Even outside of the UN framework, no definition of people has been adopted. Notwithstanding the fact that the African continent has been directly concerned with issues of self-determination, the *African Charter on Human and Peoples' Rights* does not provide a definition of the term. Interestingly, in the Comments to the Charter the absence of a definition was justified by claiming that it was "*to avoid a difficult discussion for the drafters*".143 However, the African Commission has had the chance to clarify what has to be understood by people. In the case *Kevin Mgwanga Gunme et al v. Cameroon*144 people from Southern Cameroon claimed that they had suffered a denial of their right to self-determination during the 1961 UN plebiscite for independence and the process of adoption of the Constitution which followed. In its counter-claim Cameroon addressed the issue of whether the inhabitants of the South were a people and relied basically on an ethnoanthropological argument. Cameroon maintained that Southern inhabitants could not be considered a people since no "*ethno-anthropological argument can be put forward to determine the existence of a people of Southern Cameroon, the Southern part being of the large Sawa cultural area, the northern part being part of the Grass fields' cultural area*".145 Accordingly, Cameroon took advantage of the cultural differences within national sub-units in the southern region to develop its argument. However, cultural differences are not a prerogative of southern Cameroon only, but are very common in the African continent. This is why on a more general scale, the argument does not seem to be so powerful, and perhaps it should not have been pre-

promulgated by the Special Representative of the UN Secretary-General.

138 A further clarification is necessary. At the risk of redundancy, the term used is always people, not population. In fact, the term people cannot be confused with population, which is a broader concept encompassing groups of individuals not necessarily identified within a territory. That is to say that the term does not carry a national value within itself.

139 When the ICJ is asked to provide an Advisory Opinion, it usually invites States to submit written observations as well as to participate to the oral phase in order to express their views on the legal questions raised by the request. Written and oral submission can help the ICJ in ascertaining where international law stands with respect to the issue at stake. Being so important as they are, one could expect that those States in favor of a progressive interpretation of international law take the chance to provide as much and detailed information as possible. Indeed, for the Advisory Opinion on the independence of Kosovo, declarations were vague in terms of the exercise of external self-determination and limited themselves to recognize a right of secession only as a remedy. See Written Statements from Albania, Denmark, Estonia, Finland, Germany, Ireland, Latvia, the Netherlands, Poland, Slovenia and Switzerland, 19 April 2009, at http://www.icj-cij.org/docket/index.php?p1=3&p2=4&k=21&case=141&code=kos&p3=1. See also J. Vidmar: "*Remedial Secession in International Law: Theory and (Lack of) Practice*", St Anthony's International Review, 2010, vol. 6, p. 37.

140 As it has been underlined by the representative of the Netherlands during oral statement in front of the ICJ in the Advisory Opinion on Kosovo, in such cases "*There is an abundance of literature on the law of self-determination. It provides a wealth of material, including on the exercise of the right to external self-determination. It is informative, but it may not be authoritative*". See Oral Statement by the Representative of the Netherlands, 10 December 2009, http://www.icjcij.org/docket/files/141/15734.pdfat, para. 9.

determination, as already hinted at in the previous section. The interplay between self-determination and indigenous people is more intricate because the notion of indigenous people is in itself controversial. That is to say that the notion shares some features with the that of minority and some other with that of people. However, case-law and international documents point out that indigenous people are entitled to exercise the right to self-determination, at least in its internal dimension of self-

A distinguished contribution to the inquiry on new trajectories of self-determination has been given by Summers, who focused on the role of peoples in international law through an extensive perusal on current doctrine and practice. As he argues, there is no current definition of people138 in international law, although people has been referred to as the basic unit entitled to exercise self-determination since the develop-

Due to the lack of clarity surrounding the application of self-determination, it may be useful to look at official declarations given by States. An important chance for stating their views is given to States during oral proceedings in front of the ICJ.139 States submission have a great significance in the discourse about selfdetermination, not only because there is no international norm which defines the scope and context of application of the right, but also because even among legal scholars the debate is a never ending one.140 As already referred to above, the ICJ has been called several times to express its views on the status of self-determination under international law, the latest being when the General Assembly requested an opinion on legal issues linked to self-determination for the construction of a wall in

138 A further clarification is necessary. At the risk of redundancy, the term used is always people, not population. In fact, the term people cannot be confused with population, which is a broader concept encompassing groups of individuals not necessarily identified within a territory. That is to say that the term

139 When the ICJ is asked to provide an Advisory Opinion, it usually invites States to submit written observations as well as to participate to the oral phase in order to express their views on the legal questions raised by the request. Written and oral submission can help the ICJ in ascertaining where international law stands with respect to the issue at stake. Being so important as they are, one could expect that those States in favor of a progressive interpretation of international law take the chance to provide as much and detailed information as possible. Indeed, for the Advisory Opinion on the independence of Kosovo, declarations were vague in terms of the exercise of external self-determination and limited themselves to recognize a right of secession only as a remedy. See Written Statements from Albania, Denmark, Estonia, Finland, Germany, Ireland, Latvia, the Netherlands, Poland, Slovenia and Switzerland, 19 April 2009, at http://www.icj-cij.org/docket/index.php?p1=3&p2=4&k=21&case=141&code=kos&p3=1. See also J. Vidmar: "*Remedial Secession in International Law: Theory and (Lack of) Practice*", St Antho-

140 As it has been underlined by the representative of the Netherlands during oral statement in front of the ICJ in the Advisory Opinion on Kosovo, in such cases "*There is an abundance of literature on the law of self-determination. It provides a wealth of material, including on the exercise of the right to external self-determination. It is informative, but it may not be authoritative*". See Oral Statement by the Representative of the Netherlands, 10 December 2009, http://www.icj-

government within their own State.

ment of Wilson and Lenin's proposals.

does not carry a national value within itself.

ny's International Review, 2010, vol. 6, p. 37.

cij.org/docket/files/141/15734.pdfat, para. 9.

**4.1 Still in search for a definition of people**

the Palestinian territory141 and for legality of the unilateral declaration of independence issued by Kosovo.142 In the latter case, the issue of self-determination and the right to secession came into play prominently: a specific section will dwell with the case of Kosovo in the Chapter about secession, but for the purposes of this Chapter it is interesting to observe that States referred to the inhabitants of Kosovo as *people* without substantiating their assumption on international legal grounds. Instead, they relied on previous agreements: i.e. the Netherlands claimed that the word people has been used in the Rambouillet Agreements or in UN documents, while Albania referred to the constitutional framework for provisional self-government of Kosovo promulgated by the Special Representative of the UN Secretary-General.

Even outside of the UN framework, no definition of people has been adopted. Notwithstanding the fact that the African continent has been directly concerned with issues of self-determination, the *African Charter on Human and Peoples' Rights* does not provide a definition of the term. Interestingly, in the Comments to the Charter the absence of a definition was justified by claiming that it was "*to avoid a difficult discussion for the drafters*".143 However, the African Commission has had the chance to clarify what has to be understood by people. In the case *Kevin Mgwanga Gunme et al v. Cameroon*144 people from Southern Cameroon claimed that they had suffered a denial of their right to self-determination during the 1961 UN plebiscite for independence and the process of adoption of the Constitution which followed. In its counter-claim Cameroon addressed the issue of whether the inhabitants of the South were a people and relied basically on an ethnoanthropological argument. Cameroon maintained that Southern inhabitants could not be considered a people since no "*ethno-anthropological argument can be put forward to determine the existence of a people of Southern Cameroon, the Southern part being of the large Sawa cultural area, the northern part being part of the Grass fields' cultural area*".145 Accordingly, Cameroon took advantage of the cultural differences within national sub-units in the southern region to develop its argument. However, cultural differences are not a prerogative of southern Cameroon only, but are very common in the African continent. This is why on a more general scale, the argument does not seem to be so powerful, and perhaps it should not have been pre-

141 ICJ, *Legal Consequences the Construction of a Wall in the Occupied Palestinian Territory,* Advisory Opinion, 9 July 2004, ICJ. Reports 2004, p. 136.

142 ICJ, A*ccordance with International Law of the Unilateral Declaration of Independence in respect of Kosovo*, cit.

143 *Report of the Secretary General on the Draft African Charter on Human and Peoples' Rights,*  CM/1149, 1981, at para. 13, cited by M.K. Addo: "*Political Self Determination within the Context of the African Charter on Human and Peoples' Rights"*, Journal of African Law, 1998, n. 32, p. 184. The author regards the choice as an "aberration of responsibility". However, it may have been also an attempt not to limit the scope of application of the right to self-determination envisaged by Art. 20 in times when many different communities were struggling for independence.

144 African Commission on Human and Peoples' Rights, *Kevin Mgwanga Gunme et al v. Cameroon*, case n. 266/2003, decided on 27 May 2009, available at http://caselaw.ihrda.org/doc/266.03/view 145 Supra para. 168.

sented as the main reason justifying the definition of people for the purposes of the right to self-determination.

In its judgment, the Commission embraced an approach similar to that of Cameroon, but ended up with a different assessment, by opting for a broader interpretation of the term people. In line with previous statements given in the context of the UN Agencies, in particular by UNESCO, the Commission found that the Southern Cameroonians could be considered a people "*because they manifest numerous characteristics and affinities, which include a common history, linguistic tradition, territorial connection and political outlook. More importantly they identify themselves as a people with a separate and distinct identity*".146

One of the major merits of the definition is probably that it combines two kinds of elements: objective elements – such as common language and territory – and subjective ones, the most peculiar being the will to live together. A group can qualify as the bearer of the right to self-determination as long as it has a common self consciousness of belonging together. In this line, the definition suggested by the Commission manages to combine requirements of the will to live together and form a distinct political unit, with common history. As a result, the Commission escapes from the need to clarify whether the territorial or the ethnic link point out if subgroups such as minorities or indigenous can be considered people.

#### **4.2 Minorities and indigenous peoples: do they have a right to selfdetermination?**

The undergoing tensions between a colloquial and a possible legal understanding of the term people is best exemplified by the debate on the interpretation of what constitutes a minority or an indigenous group. Neither of the two, again, have a generally accepted definition. However, scholarly literature and international practice help shed some light on the issue. For minorities' rights, many scholars have adopted the definition given by Capotorti.147 Minority within international law means "*a group numerically inferior to the rest of the population of a State, in a non-dominant position, whose members – being nationals of the State- possess ethnic, religious or linguistic characteristics differing from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religion or language*". Hence, minorities are 1) individuals sharing specific characteristics with respect to culture and national origins; 2) numerically a small group, recognized as such by their own parent State. Arguably, the key passage of the definition lies in the shift from a collective approach to an individual one: the focus is not on the group taken as a whole, but on the individual, who enjoys rights as part of a minority. Moreover, the HR Committee accepted claims based on art. 27 but not on art.1, as it was seen before. The common denominator vis-à-vis the ap-

47

152*Convention Concerning Indigenous and Tribal Peoples in Independent Countries*, International Labour Organization, adopted 27 June 1989, art. 1(2): *"peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or geographical region to which their country belongs, at the time of conquest or colonization or the establishment of present State boundaries and who, irrespective of their legal status, retain some or all of*

proach to the term people seen in the 1966 Covenants in our view is that minorities' rights are perceived as individual in nature. Being self-determination a collective right, as such minorities are not the bearers of this right. Instead, the members of a minority enjoy specific rights such as the right to use their own language or preserve their own traditions. As Meijknecht aptly notes, rights are granted to the members of the minority group taken singularly. In spite of the fact that the rights belonging to minorities under international law can be exercised by the minority group as such,

This rather confused panoramic is mirrored by the legal status of indigenous people. While minorities' keep on struggling to be the bearers of the right to selfdetermination in international law, indigenous' claim has succeeded, though with many safeguard requirements.149 On a purely legal basis, indigenous people might be considered a hybrid subject, because they share some characters with minority groups, but they are also called *people* and the term inevitably raises questions related to self-determination. The *Study of the Problem of Discrimination against Indigenous populations150* – commissioned by the UN to Martinez Cobo does not help in clarifying if indigenous people are entitled to self-determination. It focuses on "*indigenous communities, peoples, and nations*" but then alleges that indigenous people form a "*non-dominant sector of the society and are determined to preserve, develop and transmit to future generations their ancestral territories, as peoples, in accordance with their own cultural patterns, social institutions and legal systems*".151 Neither do help the two major documents that set forth the main legal features of indigenous rights under international law, notably the *Convention Concerning Indigenous and Tribal Peoples in Independent Countries* adopted in the framework of the International Labour Organization (ILO) and the UN *Declaration on the Rights of Indig-*

The ILO Convention provides a definition of indigenous people in art. 1(2), which relies on two major elements: 1) the historical descent from the populations of a certain country or region at the time of conquest or colonization and 2) preservation of some or all of their own peculiarities.152 However, the Convention has been ratified

148 A. Meijknecht, Towards International Personality: the Position of Minorities and Indigenous Peoples

149 For the sake of clarity, it can be underlined that reasons for different outcomes for indigenous and minorities stand outside the realm of the law. As it often happens with international law, different perceptions of a certain topic by the States lead to different outcomes under the international legal order. In particular, minorities' issues have always been conceived as being more dangerous and too difficult to dwell with, but this argument goes beyond the scope of the present study. See for an updated analysis W. Kymlicka: "*Beyond the Indigenous/Minority Dichotomy?"* in S. Allen and A. Xanthaki (eds.), Reflections on the UN Declaration on the Rights of Indigenous Peoples, Oxford, 2011, pp. 183-208. 150 *Study of the Problem of Discrimination against Indigenous populations. Conclusions, Proposals and*

*Recommendations* by J. R. Martinez-Cobo, 1986, UN Doc E./CN.4/Sub.2/1986/7/Add.4.

in International Law, Antwerpen/Groningen/Oxford, 2001, p. 171.

from a legal stand point those rights are *individual* human rights.148

*enous Peoples.*

151 Ibid, at p. 29.

146 Ibid. para 179.

147 F. Capotorti, Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities, New York, 1991, p. 96, cited by J. Castellino: *"International Law and Self-Determination. Peoples, Indigenous Peoples and Minorities"* in C. Walter (eds.), Secession and Self-Determination in International Law, cit., p. 35.

proach to the term people seen in the 1966 Covenants in our view is that minorities' rights are perceived as individual in nature. Being self-determination a collective right, as such minorities are not the bearers of this right. Instead, the members of a minority enjoy specific rights such as the right to use their own language or preserve their own traditions. As Meijknecht aptly notes, rights are granted to the members of the minority group taken singularly. In spite of the fact that the rights belonging to minorities under international law can be exercised by the minority group as such, from a legal stand point those rights are *individual* human rights.148

This rather confused panoramic is mirrored by the legal status of indigenous people. While minorities' keep on struggling to be the bearers of the right to selfdetermination in international law, indigenous' claim has succeeded, though with many safeguard requirements.149 On a purely legal basis, indigenous people might be considered a hybrid subject, because they share some characters with minority groups, but they are also called *people* and the term inevitably raises questions related to self-determination. The *Study of the Problem of Discrimination against Indigenous populations150* – commissioned by the UN to Martinez Cobo does not help in clarifying if indigenous people are entitled to self-determination. It focuses on "*indigenous communities, peoples, and nations*" but then alleges that indigenous people form a "*non-dominant sector of the society and are determined to preserve, develop and transmit to future generations their ancestral territories, as peoples, in accordance with their own cultural patterns, social institutions and legal systems*".151 Neither do help the two major documents that set forth the main legal features of indigenous rights under international law, notably the *Convention Concerning Indigenous and Tribal Peoples in Independent Countries* adopted in the framework of the International Labour Organization (ILO) and the UN *Declaration on the Rights of Indigenous Peoples.*

The ILO Convention provides a definition of indigenous people in art. 1(2), which relies on two major elements: 1) the historical descent from the populations of a certain country or region at the time of conquest or colonization and 2) preservation of some or all of their own peculiarities.152 However, the Convention has been ratified

sented as the main reason justifying the definition of people for the purposes of the

In its judgment, the Commission embraced an approach similar to that of Cameroon, but ended up with a different assessment, by opting for a broader interpretation of the term people. In line with previous statements given in the context of the UN Agencies, in particular by UNESCO, the Commission found that the Southern Cameroonians could be considered a people "*because they manifest numerous characteristics and affinities, which include a common history, linguistic tradition, territorial connection and political outlook. More importantly they identify themselves as a*

One of the major merits of the definition is probably that it combines two kinds of elements: objective elements – such as common language and territory – and subjective ones, the most peculiar being the will to live together. A group can qualify as the bearer of the right to self-determination as long as it has a common self consciousness of belonging together. In this line, the definition suggested by the Commission manages to combine requirements of the will to live together and form a distinct political unit, with common history. As a result, the Commission escapes from the need to clarify whether the territorial or the ethnic link point out if sub-

The undergoing tensions between a colloquial and a possible legal understanding of the term people is best exemplified by the debate on the interpretation of what constitutes a minority or an indigenous group. Neither of the two, again, have a generally accepted definition. However, scholarly literature and international practice help shed some light on the issue. For minorities' rights, many scholars have adopted the definition given by Capotorti.147 Minority within international law means "*a group numerically inferior to the rest of the population of a State, in a non-dominant position, whose members – being nationals of the State- possess ethnic, religious or linguistic characteristics differing from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religion or language*". Hence, minorities are 1) individuals sharing specific characteristics with respect to culture and national origins; 2) numerically a small group, recognized as such by their own parent State. Arguably, the key passage of the definition lies in the shift from a collective approach to an individual one: the focus is not on the group taken as a whole, but on the individual, who enjoys rights as part of a minority. Moreover, the HR Committee accepted claims based on art. 27 but not on art.1, as it was seen before. The common denominator vis-à-vis the ap-

147 F. Capotorti, Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities, New York, 1991, p. 96, cited by J. Castellino: *"International Law and Self-Determination. Peoples, Indigenous Peoples and Minorities"* in C. Walter (eds.), Secession and Self-Determination in Interna-

right to self-determination.

**determination?**

146 Ibid. para 179.

tional Law, cit., p. 35.

*people with a separate and distinct identity*".146

groups such as minorities or indigenous can be considered people.

**4.2 Minorities and indigenous peoples: do they have a right to self-**

148 A. Meijknecht, Towards International Personality: the Position of Minorities and Indigenous Peoples in International Law, Antwerpen/Groningen/Oxford, 2001, p. 171.

149 For the sake of clarity, it can be underlined that reasons for different outcomes for indigenous and minorities stand outside the realm of the law. As it often happens with international law, different perceptions of a certain topic by the States lead to different outcomes under the international legal order. In particular, minorities' issues have always been conceived as being more dangerous and too difficult to dwell with, but this argument goes beyond the scope of the present study. See for an updated analysis W. Kymlicka: "*Beyond the Indigenous/Minority Dichotomy?"* in S. Allen and A. Xanthaki (eds.), Reflections on the UN Declaration on the Rights of Indigenous Peoples, Oxford, 2011, pp. 183-208.

150 *Study of the Problem of Discrimination against Indigenous populations. Conclusions, Proposals and Recommendations* by J. R. Martinez-Cobo, 1986, UN Doc E./CN.4/Sub.2/1986/7/Add.4.

151 Ibid, at p. 29.

152*Convention Concerning Indigenous and Tribal Peoples in Independent Countries*, International Labour Organization, adopted 27 June 1989, art. 1(2): *"peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or geographical region to which their country belongs, at the time of conquest or colonization or the establishment of present State boundaries and who, irrespective of their legal status, retain some or all of*

by a few States, due to the difficulties in formulating a definition which would generate general consensus. Therefore, it cannot be viewed as a contribution to the crystallization of corresponding international customary rules.

In 2007 the UN adopted the *Declaration on the Rights of Indigenous Peoples*153 (UNDRIP). The adoption of the document was championed by the UN as a great achievement due to the length of time it took to reach an agreement. However, many voices argue that the general provisions of the *Declaration* cannot capture the new developments regarding the role of indigenous peoples in the international community.154

Art. 1 grants to indigenous peoples the right to "*the full enjoyment, as a collective or as individuals, of all human rights and fundamental freedoms as recognized in the Charter of the United Nations, the Universal Declaration of Human Rights and international human rights law*", and art. 3 states that "*Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development*". If read together with art. 4 establishing that indigenous may enforce their right to selfdetermination in matters related to their internal affairs,155 the *Declaration* clearly puts emphasis on the internal dimension of self-determination. In other words, indigenous people are bearers of the right to self-determination, but for them the content, the substance of the right is limited to the internal dimension of selfdetermination. In particular, in art. 4 the right to autonomy figures as the principal means of implementing self-determination for indigenous people and even more clearly it reiterates the principle of respect for territorial unity of the State. Indigenous' right to negotiate their political status and access to political institutions of the State, in fact, embodies the right to internal self-determination.

As regards external self-determination, the strong emphasis on territorial integrity and peace provided by art. 46 of the UNDRIP does not support an interpretation in favour of such a right for indigenous peoples. Avoiding any impairment of existing States' "*territorial integrity or political unity",* the UNDRIP does not leave much space for external self-determination. This conclusion is further supported by looking at word order of articles 3 and 4. Since indigenous people are provided with "*the*

155 *Declaration on the Rights of Indigenous Peoples,* Art. 4: "*indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions*".

49

*right to autonomy or self-government in matters relating to internal and local affairs",* it is unlikely that reference to *political status* in art. 3 can be read as meaning

Turning to case-law on indigenous and minorities' rights, it remains inconsistent, albeit some remarks can be made. In the 80ies the Inter-American Commission established under the American Convention on Human Rights (IACHR) dealt with the right to self-determination of the group of Miskito Indians leaving in Nicaragua.157 Miskito filed a complaint to the Commission in which they claimed the central government was depriving them of access to natural resources and was denying their right to self-determination. The Commission acknowledged the status of selfdetermination as a right of people in international law but concluded that this is not tantamount to say that each and every ethnic group may advance claims against the parent State.158 International practice shows that liberation struggles are acknowledged to colonial peoples, while groups living in metropolitan areas are entitled to other forms of protection. Interestingly however, the Inter- American Court on Human Rights (IACtHR) has taken the chance to develop a notion of *individual selfdetermination* with respect to indigenous peoples' right*.* In *Loayza Tamayo v. Peru*, the Court acknowledged the existence of an individual right to have a life plan (*proyecto de vida*) which can be discerned into the right to self-determination. In fact, it entails both the self-actualization of the person concerned and the possibility

In light of the above, it can be safely concluded that the entitlement and content of self-determination for minorities and indigenous people is another sign of the fact that there is still much ambiguity surrounding the definition of peoples entitled to claim the right to self-determination. The structure of the ICCPR is revealing of the ambiguity surrounding self-determination as an individual and group right. While art. 1 champions the collective nature of self-determination – notably by reference to *all peoples*- art. 27 contains a provision on minorities which is constructed in individual terms by the use of *persons*. Within the same international Covenant, two different understandings coexist and neither of them is further clarified in the text.160

156 See B.R. Roth; "*Secession, Coups and the International Rule of Law: Assessing the Decline of the*

157 AS, Inter American Commission, *Report of the Situation of Human Rights of a Segment of the Nicaraguan Population of Miskito Origin*, OEA/Ser. L/V/II, 29 November 1983. See B.H. Creston, A. Grea (ed.), Human Right in the World Community: Issues and Action, III edition, Philadelphia, 2015, pp.

158 OAS, Inter American Commission, *Report of the Situation of Human Rights of a Segment of the Nicaraguan Population of Miskito Origin,* in part II, at para. B (8): "…this does not mean that it recognizes

159 IACtHR, *Loazya Tamayo v. Peru*, Judgment of 27 November 1998, Reparations, Ser. C. NO. 42, pa-

160 S. Mancini: "*Rethinking the boundaries of democratic secession: liberalism, nationalism, and the right of minorities to self-determination*", International Journal of Constitutional Law, 2008, vol. 6, pp.

*Effective Control Doctrine*", Melbourne Journal of International Law, 2011, vol. 11, pp. 1-47.

of reaching his/her goals without unjustified obstacles.159

the right of self-determination of any ethnic group as such".

sovereign independence.156

231-233.

ra. 147.

557-558.

*their own social, economic, cultural and political institutions*". It is important to note that the Convention does not mention the right to self-determination.

153 *Declaration on the Rights of Indigenous Peoples*, annexed to General Assembly resolution 61/295 dated 13 September 2007, UN Doc. A/RES/61/295. The *Declaration* passed over the dissenting votes of the US, Canada, Australia and New Zeeland.

154 Fitzmaurice for examples alleges that to understand the legal position of indigenous peoples it would be better to shift the debate from international law to national legal discourse, because the forms of protection provided by States are more likely to be effective for indigenous. Major effectiveness is linked to the fact that each indigenous community is different from the others and the parent State is the closest subject able to act on a case-by-case basis. Hence, generalization under international law are counterproductive. See M. Fitzmaurice: "*The Question of Indigenous Peoples' rights: a Time for Reappraisal?*" in D. French (ed.), Statehood and Self-Determination. Reconciling Tradition and Modernity in International Law, Cambridge, 2013, pp. 349- 376.

*right to autonomy or self-government in matters relating to internal and local affairs",* it is unlikely that reference to *political status* in art. 3 can be read as meaning sovereign independence.156

by a few States, due to the difficulties in formulating a definition which would generate general consensus. Therefore, it cannot be viewed as a contribution to the crys-

In 2007 the UN adopted the *Declaration on the Rights of Indigenous Peoples*153 (UNDRIP). The adoption of the document was championed by the UN as a great achievement due to the length of time it took to reach an agreement. However, many voices argue that the general provisions of the *Declaration* cannot capture the new developments regarding the role of indigenous peoples in the international commu-

Art. 1 grants to indigenous peoples the right to "*the full enjoyment, as a collective or as individuals, of all human rights and fundamental freedoms as recognized in the Charter of the United Nations, the Universal Declaration of Human Rights and international human rights law*", and art. 3 states that "*Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development*". If read together with art. 4 establishing that indigenous may enforce their right to selfdetermination in matters related to their internal affairs,155 the *Declaration* clearly puts emphasis on the internal dimension of self-determination. In other words, indigenous people are bearers of the right to self-determination, but for them the content, the substance of the right is limited to the internal dimension of selfdetermination. In particular, in art. 4 the right to autonomy figures as the principal means of implementing self-determination for indigenous people and even more clearly it reiterates the principle of respect for territorial unity of the State. Indigenous' right to negotiate their political status and access to political institutions of the

As regards external self-determination, the strong emphasis on territorial integrity and peace provided by art. 46 of the UNDRIP does not support an interpretation in favour of such a right for indigenous peoples. Avoiding any impairment of existing States' "*territorial integrity or political unity",* the UNDRIP does not leave much space for external self-determination. This conclusion is further supported by looking at word order of articles 3 and 4. Since indigenous people are provided with "*the*

*their own social, economic, cultural and political institutions*". It is important to note that the Conven-

153 *Declaration on the Rights of Indigenous Peoples*, annexed to General Assembly resolution 61/295 dated 13 September 2007, UN Doc. A/RES/61/295. The *Declaration* passed over the dissenting votes of

154 Fitzmaurice for examples alleges that to understand the legal position of indigenous peoples it would be better to shift the debate from international law to national legal discourse, because the forms of protection provided by States are more likely to be effective for indigenous. Major effectiveness is linked to the fact that each indigenous community is different from the others and the parent State is the closest subject able to act on a case-by-case basis. Hence, generalization under international law are counterproductive. See M. Fitzmaurice: "*The Question of Indigenous Peoples' rights: a Time for Reappraisal?*" in D. French (ed.), Statehood and Self-Determination. Reconciling Tradition and Modernity in Interna-

155 *Declaration on the Rights of Indigenous Peoples,* Art. 4: "*indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions*".

tallization of corresponding international customary rules.

State, in fact, embodies the right to internal self-determination.

tion does not mention the right to self-determination.

the US, Canada, Australia and New Zeeland.

tional Law, Cambridge, 2013, pp. 349- 376.

nity.154

Turning to case-law on indigenous and minorities' rights, it remains inconsistent, albeit some remarks can be made. In the 80ies the Inter-American Commission established under the American Convention on Human Rights (IACHR) dealt with the right to self-determination of the group of Miskito Indians leaving in Nicaragua.157 Miskito filed a complaint to the Commission in which they claimed the central government was depriving them of access to natural resources and was denying their right to self-determination. The Commission acknowledged the status of selfdetermination as a right of people in international law but concluded that this is not tantamount to say that each and every ethnic group may advance claims against the parent State.158 International practice shows that liberation struggles are acknowledged to colonial peoples, while groups living in metropolitan areas are entitled to other forms of protection. Interestingly however, the Inter- American Court on Human Rights (IACtHR) has taken the chance to develop a notion of *individual selfdetermination* with respect to indigenous peoples' right*.* In *Loayza Tamayo v. Peru*, the Court acknowledged the existence of an individual right to have a life plan (*proyecto de vida*) which can be discerned into the right to self-determination. In fact, it entails both the self-actualization of the person concerned and the possibility of reaching his/her goals without unjustified obstacles.159

In light of the above, it can be safely concluded that the entitlement and content of self-determination for minorities and indigenous people is another sign of the fact that there is still much ambiguity surrounding the definition of peoples entitled to claim the right to self-determination. The structure of the ICCPR is revealing of the ambiguity surrounding self-determination as an individual and group right. While art. 1 champions the collective nature of self-determination – notably by reference to *all peoples*- art. 27 contains a provision on minorities which is constructed in individual terms by the use of *persons*. Within the same international Covenant, two different understandings coexist and neither of them is further clarified in the text.160

156 See B.R. Roth; "*Secession, Coups and the International Rule of Law: Assessing the Decline of the Effective Control Doctrine*", Melbourne Journal of International Law, 2011, vol. 11, pp. 1-47.

157 AS, Inter American Commission, *Report of the Situation of Human Rights of a Segment of the Nicaraguan Population of Miskito Origin*, OEA/Ser. L/V/II, 29 November 1983. See B.H. Creston, A. Grea (ed.), Human Right in the World Community: Issues and Action, III edition, Philadelphia, 2015, pp. 231-233.

158 OAS, Inter American Commission, *Report of the Situation of Human Rights of a Segment of the Nicaraguan Population of Miskito Origin,* in part II, at para. B (8): "…this does not mean that it recognizes the right of self-determination of any ethnic group as such".

159 IACtHR, *Loazya Tamayo v. Peru*, Judgment of 27 November 1998, Reparations, Ser. C. NO. 42, para. 147.

160 S. Mancini: "*Rethinking the boundaries of democratic secession: liberalism, nationalism, and the right of minorities to self-determination*", International Journal of Constitutional Law, 2008, vol. 6, pp. 557-558.

Arguably, this is one of the major obstacles to the consolidation of a clear international rule. Nonetheless, considering self-determination as a collective right, international law seems to distinguish between the entitlement of indigenous people and minorities. Unlike minorities rights which are individual in nature – albeit they are enjoyed in community with others- indigenous rights are accorded within the framework of peoples' rights. Thus, indigenous people are entitled to exercise the right to self-determination, though in its internal dimension only. In other words, the distinguishing feature is the legal character of the rights at stake and this depends on the purport of the rules considered. On the one side, the purpose of minorities' rights is to enable individuals belonging to a minority to preserve and protect their identity within the community of the State. On the other side, indigenous rights are granted to allow them to develop their specific society and social structures alongside that of the parent State.161 Given this reappraisal on current ambiguities surrounding the bearers of the right to self-determination, it remains to be seen what selfdetermination has ended up to be outside its "natural environment" of decolonization.

### **5. Self-determination beyond decolonization: contemporary meanings**

The more the decolonization was about to end, the more there was a gradual shift in international legal documents towards a different understanding of selfdetermination.162 Two trends can be distinguished: (i) the increasing attention paid to the internal dimension of self-determination; (ii) the focus on the link between internal self-determination and principles of democratic governance.

Within the European area, legal issues related to self-determination and minorities' rights came to the forefront later than in the international arena. It was the division of Germany that brought the matter in the European political and legal debate. The Organization for Security and Cooperation in Europe (OSCE) was the first body involved, when the Federal Republic of Germany proposed that a provision on selfdetermination be included in the 1975 *Helsinki Declaration*. 163 The rationale underpinning the German proposal was "*to help create a state of peace in Europe in which the German nation can regain its unity in free self-determination*".164 The *Helsinki Declaration* in principle VIII refers to self-determination by affirming the obligation of the State parties to "*respect the equal rights of peoples and their right to self-determination*". Moreover "*by virtue of the principle of equal rights and self-*

51

169 T. Franck: "*Legitimacy and Democratic Entitlement*", G. Fox, B. Roth (eds.) Democratic Governance and International Law, Cambridge 2001, pp. 25-47; for a critical analysis J. Vidmar, Democratic State-

*determination, all peoples always have the right, in full freedom, to determine, when and as they wish, their internal and external political status, without external interference, and to pursue as they wish their political, economic, social and cultural development*". Accordingly, three features may be discerned: (i) due to the absence of colonial dominions in the European area, the right to self-determination envisaged in the *Helsinki Declaration* applies to peoples living in independent States; (ii) by affirming that the right *always* applies to people, the *Helsinki Declaration* stresses its continuing nature. In addition, (iii) special emphasis is put on the requirement of *full freedom* of people to choose their own political status. The ultimate purpose of the formulation in this sense becomes the development of a pacified European area, as it was proposed above by the Federal Republic of Germany. In particular, attention should be given to the word order with respect to "*full freedom to determine",* as it seems to refer to the internal as well as the external status of a sub-unit. The *Helsinki Declaration* has been read in literature as introducing elements of democratic process and respect for the rule of law in the debate on the exercise to selfdetermination in both its internal and external dimension.165 It does so by extending the limits of the interpretation of self-determination to cover human rights law, that

Arguably, the greatest achievement of the *Declaration* is that it "*drew a clear connection between the exercise of self-determination and the existence of other human rights in a more forceful way than previous documents*".166 The interconnection between self-determination and human rights law has progressively been expressed through the relationship between self-determination and democracy. The common argument is that there exists an intrinsic linkage between self-determination and certain principles of democratic governance.167 In particular, some scholars maintain that the right to self-determination in its internal dimension *"may require that governments generally have a democratic basis".*168 In other words, it is argued that self-determination claims are basically claims for exercising people sovereignty through a democratic form of government. This also in light of the process of dissolution of the SFRY and the dismemberment of the USSR which helped the dissemi-

was developing in that period.

Land, Cambridge, 2007, pp.148-149.

*minorities to self-determination",* cit., p. 575.

hood in International Law, cit.

nation of democracy as a system of government.169

Democratic Statehood in International Law, cit., pp. 242-252.

165 D. Raic, Statehood and the Law of Self-Determination, cit., especially p. 231; 235.

166 A. Xanthaki, Indigenous Rights and United Nations Standards. Self-Determination, Culture and

167 J. Salmon: "*Internal Aspect of the Right to Self-determination: towards a Democratic Legitimacy Principle?*" in C. Tomuschat (ed.) Modern Law of Self-Determination, cit., pp. 253-282; J. Vidmar,

168 D. Harris, Cases and Materials on International Law, VII edition, London, 2010, p. 104. In this sense, for example, one could look at the making of the Republic of Montenegro as an exercise of internal selfdetermination. As pointed out by Mancini, in 2003 Serbia and Montenegro introduced art. 60 of the Constitution whereby secession was consented. It could be argued that the revision of the Constitution was the result of application of the right to self-determination in its internal dimension. See on this S. Mancini: "*Rethinking the boundaries of democratic secession: liberalism, nationalism, and the right of*

161 M. Fitzmaurice: "*The Question of Indigenous Peoples' Rights: a Time for Reappraisal?",* cit., p.356. 162 See the monograph by D. Raic, Statehood and the Law of Self-Determination, cit. See also J. Fisch: "*Peoples and Nations*", A. Peters, B Fassbender (eds.), The Oxford Handbook of History of International Law, 2012, pp. 27-49.

163 *Final Act of the Conference on Security and Cooperation in Europe,* 1 August 1975, art. 8, from now on *Helsinki Declaration.* The complete version can be found in the annex to T. Buergenthal (ed.), Human Rights, International Law and the Helsinki Accord, Montclair, 1979, pp. 161- 195.

164 See *Helsinki Declaration,* Doc. CSCE/I/PV.3, p. 26.

Arguably, this is one of the major obstacles to the consolidation of a clear international rule. Nonetheless, considering self-determination as a collective right, international law seems to distinguish between the entitlement of indigenous people and minorities. Unlike minorities rights which are individual in nature – albeit they are enjoyed in community with others- indigenous rights are accorded within the framework of peoples' rights. Thus, indigenous people are entitled to exercise the right to self-determination, though in its internal dimension only. In other words, the distinguishing feature is the legal character of the rights at stake and this depends on the purport of the rules considered. On the one side, the purpose of minorities' rights is to enable individuals belonging to a minority to preserve and protect their identity within the community of the State. On the other side, indigenous rights are granted to allow them to develop their specific society and social structures alongside that of the parent State.161 Given this reappraisal on current ambiguities surrounding the bearers of the right to self-determination, it remains to be seen what selfdetermination has ended up to be outside its "natural environment" of decoloniza-

**5. Self-determination beyond decolonization: contemporary meanings**

ternal self-determination and principles of democratic governance.

determination be included in the 1975 *Helsinki Declaration*.

The more the decolonization was about to end, the more there was a gradual shift in international legal documents towards a different understanding of selfdetermination.162 Two trends can be distinguished: (i) the increasing attention paid to the internal dimension of self-determination; (ii) the focus on the link between in-

Within the European area, legal issues related to self-determination and minorities' rights came to the forefront later than in the international arena. It was the division of Germany that brought the matter in the European political and legal debate. The Organization for Security and Cooperation in Europe (OSCE) was the first body involved, when the Federal Republic of Germany proposed that a provision on self-

pinning the German proposal was "*to help create a state of peace in Europe in which the German nation can regain its unity in free self-determination*".164 The *Helsinki Declaration* in principle VIII refers to self-determination by affirming the obligation of the State parties to "*respect the equal rights of peoples and their right to self-determination*". Moreover "*by virtue of the principle of equal rights and self-*

161 M. Fitzmaurice: "*The Question of Indigenous Peoples' Rights: a Time for Reappraisal?",* cit., p.356. 162 See the monograph by D. Raic, Statehood and the Law of Self-Determination, cit. See also J. Fisch: "*Peoples and Nations*", A. Peters, B Fassbender (eds.), The Oxford Handbook of History of Internation-

163 *Final Act of the Conference on Security and Cooperation in Europe,* 1 August 1975, art. 8, from now on *Helsinki Declaration.* The complete version can be found in the annex to T. Buergenthal (ed.), Hu-

man Rights, International Law and the Helsinki Accord, Montclair, 1979, pp. 161- 195.

164 See *Helsinki Declaration,* Doc. CSCE/I/PV.3, p. 26.

163 The rationale under-

tion.

al Law, 2012, pp. 27-49.

*determination, all peoples always have the right, in full freedom, to determine, when and as they wish, their internal and external political status, without external interference, and to pursue as they wish their political, economic, social and cultural development*". Accordingly, three features may be discerned: (i) due to the absence of colonial dominions in the European area, the right to self-determination envisaged in the *Helsinki Declaration* applies to peoples living in independent States; (ii) by affirming that the right *always* applies to people, the *Helsinki Declaration* stresses its continuing nature. In addition, (iii) special emphasis is put on the requirement of *full freedom* of people to choose their own political status. The ultimate purpose of the formulation in this sense becomes the development of a pacified European area, as it was proposed above by the Federal Republic of Germany. In particular, attention should be given to the word order with respect to "*full freedom to determine",* as it seems to refer to the internal as well as the external status of a sub-unit. The *Helsinki Declaration* has been read in literature as introducing elements of democratic process and respect for the rule of law in the debate on the exercise to selfdetermination in both its internal and external dimension.165 It does so by extending the limits of the interpretation of self-determination to cover human rights law, that was developing in that period.

Arguably, the greatest achievement of the *Declaration* is that it "*drew a clear connection between the exercise of self-determination and the existence of other human rights in a more forceful way than previous documents*".166 The interconnection between self-determination and human rights law has progressively been expressed through the relationship between self-determination and democracy. The common argument is that there exists an intrinsic linkage between self-determination and certain principles of democratic governance.167 In particular, some scholars maintain that the right to self-determination in its internal dimension *"may require that governments generally have a democratic basis".*168 In other words, it is argued that self-determination claims are basically claims for exercising people sovereignty through a democratic form of government. This also in light of the process of dissolution of the SFRY and the dismemberment of the USSR which helped the dissemination of democracy as a system of government.169

165 D. Raic, Statehood and the Law of Self-Determination, cit., especially p. 231; 235.

166 A. Xanthaki, Indigenous Rights and United Nations Standards. Self-Determination, Culture and Land, Cambridge, 2007, pp.148-149.

167 J. Salmon: "*Internal Aspect of the Right to Self-determination: towards a Democratic Legitimacy Principle?*" in C. Tomuschat (ed.) Modern Law of Self-Determination, cit., pp. 253-282; J. Vidmar, Democratic Statehood in International Law, cit., pp. 242-252.

168 D. Harris, Cases and Materials on International Law, VII edition, London, 2010, p. 104. In this sense, for example, one could look at the making of the Republic of Montenegro as an exercise of internal selfdetermination. As pointed out by Mancini, in 2003 Serbia and Montenegro introduced art. 60 of the Constitution whereby secession was consented. It could be argued that the revision of the Constitution was the result of application of the right to self-determination in its internal dimension. See on this S. Mancini: "*Rethinking the boundaries of democratic secession: liberalism, nationalism, and the right of minorities to self-determination",* cit., p. 575.

169 T. Franck: "*Legitimacy and Democratic Entitlement*", G. Fox, B. Roth (eds.) Democratic Governance and International Law, Cambridge 2001, pp. 25-47; for a critical analysis J. Vidmar, Democratic Statehood in International Law, cit.

Nevertheless, for another group of scholars the establishment of a democratic government is not covered under the umbrella of the right to self-determination.170 It would be too pretentious to claim that democratic governance and especially its procedural elements are necessary for the realization of self-determination. A quest for democracy may well be the main desire of a community – the 2011 Arab Spring points in this way indeed.171 However, international law leaves to the discretion of states the choice of their form of government. Nonetheless, we can agree that internal self-determination is related to constitutional principles of government exercised by the people and respect for fundamental human rights. An argument in this line can be found in the judgment of the Canadian Constitutional Court on the secession of Quebec:172 the Court's definition of self-determination reads as follows "*a peoples' pursuit of its political, economic and social development within the framework of an existing State*".173 Hence, self-determination is assimilated to the enjoyment of individual human rights which are guaranteed "*within the framework of an existing State"*, that is to say the domestic legal order, in particular by the constitution. In a like manner, it can be argued that the right to self-determination can be enforced by means of democratic governance – the latter being also regulated by constitutional norms.

What about external self-determination? For the crystallization of a customary norm about self-determination, the combination of the resolutions of the United Nations, the *Declaration on Friendly Relations*, the *Helsinki Final Act*, the *African Charter on Human and Peoples' Rights* play a pivotal role. These last three documents justmentioned do not limit the right to self-determination to situations of decolonization only. External self-determination is presented as an entitlement of people of existing sovereign States and of sub-groups. Nevertheless, the main features of the right are not detailed. It was already explained that this vagueness finds its roots in the clash between territorial changes brought by self-determination claims and the principle of territorial integrity. This is not tantamount to say that no conclusion can be drawn: the *Declaration on Friendly Relations*, for instance, is quite clear in considering all the inhabitants of a State as the bearers of the right and adds that decisions about the means to associate or integrate with another State should be based on consultation. Outside colonialism, the inhabitants of a State have a right to self-determination and international law will not question any form of dissolution, association or integration decided by *all* inhabitants of the State. By contrast, the issue whether also sub-units

53

174 S. F. van den Driest, Remedial Secession. A Right to External Self-Determination as a Remedy to

175 R. Ansing**,** The Peace Negotiations: a Personal Narrative, 1921, Paris, p.7, quoting from a note that

176 I. Berlin: "*Two Concepts of Liberty",* in I. Berlin (ed.), Four Essays on Liberty, 1969, Oxford, pp. 7-

177 As Drew referred to it, self-determination outside colonialism is plagued by an excess of indeterminacy both in terms of scope and content. See C. Drew: "*The East Timor Story: International Law on*

of the State have a right to external self-determination is controversial. As Driest explains "in *these instance, there appears to be a clear conflict between the exercise of this right, which is aimed at territorial change, and the principle of territorial integrity and uti possidetis, which are aimed at maintaining the territorial status quo*".174

The principle of self-determination was not born under the luckiest stars. It is well known that when Wilson proposed to re-draw the map of Europe after World War I on the basis of self-determination, the USA Secretary of State Lansing expressed his concern about the proposal, claiming that it was "*loaded with dynamite*".175 It is also obvious that self-determination is appealing for people, because it is rooted in the idea of government for and by the people. As Berlin puts it, its attractiveness can be explained by "*our desire to be recognized as free and, somehow, authentic humans. Being governed from the outside would imply being less than fully free and, there-*

In this Chapter it was demonstrated that Lenin and Wilson's ideas of selfdetermination can still be found in the contemporary meaning of self-determination. On the one hand, the right to self-determination is a collective right strongly inspired by the idea of government by consent. It is this idea that guides peoples' claims for participation in domestic affairs and eventually for statehood. On the other hand, in contemporary practice about territorial disputes, self-determination is not confined to political rights, but has a broader area of application, i.e. enjoyment of economic rights and access to natural resources in a very similar manner to its original formulation after World War I. Then, it was shown that self-determination has evolved from a political principle to a legal tenet inside and outside the frame of colonial domination. This goal was achieved thanks to the combination of practice (GA resolutions and States' declarations) and human rights treaties, notably the 1966 Covenants and the *Helsinki Declaration*. International jurisprudence, especially from the ICJ, further attempted to clarify the contours of the right to self-determination. However, although the ICJ maintained that the right to self-determination is one of the essentials principles under contemporary international law, the borders of its application beyond the colonial context remain mostly unsettled.177 This is confirmed by the fact that while doctrinal debate on the definition of self-determination is huge, States refrain from reaching an agreement on the definition. Arguably, States take

**6. Conclusion**

*with, being less than fully human*".176

Serious Injustices?, cit. p. 93.

58.

*Trial"*, cit., p.658.

he had written in December 1918.

170 For a persuasive argument about the loosening commitment to democracy by the international community A. Magen: "*The Democratic Entitlement in an Era of Democratic Recession*", Cambridge Journal of International and Comparative Law, 2015, vol. 4, pp. 368-381.

171 See D. Amoroso arguing that recognition of the insurgents in the framework of the Arab Spring as the sole legitimate representative of the people implies a prior positive judgment of the fulfillment of the right to self-determination in its internal dimension. D. Amoroso: "*Il Ruolo del Riconoscimento degli Insorti nella Promozione del Principio di Auto-determinazione Interna: Considerazioni alla luce della 'Primavera Araba'*", Federalismi.it, October 2013, pp. 22-31.

172 Supreme Court of Canada, *Reference re Secession of Quebec,* 20 August 1998, in International Law Reports, 1998, n. 161, p. 576 ff.

173 Supreme Court of Canada, *Reference re Secession of Quebec*, cit., para. 126.

of the State have a right to external self-determination is controversial. As Driest explains "in *these instance, there appears to be a clear conflict between the exercise of this right, which is aimed at territorial change, and the principle of territorial integrity and uti possidetis, which are aimed at maintaining the territorial status quo*".174

#### **6. Conclusion**

Nevertheless, for another group of scholars the establishment of a democratic government is not covered under the umbrella of the right to self-determination.170 It would be too pretentious to claim that democratic governance and especially its procedural elements are necessary for the realization of self-determination. A quest for democracy may well be the main desire of a community – the 2011 Arab Spring points in this way indeed.171 However, international law leaves to the discretion of states the choice of their form of government. Nonetheless, we can agree that internal self-determination is related to constitutional principles of government exercised by the people and respect for fundamental human rights. An argument in this line can be found in the judgment of the Canadian Constitutional Court on the secession of Quebec:172 the Court's definition of self-determination reads as follows "*a peoples' pursuit of its political, economic and social development within the framework of an existing State*".173 Hence, self-determination is assimilated to the enjoyment of individual human rights which are guaranteed "*within the framework of an existing State"*, that is to say the domestic legal order, in particular by the constitution. In a like manner, it can be argued that the right to self-determination can be enforced by means of democratic governance – the latter being also regulated by constitutional

What about external self-determination? For the crystallization of a customary norm about self-determination, the combination of the resolutions of the United Nations, the *Declaration on Friendly Relations*, the *Helsinki Final Act*, the *African Charter on Human and Peoples' Rights* play a pivotal role. These last three documents justmentioned do not limit the right to self-determination to situations of decolonization only. External self-determination is presented as an entitlement of people of existing sovereign States and of sub-groups. Nevertheless, the main features of the right are not detailed. It was already explained that this vagueness finds its roots in the clash between territorial changes brought by self-determination claims and the principle of territorial integrity. This is not tantamount to say that no conclusion can be drawn: the *Declaration on Friendly Relations*, for instance, is quite clear in considering all the inhabitants of a State as the bearers of the right and adds that decisions about the means to associate or integrate with another State should be based on consultation. Outside colonialism, the inhabitants of a State have a right to self-determination and international law will not question any form of dissolution, association or integration decided by *all* inhabitants of the State. By contrast, the issue whether also sub-units

170 For a persuasive argument about the loosening commitment to democracy by the international community A. Magen: "*The Democratic Entitlement in an Era of Democratic Recession*", Cambridge Jour-

171 See D. Amoroso arguing that recognition of the insurgents in the framework of the Arab Spring as the sole legitimate representative of the people implies a prior positive judgment of the fulfillment of the right to self-determination in its internal dimension. D. Amoroso: "*Il Ruolo del Riconoscimento degli Insorti nella Promozione del Principio di Auto-determinazione Interna: Considerazioni alla luce della*

172 Supreme Court of Canada, *Reference re Secession of Quebec,* 20 August 1998, in International Law

nal of International and Comparative Law, 2015, vol. 4, pp. 368-381.

173 Supreme Court of Canada, *Reference re Secession of Quebec*, cit., para. 126.

*'Primavera Araba'*", Federalismi.it, October 2013, pp. 22-31.

Reports, 1998, n. 161, p. 576 ff.

norms.

The principle of self-determination was not born under the luckiest stars. It is well known that when Wilson proposed to re-draw the map of Europe after World War I on the basis of self-determination, the USA Secretary of State Lansing expressed his concern about the proposal, claiming that it was "*loaded with dynamite*".175 It is also obvious that self-determination is appealing for people, because it is rooted in the idea of government for and by the people. As Berlin puts it, its attractiveness can be explained by "*our desire to be recognized as free and, somehow, authentic humans. Being governed from the outside would imply being less than fully free and, therewith, being less than fully human*".176

In this Chapter it was demonstrated that Lenin and Wilson's ideas of selfdetermination can still be found in the contemporary meaning of self-determination. On the one hand, the right to self-determination is a collective right strongly inspired by the idea of government by consent. It is this idea that guides peoples' claims for participation in domestic affairs and eventually for statehood. On the other hand, in contemporary practice about territorial disputes, self-determination is not confined to political rights, but has a broader area of application, i.e. enjoyment of economic rights and access to natural resources in a very similar manner to its original formulation after World War I. Then, it was shown that self-determination has evolved from a political principle to a legal tenet inside and outside the frame of colonial domination. This goal was achieved thanks to the combination of practice (GA resolutions and States' declarations) and human rights treaties, notably the 1966 Covenants and the *Helsinki Declaration*. International jurisprudence, especially from the ICJ, further attempted to clarify the contours of the right to self-determination. However, although the ICJ maintained that the right to self-determination is one of the essentials principles under contemporary international law, the borders of its application beyond the colonial context remain mostly unsettled.177 This is confirmed by the fact that while doctrinal debate on the definition of self-determination is huge, States refrain from reaching an agreement on the definition. Arguably, States take

174 S. F. van den Driest, Remedial Secession. A Right to External Self-Determination as a Remedy to Serious Injustices?, cit. p. 93.

175 R. Ansing**,** The Peace Negotiations: a Personal Narrative, 1921, Paris, p.7, quoting from a note that he had written in December 1918.

176 I. Berlin: "*Two Concepts of Liberty",* in I. Berlin (ed.), Four Essays on Liberty, 1969, Oxford, pp. 7- 58.

177 As Drew referred to it, self-determination outside colonialism is plagued by an excess of indeterminacy both in terms of scope and content. See C. Drew: "*The East Timor Story: International Law on Trial"*, cit., p.658.

advantage of the vagueness of the law because it permits a broader range of interpretations and can therefore be applied to different situations.178 In sum, the right to self-determination is widely viewed as part of the *jus cogens*179 bulk of norms, but only as far as its core meaning is concerned, namely when it is applied to colonial and non-self-governing territories. The external dimension is established as an exception to the doctrine of territorial unity and therefore is very narrow in its application. While self-determination "*enjoyed a period of relative conceptual stability during the Cold War, its content, especially when it comes to the formation of territorial polities, remains heavily contested*".180

The background of the emergence of the legal right to self-determination – notably colonialism- still exercises control over its current enforcement. The fact that self-determination was championed by the movement for decolonization of the 1960s helps in understanding why self-determination still finds its core meaning in freedom from subjugation. The phrasing of most of international documents addressing self-determination confirms this view in that by virtue of this right people "*freely determine their political status and freely pursue their economic, social and cultural development*".181 When taken to the extreme, the linkage between selfdetermination and decolonization has led scholars to argue that outside of the colonial context self-determination becomes a procedural right, rather than a substantial right. It does not entail a right to self-government, not at all to secede, but it confers to communities a right *to be heard*. 182 In support of these assumptions, Klabbers notes that when judicial or non-judicial bodies have been instructed with cases involving self-determination, they have refrained from addressing the point in punctual terms, although they have sometimes clarified its purports. From the Advisory Opinion on Namibia183 onwards, the ICJ has ascertained the substantial nature of the right to self-determination, but no clear conclusions have been drawn from such a strong affirmation. The Separate Opinion of Judge Ammoun confirms this view: although the right to self-determination is considered a substantial right, the Judge re-

55

184 Judge Ammoun's Separate Opinion, ICJ, *Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution* 276

188 J. Summers: "*The Internal and External Aspects of Self-determination Reconsidered",* in D. French (ed.), Statehood and Self-Determination. Reconciling Tradition and Modernity in International Law,

189 V. Lanovoy: "*Self-Determination in International Law: a Democratic Phenomenon or an Abuse of a*

190 J. Summers: "*The Internal and External Aspects of Self-determination Reconsidered"*, cit., p. 240.

185 J. Klabbers: "*The Right to be Taken into Account*", cit., p. 195. 186 M. Weller, Escaping the Self-Determination Trap, cit., p. 36.

187 A. Cassese, Self-Determination of Peoples. A Legal Reappraisal, cit., pp. 5-6.

*Right*?", Cambridge Journal of International and Comparative Law, 2015, vol. 4, p. 392.

calls that on the basis of this right no less than fifty States gained independence after the II World War, which is a clear reference to the link between self-determination and the end of colonialism.184 In Klabbers' words "*while it was unproblematic to think of a right to self-determination to support decolonization, the postcolonial world would warrant a different approach*".185 The ones who would find support for their self-determination claim by the international community would be (i) colonies genuinely understood, (ii) peoples under foreign occupation – see the non-selfgoverning territories enlisted by the UN- and (iii) peoples under a racist regime i.e. South Africa. In addition, Weller refers to *secondary colonies*, to mean units that could be genuinely defined colonies but which exercised their right with delay, due

The major problem with self-determination is that the main rationale underpinning its affirmation, the idea of freedom, clashes with domestic and international stability since it favours the breakup of States and thus hinders the balance of power among the members of the international community. Cassese explains this point in clear terms when he affirms that "*self-determination is attractive so long as it has not been attained; alternatively, it is attractive so long as it is applied to others. Once realized, enthusiasm dies fast, since henceforth it can only be used to undermine perceived internal and external stability*".187 These contrastive features do not seem to be doomed to change: according to Summers the dichotomy between internal and external self-determination best serves the interests of the international community in that it avoids the domain of one single interpretation and weakens the existence of

However, as this Chapter has tried to outline, if one can distinguish between internal and external aspects of the right, it is still possible to support the existence of the right to self-determination, albeit mainly in its internal dimension.189 It was demonstrated that the preference for internal self-determination finds its rationale in the wish to consolidate and preserve the domestic legal system, democratic governance and constitutional guarantees. This trend is supported by reference to the case of secession of Quebec, when the Canadian Supreme Court affirmed that the Quebecers had the right to self-determinate in the sense of negotiating the adoption of appropriate rules for their participation to the Canadian political life.190 As a consequence, external self-determination is relegated to hypothesis of denial of fundamental human rights, a form of violence that justifies the will of the people to establish a new

to external intervention, such as East Timor.186

a right to secede.188

(1970), supra, para. 75.

Cambridge, 2013, pp. 247-249.

178 See S.P. Sheeran: "*International Law, Peace Agreements, and Self-Determination: The Case of the Sudan*", International and Comparative Law Quarterly, 2011, n.60, p. 458.

179J. Summers, "*The Status of Self-determination in International Law: A Question of Legal Significance or Political Importance*", Finnish Yearbook of International Law, 2003, vol. 14, p. 283; A. Cassese, Self-Determination of Peoples. A legal Reappraisal, cit., p.134. However, see J. Crawford: "I*nternational Crimes of States*", in J. Crawford, A. Pellet and S. Olleson (eds.), The Law of International Responsibility, Oxford, 2010, p. 411 for critiques on the consequences of overlapping the *jus cogens* status of self-determination with the *erga omnes* nature of the right championed by the ICJ in the East Timor case.

180 Z. Oklopćić: "*Constitutional Politics of Secession: travelling from Quebec to Montenegro (and Back?)*", in A. Packovic and P. Radan, Ashgate Research Companion to Secession, cit., p. 132.

181 UN General Assembly's *Declaration on the Granting of Independence to Colonial Countries and Peoples*, cit., paras. 1 and 2. Furthermore, as the *Declaration on Friendly Relations* states, freedom has to be interpreted in broad terms, thus people are free to choose whether they want to give rise to a new independent entity, to integrate or associate with another State.

182 J. Klabbers: "*The Right to be Taken Seriously: Self-Determination in International Law*", Human Rights Quarterly, 2006, vol. 28, p. 189.

183 ICJ, *Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution* 276 (1970), ICJ Reports 1971, p. 16.

advantage of the vagueness of the law because it permits a broader range of interpretations and can therefore be applied to different situations.178 In sum, the right to self-determination is widely viewed as part of the *jus cogens*179 bulk of norms, but only as far as its core meaning is concerned, namely when it is applied to colonial and non-self-governing territories. The external dimension is established as an exception to the doctrine of territorial unity and therefore is very narrow in its application. While self-determination "*enjoyed a period of relative conceptual stability during the Cold War, its content, especially when it comes to the formation of territorial*

The background of the emergence of the legal right to self-determination – notably colonialism- still exercises control over its current enforcement. The fact that self-determination was championed by the movement for decolonization of the 1960s helps in understanding why self-determination still finds its core meaning in freedom from subjugation. The phrasing of most of international documents addressing self-determination confirms this view in that by virtue of this right people "*freely determine their political status and freely pursue their economic, social and cultural development*".181 When taken to the extreme, the linkage between selfdetermination and decolonization has led scholars to argue that outside of the colonial context self-determination becomes a procedural right, rather than a substantial right. It does not entail a right to self-government, not at all to secede, but it confers

notes that when judicial or non-judicial bodies have been instructed with cases involving self-determination, they have refrained from addressing the point in punctual terms, although they have sometimes clarified its purports. From the Advisory Opinion on Namibia183 onwards, the ICJ has ascertained the substantial nature of the right to self-determination, but no clear conclusions have been drawn from such a strong affirmation. The Separate Opinion of Judge Ammoun confirms this view: although the right to self-determination is considered a substantial right, the Judge re-

178 See S.P. Sheeran: "*International Law, Peace Agreements, and Self-Determination: The Case of the*

179J. Summers, "*The Status of Self-determination in International Law: A Question of Legal Significance or Political Importance*", Finnish Yearbook of International Law, 2003, vol. 14, p. 283; A. Cassese, Self-Determination of Peoples. A legal Reappraisal, cit., p.134. However, see J. Crawford: "I*nternational Crimes of States*", in J. Crawford, A. Pellet and S. Olleson (eds.), The Law of International Responsibility, Oxford, 2010, p. 411 for critiques on the consequences of overlapping the *jus cogens* status of self-determination with the *erga omnes* nature of the right championed by the ICJ in the East Timor

180 Z. Oklopćić: "*Constitutional Politics of Secession: travelling from Quebec to Montenegro (and*

181 UN General Assembly's *Declaration on the Granting of Independence to Colonial Countries and Peoples*, cit., paras. 1 and 2. Furthermore, as the *Declaration on Friendly Relations* states, freedom has to be interpreted in broad terms, thus people are free to choose whether they want to give rise to a new

182 J. Klabbers: "*The Right to be Taken Seriously: Self-Determination in International Law*", Human

183 ICJ, *Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution* 276 (1970), ICJ Reports 1971, p. 16.

*Back?)*", in A. Packovic and P. Radan, Ashgate Research Companion to Secession, cit., p. 132.

*Sudan*", International and Comparative Law Quarterly, 2011, n.60, p. 458.

independent entity, to integrate or associate with another State.

Rights Quarterly, 2006, vol. 28, p. 189.

182 In support of these assumptions, Klabbers

*polities, remains heavily contested*".180

to communities a right *to be heard*.

case.

calls that on the basis of this right no less than fifty States gained independence after the II World War, which is a clear reference to the link between self-determination and the end of colonialism.184 In Klabbers' words "*while it was unproblematic to think of a right to self-determination to support decolonization, the postcolonial world would warrant a different approach*".185 The ones who would find support for their self-determination claim by the international community would be (i) colonies genuinely understood, (ii) peoples under foreign occupation – see the non-selfgoverning territories enlisted by the UN- and (iii) peoples under a racist regime i.e. South Africa. In addition, Weller refers to *secondary colonies*, to mean units that could be genuinely defined colonies but which exercised their right with delay, due to external intervention, such as East Timor.186

The major problem with self-determination is that the main rationale underpinning its affirmation, the idea of freedom, clashes with domestic and international stability since it favours the breakup of States and thus hinders the balance of power among the members of the international community. Cassese explains this point in clear terms when he affirms that "*self-determination is attractive so long as it has not been attained; alternatively, it is attractive so long as it is applied to others. Once realized, enthusiasm dies fast, since henceforth it can only be used to undermine perceived internal and external stability*".187 These contrastive features do not seem to be doomed to change: according to Summers the dichotomy between internal and external self-determination best serves the interests of the international community in that it avoids the domain of one single interpretation and weakens the existence of a right to secede.188

However, as this Chapter has tried to outline, if one can distinguish between internal and external aspects of the right, it is still possible to support the existence of the right to self-determination, albeit mainly in its internal dimension.189 It was demonstrated that the preference for internal self-determination finds its rationale in the wish to consolidate and preserve the domestic legal system, democratic governance and constitutional guarantees. This trend is supported by reference to the case of secession of Quebec, when the Canadian Supreme Court affirmed that the Quebecers had the right to self-determinate in the sense of negotiating the adoption of appropriate rules for their participation to the Canadian political life.190 As a consequence, external self-determination is relegated to hypothesis of denial of fundamental human rights, a form of violence that justifies the will of the people to establish a new

184 Judge Ammoun's Separate Opinion, ICJ, *Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution* 276 (1970), supra, para. 75.

185 J. Klabbers: "*The Right to be Taken into Account*", cit., p. 195.

186 M. Weller, Escaping the Self-Determination Trap, cit., p. 36.

187 A. Cassese, Self-Determination of Peoples. A Legal Reappraisal, cit., pp. 5-6.

188 J. Summers: "*The Internal and External Aspects of Self-determination Reconsidered",* in D. French (ed.), Statehood and Self-Determination. Reconciling Tradition and Modernity in International Law, Cambridge, 2013, pp. 247-249.

189 V. Lanovoy: "*Self-Determination in International Law: a Democratic Phenomenon or an Abuse of a Right*?", Cambridge Journal of International and Comparative Law, 2015, vol. 4, p. 392.

190 J. Summers: "*The Internal and External Aspects of Self-determination Reconsidered"*, cit., p. 240.

State rather than to negotiate a new form of autonomy. It will be seen in the next Chapter that this hypothesis is the focus of the remedial right theory. By contrast, recent practice - such as in the cases of Scotland, Catalonia or Crimea - might suggest that if one wants to argue that self-determination can still be in evolution, the argument has to be framed along different lines. In particular, a broader interpretation of self-determination in its internal dimension seems to take place. The realisation of a community of individuals within the borders of the State is not limited to participation to the management of public affairs, but encompasses social inclusion, fiscal benefits and property rights. In other words, a human rights oriented understanding of the internal dimension of self-determination seems to arise, with an emphasis on a broader bulk of rights, such as participatory rights, social inclusion and property rights. As it will be seen in Chapter 3, the "right to decide" claimed by the people of Catalonia can be said to reflect the new pattern followed by the right to self-determination in liberal and democratic contexts.191

Nevertheless, from a purely legal perspective the exact nature of internal selfdetermination remains controversial, and whether there is a positive right in international law to internal self-determination may be disputed.192 What can be pointed out is that there is an increasing number of international documents making direct or indirect reference to democracy, as if this principle lies at the heart of internal selfdetermination.193 In a statement before the Third Committee of the General Assembly dated 1984, the representative of the UK, referring to the apartheid regime, maintained that "*The issues of racism and self-determination are related. […] The South African system is particularly obnoxious […] because the majority of South Africa's people are denied any effective role in running the society in which they live. That is, they are denied the right of self-determination*".194 Moreover, the European experience with the application of the right to self-determination in former Yugoslav republics has been considered as having "modernised" the principle of self-

57

195 See on this point P. Pazartis: "*Secession and International Law: the European Dimension"*, M.G.

196 V. Lanovy: "*Self-Determination in International Law, a Democratic Phenomenon or an Abuse of a*

determination stressing its internal dimension.195 Interaction between democracy and self-determination has increased with the progressive developments in human rights law and is considerable with respect to certain democratic principles, such as that of politic participation pursuant to art. 25 ICCPR. However, this is not tantamount to say that democracy is a necessary condition for the realisation of selfdetermination.196 The absence of clear limits between self-determination and democratic expression of the will of the people, in particular, may lead to a misinterpretation of self-determination: units seeking separation instrumentally use the selfdetermination argument, but they are not entitled to self-determination. What they

seek, in fact, is a legal title to secede.

Kohen, Secession in International Law, cit. p. 367.

*Right*?", cit., pp. 388-396.

191 See D. Turp: "*Catalonia's "Right to Decide" Under International, European, Spanish, Catalan And Comparative Law"*, Report of Experts for the Institute for Research on Self-Determination of Peoples and National Independence, n.1, September 2017, pp. 55-68.

192 H. Hannum: "*Rethinking Self-Determination*", Virginia Journal of International Law, 1993, n. 34. pp. 2-69.

193 T.W. Simon: "*Remedial Secession: What the Law Should Have Done, from Katanga to Kosovo"*,

Georgia Journal of International and Comparative Law, 2011-2012, n. 40, p.124. 194 See United Kingdom Materials on International Law, 1984, printed in British Yearbook of International Law, 1984, p. 431, referring to the U.K. representative R. Fursland at the Third Committee of the General Assembly of the UN on 12 October 1984. Besides, it has been argued by political scientists that the action of the UN has been often driven by a will to restore democracy. The distinguishing factor is restoration: given that the legal contours of the right to internal self-determination are not defined in international law, the international community would be prone to act only when this right has been granted – in a variety of forms- and then denied, whilst it will remain immovable when self-determination has never been granted. Cases of Haiti, East Timor, and even Libya would support this view. See, among the others, R. Rich: "*Bringing Democracy into International Law"*, Journal of Democracy, 2001, vol. 12, p. 31; see also T. Franck: "*The Emerging Right to Democratic Governance*", American Journal of International Law, 1992, vol. 86, p. 85-91 (arguing that the international community can only invoke collective enforcement measures against governments that oppress their peoples in limited circumstances).

State rather than to negotiate a new form of autonomy. It will be seen in the next Chapter that this hypothesis is the focus of the remedial right theory. By contrast, recent practice - such as in the cases of Scotland, Catalonia or Crimea - might suggest that if one wants to argue that self-determination can still be in evolution, the argument has to be framed along different lines. In particular, a broader interpretation of self-determination in its internal dimension seems to take place. The realisation of a community of individuals within the borders of the State is not limited to participation to the management of public affairs, but encompasses social inclusion, fiscal benefits and property rights. In other words, a human rights oriented understanding of the internal dimension of self-determination seems to arise, with an emphasis on a broader bulk of rights, such as participatory rights, social inclusion and property rights. As it will be seen in Chapter 3, the "right to decide" claimed by the people of Catalonia can be said to reflect the new pattern followed by the right to

Nevertheless, from a purely legal perspective the exact nature of internal selfdetermination remains controversial, and whether there is a positive right in international law to internal self-determination may be disputed.192 What can be pointed out is that there is an increasing number of international documents making direct or indirect reference to democracy, as if this principle lies at the heart of internal selfdetermination.193 In a statement before the Third Committee of the General Assembly dated 1984, the representative of the UK, referring to the apartheid regime, maintained that "*The issues of racism and self-determination are related. […] The South African system is particularly obnoxious […] because the majority of South Africa's people are denied any effective role in running the society in which they live. That is, they are denied the right of self-determination*".194 Moreover, the European experience with the application of the right to self-determination in former Yugoslav republics has been considered as having "modernised" the principle of self-

191 See D. Turp: "*Catalonia's "Right to Decide" Under International, European, Spanish, Catalan And Comparative Law"*, Report of Experts for the Institute for Research on Self-Determination of Peoples

192 H. Hannum: "*Rethinking Self-Determination*", Virginia Journal of International Law, 1993, n. 34. pp.

193 T.W. Simon: "*Remedial Secession: What the Law Should Have Done, from Katanga to Kosovo"*, Georgia Journal of International and Comparative Law, 2011-2012, n. 40, p.124. 194 See United Kingdom Materials on International Law, 1984, printed in British Yearbook of International Law, 1984, p. 431, referring to the U.K. representative R. Fursland at the Third Committee of the General Assembly of the UN on 12 October 1984. Besides, it has been argued by political scientists that the action of the UN has been often driven by a will to restore democracy. The distinguishing factor is restoration: given that the legal contours of the right to internal self-determination are not defined in international law, the international community would be prone to act only when this right has been granted – in a variety of forms- and then denied, whilst it will remain immovable when self-determination has never been granted. Cases of Haiti, East Timor, and even Libya would support this view. See, among the others, R. Rich: "*Bringing Democracy into International Law"*, Journal of Democracy, 2001, vol. 12, p. 31; see also T. Franck: "*The Emerging Right to Democratic Governance*", American Journal of International Law, 1992, vol. 86, p. 85-91 (arguing that the international community can only invoke collective enforcement measures against governments that oppress their peoples in limited circumstanc-

self-determination in liberal and democratic contexts.191

and National Independence, n.1, September 2017, pp. 55-68.

2-69.

es).

determination stressing its internal dimension.195 Interaction between democracy and self-determination has increased with the progressive developments in human rights law and is considerable with respect to certain democratic principles, such as that of politic participation pursuant to art. 25 ICCPR. However, this is not tantamount to say that democracy is a necessary condition for the realisation of selfdetermination.196 The absence of clear limits between self-determination and democratic expression of the will of the people, in particular, may lead to a misinterpretation of self-determination: units seeking separation instrumentally use the selfdetermination argument, but they are not entitled to self-determination. What they seek, in fact, is a legal title to secede.

195 See on this point P. Pazartis: "*Secession and International Law: the European Dimension"*, M.G. Kohen, Secession in International Law, cit. p. 367.

196 V. Lanovy: "*Self-Determination in International Law, a Democratic Phenomenon or an Abuse of a Right*?", cit., pp. 388-396.

58

59

The parallel between secession and dismemberment serves to introduce our approach to secession: for the purposes of the present research, secession will be viewed both as a fact and as a process, but the focus will be on the latter. Interestingly, Judge Yusuf in his Separate Opinion appended to the ICJ Advisory Opinion on the independence of Kosovo refers to the declaration of independence as "*part of*

**1. Secession in international law: a word in search of a definition**

The first issue that arises when dealing with secession is the question "what are we really talking about?". Conceptual quarrels are frequent for international rules on territorial changes and in this field different interpretations may lead to different attributions of rights and duties to the parties. When a State dissolves, e.g. it disappears as a legal entity, succession to the treaties to which it was a party has to be decided either on the basis of the *tabula rasa* principle or throughout negotiations between the post dissolution entities. For secession, a new entity comes into being without the disappearance of the parent State. Succession to treaties will be managed between the newly formed entities and the pre-existing State. Moreover, withdrawal of a portion of territory can be also followed -in principle- by the request by the seceding entity to be incorporated into another State, instead of becoming a new entity

From the above, it would be easy to conclude that scholars are using different terms to refer to the same thing, since the final outcome of secession and dismemberment is the same. Here lies the claim that semantic quarrels weight a lot in this field of international law. One of the differences between the two above-cited phenomena lies in the process, not in the outcome. While dismemberment usually originates from a decision of the government, secession often originates at a lower level, notably from people. Then, it can be accepted or opposed by the central government. It is not tantamount to say that secession cannot stem from a governmental decision. As it will be shown below, Eritrea in 1979 or the attempt by Scotland in 2014 are typical examples of agreed secession. However, before the signature of the agreement, secession began from the will of the people who rebelled against the denial of autonomy by the Ethiopian central government, and from the Scottish long-standing

**Chapter 2**

on its own.

independence claims respectively.

**The Contested Right to Secede**

# **Chapter 2 The Contested Right to Secede**

The first issue that arises when dealing with secession is the question "what are we really talking about?". Conceptual quarrels are frequent for international rules on territorial changes and in this field different interpretations may lead to different attributions of rights and duties to the parties. When a State dissolves, e.g. it disappears as a legal entity, succession to the treaties to which it was a party has to be decided either on the basis of the *tabula rasa* principle or throughout negotiations between the post dissolution entities. For secession, a new entity comes into being without the disappearance of the parent State. Succession to treaties will be managed between the newly formed entities and the pre-existing State. Moreover, withdrawal of a portion of territory can be also followed -in principle- by the request by the seceding entity to be incorporated into another State, instead of becoming a new entity on its own.

From the above, it would be easy to conclude that scholars are using different terms to refer to the same thing, since the final outcome of secession and dismemberment is the same. Here lies the claim that semantic quarrels weight a lot in this field of international law. One of the differences between the two above-cited phenomena lies in the process, not in the outcome. While dismemberment usually originates from a decision of the government, secession often originates at a lower level, notably from people. Then, it can be accepted or opposed by the central government. It is not tantamount to say that secession cannot stem from a governmental decision. As it will be shown below, Eritrea in 1979 or the attempt by Scotland in 2014 are typical examples of agreed secession. However, before the signature of the agreement, secession began from the will of the people who rebelled against the denial of autonomy by the Ethiopian central government, and from the Scottish long-standing independence claims respectively.

#### **1. Secession in international law: a word in search of a definition**

The parallel between secession and dismemberment serves to introduce our approach to secession: for the purposes of the present research, secession will be viewed both as a fact and as a process, but the focus will be on the latter. Interestingly, Judge Yusuf in his Separate Opinion appended to the ICJ Advisory Opinion on the independence of Kosovo refers to the declaration of independence as "*part of*

*process to create a new state"* and continues "*the Court was asked to asses whether or not the process by which the people of Kosovo were seeking to establish their own state involved a violation of international law*".197 Arguably, the Judge seems to understand creation of statehood as a process, albeit the acquisition of statehood by Kosovo remains a factual instance. As such, the separate opinion goes against the position expressed by leading scholars, i.e. Pellet, that "*secession is, however, a fact*"198 with no reference to the process of secession. The procedural approach, presented by distinguished scholars,199 is in our view more accurate than the one focusing only on the outcome of secession. As anticipated in the Introduction, the phenomenon of secession straddles the distinction between domestic and international law. Due to the varied circumstances surrounding secessionist struggles, secession has been studied on a case-by-case basis. With a view to determine what we are talking about, it is useful to recall some of the definitions anticipated in the Introduction. For Kohen, secession is "*the creation of a new independent entity through the separation of part of the territory […] of an existing State, without the consent of the latter*".200 The distinguishing factor is the consent of the State. Admittedly, apart from neutral territories – such as Antarctica- nearly all portions of the globe are subject to the sovereign power of a State. It is easily predictable then, that territorial changes occur at the expenses of an existing State. That is why it has been contented by many authors that consent is the distinguishing element for secession.

Although it could be argued that when the central government consents to the reapportionment the case falls into the domestic sphere of sovereignty of the parent State, this view should not prevent from labelling that process as one of secession. Potentially, it could be better understood as a "secession by consent" or as a "separation". In these case, anyway, when the kin State consents to loose part of its territory, there is few space for international law. Undoubtedly, if the parent State consents to the creation of a new entity and recognizes it, questions of legal personality in international law triggered by the newly born entity are less complicated. Since the former parent State is the most witnessed by the establishment of a new entity, once it has accepted it, it would be less cumbersome for the other members of the international community - at least from a political standpoint- to recognize it.

In this framework, Anderson has suggested that once the outcome of secession is separated from the process, it is possible to distinguish between two basic types of secession: consensual and unilateral.201 Consensual secession occurs when the par-

200 M.G. Kohen, Secession: International Law Perspectives, cit., p. 3.

61

202 Supreme Court of Canada, *Reference re Secession of Quebec,* 20 August 1998, para. 87. See also P. Radan: "*You Can't always Get what you Want: the Territorial Scope of an Independent Quebec*", Os-

204 Separation from the United Kingdom occurred through the issuance of the *Irish Free State (Agreement) Act* passed by the British Parliament on 31st March 1922, see

206 G. Anderson: "*Secession in International Law and Relations*" cit. p. 352; see also R. A. Young: "*How do peaceful Secessions Happen*?", Canadian Journal of Political Science, 1994, pp. 773-792. Yet, there are many differences between plebiscites and referendum, which will be discerned of in the next

ent State consents to the withdrawal of the territory, either by following a specific procedure provided for by national law, or by negotiations in absence of specific provisions regulating secession. In the case of Quebec, i.e., the Canadian Supreme Court stated that future decisions on the status of Quebec would have to be based on a constitutional amendment about secession to be negotiated thereinafter.202 For the Court, however, it was the referendum in Quebec in which an overwhelming majority expressed the wish to separate from Canada that triggered an obligation to negotiate a new territorial settlement.203 In this case, secession started as a unilateral demand, but after the referendum it was deemed to be negotiated in case of a positive vote towards separation. This topic belongs to the next Chapter, where it will be showed that the use of referendum blurs the line between unilateral and consensual secession. Nevertheless, the example stresses the fact that if secession is studied from a procedural perspective, it may well be the case that the process begins as unilateral and then changes into a negotiated one. In this process, international law

Despite the fact that at first glance the possibility that secession be carried out following negotiations seems a rare find, it is feasible and indeed not so unconventional. It has actually happened that secession was foreseen during negotiations between the parties, i.e for the separation of Southern Ireland from the UK in 1922204, and for the attempt by Scotland in 2014. Before the Scottish referendum on independence was held in September 2014, the representatives of Scotland and UK committed themselves to accept the result of the vote cast, whatever this would be. Although the majority of voters eventually were in favour of staying within the Union, in case of a clear vote cast for independence London would have been bound by the agreement to accept the Scottish secession.205 The Scottish case sounds similar to the separation of Norway from the Union with Sweden in 1904, indeed. In the latter, the Norwegians were called to approve separation through a plebiscite, whose turnout was clearly in favour of seceding. Sweden, on its part, had pledged to respect and give effect to the outcome of popular consultations.206 In light of the above, practice about negotiations following a unilateral quest for secession is not rare. To further support the argument presented so far, it is necessary to have a deeper look at practice. First, with the secession of Eritrea from Ethiopia and secondly with the Scottish

might be involved as indicated further in this Chapter- section 3.

attempt to secede from the UK.

203 See Chapter 3 at pp. 157-161.

Chapter.

good Hall Law Journal, 2003, n. 41, p. 629-633.

205 See section 1.2 below for an in depth analysis.

http://www.historicaldocuments.org.uk/documents/doc00005-000.html

197 ICJ, Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Separate Opinion by Judge Yusuf, 22 July 2010, ICJ Reports 2010, p. 619 ss.

198 A. Pellet: "*Kosovo. The Question Not Asked*", M. Milanovic and M. Wood, The Law and Politics of the Kosovo Advisory Opinion, Oxford, 2015, p. 274.

199 M. G. Kohen, Secession: International Law Perspectives, cit., p.14 arguing that "*secession is not an instant fact. It always implies a complex series of claims and decision […] which may – or may notlead to the creation of a new State*". A. Tancredi, La Secessione nel Diritto Internazionale, cit., pp. 669- 714 and his contribution *"A Normative Due Process in the Creation of States through secession*" in M.G. Kohen, Secession: International Law Perspectives, cit., pp. 171-207.

201 G. Anderson: "*Secession in International Law and Relations: What are we really talking about?*", Loy. L.A. International and Comparative Law Review, 2012-2013, pp. 350-352.

ent State consents to the withdrawal of the territory, either by following a specific procedure provided for by national law, or by negotiations in absence of specific provisions regulating secession. In the case of Quebec, i.e., the Canadian Supreme Court stated that future decisions on the status of Quebec would have to be based on a constitutional amendment about secession to be negotiated thereinafter.202 For the Court, however, it was the referendum in Quebec in which an overwhelming majority expressed the wish to separate from Canada that triggered an obligation to negotiate a new territorial settlement.203 In this case, secession started as a unilateral demand, but after the referendum it was deemed to be negotiated in case of a positive vote towards separation. This topic belongs to the next Chapter, where it will be showed that the use of referendum blurs the line between unilateral and consensual secession. Nevertheless, the example stresses the fact that if secession is studied from a procedural perspective, it may well be the case that the process begins as unilateral and then changes into a negotiated one. In this process, international law might be involved as indicated further in this Chapter- section 3.

Despite the fact that at first glance the possibility that secession be carried out following negotiations seems a rare find, it is feasible and indeed not so unconventional. It has actually happened that secession was foreseen during negotiations between the parties, i.e for the separation of Southern Ireland from the UK in 1922204, and for the attempt by Scotland in 2014. Before the Scottish referendum on independence was held in September 2014, the representatives of Scotland and UK committed themselves to accept the result of the vote cast, whatever this would be. Although the majority of voters eventually were in favour of staying within the Union, in case of a clear vote cast for independence London would have been bound by the agreement to accept the Scottish secession.205 The Scottish case sounds similar to the separation of Norway from the Union with Sweden in 1904, indeed. In the latter, the Norwegians were called to approve separation through a plebiscite, whose turnout was clearly in favour of seceding. Sweden, on its part, had pledged to respect and give effect to the outcome of popular consultations.206 In light of the above, practice about negotiations following a unilateral quest for secession is not rare. To further support the argument presented so far, it is necessary to have a deeper look at practice. First, with the secession of Eritrea from Ethiopia and secondly with the Scottish attempt to secede from the UK.

*process to create a new state"* and continues "*the Court was asked to asses whether or not the process by which the people of Kosovo were seeking to establish their own state involved a violation of international law*".197 Arguably, the Judge seems to understand creation of statehood as a process, albeit the acquisition of statehood by Kosovo remains a factual instance. As such, the separate opinion goes against the position expressed by leading scholars, i.e. Pellet, that "*secession is, however, a fact*"198 with no reference to the process of secession. The procedural approach, presented by distinguished scholars,199 is in our view more accurate than the one focusing only on the outcome of secession. As anticipated in the Introduction, the phenomenon of secession straddles the distinction between domestic and international law. Due to the varied circumstances surrounding secessionist struggles, secession has been studied on a case-by-case basis. With a view to determine what we are talking about, it is useful to recall some of the definitions anticipated in the Introduction. For Kohen, secession is "*the creation of a new independent entity through the separation of part of the territory […] of an existing State, without the consent of the latter*".200 The distinguishing factor is the consent of the State. Admittedly, apart from neutral territories – such as Antarctica- nearly all portions of the globe are subject to the sovereign power of a State. It is easily predictable then, that territorial changes occur at the expenses of an existing State. That is why it has been contented by

many authors that consent is the distinguishing element for secession.

tional community - at least from a political standpoint- to recognize it.

Kosovo, Separate Opinion by Judge Yusuf, 22 July 2010, ICJ Reports 2010, p. 619 ss.

M.G. Kohen, Secession: International Law Perspectives, cit., pp. 171-207. 200 M.G. Kohen, Secession: International Law Perspectives, cit., p. 3.

Loy. L.A. International and Comparative Law Review, 2012-2013, pp. 350-352.

the Kosovo Advisory Opinion, Oxford, 2015, p. 274.

Although it could be argued that when the central government consents to the reapportionment the case falls into the domestic sphere of sovereignty of the parent State, this view should not prevent from labelling that process as one of secession. Potentially, it could be better understood as a "secession by consent" or as a "separation". In these case, anyway, when the kin State consents to loose part of its territory, there is few space for international law. Undoubtedly, if the parent State consents to the creation of a new entity and recognizes it, questions of legal personality in international law triggered by the newly born entity are less complicated. Since the former parent State is the most witnessed by the establishment of a new entity, once it has accepted it, it would be less cumbersome for the other members of the interna-

In this framework, Anderson has suggested that once the outcome of secession is separated from the process, it is possible to distinguish between two basic types of secession: consensual and unilateral.201 Consensual secession occurs when the par-

197 ICJ, Accordance with International Law of the Unilateral Declaration of Independence in Respect of

198 A. Pellet: "*Kosovo. The Question Not Asked*", M. Milanovic and M. Wood, The Law and Politics of

199 M. G. Kohen, Secession: International Law Perspectives, cit., p.14 arguing that "*secession is not an instant fact. It always implies a complex series of claims and decision […] which may – or may notlead to the creation of a new State*". A. Tancredi, La Secessione nel Diritto Internazionale, cit., pp. 669- 714 and his contribution *"A Normative Due Process in the Creation of States through secession*" in

201 G. Anderson: "*Secession in International Law and Relations: What are we really talking about?*",

202 Supreme Court of Canada, *Reference re Secession of Quebec,* 20 August 1998, para. 87. See also P. Radan: "*You Can't always Get what you Want: the Territorial Scope of an Independent Quebec*", Osgood Hall Law Journal, 2003, n. 41, p. 629-633.

203 See Chapter 3 at pp. 157-161.

204 Separation from the United Kingdom occurred through the issuance of the *Irish Free State (Agreement) Act* passed by the British Parliament on 31st March 1922, see http://www.historicaldocuments.org.uk/documents/doc00005-000.html 205 See section 1.2 below for an in depth analysis.

206 G. Anderson: "*Secession in International Law and Relations*" cit. p. 352; see also R. A. Young: "*How do peaceful Secessions Happen*?", Canadian Journal of Political Science, 1994, pp. 773-792. Yet, there are many differences between plebiscites and referendum, which will be discerned of in the next Chapter.

#### **1.1 Agreed secession in the federation between Eritrea and Ethiopia**

Eritrea207 had been placed under British trusteeship after World War II. In 1953, the UN managed to set a federation between Eritrea and Ethiopia, but coexistence was difficult to put in practice.208 Eritrea considered itself autonomous; it had its own Constitution and its elected government. On the other hand, Emperor Selassie never accepted Eritrea's autonomy and championed a centralized control by Addis Ababa. After the decision to abolish the federal status of Eritrea in 1962, violent guerrillas broke down. At this point, further developments were shaped by the Cold War balance of power: when Selassie was replaced by Menghistu, the American presence in the federation was replaced by the USSR, which supported the fight of Addis Ababa against Eritrea's rebels.

It took thirty years to Eritrea to gain secession from Ethiopia. The success of the process was highly dependent on the Cold War out comings and the approach taken by Addis Ababa after Menghistu was overthrown. In fact, when the Front for the Liberation of Tigri, the biggest Ethiopian movement, managed to replace Menghistu (May 1991), the party adopted a favourable approach towards Eritrea's claims. Thus, a phase of dialogue between the parties started: with the London Agreement dated 27 May 1991 Ethiopia *de facto* accepted the independence of Eritrea. Nonetheless, at the Conference for Peace and Democracy held on July 1991 it was agreed to hold a referendum under UN supervision within two years, to confirm the London Agreement. In 1993 a clear vote cast in favour of independence led to the formation of a transitional government in the hand of the political party "Peoples' Front for Democracy and Justice" (PFDI).209 The new *status quo* received international recognition when the OAU accepted Eritrea as a member. However, the independence acquired in the nineties has not pacified the country, which is still troubled by internal conflicts for access to natural resources.

From this brief historical reappraisal, how can we frame the case of Eritrea? It could be maintained that Eritrea is a post-colonial secession example achieved by means of agreement. It could be opposed that the case originated from the Italian renunciation of all its rights and duties vis-à-vis the Eritrean colony. Hence, Eritrea could still be viewed under a colonial lens. This argument does not take into account that from the very beginning the liberation movement challenged the withdrawal of autonomy ruled by Selassie and did not rely on colonial arguments during the seceding process. In other words, the secession of Eritrea cannot be included among the

63

210 M. Keating: "*Scottish Independence*", A. Pavković and P. Radan (eds.), The Ashgate Research Com-

211 For an extensive study on the different phases undergone by the Scottish National Party and its implications on the relationship with London see I. MacLean and A. MacMillan, State of the Union: Union-

panion on Secession, Routledge, 2013, pp. 519-521.

ism and the Alternatives in the United Kingdom since 1707, Oxford, 2005.

latest examples of exercise of colonial self-determination. Rather, the distinguishing character of the case is that there was an agreement between the parties. Once it was reached, the international community pushed for a further legitimisation through a referendum to be conducted under international supervision. In this sense, it can be argued that the Eritrean case is one of consensual secession in which the people wanted to gain independence as a reaction to the denial of autonomy on the part of the federal government. Moreover, it cannot be ignored that the agreement was put under the scrutiny of the people. Pushed by the international community to adopt an agreement to this aim, it was the manifestation of the will of the people that made effective the reapportionment. More than 30 years after, the Scottish referendum

Since one of the distinctive features of the case is that there was an agreement to hold a territorial referendum on independence, the Scottish attempt to secede from the UK will be tackled in the Chapter devoted to practice on territorial referendum. Nevertheless, given that it involves secession, in this section the basic features of the

The end of the Kingdom of Scotland dates back to 1707, when the *Acts of Union* declared the territory part of the United Kingdom. The *Union Act* abolished the Parliament of Scotland, yet the Scottish preserved their different administrative system, distinct civil society, legal system, thus in broad terms their own sense of nationali-

Nationalism emerged in the late 19th century, but in the first phase it was aimed at increasing self-governing powers or to a certain extent a federal United Kingdom. Divergences between supporters of the above mentioned "gradual" independence view, and those ones calling for a radical solution, have been a characteristic feature of the Scottish National Party since its constitution in 1935. This internal struggle influenced the relationship with the UK. There were phases of strong opposition due to a revive of nationalism – such as in the 80ies- followed by times of peaceful coexistence with London. The latter were made possible by a series of powerconcessions made by the British Government, the most important one being the devolution process.211 The process of devolution was marked by the referendum hold in 1997 by which the people of Scotland voted for the establishment of a Scottish Parliament, granted with powers on tax law. The UK answered to this strong manifestation of the will of the people with the 1998 *Scotland Act*. The act was aimed at conceding more autonomy with a model similar to the subsidiarity one developed by the EU. Not only was the Parliament established, but also the new Scottish Executive. The Scottish Parliament can legislate on certain matters such as administrative

gives even more emphasis to popular consultations.

**1.2 The Scottish example of secession by consent**

case will be presented.

ty.210

207 On the Eritrean case there is a huge literature. See for references: A. Tancredi, La Secessione nel Diritto Internazionale, cit., pp. 539-542; M. Haile: "*Legality of Secession: the Case of Eritrea*", Wisconsin International Law Journal, 1987, p. 75 ff.; E. Gayim, The Eritrean Question. The Conflict between the Right of Self-Determination and the Interests of States, Uppsala, 1993.

208 The assessment of the status of Eritrea was devolved to the Commission for Eritrea, established by the General Assembly and composed by 5 members: Burma, Guatemala, Norway, Pakistan and South Africa. The decision to constitute an autonomous unit federated with Ethiopia was taken without any popular consultation but only on the basis of the UN *Report of the United Nations Commission for Eritrea,* 1950, UN General Assembly Official Records A/1285, Fifth Session, 1950, Suppl. n.8.

209 K. Sturman: "*Eritrea: a Belated Post-Colonial Secession*", A. Pavković and P. Radan (eds.), The Ashgate Research Companion on Secession, Routledge, 2013, p.497-498.

latest examples of exercise of colonial self-determination. Rather, the distinguishing character of the case is that there was an agreement between the parties. Once it was reached, the international community pushed for a further legitimisation through a referendum to be conducted under international supervision. In this sense, it can be argued that the Eritrean case is one of consensual secession in which the people wanted to gain independence as a reaction to the denial of autonomy on the part of the federal government. Moreover, it cannot be ignored that the agreement was put under the scrutiny of the people. Pushed by the international community to adopt an agreement to this aim, it was the manifestation of the will of the people that made effective the reapportionment. More than 30 years after, the Scottish referendum gives even more emphasis to popular consultations.

#### **1.2 The Scottish example of secession by consent**

**1.1 Agreed secession in the federation between Eritrea and Ethiopia**

against Eritrea's rebels.

internal conflicts for access to natural resources.

the Right of Self-Determination and the Interests of States, Uppsala, 1993.

Ashgate Research Companion on Secession, Routledge, 2013, p.497-498.

Eritrea207 had been placed under British trusteeship after World War II. In 1953, the UN managed to set a federation between Eritrea and Ethiopia, but coexistence was difficult to put in practice.208 Eritrea considered itself autonomous; it had its own Constitution and its elected government. On the other hand, Emperor Selassie never accepted Eritrea's autonomy and championed a centralized control by Addis Ababa. After the decision to abolish the federal status of Eritrea in 1962, violent guerrillas broke down. At this point, further developments were shaped by the Cold War balance of power: when Selassie was replaced by Menghistu, the American presence in the federation was replaced by the USSR, which supported the fight of Addis Ababa