Abstract
In the absence of a unilateral right to secede or if attempts to agree a negotiated secession fail, the principle of effectiveness and international recognition may come into play. This chapter thus discusses the dynamics between the two, defending a constitutive, collective and principled recognition as a driver of effectivity.
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Notes
- 1.
Reference re Secession of Quebec, pars. 106, 155.
- 2.
Kelsen, H. Principles of International Law, pp. 258–9.
- 3.
Crawford, J. The Creation of States…, pp. 45–95.
- 4.
On the concept of basic norm, see § 14.2.
- 5.
For example, the essential criterion of territory requires neither precise borders (e.g. Israel) nor large areas (e.g. the Vatican).
- 6.
In Opinion No. 1, the Badinter Commission stated that: “the existence or disappearance of the State is a question of fact; that the effects of recognition by other States are purely declaratory”. Nonetheless, in Opinion No. 3, it qualified this: “According to a well-established principle of international law the alteration of existing frontiers or boundaries by force is not capable of producing any legal effect. This principle is to be found, for instance, in the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations (General Assembly Resolution 2625 (XXV))”. In Opinion No. 10, it concluded that: “As, however, the Arbitration Commission pointed out in Opinion No. 1, while recognition is not a requisite for the foundation of a State and is purely declaratory in its impact, it is nonetheless a discretionary act that other States may perform when they choose and in a manner of their own choosing, subject only to compliance with the imperatives of general international law, and particularly those prohibiting the use of force in dealings with other States or guaranteeing the rights of ethnic, religious or linguistic minorities”.
- 7.
When admitting the importance of recognition, we should not forget, however, the importance of power politics of recognition, political expediency and political interests as opposed to international ethics and law. See Coggins, B. Power Politics and the State Formation in the Twentieth Century.
- 8.
When the International Law Commission of the UN drafted a Declaration on Rights and Duties of States, it decided not to include “Each State has the right to have its existence recognized by other States”. One of the reasons given by the Draft of the Commission not to include this right was that it would go beyond the general principles of international law regarding recognition of new States. See Draft Declaration on Rights and Duties of States with Commentaries 1949.
- 9.
Dugard, J.; Raič, D. “The role of recognition…”, pp. 98–9. Raič, D. Statehood and the Law of Self-Determination, pp. 31–48.
- 10.
See Buchanan, A. Justice, Legitimacy and Self-Determination, ch. 6.
- 11.
The distinction made in this section may not be between declarative and constitutive recognition, but between legal and political recognition. According to Kelsen, legal recognition is the act by which a State confirms that a community fulfils the principle of effectiveness. By contrast, political recognition is the act by which a State recognizes that it wishes to enter into political and other kinds of relations with the State recognized. Although for Kelsen the State starts to exist for another State from the moment of recognition, this recognition can be given only when the State recognized meets the factual criteria for statehood. See Kelsen, H. Principles of International Law, § III.D.4.b.
- 12.
Kelsen, H. Principles of International Law, § III.D.4.c.
- 13.
Lauterpacht, H. “Recognition of States in International Law”, pp. 447–9.
- 14.
Dugard and Raič also highlight the importance of the decisions by the Security Council and the General Assembly of the UN, which expressly urge States to deny recognition of certain secessions resulting from occupation, aggression, breach of human rights or breach of self-determination of peoples (e.g. the Bantustan territories in South Africa, Rhodesia, Katanga, the Republic of Northern Cyprus, Republika Srpska and Abkhazia). Dugard, J.; Raič, D. “The role of recognition…”, pp. 97–137. By way of example, UN Security Council Resolutions 541 (1983) and 550 (1984) considered the declaration of independence by the Republic of Northern Cyprus legally invalid and politically regrettable and asked third States not to recognize any Cypriot State other than the Republic of Cyprus. According to Crawford, there is a presumption that would deny the status of State under international law to any entity that formally displays all the elements of statehood but has been established by a belligerent occupying power. In these cases, the criteria of independence for statehood would be missing. See Crawford, J. The Creation of States…, pp. 78–83, 156–82. Crawford does not expect, however, “that collective recognition will play a major or predominant role in matters of territorial status”, despite the fact that “in a number of cases it has been of considerable importance” (p. 540).
- 15.
In order to place international sanctions on non-legitimately newborn States, the UN could deny them entry to the Organization because of non-fulfilment of the substantive requirements for admission set out in Article 4.1 of the United Nations Charter, which are: (1) to be a State, (2) to be a peace-loving State, (3) to accept the obligations contained in the Charter, (4) to be able to carry out these obligations and (5) to be willing to carry out these obligations. According to the 1948 ICJ Advisory Opinion on the conditions for admission of a State as a member of the UN, these requirements are all necessary and no further requirements may be added.
- 16.
Among other questions: Which definition of State is the most accurate or appropriate, bearing in mind the relevance of international recognition? Can legal recognition be distinguished from political recognition? Would early recognition be against general international law? To what extent could international recognition be advanced to strengthen or promote statehood? Does a de facto State situation which has not yet been recognized create rights and duties? Is there any difference between de facto and de jure recognition? Can the acts of recognition be implicit or tacit? Would the retroactive effects of recognition depend on whether the view is constitutive or declarative? Although some of these questions are partially addressed in this book, they will remain open.
- 17.
“Recognition occurs only after a territorial unit has been successful, as a political fact, in achieving secession.” Reference re Secession of Quebec, par. 142.
- 18.
See ch. 14. Bossacoma, P. “Secession in Liberal-Democratic Contexts.”
- 19.
Inspired by Buchanan, A. Justice, Legitimacy and Self-Determination, pp. 56–7, 280–1. See also Caplan, R.; Vermeer, Z. “The European Union and Unilateral Secession”, pp. 765–7. Scharf, M.P. “Earned Sovereignty”, pp. 373–85.
- 20.
See Caplan, R. Europe and the Recognition…, p. 61. Scharf, M.P. “Earned Sovereignty”, pp. 374–5, 384–5. For Kelsen, however, legal recognition of a State can only be unconditional. Conditional recognition makes sense only when referring to political recognition understood as willingness to enter into political, economic, diplomatic or other kinds of relationships with the politically recognized State. Kelsen, H. Principles of International Law, § III.D.4.e. According to Crawford, breach of a condition attached to a grant of recognition may undermine friendly relations between States or may be treated as a violation of an international obligation, but rarely lead to suspension of recognition and relations. Crawford, J. The Creation of States…, p. 546.
- 21.
Ribbelink, O. State Practice Regarding Succession and Issues of Recognition, pp. 75–9. Cassese, A. Self-Determination of Peoples, pp. 266–7. Caplan, R. Europe and the Recognition…, p. 2.
- 22.
There are many precedents for making recognition of new States conditional on protection of minorities. In the Treaty of Berlin of 1878, the signatory States made recognition of Bulgaria, Montenegro, Serbia and Romania conditional on respect for religious minorities. After World War I, the allies made recognition of Poland, Czechoslovakia and the Kingdom of Serbs, Croats and Slovenes conditional on protection of national and ethnic minorities, guarantees of freedom of thought and belief, prohibition of discrimination on the basis of race, language or religion. See Caplan, R. Europe and the Recognition…, pp. 61–2. Crawford, J. The Creation of States…, p. 545.
- 23.
See Guidelines on the Recognition of New States in Eastern Europe and the Soviet Union, of 16 December 1991. The penultimate paragraph of the Declaration reads: “The Community and its Member States will not recognize entities which are the result of aggression”.
- 24.
See Crawford, J. The Creation of States…, pp. 393–401, 669–70. Crawford, J.; Boyle, A. Referendum on the Independence…, Part IV, pars. 57–92. The Russian Federation recognized the Baltic Republics and other former republics as new States in exchange for them recognizing it as the continuator State to the USSR. In this way, Russia, as continuator State, could retain the privileged position of the USSR in the UN (i.e. the status of permanent member of the Security Council and its concomitant right of veto) and supported the applications from the former republics, as successor States, to become members of the Organization. By contrast, the other former Yugoslav republics and international society did not accept (despite initial uncertainty) the status of continuator State for the Federal Republic of Yugoslavia.
- 25.
See Declaration on Yugoslavia of 16 December 1991.
- 26.
Not all the Opinions were followed by the Member States. For example, the recognition of Macedonia was delayed despite the favourable Opinion from the Commission and the recognition of Croatia went ahead despite the reservations expressed by the Commission. Caplan, R. Europe and the Recognition…, p. 50.
- 27.
Tierney, S. Constitutional Referendums, p. 167 et seq.
- 28.
Cassese, A. Self-Determination of Peoples, pp. 271–2.
- 29.
See Opinion No. 1 of the Badinter Commission.
- 30.
Caplan, R. Europe and the Recognition…, p. 66.
- 31.
Crawford, J. The Creation of States…, p. 391. For Crawford, continuity is, at least in practice, closely linked to the claims of the State or States concerned and to recognition by other States or international organizations (pp. 670–1).
- 32.
See Crawford, J.; Boyle, A. Referendum on the Independence…, pars. 79–92.
- 33.
See Musgrave, T.D. Self-Determination and National Minorities, pp. 200–7.
- 34.
See § 10.2.
- 35.
See § 2.7.
- 36.
Caplan, R. Europe and the Recognition…, pp. 66–7.
- 37.
Crawford, J. The Creation of States…, p. 89.
- 38.
Among other reasons, continuity precedes succession because the former presupposes more stability in legal relations (rights and duties) than the latter, thus increasing the legal security. Brownlie, I.; Crawford, J. Brownlie’s Principles of Public International Law, p. 427. Crawford, J. The Creation of States…, pp. 667–8. Crawford, J.; Boyle, A. Referendum on the Independence…, par. 24.
- 39.
See § 8.1.
- 40.
For Cassese, the Twelve also stressed “the close link between external and internal self-determination”. Cassese, A. Self-Determination of Peoples, p. 268.
- 41.
Some criticized the Commission for not giving details of the causes of the lack of representativeness and effectiveness of the federal institutions, when it could have been the result of previous disloyalty to the constitution by federated units. See Remiro, A.; et al. Derecho Internacional, pp. 195–6.
- 42.
The Declaration on Yugoslavia, of 16 December 1991, stated that the Republics that so wished could send their applications for recognition to the Badinter Commission so that it could give its Opinion before the implementation date. The first seven Opinions were given in January 1992, and the other three followed in July of the same year.
- 43.
See Caplan, R. Europe and the Recognition…, pp. 22–40, 185.
- 44.
Ibid., ch. 4, pp. 95–145.
- 45.
Owen, D. Balkan Odyssey, pp. 342–3.
- 46.
In its Opinion No. 2, the Badinter Commission said that: “whatever the circumstances, the right to self-determination must not involve changes to existing frontiers at the time of independence (uti possidetisjuris) except where the States concerned agree otherwise. Where there are one or more groups within a State constituting one or more ethnic, religious or language communities, they have the right to recognition of their identity under international law”. In Opinion No. 3, it went on to add that: “The boundaries between Croatia and Serbia, between Bosnia-Herzegovina and Serbia, and possibly other adjacent independent States may not be altered except by agreement freely arrived at. (…) Except where otherwise agreed, the former boundaries become frontiers protected by international law. (…) Its obvious purpose is to prevent the independence and stability of new States being endangered by fratricidal struggles (…)”. The ICJ expressly recognized uti possidetis as a general principle of international law in the Frontier Dispute case of 1986, but in a less categorical manner than the Badinter Commission.
- 47.
See § 3.3.
- 48.
See Moore, M. The Ethics of Nationalism, pp. 144, 161. Beran, H. “A democratic theory of political self-determination…”, in Lehning, P.B. (ed.) Theories of Secession, p. 38.
- 49.
The Serb people in Bosnia and Herzegovina proclaimed the Republika Srpska on 9 January 1992 (with its own parliament, after a referendum and with relatively effective control over its territory thanks to the support of the Serbian authorities in Belgrade). Crawford, J. The Creation of States…, pp. 406–7.
- 50.
As Kosovo was a Yugoslav province and not a republic, the European Community and its 12 Member States denied it international recognition. Like the republics, the province of Kosovo had its own constitution, government, courts, national bank, voice in the collective presidency, etc. The autonomy of Kosovo, however, had been abolished in 1989. Yugoslav socialist constitutionalism had considered the republics nations (narodi) and the province of Kosovo a nationality (narodnosti). The republic as a nation was a national community that was part of the Yugoslav nations. By contrast, the province of Kosovo, as a nationality, was formed mainly by members of an external national community (ethnic Albanian). The distinction drawn by Yugoslav federalism therefore turned into a distinction that could apply to international law as a result of the uti possidetis doctrine of the Badinter Commission. The massive offensive launched by Serbia in 1998 against the Kosovo-Albanian ethnics led to intervention by NATO which turned Kosovo into an autonomous area under de facto international control. From that year on, Serbia’s sovereignty over Kosovo was nominal. As a result of the independence of Kosovo, the uti possidetis principle might work once again against the Serb minorities in Northern Kosovo. See Caplan, R. Europe and the Recognition…, pp. 137–44.
- 51.
See ICJ Opinion on Kosovo, par. 81.
- 52.
See ch. 6.
- 53.
See Reference re Secession of Quebec, pars. 103, 142–3, 155.
- 54.
According to Bridget Coggins, the Great Powers, which “play an especially important role in the selection of new States”, are not “impartial, apolitical arbiters when assigning recognition to the new peers”. Their “leaders approached diplomatic recognition as an expression of mutual self-interest and not – as many jurists would have it – as a matter dictated by international law”. Coggins, B. Power Politics and the State Formation in the Twentieth Century, pp. 216–17.
- 55.
Spain, Cyprus, Romania, Slovakia and Greecewere the EU Member States that had not recognized the statehood of Kosovo.
- 56.
See Bossacoma, P. “Secession in Liberal-Democratic Contexts.”
- 57.
See § 4.8. This assumption is exemplified not only by the disintegration of Yugoslavia and the secession of Kosovo but also by other cases such as that of East Timor, which in 2002 became a new member of the UN. In reverse, non-recognition generally works as a sort of sanction against conduct that States reprove. In particular, refusal of legal recognition of a situation produced by violating self-determination of peoples is a common countermeasure in international law.
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Bossacoma Busquets, P. (2020). Effectiveness and International Recognition. In: Morality and Legality of Secession. Federalism and Internal Conflicts. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-26589-2_7
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