Unilateral non-colonial secession in international law and declaratory General Assembly resolutions: textual content and legal effects.

• Author: Anderson, Glen
• Position: I. Introduction through III. The Declaration on the Occasion of the Fiftieth Anniversary of the United Nations ('Fiftieth Anniversary Declaration'

TABLE OF CONTENTS I. INTRODUCTION II. THE DECLARATION ON PRINCIPLES OF INTERNATIONAL LAW CONCERNING FRIENDLY RELATIONS AND CO-OPERATION AMONG STATES IN ACCORDANCE WITH THE CHARTER OF THE UNITED NATIONS ("FRIENDLY RELATIONS DECLARATION") A. The Meaning of "Peoples" B. A Right of Peoples to UNC Secession C. Conclusion--The Friendly Relations Declaration III. THE DECLARATION ON THE OCCASION OF THE FIFTIETH ANNIVERSARY OF THE UNITED NATIONS ("FIFTIETH ANNIVERSARY DECLARATION") A. The Meaning of "Peoples" B. A Right of Peoples to UNC Secession C. Conclusion--The Fiftieth Anniversary Declaration IV. SUMMATION OF DECLARATORY GENERAL ASSEMBLY RESOLUTIONS A. Legal Effect of Declaratory General Assembly Resolutions 1. Declaratory General Assembly Resolutions as Authentic Interpretations of the U.N. Charter: Article 38(1)(a) of the Statute of the ICJ 2. Declaratory General Assembly Resolutions as Customary Law: Article 38(1)(b) of the Statute of the ICJ i. Are Statements Included Under Article 38(1)(b) of the Statute of the ICJ ii. Various Forms of State Practice and Relative Weight Thereof iii. The Impact of Repetition iv. Opinio Juris 3. Declaratory General Assembly Resolutions as General Principles of International Law: Article 38(1)(c) of the Statute of the ICJ 4. Declaratory General Assembly Resolutions as "Consensus": Beyond Article 38(1) of the Statute of the ICJ B. Distillation V. CONCLUSION I. INTRODUCTION

Since the conclusion of World War II several new states have been created as a result of unilateral non-colonial ("UNC") secession. (1) These include Bangladesh (Pakistan), Eritrea (Ethiopia), Bosnia-Herzegovina, Croatia, Macedonia, Montenegro, Slovenia, Serbia, Kosovo (Yugoslavia), and South Sudan (Sudan). (2) Some well-known examples of attempted UNC secession include Serbian Krajina (Croatia), Chechnya (Russian Federation), Gagauzia (Moldova), Transnistria (Moldova), Abkhazia (Georgia), (3) and South Ossetia (Georgia). (4) These examples--along with many others--demonstrate that UNC secession is an important method of state creation.

The present article examines whether a right to UNC secession is contained in United Nations ("U.N.") declaratory General Assembly resolutions, and if so, what might be the legal effect of such a right. Examination of declaratory General Assembly resolutions is critical to establishing a right to UNC secession in international law. (5) This is because scant--if any--support for such a right can be found in treaty law. (6) Yet UNC secession is a well-recognised method of state creation, (7) which by its very nature leads to a sovereignty conflict between the existing state and the (putative) secessionist state. The primary rules invoked for the resolution of this conflict are those relating to the international law of self-determination. It is this body of law, as developed and applied primarily by the U.N., which provides justification for the creation of a new state by way of UNC secession.

Two declaratory General Assembly resolutions arguably provide a qualified (8) right to UNC secession for peoples: The Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance With the Charter of the United Nations (9) ("Friendly Relations Declaration") and the Declaration on the Occasion of the Fiftieth Anniversary of the United Nations (10) ("Fiftieth Anniversary Declaration"). The article's first half examines the textual content of these instruments asking two interrelated questions: first, "what does the term 'peoples' mean?"; and second, "does the law of self-determination provide peoples--however defined--with a right to UNC secession?" (11) Both questions are controversial, with various scholars arguing for (12) and against (13) the extension of "peoples" to the non-colonial context and a right of peoples to UNC secession respectively.

The article's second half investigates the legal effect of declaratory General Assembly resolutions from a variety of perspectives, including whether they (i) constitute authentic interpretations of the U.N. Charter, (2) create binding customary law, (3) serve to create general principles of international law, and (4) can create new law by way of consensus. This investigation is vital to precisely understanding the legal effects of textually articulated rights in declaratory General Assembly resolutions. This is especially the case given the implications of UNC secession: can declaratory General Assembly resolutions create a right that even partly undermines the well-established principles of state sovereignty and territorial integrity?

The article concludes that the Friendly Relations Declaration and Fiftieth Anniversary Declaration articulate a qualified right to UNC secession, but that this right will only gain legal effect by way of customary law. Furthermore, it is determined that a customary law right to UNC secession will only be legally perfected by state practice in terms of physical acts and omissions. In other words state practice in relation to UNC secessionist disputes, particularly grants of recognition to UNC secessionist groups, must be concomitant with the qualified right to UNC secession articulated in declaratory General Assembly resolutions.

2. THE DECLARATION ON PRINCIPLES OF INTERNATIONAL LAW CONCERNING FRIENDLY RELATIONS AND CO-OPERATION AMONG STATES IN ACCORDANCE WITH THE CHARTER OF THE UNITED NATIONS ("FRIENDLY RELATIONS DECLARATION")

   The Friendly Relations Declaration (14) was adopted by the U.N. General Assembly in October 1970, and as the name suggests, enumerates principles of international law concerning friendly relations and cooperation among states. (15) Principle 5 deals with the "equal rights and self-determination of peoples" and given its centrality to the present article is reproduced in extenso below:

   [1] By virtue of the principle of equal rights and self-determination of peoples enshrined in the Charter of the United Nations, all peoples have the rights freely to determine, without external interference, their political status and to pursue their economic social and cultural development, and every State has the duty to respect this right in accordance with the provisions of the Charter.

   [2] Every State has the duty to promote, through joint and separate action, realization of the principle of equal rights and self-determination of peoples, in accordance with the provisions of the Charter, and to render assistance to the United Nations in carrying out the responsibilities entrusted to it by the Charter regarding the implementation of the principle, in order:

   (a) to promote friendly relations and co-operation among States; and

   (b) to bring a speedy end to colonialism, having due regard to the freely expressed will of the peoples concerned; and bearing in mind that subjection of peoples to alien subjugation, domination and exploitation constitutes a violation of the principle, as well as a denial of fundamental human rights, and is contrary to the Charter.

   [3] Every State has a duty to promote through joint and separate action universal respect for and observance of human rights and fundamental freedoms in accordance with the Charter.

   [4] The establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a people constitute modes of implementing the right of self-determination by the people.

   [5] Every State has a duty to refrain from any forcible action which deprives peoples referred to above in the elaboration of the principle of their right to self-determination and freedom and independence. In actions against, and resistance to, such forcible action in pursuit of the exercise of their right to self-determination, such peoples are entitled to seek and receive support in accordance with the purposes and principles of the Charter.

   [6] The territory of a colony or other non-self-governing territory has, under the Charter, a status separate and distinct from the territory of the State administering it; and such separate and distinct status under the Charter shall exist until the people of the colony or non-self-governing territory have exercised their right to self-determination in accordance with the Charter, and particularly its purposes and principles.

   [7] Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour.

   [8] Every State shall refrain from any action aimed at the partial or total disruption of the national unity and territorial integrity of any other State or country. (16)

   1. The Meaning of "Peoples"

      Although the word "peoples" is mentioned in the Declaration's preamble, (17) Principle 1, (18) and Principle 3, (19) the first significant application of the term occurs in Principle 5, paragraph 1:

      By virtue of the principle of equal rights and self-determination of peoples enshrined in the Charter of the United Nations, all peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development, and every State has the duty to respect this right in accordance with the provisions of the Charter. (20) Paragraph 1 thus mentions "State[s]" and "peoples" as two separate concepts. It also creates a nexus between "peoples" and "cultural development," the latter of which resembles some aspects of the definition of a nation. (21) Additionally, paragraph 1 declares that "all peoples" (22) enjoy the right...