Conceptualizing Declarations of Independence in International Law

Oxford Journal of Legal Studies, (2011), pp. 1–25doi:10.1093/ojls/gqr032

Conceptualizing Declarations of

Independence in International Law

Jure Vidmar*

Abstract—In the context of the Kosovo Advisory Opinion, some governments andscholars advanced the view that declarations of independence do not fall within thepurview of international law. Declarations of independence may be regulated bydomestic law, while they are no more than ink on paper internationally. This articlerejects such interpretations and argues that the question of whether or not a certaindeclaration of independence falls within the ambit of international law depends on theidentity of the authors of the declaration. Thus, declarations of independence are notalways issued in an international legal vacuum. Referring to the practice of states andUN organs, the article considers in which circumstances a declaration of independ-ence itself, and not only its acceptance, may be illegal under general international law.In so doing, the article also shows that the illegality of a declaration is not determinedby its unilateral character. It is concluded that international law neither endorses norprohibits unilateral declarations of independence, but this is not to say thatinternational law does not regulate declarations of independence at all.

Keywords: declarations of independence, legal neutrality, effectiveness, unilateralcharacter, illegality

1. Introduction

A successful state creation requires more than a declaration of independence.1

In principle, the entity needs to satisfy the traditional (Montevideo) statehood

criteria2 as well as certain legality requirements.3 Moreover, despite the general

* Research Fellow, Institute of European and Comparative Law, Faculty of Law, University of Oxford. Email:[email protected]. The author would like to thank Jean d’Aspremont, Christina Eckes, RobertMcCorquodale and anonymous reviewers of the Oxford Journal of Legal Studies for very helpful commentson earlier drafts. Any remaining mistakes are, of course, the author’s own.

1 For an overview of a number of unsuccessful attempts at secession see J Crawford, The Creation of States inInternational Law (2nd edn, OUP 2006) 403–14.

2 The traditional statehood criteria are spelled out in the Montevideo Convention on Rights and Duties ofStates, see ‘The 1933 Convention on Rights and Duties of States, adopted by the Seventh InternationalConference of American States’ (1933) 165 LNTS 19. Art 1 of this Convention provides: ‘The State as a personof international law should possess the following qualifications: (a) a permanent population; (b) a definedterritory; (c) government; and (d) capacity to enter into relations with other states.’ It is commonly accepted thatthese criteria reflect customary international law. See eg D Raic, Statehood and the Law of Self-Determination(Kluwer 2002) 24.

3 Arguments have been made that the effectiveness-based Montevideo statehood criteria have beensupplemented by a set of additional criteria based on legality. Practice of states and UN organs suggests that a

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perception in contemporary international law of recognition as being a

declaratory and not a constitutive act,4 the acceptance of the international

community may also be important for a successful state creation.5 This is

especially the case where an entity declares independence unilaterally and thus

indicates that it is seeking secession without the consent of its parent state.6

Unilateral claims for independence conflict with the principle of territorial

integrity of states, which protects the parent state of the independence-seeking

entity.7 In this regard arguments have been made that the principle of

territorial integrity of states absolutely prohibits unilateral secession.8 It is

questionable whether positive international law really supports this argument.9

If it were accepted, however, would this mean that international law directly

prohibits unilateral declarations of independence or only acceptance of such

declarations by foreign states?

In the view of some governments and scholars, declarations of independence

are not regulated by international law at all.10 What is important is what

state may not emerge as a result of illegal use of force, in breach of the right of self-determination and/or inpursuance of racist policies. See Crawford (n 1) 220; J Dugard, Recognition and the United Nations (GrotiusPublishing 1987) 135–37, 152–61. In another view, however, these are not additional statehood criteria butrather legality-based recognition requirements. See S Talmon, ‘The Constitutive versus the Declaratory Doctrineof Recognition: Tertium Non Datur?’ (2004) 75 BYIL 101, 126. cf also nn 73–6.

4 See eg D Harris, Cases and Materials on International Law (Sweet & Maxwell 2004) 134. For an overview onthe ‘great debate’ between the constitutive and the declaratory theories see T Grant, The Recognition of States:Law and Practice in Debate and Evolution (Praeger 1999) 1–18.

5 See Reference re Secession of Quebec [1998] 2 SCR 217 (SCC) [155], where the Court argued that ‘[t]heultimate success of . . . [unilateral] secession would be dependent on recognition by the international community.’

6 It needs to be noted that while a declaration of independence does not create a state, it is indicative of anattempt at secession. Moreover, the absence of a declaration of independence can indicate that an entity is not astate. See eg Crawford (n 1) 218–19, invoking the absence of a declaration of independence in the case of Taiwanas one of the indicators suggesting that Taiwan is not a state.

7 See The Declaration on Principles of International Law Concerning Friendly Relations and Co-operationAmong States in Accordance with the Charter of the United Nations, GA Res 2625 (24 October 1970) 121,annex, principle 5 [7]. cf n 44.

8 Consider the following argument: ‘As soon as the principle of territorial integrity applies, it necessarilyoutlaws secession without the consent of the parent state. Such understanding avoids systemic inconsistencyunder which international law would guarantee territorial integrity yet would not prohibit secession.’ AOrakhelashvili, ‘Statehood, Recognition and the United Nations System: A Unilateral Declaration ofIndependence in Kosovo’ (2009) 12 Max Planck YB United Nations L 1, 13. See also ICJ, Accordance withInternational Law of the Unilateral Declaration of Independence by the Provisional Institutions ofSelf-Government of Kosovo, Public sitting held on Friday 11 December 2009, CR 2009/33, 17 [5] (argumentof Nguyen Anh on behalf of Vietnam), arguing that territorial integrity of states is a norm of jus cogens.

9 See A Peters, ‘Statehood after 1989: Effectivites between Legality and Virtuality’ (2010) 3 Proc Eur Soc IntlL 8 <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1720904> accessed 1 November 2011, arguing, interalia, that the principle of territorial integrity of states in contemporary international law is ‘no end in itself, buthas only an instrumental value . . . the protection of territorial integrity can not [sic] function as an absolute legalbarrier to statehood’. cf the position of the Supreme Court of Canada in the Quebec case (n 5).

10 This line was, for example, advanced in a number of pleadings before the ICJ in the Kosovo Advisory Opinion.Consider the following illustrative arguments: ‘A declaration of independence . . . constitutes a purely internal legal actand not an international legal act.’ See ICJ, Accordance with International Law of the Unilateral Declaration ofIndependence by the Provisional Institutions of Self-Government of Kosovo, Public sitting held on Friday 4December 2009, CR 2009/28, 27 [31] (argument of Jean d’Aspremont on behalf of Burundi, emphasis in original);‘A declaration [of independence] issued by persons within a State is a collection of words writ in water . . . Whatmatters is what is done subsequently, especially the reaction of the international community.’ See ICJ, Accordancewith International Law of the Unilateral Declaration of Independence by the Provisional Institutions of

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happens afterwards; whether or not such a declaration is accepted by the

international community.11 This article, however, shows that this may be said

only of the unilateral character of declarations of independence but not of

declarations of independence in general. The article argues that the question of

legal regulation of declarations of independence is separate from the question

of legal regulation of their unilateral character.

Section 2 argues that a declaration of independence can have an interna-

tional legal relevance only if issued by an entity that is capable of meeting the

effectiveness standards presumed under the Montevideo criteria for state-

hood.12 Section 3 considers when a declaration of independence is unilateral

and makes an argument that the principle of territorial integrity of states does

not generate a norm that would absolutely prohibit unilateral declarations of

independence. Yet this is not to say that declarations of independence can

never be illegal under international law. Section 4 refers to the practice of states

and UN organs to show that under some circumstances a declaration of

independence itself, and not only its acceptance, may be unlawful. Section 5

provides for conclusions and points out that declarations of independence are

capable of violating general international law, albeit a violation does not stem

from the unilateral character of such declarations.

2. Declarations of Independence and Effectiveness

In a number of pleadings before the International Court of Justice (ICJ) in the

Kosovo Advisory Opinion, it was essentially suggested that a declaration of

independence is no more than ink on paper.13 In this interpretation,

declarations of independence simply fall outside of the purview of international

law.14 International law comes into the picture only at the next stage where

Self-Government of Kosovo, Public sitting held on Thursday 10 December 2009, CR 2009/32, 47 [6] (argumentof James Crawford on behalf of the United Kingdom); ‘State practice confirms that the adoption of a declarationof independence, or similar legal acts, frequently occurs during the creation of a new State. As such, this veryact – the act of declaring independence – is legally neutral.’ See ICJ, Accordance with International Law of theUnilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo, Publicsitting held on Monday 7 December 2009, CR 2009/29, 52 [11] (argument of Andreja Metelko-Zgombic onbehalf of Croatia). A different argument was, however, made on behalf of the United States, for example, whereit was acknowledged that declarations of independence do not entirely fall outside of the purview of internationallaw: ‘We do not deny that international law may regulate particular declarations of independence, if they areconjoined with illegal uses of force or violate other peremptory norms, such as the prohibition against apartheid.’See ICJ, Accordance with International Law of the Unilateral Declaration of Independence by the ProvisionalInstitutions of Self-Government of Kosovo, Public sitting held on Tuesday 8 December 2009, CR 2009/30, 30[20] (argument of Harold Hongju Koh on behalf of the United States).

11 See ICJ, Accordance with International Law of the Unilateral Declaration of Independence by theProvisional Institutions of Self-Government of Kosovo, Public sitting held on Thursday 10 December 2009, CR2009/32, 47 [6] (argument of James Crawford on behalf of the United Kingdom).

12 cf n 2.13 cf n 10.14 See n 10, especially the following argument: ‘A declaration of independence . . . constitutes a purely internal

legal act and not an international legal act.’ See ICJ, Accordance with International Law of the UnilateralDeclaration of Independence by the Provisional Institutions of Self-Government of Kosovo, Public sitting held on

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a declaration of independence is or is not accepted by the international

community.15 A declaration of independence thus cannot be either a legal or

an illegal act under international law. This question is simply not a concern of

international law.16

In this view, only the question of acceptance of a declaration of independence

is (partly) regulated by international law. It is a matter of the law of state

responsibility that under some circumstances a declaration of independence

must not be accepted.17 At the same time, international law does not foresee

any circumstances in which states would be under an obligation to accept a

declaration of independence.18 The question of acceptance of declarations of

independence will be dealt with below. At this point the article turns to the

view that declarations of independence are not a concern of international law at

all.

Such an argument ignores the importance of the identity of the authors of a

certain declaration.19 Indeed, if the author of the present article declared

independence of Scotland, it could hardly be argued that he intended to

disrupt the territorial integrity of the United Kingdom or that he intended to

create a new state without the support of the will of the people, ie in violation

of the right of self-determination of the people of Scotland.20 From the aspect

of international law, this declaration of independence would be no more than

ink on paper, certainly not illegal, but definitely legally irrelevant.

However, does this mean that all declarations of independence are legally

irrelevant internationally? Moreover, does this mean that declarations of

independence cannot be illegal under certain circumstances? This section will

clarify when declarations of independence are legally relevant, more precisely,

when they are a concern of international law. The question of potential

illegality of declarations of independence will be dealt with below.21

Friday 4 December 2009, CR 2009/28, 27 [31] (argument of Jean d’Aspremont on behalf of Burundi, emphasisin original).

15 See n 10, especially the following argument: ‘What matters is what is done subsequently [after a declarationof independence has been issued], especially the reaction of the international community.’ See ICJ, Accordancewith International Law of the Unilateral Declaration of Independence by the Provisional Institutions ofSelf-Government of Kosovo, Public sitting held on Thursday 10 December 2009, CR 2009/32, 47 [6] (argumentof James Crawford on behalf of the United Kingdom).

16 See H Hannum, ‘The Advisory Opinion on Kosovo: An Opportunity Lost, or a Poisoned Chalice Refused?’(2011) 24 LJIL 155, 156, arguing that the question of whether a declaration of independence is in accordancewith international law ‘is equivalent to asking whether the decision of the United Kingdom to make drivers driveon left side of the road rather than the right is in accordance with international law. The answer in both cases isclear: international law simply does not address the issue’.

17 See nn 73–6.18 See n 88.19 cf M Kohen and K Del Mar, ‘The Kosovo Advisory Opinion and UNSCR 1244 (1999): A Declaration of

‘‘Independence from International Law’’?’ (2011) 24 LJIL 109, 110, arguing that not all declarations ofindependence are issued in ‘an international legal vacuum’ and suggesting that one should pay attention to thequestion of who the authors are of a certain declaration of independence.

20 cf nn 114–28, where the episode of Southern Rhodesia is discussed.21 See Section 4.


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Declarations of independence change or intend to change the legal status of

the territory whose independence they are declaring. The question of whether

such a declaration changes or only intends to change the legal status will

depend on the mode of state creation. Where state creation is consensual, an

entity may become a state at the moment of the declaration of independence.

This explanation is reinforced by the prevailing position in contemporary

international law that recognition is, generally, a declaratory and not a

constitutive act.22 In the moment when the declaration of independence is

issued, the new state is not (yet) recognized. This is, however, not a problem

where a declaration of independence is issued with an approval of the parent

state. Since recognition is, in principle, declaratory and not needed for an

entity to become a state, it seems to be doctrinally accepted that a declaration

of independence may instantly change the legal status of a territory.23

In 2006, Montenegro declared independence in accordance with Article 60

of the Constitution of the State Union of Serbia and Montenegro, which

provided for a clear mechanism for secession.24 In this clear case the statehood

criteria were met25 and there was no competing claim for territorial integrity of

22 cf n 4.23 Universal recognition may have constitutive effects where state creation is not consensual. This is not to say

that recognition is primarily constitutive and that a non-recognized entity cannot exist as a state. An example of anon-recognized state is Macedonia between 1991 and 1993. See M Craven, ‘What’s in a Name? The FormerYugoslav Republic of Macedonia and Issues of Statehood’ (1995) 16 Aust YB Intl L 199. The virtually universalnon-recognition of Macedonia was political. Since its former parent state no longer existed, there was noapplicable competing claim to territorial integrity. Consequently, there was no doubt that Macedonia was a state,despite being universally non-recognized. See Declaration on the Former Yugoslav Republic of Macedonia,Informal Meeting of Ministers of Foreign Affairs, Guimaracs, 1 and 2 May 1992, reprinted in C Hill and KSmith, European Foreign Policy: Key Documents (Routledge 2000) 376. The document, notably, refers toMacedonia as a ‘state’, although universal non-recognition of Macedonia originated in the policy of the EuropeanCommunity and Greece’s objection to the name of the new state. While Macedonia may serve as a good exampleof declaratory recognition, unilateral secession leads to different circumstances. Where a parent state continues toexist and makes a competing claim to territorial integrity, collective recognition may well have constitutive effects.See M Weller, ‘Modesty Can Be a Virtue: Judicial Economy in the ICJ Kosovo Opinion’ (2011) 24 LJIL 127,129–30. See also Crawford (n 1) 501.

24 Art 60 of the Constitution of the State Union of Serbia and Montenegro provided:

After the end of the period of three years, member-states shall have the right to begin the process of a changeof the status of the state or to secede from the State Union of Serbia and Montenegro.

The decision on secession from the State Union of Serbia and Montenegro shall be taken at a referendum.In case of secession of the state of Montenegro from the State Union of Serbia and Montenegro,

international documents referring to the Federal Republic of Yugoslavia, especially the United NationsSecurity Council Resolution 1244, shall only apply to the state of Serbia as a successor.

The member-state which resorts to the right to secession shall not inherit the right to internationalpersonality and all disputes shall be solved between the successor-state and the seceded state.

In case that both states, based on the referendum procedure, opt for a change of the state-status orindependence, the disputable questions of succession shall be regulated in a process analogical to the case ofthe former Socialist Federative Republic of Yugoslavia.

The Constitution of the State Union of Serbia and Montenegro, art 60 (2003) (the author’s own translation).25 It is notable that Montenegro had significant attributes of statehood under the Constitution of the State

Union of Serbia and Montenegro (2003). Art 2 defined the State Union as a union of two ‘states’; art 5(3) of theConstitution confined borders between Serbia and Montenegro; art 14(2) gave the two Member States certainpowers in foreign policy and specified they could even become members of some international organizations; andArt 15(2) gave them the capacity to enter into relations and conclude treaties with foreign states, which waslimited with the frameworks of the interest of the State Union as well as of the other Member State. This


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the parent state. The declaration of independence, adopted by the

Montenegrin Parliament,26 thus instantly created a new state.27 This declar-

ation of independence was therefore not only ink on paper but a legal

instrument with immediate domestic and international effects.

But sometimes a declaration of independence will not instantly create a new

state, or it may not lead to a state creation at all,28 yet it may still fall within the

ambit of international law. Clearly, a hypothetical declaration of independence

of Scotland issued by the author of this article would not be a concern of

international law. How about the declaration of independence of Southern

Rhodesia, issued by the racist government of Ian Smith?29 This declaration of

independence was addressed and condemned in Security Council and

General Assembly resolutions and was considered to be issued by an illegal

authority.30 It is thus difficult to accept that international law was not

concerned with this Declaration at all. It will be discussed below whether this

situation suggests that a declaration of independence may be an unlawful act

under international law.31 At this point the article, however, turns to the

question of where the difference lies between Southern Rhodesia’s declaration

of independence, issued by the Smith government, and a hypothetical

declaration of independence of Scotland, issued by the author of the present

article.

The difference is in that the Smith government of Southern Rhodesia was in

effective control of that entity. Indeed, it is not disputed that Southern

Rhodesia actually met the Montevideo criteria for statehood.32 On the other

hand, it is very unlikely that the UN organs would ever deal with a hypothetical

declaration of independence of Scotland, issued by the author of the present

article, who is obviously not in effective control of Scotland. This ‘declaration

of independence’ would have no consequences, neither for the international

community nor for the people of Scotland.

constitutional arrangement makes it obvious that Montenegro had the capacity to meet the statehood criteriaimmediately upon the proclamation of independence and, in the absence of a claim to territorial integrity, there isno doubt that Montenegro became a state as soon as it declared independence.

26 The Montenegrin Parliament declared independence on 3 June 2006. See Declaration of Independence ofthe Republic of Montenegro, The Official Gazette of the Republic of Montenegro No 36/06 (3 June 2006).

27 The fact that the legal status of Montenegro was not disputed is, inter alia, confirmed by its promptadmission to UN membership. Indeed, Montenegro was admitted to the UN on 28 June 2006, which is less thana month after its declaration of independence. GA Res 60/264 (28 June 2006).

28 cf Crawford (n 1).29 See GA Res 1747 (XVI) (27 June 1962); GA Res 2022 (XX) (5 November 1965); GA Res 2024 (XX) (11

November 1965); SC Res 202 (6 May 1965); SC Res 216 (12 November 1965); SC Res 217 (20 November1965); SC Res 277 (18 March 1970). For a more detailed account see nn 114–28.

30 Resolution 217 uses the term ‘illegal authorities’ of Southern Rhodesia. SC Res 217 [1]. Resolutions 216and 277 refer to ‘illegal regime’ of Southern Rhodesia. SC Res 216 [2]; SC Res 277 [1], [2]. See also Raic (n 2)134.

31 See nn 119–28.32 See eg Dugard (n 3) 91.


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It is thus effectiveness that leads to the difference between declarations of

independence that are, in terms of international law, merely ink on paper and

declarations of independence that are capable of having legal effects; only the

former but not the latter fall outside of regulation under international law. In

this vein, Peters makes a broader argument that in international law ‘[e]ffective

control or simply actual power or practice figure as a condition for a rule or

entitlement.’33

Indeed, if person A and person B conclude a treaty by way of which they

‘create’ obligations for states X and Y, this is not considered to be a signed but

not yet ratified treaty governed by the regime of international law of treaties,

unless A and B are representatives of states X and Y. This ‘treaty’ would be

irrelevant for international law and merely ink on paper. The Vienna

Convention on the Law of Treaties knows of the concept of ‘full powers’

which is defined in Article 2(c) of the Convention as ‘a document emanating

from the competent authority of a State designating a person or persons to

represent the State for negotiating, adopting or authenticating the text of a

treaty, for expressing the consent of the State to be bound by a treaty, or for

accomplishing any other act with respect to a treaty’.34

The concept of ‘full powers’ in treaty law illustrates that international law

presupposes that an act has legal relevance only if issued by the competent

authority and that the person or a group of people who acted need to be

representatives of that authority. By analogy, international law cannot disregard

the difference between declarations of independence issued by a random group

of people and declarations of independence issued by representatives of the

effective authorities of the territory whose independence they are declaring.

Moreover, the requirement for government is one of the Montevideo statehood

criteria.35 A government not only needs to exist but also needs to be

effective.36 The reason for this requirement is that effective governments speak

and act on behalf of the states. The concept of a state in international law thus

presupposes that not just anyone is capable of acting on behalf of the states.

Thus, when it comes to declarations of independence, only those declarations

matter which are issued by the authorities capable of acting on behalf of the

effective government of a (future) state.

The logic of ‘effective authorities’ is, albeit with some problems, also adopted

in the recent Kosovo Advisory Opinion. The ICJ held that the unilateral

declaration of independence of Kosovo was not issued by the organs of

Kosovo’s self-governing institutions but that those who issued the Declaration

acted ‘as persons who acted together in their capacity as representatives of the

33 Peters (n 9) 3.34 The Vienna Convention on the Law of Treaties (1969) art 2(c).35 See n 2.36 See A Aust, Handbook of International Law (CUP 2005) 136–37, arguing: ‘There must be a central

government operation as a political body within the law of the land and in effective control over the territory.’


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people of Kosovo outside the framework of the interim administration’.37 This

position is somewhat controversial as it derives the representativeness of those

who declared independence from the posts these individuals are occupying in

the institutions of self-government and yet establishes that they acted outside of

the institutions of self-government.38 Despite this controversy, it is notable that

the ICJ did not see the declaration of independence as being issued by a

random group of people but rather by those who are entitled to act on behalf of

Kosovo and its people. Even if the authors of the Declaration, in the ICJ’s

controversial view, acted outside of the organs of self-government, they were

occupying the posts in the effective government of Kosovo.

This section shows that one needs to differentiate between internationally

irrelevant declarations of independence that are issued by random groups and

declarations of independence that are issued by representative authorities of the

effective entity in question. The latter category of declarations of independence

cannot conceptually fall outside of the purview of international law. Now

it needs to be considered how international law regulates declarations of

independence and in what circumstances such declarations may be unlawful.

Illegality has been argued to stem from the unilateral character of a declaration

of independence, i.e. from (an attempted) disruption of the territorial integrity

of a parent state.39 Moreover, illegality of a declaration of independence

may also stem from violation of certain fundamental norms of international

law, most notably those of the peremptory character.40 These issues will be

considered in turn.

3. The Principle of Territorial Integrity of States

In the UN Charter, the principle of territorial integrity of states appears only

in the context of the use of force. Article 2(4) of the UN Charter provides:

‘All Members shall refrain in their international relations from the threat or use

of force against the territorial integrity or political independence of any state, or

in any other manner inconsistent with the Purposes of the United Nations.’41

Yet, the UN Charter also regulates two exceptions to the prohibition of the use

37 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo(Request for Advisory Opinion), Advisory Opinion of 22 July 2010, ICJ Reports (2010) [109].

38 The ICJ argued that the authors of Kosovo’s declaration of independence ‘acted together in their capacityas representatives of the people of Kosovo.’ ibid. The capacity to act as representatives was thus evidently rootedin the fact that this was not a random group of individuals but a group of post-holders in Kosovo’s institutions ofself-government. But the ICJ went on to argue that this group acted ‘outside the framework of the interimadministration.’ ibid. The ICJ thus derived ‘representativeness’ from the institutions of self-government, yet forthe purpose of the declaration of independence it separated the representatives from these institutions and treatedthem as if they were a group of random individuals. For more see J Vidmar, ‘The Kosovo Advisory OpinionScrutinized’ (2011) 24 LJIL 355, 359–61.

39 See n 8.40 See the Kosovo Advisory Opinion (n 37) [81]. See nn 73–6.41 UN Charter, art 2(4).


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of force: self-defence42 and authorization by the Security Council in the

context of concern for international peace and security.43 The latter exception

suggests that the UN Charter does not see the territorial integrity of states as

being an absolute principle. Indeed, the Charter provides for a mechanism that

enables a legal violation of the territorial integrity of a certain state. At the

same time, the Charter makes no reference to territorial integrity of states in

the context of attempts at secession or declarations of independence.

A reference to attempts at secession appears in the Declaration on Principles

of International Law. In the context of the right of self-determination, the

Declaration provides for the following limitation:

Nothing in the foregoing paragraphs [referring to the right of self-determination] 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.44

The subsequent paragraph of Principle 5 of the annex to the Declaration on

Principles of International Law further provides: ‘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.’45

The Declaration on Principles of International Law is reflective of customary

international law46 and the principle of territorial integrity of states may thus

generate certain customary norms, but it is questionable what the normative

content is of these norms and whether they are capable of rendering a

unilateral declaration of independence illegal under international law. This

section makes an argument that the two elaborations have implications for both

the question of (il)legality of a unilateral declaration of independence under

international law and for legal obligations of other states once a unilateral

declaration of independence has been issued.

A. The Territorial Integrity of States, Internal Self-determination andDeclarations of Independence

The first elaboration of the principle of territorial integrity of states within the

Declaration on Principles of International Law appears in the context of the

right of self-determination.47 This right is elaborated in the common Article 1

42 ibid art 42.43 ibid art 51.44 The Declaration on Principles of International Law, GA Res 2625 (24 October 1970), annex, principle 5

(n 7).45 ibid.46 Kosovo Advisory Opinion (n 37) [80].47 See n 44.


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of the International Covenant on Civil and Political Rights (ICCPR) and the

International Covenant on Economic, Social and Cultural Rights (ICESCR).48

While the right applies to all peoples and not only to those subjected to

colonialism,

the right of self-determination is not an absolute right without any limitations. Its

purpose is not directly to protect the personal or physical integrity of individuals or

groups as is the purpose of the absolute rights and, unlike the absolute rights, the

exercise of this right can involve major structural and institutional changes to a State

and must affect, often significantly, most groups and individuals in that State and

beyond that State. Therefore, the nature of the right does require some limitations to

be implied on its exercise.49

Indeed, outside of the colonial context, it is generally accepted that the right

of self-determination does not mean ‘a right to independence’.50 A plausible

reason for a distinction between colonial and non-colonial situations in this

context can be found in the principle of territorial integrity of states. As argued

by Fox, in the process of decolonization ‘the only territorial relationship to be

altered was that with the metropolitan power. Achieving independence . . . did

not come at the expense of another sovereign state’s territory or that of an

adjacent colony’.51 It follows that a state’s metropolitan territory is protected

by the principle of territorial integrity of states, whereas its colonial possessions

are not. Therefore, colonial powers could not invoke this principle to limit the

right of self-determination of colonial peoples. The situation is different when

non-colonial peoples are concerned.

The above-mentioned limitation clause in the Declaration on Principles of

International Law, in principle, limits the exercise of the right of self-

determination in non-colonial situations to the internal mode, ie within the

international borders of an existing parent state.52 In this context, the Supreme

48 ICCPR and ICESCR, art 1.49 R McCorquodale, ‘Self-Determination: A Human Rights Approach’ (1994) 43 ICLQ 857, 875–76.50 In the Quebec case, the Supreme Court of Canada held that the right of colonial peoples to external

self-determination is undisputed (n 5) [132]. The Court subsequently concluded ‘the international law right toself-determination only generates, at best, a right to external self-determination in situations of former colonies;where a people is oppressed, as for example under foreign military occupation; or where a definable group isdenied meaningful access to government to pursue their political, economic, social and cultural development’[138] (emphasis added). The Court made this observation in the context of the general finding that there is noright to unilateral secession under international law [155]. It needs to be noted that the Court used ambiguouslanguage and did not unequivocally state that there existed special circumstances in which ‘a right to externalself-determination’ outside of colonialism would be applicable. This was rather an obiter dictum, as the Courtestablished that the people of Canada are not oppressed or denied access to government [135]–[137]. As aconsequence, the Court did not need to decide whether the people of Quebec have a right to externalself-determination under the remedial secession doctrine and whether the right to remedial secession indeedexisted under international law. cf s 3.C.

51 G Fox, ‘Self-Determination in the Post-Cold War Era: A New Internal Focus’ (1994–95) 16 Mich J Intl L733, 736.

52 It needs to be noted that the inverted reading of the limitation clause is also seen as an underpinning of theremedial secession theory. For more see nn 83 and 84.


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Court of Canada argued in the Quebec case:

The recognized sources of international law establish that the right to self-

determination of a people is normally fulfilled through internal self-determination –

a people’s pursuit of its political, economic, social and cultural development within

the framework of an existing state.53

But does this mean that in contemporary international law the right of

self-determination can only be exercised internally, unless consent of the parent

state for a new state creation is given? In other words, does the principle of

territorial integrity of states generate a norm prohibitory of a unilateral

declaration of independence? Moreover, does it create an obligation applicable

to third states not to accept a unilateral declaration of independence?

In the Kosovo Advisory Opinion the ICJ argued that ‘the scope of the

principle of territorial integrity is confined to the sphere of relations between

States’.54 Following this argument, only a state can violate the territorial

integrity of another state. Since a unilateral declaration of independence is by

definition issued by an entity which is not (yet) a state, the conclusion follows

that a unilateral declaration of independence cannot offend against the

principle of territorial integrity of states.

But this argument is problematic because the ICJ only referred to the second

elaboration of the principle of territorial integrity of states from the Declaration

on Principles of International Law, which indeed refers to states,55 and ignored

the preceding first elaboration, which refers to peoples in the context of

limitations on the right of self-determination.56 The beneficiaries of the right of

self-determination are peoples, not states.57 Thus, the principle in question also

has implications for the rights and duties of peoples and could potentially

prohibit unilateral declarations of independence.

However, the first elaboration of the principle of territorial integrity of states

in the Declaration on Principles of International Law employs very careful

language: a dismemberment or impairment of the territorial integrity of a

sovereign state is not ‘authorized’ or ‘encouraged’ but the Declaration does not

say it is prohibited.58 In this vein, the Supreme Court of Canada held in the

Quebec case that an attempt at unilateral secession could not be ruled out and

could still lead to a new state creation.59 Or, as argued by Crawford, secession

is ‘a legally neutral act the consequences of which are regulated internation-

ally’.60 Further, in the Kosovo Advisory Opinion, the ICJ also recalled extensive

53 Quebec (n 5) [126].54 Kosovo Advisory Opinion (n 37) [80].55 See n 45.56 See n 44.57 See the elaboration of the right of self-determination in the common Art 1, ICCPR and ICESCR.58 See the Declaration on Principles of International Law, annex, principle 5 (n 7).59 Quebec (n 5) [155].60 Crawford (n 1) 390.


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practice of state creations upon an initial issuing of a unilateral declaration of

independence and such state creations were not considered to be illegal simply

because consent of the parent state was absent.61

It thus follows that no rule of general international law prohibits issuing a

declaration of independence unilaterally, ie without consent of the parent state.

The right of self-determination may be consummated in its external mode even

without an approval of the parent state; but this is not so because the principle

of territorial integrity of states would only operate in international relations.

The first elaboration of the principle of territorial integrity of states clearly

limits the right of peoples to self-determination. Yet, the language it uses

reflects the neutrality of international law in relation to the unilateral character

of a declaration of independence and does not prohibit this kind of declaration.

The operation of the principle of territorial integrity of states in international

relations nevertheless remains important and it needs to be considered how this

operation interferes with unilateral declarations of independence.

B. The Territorial Integrity of States and Obligations for Third States

To recall, in relation to the obligation of states in respect of territorial integrity of

other states, the Declaration on Principles of International Law provides: ‘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.’62 This is a

notable expansion if compared to Article 2(4) of the UN Charter, which is

confined to the context of the use of force. Since the emergence of a new state

disrupts the territorial integrity of its parent state, the elaboration could be

interpreted as being creative of an obligation to withhold recognition of an entity

seeking unilateral secession. In some circumstances, states are indeed under an

obligation to withhold recognition. But it is questionable whether the obligation

is triggered by the unilateral character of a declaration of independence.

Traditionally, international law knew of an obligation not to grant recogni-

tion prematurely. Premature recognition comes into question in the case of a

61 See the Kosovo Advisory Opinion (n 37) [79], where the Court argued:

During the eighteenth, nineteenth and early twentieth centuries, there were numerous instances ofdeclarations of independence, often strenuously opposed by the State from which independence was beingdeclared. Sometimes a declaration resulted in the creation of a new State, at others it did not. In no case,however, does the practice of States as a whole suggest that the act of promulgating the declaration wasregarded as contrary to international law. On the contrary, State practice during this period points clearly tothe conclusion that international law contained no prohibition of declarations of independence. During thesecond half of the twentieth century, the international law of self-determination developed in such a way as tocreate a right to independence for the peoples of non-self-governing territories and peoples subject to aliensubjugation, domination and exploitation . . . A great many new States have come into existence as a result ofthe exercise of this right. There were, however, also instances of declarations of independence outside thiscontext. The practice of States in these latter cases does not point to the emergence in international law of anew rule prohibiting the making of a declaration of independence in such cases.

62 See The Declaration on Principles of International Law, annex, principle 5 (n 7).


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secessionist entity trying to break away from its parent state. In such a case

‘[f]oreign states must then decide whether the new state has really already

safely and permanently established itself, or only makes efforts to this end

without having already succeeded.’63 If an entity has not satisfied the statehood

criteria, recognition may be considered ‘an unlawful act, and it is frequently

maintained that such untimely recognition amounts to [unlawful] interven-

tion’.64 In the case of recognition when an entity fails to meet statehood

criteria, ‘nullity of certain acts of recognition has been accepted in practice’.65

However, this has not always been the case.

In the context of decolonization, there have been examples of recognition

granted to former colonies that did not fulfil the ‘Montevideo’ statehood

criterion of ‘effective government’.66 One can ascribe this practice to the fact

that the right of self-determination at that time somewhat softened the

traditional statehood criteria, and decolonization, via the exercise of the right

of self-determination, prevailed over considerations for effectiveness, presumed

under the Montevideo criteria.67 More recently, in the circumstances of the

dissolution of the Socialist Federal Republic of Yugoslavia (SFRY), recognitions

of Bosnia-Herzegovina and Croatia may well have been premature, as the central

governments of the two entities did not exercise effective control over extensive

parts of the respective territories,68 but the legality of recognitions was generally

not questioned. The two situations may be seen as examples of what Peters has

referred to as ‘recognition which is ‘‘constitutive’’, not in the sense of creating a

legal personality, but in the sense of contributing to political conditions that

allowed the recognized political entity to consolidate its effectiveness.’69

Granting of recognition prematurely is thus not rare in practice. In

contemporary international law it is questionable whether the Montevideo

criteria are enough for statehood and, indeed, whether meeting them is

necessary for an entity to become a state.70 It may be that contemporary

international law also knows of the concept of additional statehood criteria,71

although some writers rather see these as recognition requirements.72

63 L Oppenheim, Oppenheim’s International Law (R Jennings and A Watts eds, Longman 1992) 143.64 ibid.65 Crawford (n 1) 21.66 M Shaw, International Law (CUP 2008) 205–06, gives examples of the Congo and Guinea-Bissau. The

Congo became an independent state on 30 June 1960. Although the province of Katanga declared its secession,the central government did not exercise effective control and there even existed two competing factions claimingto be the government of the Congo. Guinea-Bissau declared independence on 24 September 1973, which wasaccepted by majority of states in the General Assembly, although the rebel forces controlled between two-thirdsand three-quarters of the territory.

67 See ibid, 205, for the following argument: ‘The evolution of self-determination has affected the standardnecessary as far as the actual exercise of authority is concerned, so that it appears a lower level of effectiveness, atleast in decolonisation situations, has been accepted.’

68 See eg Crawford (n 1) 398.69 Peters (n 9) 5.70 See M Dixon and R McCorquodale, Cases and Materials in International Law (4th edn, OUP 2003) 137.71 See Crawford (n 1) 220.72 See eg Talmon (n 3) 126.


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This difference in doctrinal approaches is not relevant for the present article. It

is important to recall that the proponents of both explanations agree that under

certain circumstances states are under a legal obligation to withhold recogni-

tion even if an entity meets the effectiveness-based Montevideo criteria.73

The doctrine of collective non-recognition has been developed in the practice

of states and UN organs74 and has also been adopted in the International Law

Commission (ILC) Articles on State Responsibility.75 Article 41(2) of the ILC

Articles on State Responsibility provides that ‘no State shall recognize as lawful

a situation created by a serious breach [of jus cogens] nor render aid or

assistance in maintaining that situation’.76 It further specifies that states owe an

obligation erga omnes to withhold formal or implied recognition of an effective

territorial situation, created in breach of jus cogens.77 In this context, it needs

to be noted that according to the Commentary to the ILC Articles on

State Responsibility, the prohibition of illegal use of force, the right of

self-determination and the prohibition of racial discrimination are among the

norms of jus cogens character.78

Although the association of illegality in the context of the obligation to

withhold recognition with the concept of jus cogens remains somewhat

controversial,79 it has been given some cautious acknowledgement by the ICJ

in the Kosovo Advisory Opinion.80 However, what is more important at this

point is to recall that international law clearly demands that under some

circumstances states owe an obligation erga omnes to withhold recognition. At

the same time, nothing in the doctrine or non-recognition practice suggests

that an obligation to withhold recognition applies when independence is

declared without the consent of a parent state and that an obligation opposable

erga omnes would apply because of the unilateral character of a declaration of

independence. Indeed, the principle of territorial integrity of states cannot

be seen as an absolute right of states or even as a norm of jus cogens.81

73 Talmon (n 3) 148, argues that ‘[n]on-recognition as a State in response to a violation of international lawhas, in contrast to the politically motivated non-recognition of a State, a clearly defined scope. In the case ofnon-recognition as a State, it is not the individual State’s subjective will to recognize . . . but the objective legalstatus of ‘‘State’’ that is at issue’ (emphases in original). And Crawford (n 1) 160, argues that when the illegalityin question is substantial, ‘[s]tates have a duty under customary international law not to recognize the act aslegal. The norm in question must be one of the limited number of peremptory norms or, at any rate, asubstantive rule of general international law, so that the illegality is one that involves the international communityas a whole and not just particular States.’

74 See Section 4.75 ILC Articles on Responsibility of States for Internationally Wrongful Acts, arts 40 and 41. UN Doc A/RES/

56/83.76 ibid art 41(2).77 Commentary to Art 40, Report of the ILC, UN Doc A/56/10 (2001) 283.78 Commentary to Art 41, Report of the ILC, UN Doc A/56/10 (2001) 286–90.79 S Talmon, ‘The Duty not to ‘‘Recognize as Lawful’’ a Situation Created by the Illegal Use of Force or other

Serious Breaches of a Jus Cogens Obligation: An Obligation without Real Substance?’ in C Tomuschat and J-MThouvenin (eds), The Fundamental Rules of the International Legal Order: Jus Cogens and Obligations Erga Omnes(Nijhoff 2006) 101, 103.

80 The Kosovo Advisory Opinion (n 37) [81]. For more see n 100.81 See Peters (n 9) 8.


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This position is further supported by the doctrine of remedial secession, which

is considered in turn.

C. Remedial Secession, Recognition and Territorial Integrity

The philosophical underpinnings of the remedial secession doctrine are well

captured by Buchanan:

If the state persists in serious injustices toward a group, and the group’s forming its

own independent political unit is a remedy of last resort for these injustices, then the

group ought to be acknowledged by the international community to have the

claim-right to repudiate the authority of the state and to attempt to establish its own

independent political unit.82

Doctrinally, the remedial secession theory is founded on an inverted reading

of the first elaboration of the principle of territorial integrity of states in the

Declaration on Principles of International Law. According to this reading, a

state that does not have ‘a government representing the whole people belonging

to the territory without distinction as to race, creed or colour’83 cannot invoke

the principle of territorial integrity of states in order to limit the peoples’ right

of self-determination to the exercise in its internal mode.84

However, an inverted reading of the principle of territorial integrity of states

is rather problematic. As Shaw argues:

Such a major change in legal principle cannot be introduced by way of an ambiguous

subordinate clause, especially when the principle of territorial integrity has always

been accepted and proclaimed as a core principle of international law, and is indeed

placed before the qualifying clause in the provision in question.85

Therefore, it is difficult to proclaim remedial secession to be a right or

entitlement of oppressed peoples. Yet, as Shaw further argues, ‘recognition may

be more forthcoming where the secession has occurred as a consequence of

violations of human rights’.86 In this context, the Supreme Court of Canada

also held in the Quebec case:

The ultimate success of . . . a [unilateral] secession would be dependent on recognition

by the international community, which is likely to consider the legality and legitimacy

82 A Buchanan, Justice, Legitimacy, and Self-Determination (OUP 2004) 335.83 See the Declaration on Principles of International Law (n 7).84 For a thorough account on the academic support for ‘remedial secession’, see A Tancredi, ‘A Normative

‘‘due process’’ in the Creation of States Through Secession’ in M Kohen (ed), Secession: International LawPerspectives (CUP 2006) 171, 176. Despite some references to ‘remedial secession’ in the pleadings before the ICJin the Kosovo Advisory Opinion (n 37), the Court refused to deal with this issue and did not make anypronouncement on whether or not such a right exists in international law and whether it is applicable in thesituation of Kosovo.

85 M Shaw, ‘Peoples, Territorialism and Boundaries’ (1997) 8 EJIL 478, 483.86 ibid 483.


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of secession having regard to, amongst other facts, the conduct of Quebec and

Canada, in determining whether to grant or withhold recognition.87

It is thus more plausible to explain the doctrine of remedial secession as

having effects through recognition rather than having the status of a right or

entitlement in international law. Indeed, state practice does not suggest the

existence of an obligation to grant recognition, regardless of the circum-

stances,88 and an inverted reading of the elaboration of the principle of

territorial integrity of states in the Declaration on Principles of International

Law does not generate legal rights. But neither does it generate absolute

prohibitions.89 The beneficiaries of the right of self-determination do not have

a right to secession, not even in the context of remedial secession, but

international legal doctrine clearly shows that they are not precluded from

either declaring or achieving independence without consent of the parent state.

The position of the Supreme Court of Canada also suggests that neither a

unilateral declaration of independence itself nor its acceptance by other states

is per se illegal under international law. Indeed, foreign states are free to grant

recognition if the new state did not emerge illegally,90 ie in violation of one of

the norms of international law which determine illegality of this kind,91 and if

they find a claim for independence legitimate. Legitimacy in this context could

be seen through the lens of remedial secession theory. If people are suffering

from severe oppression, its claim for independence may well be more

legitimate, but it is nevertheless still not a legal entitlement. In other words,

oppression may soften the claim to territorial integrity of the parent state and

foreign states may be more willing to disregard its observance by granting

recognition to an entity that issues a unilateral declaration of independence on

remedial grounds, ie in order to end ongoing oppression.92

While there is not enough practice to conclude that remedial secession is an

entitlement,93 the theory may serve as another example that proves that the

principle of territorial integrity of states does not create an obligation to

87 Quebec (n 5) [155].88 Hersch Lauterpacht proposed that in the absence of a central international authority for granting of

recognition, states need to perform this duty. H Lauterpacht, Recognition in International Law (CUP 1948) 12–24.Lauterpacht’s view was that once an entity has met the criteria of statehood, existing states have a duty torecognize such an entity as a state and thus award it the rights and duties of a state. Such a solution would beboth declaratory and constitutive, since it acknowledges a factual situation, ie meeting of the statehood criteria,and creates a new legal situation, ie awards statehood to the entity in question. But this proposal has beenchallenged for its contradictory nature, as well as for insufficient state practice proving that states accept such aduty to recognize entities fulfilling the statehood criteria. Marek, for example argues that Lauterpacht’s theory‘which makes recognition obligatory in conformity with the objective facts of a State’s existence defeats its ownpremise, since it ceases to be constitutive and in fact becomes declaratory however it may be described’.K Marek, Identity and Continuity of States in Public International Law (Librairie Droz 1968) 137.

89 cf n 58.90 See Quebec (n 5) [155].91 See the Kosovo Advisory Opinion (n 37) [81].92 cf n 92.93 For an overview of the potential examples of the practice of remedial secession see J Vidmar, ‘Remedial

Secession in International Law: Theory and (Lack of) Practice’ (2010) 6 St Antony’s Intl Rev 37, 42–50.


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withhold recognition where independence is declared unilaterally or render a

unilateral declaration of independence illegal. It remains to be clarified in what

circumstances a declaration of independence may be nevertheless considered

an illegal act.

4. Declaration of Independence as an Illegal Act

In the Kosovo Advisory Opinion, the ICJ identified that a declaration of

independence may violate either general international law or an applicable lex

specialis.94 Although in the situation of Kosovo the ICJ did not find a violation

under either legal regime, the Court’s reasoning suggests that a declaration of

independence is capable of being an illegal act under international law.

With regard to illegality under a lex specialis, the ICJ recalled that the

Security Council may ‘establish restrictive conditions for the permanent status

of a territory’.95 It is further possible that the change of the legal status of a

territory is prohibited by a treaty.96 Where a lex specialis exists which restricts

the changes of the legal status of a territory, a declaration of independence

would be issued in violation of international law. This clearly follows from the

reasoning of the ICJ in the Kosovo Advisory Opinion. If this were not so, the

Court, in order to find out whether or not the declaration of independence of

Kosovo violated the applicable lex specialis, would not need to consider whether

Security Council Resolution 1244 ‘established restrictive conditions for the

permanent status’ of Kosovo.97 It is also notable that, according to the ICJ,

even non-state actors may be duty-bearers under the lex specialis regime of

Security Council resolutions.98 This means that not even the rather contro-

versial escape route of declarations of independence being issued by non-state

actors is available here.99

Adressing the question of the potential illegality of Kosovo’s unilateral

declaration of independence under general international law, the ICJ, inter alia,

made the following observation:

[T]he illegality attached to [some other] declarations of independence . . . stemmed

not from the unilateral character of these declarations as such, but from the fact that

94 Kosovo Advisory Opinion (n 37) [83].95 ibid [114].96 An example of a treaty-based prohibition of a change of the legal status of a territory may be the so-called

Dayton Peace Accords, referring to Bosnia-Herzegovina. See General Framework Agreement for Peace in Bosniaand Herzegovina with Annexes (14 December 1995) (1996) 35 ILM 167, 168–69. Another example may beAustria, except that in this situation the prohibition works in the other direction: prohibition of unification withGermany. See The State Treaty [Staatsvertrag], The Official Gazette of the Republic of Austria 725 (30 July1955) art 4.

97 cf the Kosovo Advisory Opinion (n 37) [118], where the ICJ argued: ‘[T]he Court cannot accept theargument that Security Council Resolution 1244 (1999) contains a prohibition, binding on the authors of thedeclaration of independence, against declaring independence; nor can such a prohibition be derived from thelanguage of the resolution understood in its context and considering its object and purpose.’

98 ibid [116].99 cf n 54.


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they were, or would have been, connected with the unlawful use of force or other

egregious violations of norms of general international law, in particular those of a

peremptory character (jus cogens).100

The ICJ made this argument in the context of what was argued above: its

unilateral character does not render a declaration of independence illegal.

However, in so doing the ICJ also suggested that in some other circumstances a

declaration of independence can be an illegal act under international law. The

ICJ thus adopted the position which was, for example, expressed by the United

States in the pleadings before the Court: ‘We do not deny that international

law may regulate particular declarations of independence, if they are conjoined

with illegal uses of force or violate other peremptory norms, such as the

prohibition against apartheid.’101

This position is partly contrary to the view of secession as being ‘a legally

neutral act the consequences of which are regulated internationally’.102 It is

more precise to say that international law is only neutral where the unilateral

character of a declaration of independence, which indicates an attempt at

unilateral secession, is in question, while the declaration may still be illegal

under international law, albeit not only because it is unilateral.

At this point it needs to be clarified what exactly constitutes a circumstance

in which a declaration of independence is issued in violation of certain

fundamental norms of international law, in particular those of jus cogens

character.103 In a narrow interpretation, a declaration of independence would

need to be a direct consequence of a breach of a norm of this character.104 An

example would be a situation in which a person or a group of people, with the

capacity to act on behalf of a certain entity, would declare independence only

after being subjected to torture. In this unlikely situation, torture would

directly result in the issuing of a declaration of independence and breach of the

norm involved would render such a declaration illegal. But the reasoning of the

ICJ suggests that the concept of unlawful declarations of independence should

not be interpreted so narrowly.

The ICJ noted that in some situations declarations of independence ‘were, or

would have been, connected with’ certain egregious violations of international

law, in particular those of jus cogens character.105 The context of this statement

100 Kosovo Advisory Opinion (n 37) [81].101 See ICJ, Accordance with International Law of the Unilateral Declaration of Independence by the

Provisional Institutions of Self-Government of Kosovo, Public sitting held on Tuesday 8 December 2009, CR2009/30, 30 [20] (argument of Harold Hongju Koh on behalf of the United States).

102 Crawford (n 10) 390.103 cf Kosovo Advisory Opinion (n 37) [81].104 Talmon, for example, argues that only very few jus cogens norms could be relevant in the context of the law

of statehood. In his view, claims to statehood or territory usually do not ‘arise from acts of genocide, torture orslavery’ (n 79) 107. Talmon then continues: ‘With regard to situations created by genocide, torture, crimesagainst humanity and other serious breaches of a jus cogens norm there is no practice of non-recognition on whichto draw. This is not surprising as these situations, as a rule, do not automatically give rise to any legalconsequences which are capable of being denied by other states’ (n 79) 120.

105 Kosovo Advisory Opinion (n 37) [81] (emphasis added).


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suggests that the wording ‘connected with’ should be understood broadly, as an

attempt at consolidation of an effective situation created in violation of a

certain fundamental norm of international law. In other words, a declaration of

independence is issued in violation of international law where it attempts to

consolidate an unlawful effective territorial situation. It will now be shown that

this interpretation is also supported by practice of the Security Council and

General Assembly. In the Kosovo Advisory Opinion the ICJ made direct or

implicit references to collective responses to declarations of independence of

the Turkish Republic of Northern Cyprus (TRNC) and Southern Rhodesia, as

well as to the situation in Bosnia-Herzegovina in 1992.106 The relevant

resolutions dealing with these situations will be considered in turn.

Upon proclamation of independence of the TRNC on 15 December 1983,

the Security Council adopted Resolution 541 in which it, inter alia, called

‘upon all States to respect the sovereignty, independence, territorial integrity

and non-alignment of the Republic of Cyprus’,107 and called ‘upon all States

not to recognise any Cypriot state other than the Republic of Cyprus’.108 While

Resolution 541 was not adopted under Chapter VII of the UN Charter, the

TRNC was not recognized by any state other than Turkey.109 At this point the

Security Council was dealing with the consequences of territorial illegality,

possibly stemming from violation of jus cogens, ie Turkey’s use of force against

Cyprus. The consequence of illegality was that the obligation to withhold

recognition was opposable erga omnes.110

However, the language of Resolution 541 is remarkable for not remaining

confined to the consequences of the breach. Indeed, in the Resolution the

Security Council stated that it ‘[d]eplores the declaration of the Turkish

Cypriot authorities of the purported secession of part of the Republic of

Cyprus’;111 and ‘[c]onsiders the declaration referred to above as legally invalid

and calls for its withdrawal’.112

The Security Council thus dealt with the Declaration itself and not only with

its consequences. Indeed, the reference to the declaration of independence as

being ‘legally invalid’ implies that in the view of the Security Council the

Declaration was not considered to be a legally neutral act. The wording of the

Resolution and the factual circumstances suggest that legal invalidity of

the Declaration results from Turkey’s illegal use of force. Independence of the

TRNC would consolidate the unlawfully created effective territorial situation.

106 ibid. At the beginning of [81] the ICJ made it clear that it was referring to the participants’ submissions inthe pleadings, referring to the situations of Southern Rhodesia, the TRNC and Bosnia-Herzegovina.

107 SC Res 541 (18 November 1983) [6].108 ibid [7].109 See Crawford (n 1) 144.110 cf n 77.111 SC Res 541 (18 November 1983) [1].112 ibid [2].


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The declaration of independence was thus perceived to be issued in violation

of a fundamental norm of international law, possibly that of a jus cogens

status.113

The government of Southern Rhodesia issued the unilateral declaration

of independence on 11 November 1965.114 This was done despite the fact

that both the General Assembly and the Security Council adopted a set of

Resolutions in which the white-minority government, due to the exclusion of

the black population from political participation, was proclaimed as

non-representative of the entire population of Southern Rhodesia and thus

held not to be the lawful authority to declare independence.115 The Security

Council called on the United Kingdom not to decolonize Southern Rhodesia

and on other states to withhold recognition.116

Upon the issuing of the unilateral declaration of independence, UN organs

continued the initiative for collective non-recognition. All states, including

apartheid South Africa,117 complied with the Resolutions and ‘Rhodesia was at

no stage recognized by any State.’118 However, besides the collective

withholding of recognition even in the period before adoption of Resolution

277 under Chapter VII of the UN Charter, it is significant that resolutions of

UN organs made pronouncements in relation to the declaration of independ-

ence itself and not only in relation to its (non-)acceptance.

General Assembly Resolution 2024 condemned ‘the unilateral declaration of

independence made by the racialist minority in Southern Rhodesia’119 and

recommended the matter to the Security Council.120 The Security Council

then adopted Resolution 216 which condemned ‘the unilateral declaration of

independence made by a racist minority in Southern Rhodesia’121 and only

after condemning the declaration of independence itself, the Resolution went

on to call for non-recognition of Southern Rhodesia.122 This Resolution was

followed by Resolution 217, in which the Security Council condemned ‘the

usurpation of power by a racist settler minority in Southern Rhodesia and

[regarded] the declaration of independence by it as having no legal validity’;123

113 cf the Kosovo Advisory Opinion (n 37) [81].114 Dugard (n 3) 90. The unilateral declaration of independence included a provision that the Government of

Southern Rhodesia would act as the representative of the Queen. The Unilateral Declaration of Independences 2(1)(b). However, in 1970 Southern Rhodesia proclaimed itself a republic. ibid 90–1.

115 See GA Res 1747 (XVI) (27 June 1962); SC Res 202 (6 May 1965); GA Res 2022 (XX) (5 November1965).

116 See SC Res 202 [3]–[5].117 Dugard (n 3) 91: ‘South Africa, with which Rhodesia maintained diplomatic relations and close economic

and political ties, refrained from according express recognition to Rhodesia.’118 ibid 91.119 GA Res 2024 (XX) (11 November 1965) [1].120 ibid [3].121 SC Res 216 (12 November 1965) [1].122 ibid [2].123 SC Res 217 (20 November 1965) [3].


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and only after it made this pronouncement, the Resolution called ‘upon all

States not to recognize this illegal authority and not to entertain any diplomatic

or other relations with it’.124

The reference to the Rhodesian unilateral declaration of independence as

‘having no legal validity’ means that international law was not neutral in

respect of this particular declaration of independence. The Declaration could

not create new legal facts (that of an emergence of a new state) because it was

issued in an attempt at consolidation of an illegal territorial situation and was

thus unlawful. Resolution 277, adopted under Chapter VII of the UN Charter

after Southern Rhodesia proclaimed itself a republic, was even more specific

and condemned ‘the illegal proclamation of republican status of the Territory

by the illegal regime in Southern Rhodesia’.125 The Resolution then also called

for non-recognition.126 But the Resolution also used the wording ‘illegal

proclamation of republican status’, which means that the ‘second Rhodesian

declaration of independence’127 was considered to be itself an illegal act, so it

was not only its acceptance, ie potential recognition by a foreign state, which

would be illegal.

In this context one author noted:

[It] is clear from the United Nations decisions [that] the [unilateral declaration of

independence] was illegal because it violated a substantive rule of international law,

namely the right of self-determination of the population of Southern Rhodesia . . . [the

Declaration] also lacked legal validity, that is, it could not produce the intended

legal consequence of changing the international status of the colonial territory,

because it was issued by an entity which was (a) not the subject of the right of

self-determination and (b) not representative of the subject of that right. Therefore it

did not possess the competence under international law to exercise the right of

self-determination.128

Thus, Southern Rhodesia is another example where practice of UN organs

shows that a declaration of independence itself, and not only its acceptance,

may be considered an illegal act under international law. In this case, the

illegality stemmed from the breach of the right of self-determination and from

the fact that independence was declared by effective authorities that were not

representative of the entire people or, indeed, of the majority of the population

of the territory whose independence they were declaring.

Although the Kosovo Advisory Opinion makes no specific reference to the

South African Homelands, the episode with their declarations of independence

also suggests that such declarations may be in violation of international law if

124 ibid [6].125 SC Res 277 (18 March 1970) [1].126 ibid [2].127 After a determined international reaction to the declaration of independence of 1965, with which Rhodesia

‘purported to stay a monarchy with the Queen as head of State’, the entity declared a republican status in 1970.See Dugard (n 3) 91.

128 Raic (n 2) 134 (emphasis in original).


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they attempt to consolidate an illegal territorial situation. Between 1976 and

1981, Transkei,129 Bophuthatswana,130 Venda131 and Ciskei132 were granted

quasi-independence by South Africa as a parent-state. Even before the

declaration of independence of the four homelands, General Assembly

Resolutions 2671F133 and 2775E134 held that the homeland policies were

expressions of apartheid and against the right of self-determination. After the

declaration of independence of Transkei, the General Assembly adopted

Resolution 31/6A in which it called upon ‘all Governments to deny any form of

recognition to the so-called independent Transkei and to refrain from having

any dealings with the so-called independent Transkei or other Bantustans’.135

The General Assembly thus held that the creation of homelands was not a

real expression of the right of self-determination but rather meant a pursuance

of racist policies and called for non-recognition. This view was subsequently

confirmed by Security Council Resolutions 402136 and 407137 in relation to the

Transkei and, after the admission to quasi-independence of the three other

homelands, also by General Assembly Resolutions 37/43138 and 37/69A.139

None of these Security Council resolutions was adopted under Chapter VII of

the UN Charter. Nonetheless, full compliance of third states was achieved.

What follows from some of the General Assembly resolutions is that they did

not remain confined to calls for non-recognition but made direct pronounce-

ments regarding declarations of independence. Resolution 31/6A thus ‘re-

ject[ed] the declaration of ‘‘independence’’ of the Transkei and declare[d] it

invalid’;140 Resolution 32/105N ‘denounce[d] the declaration of the so-called

‘‘independence’’ of the Transkei and that of Bophuthatswana and any other

Bantustans which may be created by the racist regime of South Africa and

declare[d] them totally invalid’.141 Resolution 34/93G made the same

pronouncement but it also mentioned Venda that had declared ‘independence’

about three months before the adoption of this Resolution.142 The General

Assembly thus dealt with the declarations of independence themselves and

obviously considered them to be in violation of international law.

Also important in this context is the Security Council’s reaction to the

situation in Bosnia-Herzegovina in Resolution 787. Paragraph 2 of the

129 Status of Transkei Act 100 (26 October 1976).130 Status of Bophuthatswana Act 89 (6 December 1977).131 Status of Venda Act 107 (13 September 1979).132 Status of Ciskei Act 110 (4 December 1981).133 GA Res 2671F (8 December 1970), see especially [3].134 GA Res 2775 (29 November 1971).135 GA Res 31/6A (26 October 1976) [3].136 GA Res 402 (22 December 1976.)137 GA Res 407 (25 May 1977).138 GA Res 37/43 (3 December 1982).139 GA Res 37/69A (9 December 1982).140 GA Res 31/6 A (26 October 1976) [2].141 GA Res 32/105 N (14 December 1977) [2].142 GA Res 34/93 G (12 December 1979) [2].


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Resolution reaffirms that ‘any taking of territory by force or any practice of

‘‘ethnic cleansing’’ is unlawful and unacceptable, and will not be permitted to

affect the outcome of the negotiations on constitutional arrangements for the

Republic of Bosnia and Herzegovina’.143 Paragraph 3 goes on and calls ‘on all

parties and others concerned to respect strictly the territorial integrity of the

Republic of Bosnia and Herzegovina, and affirms that any entities unilaterally

declared or arrangements imposed in contravention thereof will not be

accepted’.144

It needs to be noted that paragraph 3 makes a reference to ‘unilaterally

declared entities’ and says that such declarations would not be accepted.

However, paragraph 2 makes it clear that the concern of Resolution 787 is not

the unilateral character of a potential declaration of independence per se but

rather the fact that such a declaration would attempt to consolidate a factual

situation created by breaches of certain fundamental norms of international

law.145 A joint reading of paragraphs 2 and 3 of Resolution 787 thus leads to

the interpretation that a declaration of independence which intends to create a

new state in the territory that became effective as a result of the use of force

and/or ethnic cleansing would be unlawful.

Unlike in some other situations, Resolution 787 was not a reaction to an

already issued declaration of independence. Rather, it obviously tried to deter a

declaration of independence by Republika Srpska,146 by specifying that a

potential declaration would be issued in violation of certain fundamental norms

of international law.147

Before the ICJ’s Kosovo Advisory Opinion, it was possible to interpret the

above-invoked Security Council and General Assembly resolutions as being

concerned with the question of non-recognition, ie non-acceptance of the

relevant declarations of independence, and not with the question of legality of

these declarations. In this interpretation, the references to ‘illegal declaration of

independence’ could be understood as no more than a product of diplomatic

drafting and hence the use of somewhat misleading language.148 However, the

Kosovo Advisory Opinion rejects such a view149 and confirms that

a declaration of independence can, is some situations . . . be illegal and create an

unlawful situation. It is precisely because this illegal situation exists that there are

some important consequences in the field of international responsibility, like the

143 SC Res 787 (16 November 1992) [2].144 ibid [3].145 cf the Kosovo Advisory Opinion (n 37) [81].146 See eg Crawford (n 1) 406, arguing in relation to Republika Srpska that ‘no international acceptance or

recognition was forthcoming for various seceding entities within the constituent republics of the formerYugoslavia’.

147 The norms in question were obviously the prohibition of illegal use of force and the prohibition ofgenocide. cf Commentary to art 41, Report of the ILC, UN Doc A/56/10 (2001), 286–90 (n 77).

148 cf eg Talmon (n 3) 141–43.149 See the Kosovo Advisory Opinion (n 37) [81].


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obligation not to recognize a situation created by a violation of a fundamental rule of

international law.150

This section showed that a declaration of independence is itself capable of

being illegal under international law (and not only its acceptance). This is

when a change of the legal status of a territory is either prohibited by lex

specialis or a declaration of independence attempts to consolidate an effective

situation created in breach of certain fundamental norms of general interna-

tional law, in particular those of jus cogens character. This understanding

follows from practice of UN organs and was most recently adopted even by the

ICJ in the Kosovo Advisory Opinion.151

5. Conclusion

Under some circumstances a declaration of independence is an act capable of

instantly changing the legal status of a territory.152 In other circumstances,

however, it will create a legal situation of an attempt at unilateral secession.

Thus, it should not be presumed that declarations of independence by

definition fall outside of the regulation of international law. Practice of states

and UN organs indeed show that in some circumstances a declaration of

independence itself, and not only its acceptance, will be considered unlawful

under international law.

As the ICJ pointed out in the Kosovo Advisory Opinion, declarations of

independence may be illegal either under general international law or under an

applicable lex specialis.153 A lex specialis may restrict any changes of the legal

status of a territory; a declaration of independence would then violate an

internationally established legal regime governing a certain territory. With

respect to general international law, the ICJ argued that illegality of

declarations of independence stems ‘from the fact that . . . [such declarations]

were, or would have been, connected with the unlawful use of force or other

egregious violations of norms of general international law, in particular those

of a peremptory character (jus cogens)’.154 It was shown that a declaration

of independence is unlawful where it attempts to consolidate an effective

territorial situation created in breach of a norm of this character.

The conclusion that declarations of independence do not entirely fall outside

of the purview of international law needs to be qualified with two caveats.

First, general international law is neutral with regard to the unilateral character

of declarations of independence. In other words, the principle of territorial

150 T Christakis, ‘The ICJ Advisory Opinion on Kosovo: Has International Law Something to Say AboutSecession?’ (2011) 24 LJIL 73, 82 (italics in original).

151 See the Kosovo Advisory Opinion (n 37) [81].152 See nn 22–7.153 Kosovo Advisory Opinion (n 37) [83].154 ibid [81].


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integrity of states does not generate a prohibition of either declaring

independence unilaterally or accepting such a declaration. Territorial integrity

of states is a principle in international law which, inter alia, poses limitations on

the right of self-determination,155 but territorial integrity is not an absolute

right of states or even a norm of jus cogens,156 as Vietnam, by way of a giant

stretch, put it in the pleadings in the Kosovo Advisory Opinion before the

ICJ.157

Secondly, only a declaration of independence issued by the representatives of

an entity which meets, or is capable of meeting, the effectiveness standards

presumed under the Montevideo criteria for statehood can have the legal

relevance of a declaration of independence under international law.158 It is

often argued that as far as international law is concerned, a declaration of

independence is virtually no more than ink on paper.159 And this is indeed true

when such declarations are issued by individuals who cannot speak on behalf of

a (potentially) effective entity. However, this article showed that where a

declaration of independence is issued by the representatives of a (potentially)

effective entity, such a declaration is not merely ink on paper issued by random

individuals, but an act regulated by international law and capable of being

unlawful.

International legal doctrine tends to stretch the neutrality of international law

in respect of the unilateral character of declarations of independence to the

declarations of independence in general. The present article made an argument

against this approach. It is indeed true that international law neither endorses

nor prohibits unilateral declarations of independence. At the same time, it is

not true that international law does not regulate declarations of independence

at all. A declaration of independence is not always a legally neutral act at

international level. International law is only neutral in respect of the unilateral

character.

155 See McCorquodale (n 49) 875–76.156 For a good analysis of this issue see Peters (n 9) 8.157 See n 8.158 See nn 32–6.159 See nn 10 and 13.


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Conceptualizing Declarations of Independence in International Law

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