This panel was convened at 10:45 am, Friday, April 5, by its moderator, William Slomanson of Thomas Jefferson School of Law, who introduced the panelists: Vanessa J. Jimenez of the Public International Law and Policy Group, South Sudan Program; Marcelo Kohen of the Graduate Institute of International and Developmental Studies, Geneva; Patrick Dumberry of the University of Ottawa; and Jure Vidmar, Oxford University.
INTRODUCTORY REMARKS BY WILLIAM SLOMANSON *
Territorial integrity is a bedrock principle of the historical state-centric system of international law. Its contemporary application was enshrined in the 1945 UN Charter, and confirmed a half-century later, in the UN's 1995 General Assembly Resolution 50/6.
Those documents, and multiple human rights instruments, have also memorialized the right of self-determination of peoples. Self-determination has thus become the battle cry for many contemporary secessionist movements.
As the late N.Y.U. Professor Thomas Franck was fond of saying, international law does not permit unilateral secessions; nor does it prohibit them. There is no multilateral treaty on secession. That would be political suicide. But a review of other sources of international law hints at the emergence of a limited right to a remedial secession.
Our task is to explore the parameters of the debate about whether the hypothetical Asilite unilateral declaration of independence (UDI) justifiably coexists with Alfuma's territorial sovereignty. We thus drafted our hypothetical with a view toward assessing the validity of a number of contemporary secessions under customary international law. The hypothetical will likely strike some as resembling Kosovo's UDI; others, as South Ossetia; and yet others, as being based on Nagomo Karabakh. If so, we have achieved our objective of blending a number of post-Cold War secessions into one illustrative scenario.
Jure Vidmar will field my first question regarding the relationship between state territorial integrity and a UDI. Marcelo Kohen will address the requirements for a legitimate UDI. Patrick Dumberry will focus on the circumstances whereby an entity--having unilaterally seceded--might satisfy the criteria for statehood and recognition. Vanessa J. Jimenez will cover questions related to the need for, and parameters of, an independence referendum.
Alfuma and its adjacent neighbor, Rutasia, are developing countries. Their ethnic Asilite populations comprise 25 percent of the total population of each country. The Asilites constitute almost 100 percent of the rural and mountainous area, known as Asilia--which overlaps the border between Alfuma's southeast and Rutasia's southwest quadrants. Starting in 1997, Asilites in this cross-border area began to demand more protection from the majority populations' deteriorating treatment of ethnic Asilites who live or venture into the respective lowlands.
Asilia is the main province on Alfuma's southeast border. Asilia has been historically autonomous. Just after 9/11, Alfuma's president revoked Asilia's autonomy and disbanded its organs of self-government. Many of Alfurna's Asilites have since fled the lowlands, up into Asilia's mountains. Ethnic Asilites in both countries thus felt compelled to ramp up their demands for the following: better treatment by the respective dominant cultures; more governmental protection; and Asilian self-determination.
Alfuma's government ultimately responded by sending a sizeable military force into Asilia in 2007. The Asilites reacted to this "protection" with protests near the main Alfuman military base, then located just outside of Asilia's provincial capital city named lisa.
In 2010, Alfuma's military commander urged Alfuma's Asilite leader to end the protests. She refused. She was then placed under house arrest. From her home, where international attention resulted in CNN coverage, she encouraged all Asilites in the entire region to defend themselves against their respective governments and majority populations. She specifically demanded that Alfuma's government use its forces to protect, not punish, the Asilite ethnic minority population.
Asilite militias were formed in the above cross-border Asilite region of Alfuma and Rutasia. In 2011, Asilite militia leaders first asserted their belief that the Asilite right to selfdetermination required independence. Certain UN Security Council member states strongly opposed this secessionist claim. They did not want it to boil over into Rutasia and other states with an Asilite Diaspora. The Security Council urged all parties to respect human rights.
In 2012, Alfuma's Asilite leader staged another press conference, at which she proclaimed: "Asilites will no longer sit idly by, while the Alfuman government denies us our right to self-determination, and our freedom from discrimination. Our children cannot attend public schools. Our adults cannot find work. Our religious heritage is being vandalized."
Alfuma's president responded with evidence of money, munitions, and other support flowing into Alfuma from the region's Asilite Diaspora. Per his demand: "The Asilite terrorists must stand down, relinquish all weapons, and cease all efforts to get such external support for their cause." He ordered military snipers to "eliminate all threats" to Alfurna's majority population in Asilia. He further accused the Asilite leader of being more interested in becoming a "Banana Republic Head of State," than in doing what is best for her country and constituency.
The lack of meaningful negotiations spawned a downward spiral. It is seemingly proceeding toward a bloody stalemate, involving numerous skirmishes between Asilite militias and Alfuman soldiers. Last year, Alfuma's president ordered Alfurna's military force to enter and occupy Isla (Asilia's former provincial capital). The Asilite Diaspora pressed the leaders of both countries to recognize the Asilite rebellion, and to facilitate an end to the bloodshed on mutually agreeable terms.
Yesterday, the Asilite leader formally declared independence for the New Republic of Asilia. Her speech has been broadcast all over the world. Per her related posts on Facebook and Twitter: "The ancestral lands of the Asilite people are now the independent New Republic of Asilia! International law gives oppressed peoples like the Asilites the right to remedial secession." This morning, both Alfuma and Rutasia's governments issued a joint statement: "Yesterday's declaration of independence of the so-called New Republic of Asilia is illegal under international law. It has no effect, because Asilia cannot become a state. International recognition of this secessionist entity would also be illegal. Asilia has no right to remedial secession, a concept that is not recognized under international law. The Asilites are merely an ethnic minority, not a people. They cannot claim the right of self-determination. Even if the Asilites did have that right, self-determination does not include the right to independence."
* Professor, Thomas Jefferson School of Law (San Diego), and Visiting Professor, Pristina University (Kosovo).
([dagger]) The audience received the unilateral secession handout drafted by the panel, which was also available in the ASIL program materials, and at http://www.tjsl.edu/slomansonb/ASIL_Hypo_Secession.pdf. Alfuma and Rutasia are the 2013 Jessup Moot Court states. Asilia is a hypothetical province in Alfuma.
REMARKS BY PATRICK DUMBERRY *
The basic criteria for statehood are those laid down in the 1933 Montevideo Convention: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with other states. It is not entirely clear whether Asilia does fulfil the Montevideo criteria. The territory of the new state does not seem to be well-defined. It is also difficult to say whether there is any effective government that is in general control of its territory. What is clear is that the secession of Asilia does not violate the additional criteria for statehood. Thus, it does not contravene any jus cogens norm of international law: It was not created as a result of the illegal use of force by another state (as in the case of the Turkish Republic of Northern Cyprus, 1983) or in violation of the right of self-determination (as in Southern Rhodesia, 1965) or in violation of racist policies (as with the Bantustans in South Africa in the 1980s). These circumstances would prevent an entity from being considered a state even if the criterion of effectiveness was fulfilled.
Let us assume that Asilia does fulfill the criteria of statehood. The next question is whether as a result of this finding we should automatically conclude that it is a "state" under international law. The answer is clearly in the negative. There is no perfect equation between meeting the criteria of statehood and being considered a state. There are in fact several examples of entities that did fulfil the criteria of statehood, but which were nevertheless never considered states. The case of Somaliland is probably the best recent example of such a phenomenon. On the contrary, there are also examples of entities that have been recognized as states even though at the time they did not exercise complete control over their territories (for instance, Bosnia and Croatia).
The strong opposition to secession by the "parent" state will play a fundamental role. Thus, the parent state has a right to the respect of its territorial integrity. It can, of course, waive that right and consent to secession. There are indeed a number of examples of successful secession involving the approval of the parent state (Eritrea, Montenegro, Singapore, South Sudan, the U.S.S.R., etc.). In the context outside of colonialism when the parent state does not waive its right to the respect of its territorial integrity, Asilia does not have a right to unilateral secession under international law. Asilia's...