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SECESSION: International Law Perspectives

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SECESSION: International Law Perspectives This page intentionally left blank SECESSION TheendoftheColdWarbroughtaboutnewsecessionistaspirationsandthe strengthening and re-awakening of existing or dormant separatist claims everywhere. The creation of a new independent entity through the separa- tion of part of the territory and population of an existing State raises serious difficulties as to the role of international law. This book offers a compre- hensive study of secession from an international law perspective, focusing on recent practice and applicable rules of contemporary international law. It includes theoretical analyses and a scrutiny of practice throughout the world byeighteen distinguished authors from Western and Eastern Europe, North and Sub-Saharan Africa, North and Latin America, and Asia. Core questions are addressed from different perspectives, and in some cases with divergent views. The reader is also exposed to a far-reaching picture of State practice, including some cases which are rarely mentioned and often neglected in scholarly analysis of secession. marcelo g.kohenis Professor of International Law at the Graduate Institute of International Studies, Geneva. SECESSION International Law Perspectives Edited by MARCELO G. KOHEN cambridge university press Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo Cambridge University Press The Edinburgh Building, Cambridge cb2 2ru,UK Published in the United States of America by Cambridge University Press, New York www.cambridge.org Informationonthistitle:www.cambridge.org/9780521849289 © Cambridge University Press 2006 This publication is in copyright. Subject to statutory exception and to the provision of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published in print format 2006 isbn-13 978-0-511-16103-2 eBook (EBL) isbn-10 0-511-16103-4 eBook (EBL) isbn-13 978-0-521-84928-9 hardback isbn-10 0-521-84928-4 hardback Cambridge University Press has no responsibility for the persistence or accuracy of urls for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate. CONTENTS List of contributors page viii Preface x Table of cases xii Table of international instruments xviii List of abbreviations xxxi Introduction 1 marcelo g.kohen part i The Foundations of International Law and Their Impact on Secession 21 1 Secession and self-determination 23 christian tomuschat 2 Secession, terrorism and the right of self-determination 46 andrew clapham 3 Secession and external intervention 65 georg nolte 4Therole of recognition in the law and practice of secession 94 john dugard and david raicˇ 5The State as a ‘primary fact’: some thoughts on the principle of effectiveness 138 theod´ ore christakis∗ v vi contents 6Anormative ‘due process’ in the creation of States through secession 171 antonello tancredi 7 Secession and the law of State succession 208 andreas zimmermann 8Arethere gaps in the international law of secession? 231 olivier corten∗ part ii International and Domestic Practice 255 9The question of secession in Africa 257 fatsah ouguergouz and djacoba liva tehindrazanarivelo∗ 10 International law and secession in the Asia and Pacific regions 297 li-ann thio 11 Secession and international law: the European dimension 355 photini pazartzis 12 Secession and international law: Latin American practice 374 frida armas pfirter and silvina gonzalez´ napolitano 13 Lessons learned from the Quebec Secession Reference before the Supreme Court of Canada 416 patrick dumberry 14 The Secession of the Canton of Jura in Switzerland 453 christian dominice´ ∗ contents vii 15 Conclusions 470 georges abi-saab Select bibliography 477 Index 495 ∗In French, with abstract in English. CONTRIBUTORS Georges Abi-Saab,Honorary Professor, Graduate Institute of Interna- tional Studies, Geneva; Member of the Institut de Droit international FridaArmasPfirter,Professor, Faculty of Law, Austral University, Buenos Aires Theodore´ Christakis,Professor, Faculty of Law, University of Grenoble Andrew Clapham,Professor of International Law, Graduate Institute of International Studies, Geneva Olivier Corten,Professor, Faculty of Law, Free University of Brussels Christian Dominice´,Honorary Professor, Graduate Institute of Interna- tional Studies and Law Faculty, University of Geneva; Member and former Secretary-General of the Institut de Droit international John Dugard,Professor, University of Leiden; Member of the Interna- tional Law Commission; Member of the Institut de Droit international Patrick Dumberry,Memberofthe Quebec Bar, Attorney at Lalive & Partners, Geneva Marcelo G.Kohen,Professor of International Law, Graduate Institute of International Studies, Geneva Silvina Gonzalez´ Napolitano,Professor of International Law, Catholic University of Argentina; Associate Professor, University of Buenos Aires Georg Nolte,Professor, Institute of International Law, University of Munich Fatsah Ouguergouz, Secretary of the International Court of Justice, The Hague Photini Pazartzis, Professeur agreg´ee,Facultyof Law, National and Capodistrian University of Athens viii contributors ix David Raicˇ,Deputy Director and Senior Programme Coordinator, Hague Institute for the Internationalisation of Law. Antonello Tancredi,Professor of International Law, Faculty of Law, University of Palermo Djacoba Liva Tehindrazanarivelo,PhD in International Law and Guest- Lecturer, Graduate Institute of International Studies, Geneva; Lecturer, Faculty of Law, University of Neuchatelˆ Li-ann Thio Associate Professor, Faculty of Law, National University of Singapore Christian Tomuschat,Professor, Faculty of Law, Humboldt-University of Berlin; Member of the Institut de Droit international Andreas Zimmermann,Professor, Director of the Walther-Schucking-¨ Institute for International Law, University of Kiel PREFACE The early origin of this book derives from a workshop on International Law and Secession that I organised at the Graduate Institute of Interna- tional Studies in Geneva in March 2000. Some of the contributors were present and many enthusiastically supported the idea of publishing a com- prehensive analysis of the phenomenon of secession from an international law perspective, without any preconceived views or any hidden political agendas. On the basis of a list of topics I had suggested at that time, invitations to contribute were subsequently addressed to scholars from different legal and cultural backgrounds as well as regional origins. The result is a list of eighteen contributors hailing from Western and Eastern Europe, North and Sub-Saharan Africa, North and Latin America, and Asia. Diversity also finds its expression by the existence of four chapters in French with summaries in English. This volume is divided into two parts, the first encompassing a theoret- ical analysis of the issue and the second, a scrutiny of regional practice. As the fourteen chapters show, both aspects are interwoven. The reader will find specific analysis of particular situations in both parts of the book. Similarly, authors of the chapters devoted to the study of regional practice also arrive at theoretical conclusions through the examination of cases of secession and separatism in their respective regions, including the way regional institutions or systems approach the problem. Core questions are addressed from different perspectives – and in some cases with diver- gent views – in several chapters. Although the purpose of this book is not to describe every case of real or potential secession, the reader will be exposed to a far-reaching picture of practice in all regions of the world, including cases rarely mentioned and often neglected in the scholarly analysis of this topic. Iamextremely grateful to Yasmin Naqvi (teaching and research assis- tant and Ph.D. candidate at the Graduate Institute of International Stud- ies) and Divvya Vorburger-Rajagopalan (Ph.D. candidate at the Graduate Institute of International Studies), for their editorial work with the x preface xi English texts and the preparation of the list of cases and international instruments referred to in this volume, and to Liva Djacoba Tehindraza- narivelo (charg´e d’enseignement invit´e at the Graduate Institute of Interna- tional Studies), who edited the French texts and substantially contributed to the preparation of the bibliography included in the volume. My sincere appreciation also goes to all the contributors, for sharing their knowledge of the topics covered and for the serious work they have each put into their chapters. In general, developments which took place up to January 2005 were taken into consideration. Authors, including the editor, are exclusively responsible for any statements of fact and opinions expressed in their respective contributions. M. G. K. Geneva, 2 February 2005 TABLE OF CASES PCIJ cases Customs Regime between Germany and Austria, Advisory Opinion, PCIJ, 1931 Series A/B, No. 41, p. 57 145 Nationality Decrees in Tunis & Morocco, 1923, PCIJ, Series B, No. 4, p. 24 71–2 The Monastery of Saint-Naoum 1924, Advisory Opinion PCIJ, Series B, No. 9. 144, 475 ICJ cases Application for Revision of the Judgement of 11 July 1996 in the Case Concerning Application of the Convention on the Prevention and Punishment of the Crime ofGenocide(Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections (Yugoslavia v. Bosnia and Herzegovina), ICJ Reports 2003, p. 7 212, 218, 221 Arrest
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