Social Policy

Statehood and the Law of Self-Determination by David Raic (Developments in International Law, Vol. 43: Kluwer Academic Publishers) The striving of communities for statehood is, of course, an old phenome­non. For instance, against the background of nationalism, the Versailles peace settlement led to the rebirth of numerous States in Europe. To that effect, Butler observes, the Versailles Treaties have been described as the "balkan­isation of Europe"! But there were others, apart from the nationalities who were allowed to establish their own State, who favoured the peace settlement and considered it right and inevitable.; Whether or not one agrees with this conclusion, the same forces of national feeling have certainly not ceased to operate, nor have they become weaker in the course of the twentieth and twenty-first century. Indeed, to speak with Cobban, "we may approve them, or we may condemn them, but we cannot ignore them". For an international lawyer at least, the challenge is thus to find out whether international law contains rules and principles regulating these forces and their outcomes.

The problem of the right of self-determination, particularly in the postcolonial era, is formed in essence by the fact that this right can have a tense relationship with the principle of state sovereignty. The right of a State to having its territorial integrity respected, is a corollary of State sovereignty. On the basis of this principle, States possess the right to uphold their borders if these are threatened either from the outside or from the inside. On the other hand, the right of self-determination was, in the aftermath of World War I and during the period of decolonization at least, primarily seen as a concept which could justify the separation of a part of the territory of an existing State for the purpose of establishing a new State. Thus, the right of self-determina­tion is at least potentially aimed at territorial change. Consequently, the aspiration of communities within existing States to the creation of their own State on the basis of an alleged right of self-determination, and the attempts of the parent States to preserve their territorial status quo, is the source of the majority of conflicts with which the international community finds itself confronted almost daily.

It is sometimes argued that these claims to self-determination as well as the situations which arise as a result of an alleged exercise of that right, must simply be ignored, that these matters are not regulated by international law or that they are unsuitable for legal regulation. In addition, it has been suggested that the recognition of the new States which were formed within the boundaries of the former Yugoslavia and the former Soviet Union must mainly be explained in terms of politics. In other words, the creation and recognition of these new States should be seen to have taken place mainly outside the domain of international law. These situations and these contentions thus raise the following question: does international law contain any rules and principles on the basis of which the formation and recognition of some entities, and the ignoring and non-recognition of others, can be explained?

The main question of Statehood and the Law of Self-Determination is: when does an entity qualify as a State under international law, and what, if any, is the role of the law of self-determination in the process of the formation of States in international law?

This question raises a number of sub-questions: does international law contain objective, that is, legal, criteria for statehood on the basis of which it is possible to determine whether or not an entity qualifies as a State? What is the role of (non-)recognition in the creation of States? Is the formation of a State solely a `matter of fact' or is it (also) a `matter of law'? That is to say, does the law of statehood contain rules barring the acquisition of statehood of a territorial entity if the said entity has been established in violation of international law? What is the role of the right of self-determination in this regard? If self-determination may justify and legitimize the formation of a State, in what instances does such a justification and legitimization exist? And what is the legal status of an entity if it has been established without such a legal basis? This last question is intimately related to another one: does a right of unilateral secession exist in the post-colonial era? If so, when does it exist and who is the holder of such a right? How does this right relate to the principle of territorial integrity, and how does it relate to the principle of uti possidetis? Finally, if a right to unilateral secession does exist under certain circumstances (that is, under certain conditions), what is the legal status of an entity which is created whilst the conditions for the existence of a right to unilateral secession were not satisfied?

To this end, Statehood and the Law of Self-Determination is divided into three parts. Part I, entitled 'State­hood', consists of four chapters. This part focuses primarily on the concept of `State' in international law, first from the perspective of the more or less generally accepted law of statehood, and thereafter in the light of additional criteria for statehood which may be suggested on the basis of modern state practice. In that respect, some basic legal concepts, such as `subject of international law' and `personality', are examined in Chapter 1. Chapter 2 addresses the general characteristics and attributes of statehood, as well as the role of recognition in the process of the formation of States. Chapter 3 analyses the content and status of the so-called `traditional' criteria for statehood, which are factual criteria based on the precondition of effectiveness. Some suggested additional criteria for statehood which are based on legality rather than effectiveness are discussed in Chapter 4, against the background of the doctrine of non-recognition of illegal acts and situations. It will be seen that a number of question relating to statehood and the status of certain entities remain unanswered on the basis of the discussion as it has developed thus far. It is submitted that these questions may be answered from the perspective of the law of self-determination.

Part II of the study, entitled 'Self-Determination', consists of three chapters focusing on the rules and principles of the law of self-determination. Chapter 5 charts the development of the concept of self-determination from its first international appearance during World War I up to and until its role in the context of decolonization. This analysis leads to a formulation of the raison d’etre and main objective of the principle of self-determination insofar as this may be deduced from the development of the concept in the said period. In Chapter 6, the analysis of the law of self-determination is taken a step further. In this Chapter, the question of whether or not the right of self-determination extends beyond decolonization and if so, in what form is examined. In this respect both the `internal' and the `external' aspect of the right of self-­determination is addressed. Also, the legal status of (internal and external) self-determination in the post-colonial era is analyzed, as well as the (potential) holder of that right. It is shown that the right of self-determination does extend beyond the colonial context as a continuing right, primarily in the form of `internal' self-determination. However, in certain aspects external self­determination is also a continuing right, in the sense that the entire population of a State is always free to choose integration in, or association with, another existing State. The exercise of the external aspect of self-determination leads to a change in the external boundaries of a State. It has been suggested that the right of self-determination, particularly in its `external' form, conflicts outright with two other principles of international law: the principle of territorial integrity and the principle of uti possidetis. The content of these two principles as well as their relation to the right of self-determination is addressed in the final part of Chapter 6. The question of the existence of a right of unilateral secession is dealt with in Chapter 7 on the basis of a number of case studies, including the birth of Bangladesh, the crisis in the former Yugoslavia and attempts at secession within the territory of the former Soviet Union.

Part III is entitled `Statehood and Self-Determination' and consists of Chapter 8. The purpose of this Chapter is to identify the precise role of the law of self-determination in the process of the formation of States under contempo­rary international law. In the Precis, the conclusions reached in the previous chapters are summarized and used to formulate the applicable rules and principles of the modern law of statehood.

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