2.2 NON CONSENNSUAL-BASED REFERENDUMS 80 3. THE APPLICATION OF REPUBLICAN LIBERALISM TO REFERENDUM PROCESSES 81 3.1 CLEAR WORDING OF REFERENDUM QUESTIONS 82 3.1.1 BALLOT QUESTION WITH THE INFLUENCE OF ELITE-DRIVEN UNDERTAKINGS 88 3.1.2 BIASED AND MISLEADING QUESTIONS 91 3.1.3 FORMULATING QUESTIONS WITH NO “STATUS QUO” OPTIONS 102 3.2 MAJORITY AND MINORITY RELATIONS 104 3.2.1 MAJORITY RULE AND COUNTER-MAJORITARIAN DIFFICULTY 111 3.2.2 MINORITY INVOLVEMENT 117 3.3 IDENTIFICATION OF VOTERS 125 3.3.1 MONTENEGRO AND ITS CITIZENS RESIDING IN SERBIA 128 3.3.2 THE SCOTTISH REFERENDUM AND THE FRANCHISE RULE 131 3.3.3 SOUTHERN SUDAN AND THE EXTENDING SCOPE OF THE FRANCHISE RULE 133 3.3.4 WESTERN SAHARA AND LONG-TERM SETTLEMENT OF VOTER’S QUALIFICATIONS 136 3.4 HUMAN RIGHTS CONCERNS 141 3.4.1 FREEDOM OF EXPRESSION 145 3.4.2 FREEDOM OF MOVEMENT 148 3.4.3 FREEDOM OF ASSEMBLY AND ASSOCIATION 149 3.4.4 ROLE OF POLITICAL PARTIES, CIVIL SOCIETIES, AND THE MEDIA 152 3.5 THE ROLE AND FUNCTIONS OF INTERNATIONAL ORGANIZATIONS 159 3.5.1 ADMINISTRATIVE ROLE 163 3.5.2 SUPERVISORY ROLE 171 3.5.3 ADVISORY ROLE 176 4. CONCLUSION 179 CHAPTER 3 NON-REFERENDUM MECHANISMS: EXTERNAL SELF-DETERMINATION AND REPRESENTATIVE BODIES 181 1. INTRODUCTION 181 2. THE TYPOLOGY OF CONSENSUAL AND NON-CONSENSUAL REPRESENTATIVE PROCESSES 189 3. THE APPLICATION OF REPUBLICAN LIBERALISM TO REPRESENTATIVE PROCESSES 192 3.1 THE NATURE OF THE ELECTION AND THE SUBSEQUENT ACTIONS OF THE ELECTED REPRESENTATIVES 194 3.1.1 CONSENSUAL ACTION IN NAMIBIA 197 3.1.2 NON-CONSENSUAL ACTION IN BANGLADESH 213 3.1.3 NON-CONSENSUAL ACTION IN CATALONIA 225 3.2 MAJORITY AND MINORITY RELATIONS 236 3.2.1 CZECHOSLOVAKIA: AN INSTANCE OF SECESSION AS A RESULT OF NEGOTIATIONS BETWEEN REPRESENTATIVE BODIES RATHER THAN DUE TO ANY PUBLIC DEMAND FOR INDEPENDENCE 240 3.2.2 KOSOVO AND THE ATTEMPT OF MINORITY POWERS TO PARTICIPATE IN DECISION- MAKING PROCESSES 246 3.3 PRE-VOTERS IDENTIFICATION 252 3.4 HUMAN RIGHTS PROTECTION AND PEOPLE’S FUNDAMENTAL FREEDOMS DURING ELECTIONS 257 3.4.1 POLITICAL PARTY, THE MEDIA, AND CIVIL SOCIETY’S FREEDOM OF EXPRESSION 260 3.4.2 POLITICAL PARTY, THE MEDIA, AND CIVIL SOCIETY’S FREEDOM OF MOVEMENT 264 3.4.3 POLITICAL PARTY, THE MEDIA, AND CIVIL SOCIETY’S FREEDOM OF ASSEMBLY AND ASSOCIATION 266 3.5 THE ROLE AND FUNCTIONS OF INTERNATIONAL INSTITUTIONS 269 4. CONCLUSION 280 CHAPTER 4 NON-REFERENDUM MECHANISMS: EXTERNAL SELF-DETERMINATION AND THE MODEL OF PUBLIC CONSULTATION 283 1. INTRODUCTION 283 2. THE APPLICATION OF REPUBLICAN LIBERALISM TO THE PUBLIC CONSULTATION PROCESSES 289 2.1 INTERNATIONAL INVOLVEMENT IN THE ESTABLISHMENT OF A PUBLIC CONSULTATION 291 2.1.1 WEST PAPUA 292 2.1.2 BAHRAIN 303 2.2 EFFECTIVE PARTICIPATION OF THE PEOPLE IN A PUBLIC CONSULTATION 311 2.3 HUMAN RIGHTS PROTECTION 316 3. CONCLUSION 325 CONCLUSION 328 BIBLIOGRAPHY 337 Declaration I confirm that the thesis is my own work. It has not been submitted in the same form for the award of a higher degree elsewhere. The content of this research is current as of 30 April 2017 Pataramon Satalak July 2017 1 Abstract This thesis presents how the ‘will of the people’ is legitimized in the practical application of external self-determination. Since international law recognizes people as political communities, if they are sufficiently knowledgeable and aware of their rights, their involvement can legitimize the actions of their governmental authority. In order for the people’s deliberations- or self-governance- to be considered legitimate, the expression of their will in territorial alteration decision-making processes must be continuous. Moreover it is necessary to have responsible institutional and legal frameworks to guarantee that the people’s will is both considered and put into action. Using republican liberal theory, this study will explore the importance of ordinary citizens in determining their territorial status. The theory foregrounds the right to participate in determining their own destiny, and suggests a number of practical ways in which democratic legitimacy can be achieved. In order that the people’s will be considered legitimate, republican liberalism promotes ongoing interactions between ordinary citizens, democratic mechanisms, institutions and legal instruments. In order to ensure that any self-determination process conforms to republican liberal theory’s requirements for legitimacy, the process must empower people both individually and collectively to participate. It must also ensure that all citizens are considered equal and have political equality, regardless of their ethnic, racial, religious or linguistic backgrounds. In addition, republican liberal theory stresses the power of the people to check and scrutinize governmental authorities, and addresses the importance of law (constitution or statutes) in guaranteeing that the will of the people is central to any political decision regarding their future status. 2 Acknowledgements First of all, I would like to thank my supervisors Dr. James Summers and Professor Steven Wheatley for all their academic and moral support. They have been supportive and generous with their time and advice. I would also like to thank my friends at Lancaster for all their help. A special mention must go to the Gould’s family, Sigrun Valderhaug Larsen and Miranda-Barty-Taylor who always encourage me and listen to everything during my PhD life. Thank you the Faculty of Political Sciences and Law and Burapha University, particularly the Dean in approving and awarding me a four-year expenses throughout the course of study. Finally, a special thank go to my parents, my colleagues and my closed friends in Thailand, in particular, Teerapong, Sakrit, Janewit, Umabhorn, and Chongrak. In addition, my grandfather and grandmother who passed away during the final six months of submission. Without them, this project would have been possible. This thesis is dedicated to them. 3 Table of Cases International Court of Justice Judgments and Advisory Opinions Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Advisory Opinion), ICJ Reports (2010) Accordance with International Law of the Unilateral Declaration of Independence by the provisional institutions of self-government of Kosovo (Written comments of the government of the Republic of Serbia), ICJ Reports (2009) Accordance with International Law of the Unilateral Declaration of Independence by the provisional institutions of self-government of Kosovo (Written statement of the government of the Republic of Serbia), ICJ Reports (2009) Accordance with International Law of the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo (Written Contribution of the Republic of Kosovo), ICJ Reports (2009) Legal Consequences for states of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion), ICJ Reports (1971) Western Sahara (Advisory Opinion), ICJ Reports (1975) Decisions of the European Courts of Human Rights Loizidou v Turkey (1996) EHRR (18 December 1996) Application no. 15318/89 Stankov and the United Macedonian organization Ilinden v Bulgaria (2001) ECtHR (2 October 2001) Application nos. 29221/95 and 29225/95 Decisions of the Human Rights Committee Fongum Gorji-Dinka v Cameroon (2002) HRC (14 March 2002) Communication No. 1134/2002 UN.Doc. CCPR/C/83/D/1134/2002 General Comment No. 23(50) (art.27)’ CCPR/C/21/Rev.1/Add.5 (1994) General Comment No.25 (57) CCPR/C/21/Rev.1/Add.7 (1996) General Comment No.34 CCPR/C/GC/34 (2011) Gillot V. France (2002) HRC (15 July 2002) Communication No.932/2000 UN Doc. CCPR/C/75/D/932/2000 Decision of the African Commission on Human and People’s Rights Angela Poma Poma v Peru (2009) ACHPR (27 March 2009) Communication No. 1457/2006 UN Doc CCPR/C/95/D/1457/2006 Endorois v Kenya (2009) ACHPR (25 November 2009) Communication No.