Russia's Recognition of the Independence of Abkhazia and South Ossetia

Resolution 2625 (XXV) of 24 October 1970—“The Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations” was however a consensual one. The western nations participated in the elaboration of the resolution and pressed to widen the scope of the self-determination principle. The resolution dealt with self-determination extensively. It stated that “…all peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development, and every State has the duty to respect this right in accordance with the provisions of the Charter. Every State has the duty to promote, through joint and separate action, realization of the principle of equal rights and self-determination of peoples, in accordance with the provisions of the Charter”. The resolution declared that people under foreign occupation had the right to self-determination “bearing in mind that the subjection of peoples to alien subjugation, domination and exploitation constitutes a violation of the principle, as well as a denial of fundamental human rights, and is contrary to the Charter” and once again confirmed the modes of self-determination—“establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a people constitute modes of implementing the right of self-determination by that people”, it prohibited the use of force by the states against the self-determination of peoples and entitled self-determination movements to seek outside support in case of the forceful deprivation of this right: “Every State has the duty to refrain from any forcible action which deprives peoples referred to above in the elaboration of the present principle of their right to self-determination and freedom and independence. In their actions against, and resistance to, such forcible action in pursuit of the exercise of their right to self-determination, such peoples are entitled to seek and to receive support in accordance with the purposes and principles of the Charter”. Furthermore, the resolution provided important clauses for the territorial integrity of the state and at the same time linked self-determination with representative government “nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action that 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”. “The territorial integrity and political independence of the State are inviolable”.

This resolution is the most comprehensive document that deals with self-determination and it unites almost all provisions stipulated in the earlier resolutions. Therefore, it is regarded as the reference document for the right of self-determination. Unfortunately, the text of the resolution in regard to self-determination is ambiguous. On the one hand, as a general principle it entitles all people to self-determination, without naming the means and end result. On the other hand, it explicitly grants the right to people of trust and non-self-governing territories, people under foreign occupation and people under racial discrimination and names the ultimate goal of self-determination—independence.

On a general level, a similar line of difference could be drawn between the provisions of treaty law and customary law. Treaty law only provides for self-determination of the whole people of each contracting state, whereas customary law grants this right also to all people but explicitly to people under colonial rule, foreign occupation and racial discrimination. Furthermore, customary law provides the denied groups with license to achieve self-determination through the use of force, whereas treaty law does not specify any means for enforcement of the right.59

It is clear that the right to self-determination of the “colonial” group of “people” is exercised whenever one of the three abovementioned modes are attained, but it remains vague what self-determination means for the “universal” group of “people”.

A bit of clarity on this is provided in the Conference of Security and Cooperation in Europe (CSCE) Helsinki final act of August 1975. By the time of adopting this act, Europe represented a part of the world where people of trust and non-self-governing territories, people under foreign occupation and people under racial discrimination were completely absent. Principle 8 of the CSCE Act, which was signed by 35 European states plus the US and Canada envisages:

“The participating States will respect the equal rights of peoples and their right to self-determination, acting at all times in conformity with the purposes and principles of the Charter of the United Nations and with relevant norms of the international law, including those related to the territorial integrity of States.

By virtue of the principle of equal rights and self-determination of peoples, all peoples always have the right, in full freedom, to determine, when and as they wish, their internal and external political status, without external interference, and to pursue as they wish their political, economic, social and cultural development.

The participating States reaffirm the universal respect for and effective exercise of equal rights and self-determination of peoples for the development of friendly relations among themselves as among all States. They also recall the importance of elimination of any form of violation of this principle”.60

The principle clearly states that self-determination ends where the territorial integrity of a state is concerned. Therefore, the right to self-determination in this document could be interpreted as the continuous right to elect in full freedom the form of government as it wishes. This right should be understood as a right to internal self-determination, i.e. to choose freely and without discrimination the form of government of a state within a sovereign state and this right is given to the people as a whole and not part of the people. The principle also entitles the right to self-determination free of outside (external) interference. The right to self-determination given here is clearly one which should not disrupt the territorial integrity of a state, but could decide on the change of its status or unification or incorporation into another state. This interpretation becomes all the more eligible if we look at the author of the initiative to include this principle into the Final Act—the Federal Republic of Germany. “It is the political aim of the FRG to help create a state of peace in Europe in which the German nation can regain its unity in free-determination”—said the FRG chancellor Schmidt in an address to CSCE in Helsinki.61 The phrase was borrowed from a “letter on German unity” which the FRG government attached to the intra-German treaty of 1973.62 It is noteworthy that the right to self-determination is not bestowed upon national minorities residing in the CSCE member states. The principle VII which deals inter alia with the rights of national minorities does not mention the right to self-determination at all. The Helsinki provisions were once again confirmed in the Charter of Paris for a New Europe adopted by CSCE Heads of States and Governments in 1990 in which they

“reaffirmed the equal rights of peoples and their right to self-determination in conformity with the Charter of the United Nations and with relevant norms of the international law, including those related to the territorial integrity of States”.63

Analysis of treaty law and UN GA resolutions as well as CSCE declarations has demonstrated that self-determination gradually turned from a political principle into a legal norm. Furthermore, there are several factors pointing at the peremptory character of the norm making it jus cogens -a fundamental, overriding principle of international law, from which no derogation is ever permitted. The overwhelming majority of states ratified the International Human Rights Covenants, General Assembly resolutions 1514 and 2625 have been adopted almost unanimously and governments in Europe as well as the African, Asian and Latin American regions accept the right of peoples to self-determination. Self-determination could also be seen as a peremptory norm in the prism of a larger principle of respect for fundamental human rights which itself is jus cogens.

In order to operationalise the norm in international law it is essential to explore the judgments and opinions of the International Court of Justice which dealt with the cases involving the right to self-determination. This will shed more light on the interpretation of this complex norm.

2.2.4. Court Decisions

Several cases have been heard by the International Court of Justice concerning the issue of self-determination. The first two cases on Namibia and Western Sahara dealt with the colonial context. The ICJ advisory opinion delivered in 1971 on the Case on Legal Consequences for States of the Continued Presence of South Africa in Namibia notwithstanding Security Council Resolution 276 was the first opinion in which self-determination was mentioned. Namibia was put under South Africa’s mandate by the League of Nations. South Africa argued that after the dissolution of the League of Nations the mandate had lapsed, and there was no requirement to put Namibia under trusteeship according to the UN charter. Therefore, South Africa felt entitled to annex Namibia. The ICJ inter alia opined that the development of international law in regard to non-self-governing territories, as enshrined in the Charter of the UN, made the principle of self-determination applicable to all of them64 and “the last fifty years, … have brought important developments. These developments leave little doubt that the ultimate objective of the sacred trust was the self-determination and independence of the peoples concerned.” Therefore, due to the fact that self-determination never occurred in Namibia, annexation by South Africa was illegal.65

The second advisory opinion entailing self-determination was given by the ICJ in 1975 on the case concerning Western Sahara. The Court made references to the UN Charter and UN GA resolution 1514, 1541 and 2625 as well as ICJ opinion on Namibia to assert that self-determination has become an explicit right in international law for colonial peoples and underpinned the importance of the freely expressed wish of the people in the process of self-determination.66

The issue was again raised in Portugal’s appeal to the ICJ to adjudicate on the legality of Australia’s conclusion of an agreement with Indonesia on the delimitation of the maritime border in the East Timor segment. In 1975 East Timor, a non-self-governing territory administered by Portugal, was annexed by Indonesia in violation of self-determination. The ICJ stated that

“the right of peoples to self-determination, as it evolved from the Charter and from United Nations practice, has an erga omnes character, is irreproachable. The principle of self-determination of peoples has been recognized by the United Nations Charter and in the jurisprudence of the Court…. it is one of the essential principles of contemporary international law”.67

To summarize all three opinions, the Court declares that self-determination has become an integral part of international law. It exists for all colonial people before the attainment of independence or other two modes of self-government based on the free expression of the will of people. Self-determination has an erga omnes character and is not limited to single cases. However, there is one caveat that should be taken into account: Namibia, Western Sahara and East Timor were all either trust or non-self-governing territories, the right of whose people to self-determination was explicitly granted anyway.

There is only one advisory opinion so far (except Kosovo which will be dealt with in the following chapter) which indirectly deals with self-determination in sovereign, independent states. The ICJ judgment on Military and Paramilitary Activities in and against Nicaragua was delivered in 1986. The Court found that the US breached international law by violating the sovereignty of Nicaragua, using force against Nicaragua and intervening in the internal affairs of Nicaragua.68 The Court defined the content of the principle of non-intervention in the following way:

“A prohibited intervention must … be one bearing on matters in which each State is permitted, by the principle of State sovereignty to decide freely. One of these is the choice of a political, economic, social and cultural system, and the formulation of foreign policy. Intervention is wrongful when it uses methods of coercion in regard to such choices, which must remain free ones”.69

Free choice of a political, economic, social and cultural system is how self-determination is defined in the International Human Rights Covenants and the UN GA 1514 as described above. Therefore, it could be inferred from the ICJ judgment that self-determination is applicable also to people of sovereign states—as Nicaragua clearly did not represent a colony in 1986. Critics may argue that this paragraph could also be interpreted in a different way and the Court did not mean self-determination under the free choice of the system quoted in the text. Nevertheless, the exact choice and sequence of the words as describing self-determination in other UN documents could not have happened accidentally and clearly it represents a reference to the right to self-determination. This opinion underlines the right of people of sovereign countries to external self-determination, i.e. freedom to choose its own form of government without outside interference.

The abovementioned Western Sahara case is also interesting because two sovereign nations, Morocco and Mauritania, claimed that Western Saharan territory belonged to them before Spanish colonisation and should be returned to them. There have been other cases in which the historical title to a territory competed with the principle of self-determination in determining the status of an entity. Next, we will look at some cases and international reactions to them.

2.2.5. Historical Title vs. Self-Determination

There have been several occasions on which a historical title to a territory challenged the self-determination principle and the outcomes as well as the stance of the UN have been different. In the case of Western Sahara the court found that “there were no legal ties of such a nature as might affect the application of….. the principle of self-determination through the free and genuine expression of the will of the peoples”.70 Therefore, Western Sahara had the right to self-determination. Similarly, Indonesia and Guatemala argued that East Timor and Belize had been part of their territory in the pre-colonial era and therefore they had right to incorporate them after the termination of colonial status. In both cases the UN General Assembly decided in favour of self-determination of the non-self-governing entities and demanded the independence of both territories.71

In the case of Gibraltar and the Falkland Islands the UN General Assembly decided differently. Here, the historical title of respectively Spain and Argentina were prioritized over the self-determination rights. The arguments of Spain and Argentina in both cases were that paragraph 6 of Resolution 1514—“Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations” overrides paragraph 2 that all peoples have right to self-determination. Resolution 2353 declared the referendum held in Gibraltar contravening its earlier resolutions and called on UK and Spain to end the colonial situation.72 None of the resolutions adopted on the Falkland Islands mentioned the self-determination rights of the Falklanders, rather they called for the negotiation of the dispute over sovereignty between the UK and Argentina.73 The UK, as the administering authority on the other hand, argued that the status of the territories should be based on the will of the people, which is clearly against unification with Spain and Argentina. Despite these resolutions both Gibraltar and the Falkland Islands remain under UK jurisdiction based on referenda conducted in both entities in 2002 and 2013 respectively.74

India got away with the invasion and annexation of Goa, Damao and Din in 1961 arguing that these Portuguese colonies belonged to Indian rulers in the past and were now liberated. The population of Goa was never consulted in a referendum on their status. The United Nations Security Council Resolution calling on the withdrawal of Indian forces was vetoed by the Soviet Union.75 Subsequently, the UN did not take any action on the matter. The population of another Portuguese colony. Macau, also did not get a chance to vote on its status, due to the fact that China appealed to the UN to delete the territory from a list of colonies and used the historic title in negotiations with Portugal to decide on Macau’s status in bilateral talks. A similar process occurred with retrocession of Hong Kong from the UK. The population of the Dutch colony West Irian did not exercise its right to self-determination fully either, because the Indonesian authorities who claimed the territory and then were temporarily administering it from 1963 to 1969 did not provide for the free expression of will and put pressure on the population to support integration into Indonesia as an indirect “act of free choice” in 1969.76

Russia inter alia used historical title and illegality of the territory’s transfer to the Ukrainian Soviet Socialist Republic in 1954, for the annexation of Crimea in 2014.77The Crimean case however is even more complicated since Russia claims a historical title and self-determination of part of the population in a sovereign state simultaneously. This time, the UN General Assembly adopted a resolution calling on states not to recognize “any change in the status of Crimea, or the Black Sea port city of Sevastopol, and to refrain from actions or dealings that might be interpreted as such.”78

All the aforementioned examples except Crimea concern the colonial context. Even in the colonial context, self-determination was not always given an upper hand vis-à-vis a historical title as the Gibraltar and Falkland Islands’ cases show. On the other hand, it could be argued that due to the fact that the UN has not raised the issue on the status of these entities since the 1980s and the fact that after holding referenda both Gibraltar and the Falklands Islands remain part of the UK, the international community regarded this as a mode of self-determination and thereby implicitly agreed that in these territories, the right of self-determination tops historical title when deciding over the status of a non-self-governing territory. Unfortunately, this conclusion is drawn only based on state practice and the political constellation of the period when the decision was taken. The relationship between historical title and self-determination in international law is not settled and needs clear regulation. A closer look at the state practice is needed also to shed light on another aspect of self-determination which is not clearly regulated—that of self-determination outside the colonial context. Next, I turn to analysis of state practice in the application of self-determination in sovereign states.