1 Introduction

The increased use and expanded scope of United Nations Security Council (SC) power following the end of the Cold War have been widely acknowledged. This chapter focuses on two separate, but perhaps linked, examples of the exercise of SC power: the impact of the Council’s authority on the creation (or otherwise) of States and its interventions into dysfunctional or ‘failed’¹ States in the name of democracy, State- and capacity-building, governance and the rule of law. As is evident from the choice of these topics, they recall and honour two aspects of James Crawford’s inestimable contribution to international law and practice: his work on the creation of States in international law² and on democracy and international law.³

The United Nations General Assembly (GA), rather than the SC, has historically been the major organ of the UN with respect to territorial disposition, in particular its responsibility for issues relating to decolonisation and achievement of the right of self-determination in accordance with Resolutions 1514⁴ and 1541⁵ through its Decolonisation Committee.⁶ The exception has been where the Security Council’s primary responsibility for the maintenance of international peace and security has been called into play,⁷ as for example in the termination of the Trusteeship Agreement with respect to the so-called ‘strategic’ trust territories and the creation of the Federated States of Micronesia, the Republic of the Marshall Islands and Palau.⁸ The changed geopolitical situation following the termination of the Cold War has furthered the practice of negotiated peace agreements entailing territorial disposition being endorsed by the SC, as well as the use of the Council’s ‘international dispositive powers’⁹ leading to Crawford’s conclusion that where necessary ‘to maintain or restore international peace and security’,¹⁰ transfer or otherwise disposing of territory by the SC would not be contrary to the ‘structure’ of the Charter.¹¹

2 The Security Council and territorial disposition

This section considers SC action in two well-trodden disputes over the status of territory, primarily picking up from where the second edition of The Creation of States finished, that is 2005. In one case (Western Sahara) the SC has found no way to end an illegal status quo and statehood remains in abeyance, while in the other (Kosovo) it has effectively facilitated de facto status and regime change. The creation (and denial) of statehood ‘is a matter in principle governed by international law’.¹² However, despite receiving often detailed factual reports from the Secretary-General on situations on its agenda, SC decisions rarely involve judicial or even quasi-judicial considerations of fact and law, but are political and inevitably subject to the interests of major powers, including those dictated by ‘the brave new world of the “war against terror”’.¹³ While its response to disparate incidents may be discounted as anomalies, without any precedential effect, the outcomes also have a destabilising potential that may have unexpected repercussions elsewhere.

3 The SC and regime change

The traditional stance of the SC towards the form or ideology of internal governance was one of indifference; the rare call for collective non-recognition of an entity rested upon its creation through international illegality or ‘fundamentally unlawful policies’.⁷⁰ However, the end of the Cold War has seen expressed SC policies in furtherance of democratically elected government, the rule of law and human rights, especially in post-conflict contexts. The SC has associated effective statehood (meaning government commitment to these values) to the maintenance of international peace and security, authorising expansive but inconsistent intrusion into the domestic jurisdiction of fragile States. Especially in the light of controversy over the NATO intervention in Kosovo and the aftermath of the terrorist attacks of 11 September 2001, issues of security, protection of human rights, capacity and development have become linked bases for intervention. This is not an issue of State creation,⁷¹ but has become one of regime change. For instance, the emergent concept of the responsibility to protect⁷² includes the responsibility to rebuild, which may be presaged on regime change: as Kosovo itself demonstrates, this may in fact entail changed status and statehood, especially where State fragility is based upon, or is exposed by, ethnic and other difference. The impact of such interventions on the creation of States remains unclear, but may in the long term require another chapter to The Creation of States.

The first intervention by the SC explicitly in the name of democracy was ‘Operation Uphold Democracy’ in Haiti. In response to the escalation of ‘politically motivated violence’ following a military coup against the elected government, the SC authorised the establishment of a UN Mission in Haiti (UNMIH) in September 1993,⁷³ which owing to events elsewhere was unable immediately to deploy.⁷⁴ In July 1994, the Security Council authorised the use of ‘all necessary means’ to restore democracy in Haiti and the prompt return of the legitimately elected president, Jean-Bertrand Aristide.⁷⁵ This brought a new dimension to post-Cold War military intervention: the overthrow of a democratically elected government was deemed to constitute a threat to international peace and security and measures were authorised to reverse it. Ten years later, in 2004, the SC again intervened for the purpose of State-building, this time against Aristide, who had been re-elected in 2000, but had ‘unacceptable aspirations to shift power in Haiti somewhat towards the poor and grassroots’.⁷⁶ He was now overthrown and expelled from Haiti. Citing the ‘rapid deterioration of the humanitarian situation…and its destabilizing effect on the region’, the Council drew upon traditional bases for intervention; it noted Aristide’s ‘resignation’ and the ‘appeal’ of the newly installed president to the UN for assistance, and authorised the deployment of a Multinational Interim Force ‘to contribute to a secure and stable environment…in order to support Haitian President Alexandre’s request for international assistance to support the constitutional political process under way in Haiti’.⁷⁷

But there is another story obscured by the oblique language of the SC. Critiques of coercive democratic promotion have demonstrated its association with neo-liberal capitalism and ensuing inequality.⁷⁸ In a petition to the Inter-American Commission on Human Rights, Haitian human rights groups alleged a ‘long-term, systematic plan’ that undermined the ‘democratically elected Haitian government through a development-assistance embargo’ and supported armed opposition groups in overthrowing the democratically elected Haitian government and replacing it with a government with no constitutional or electoral legitimacy’.⁷⁹ The petition is brought against the United States and Dominican Republic.

US government officials are alleged to have forced President Aristide to sign a letter of resignation and to have taken him out of Haiti against his will. The US is also accused of sending guns to the Dominican Republic, ‘many of which made it into the hands of the Haiti rebels’. These events can thus be construed in two different ways: the official narrative of SC-authorised assistance in restoring constitutional order to Haiti, providing humanitarian support and promoting human rights; and the alternative narrative of the forced removal of an elected government that challenged Washington’s imperial interests and of terror in Haiti unleashed and supported by MINUSTAH.⁸⁰ What is unarguable is the SC authority to bestow legality upon such action, the lack of any process for review, and academic silence.⁸¹

The concept of the responsibility to protect was explicitly engaged in the case of Côte d’Ivoire. Against a complex background of social division and armed conflict between the south of the country controlled by the government and the north, held by the rebel Forces Nouvelles, in 2004 the SC mandated the United Nations Operation in Côte d’Ivoire (UNOCI) with an extensive civilian and peacekeeping mandate.⁸² UNOCI incorporated an earlier SC-mandated political mission, an ECOWAS peacekeeping mission and French forces authorised ‘to use all necessary means’ to support UNOCI, in particular to contribute to general security in the area of operation of the international forces. A peace agreement was signed in Ouagadougou in 2007, although aspects of it remained unimplemented at the time of presidential elections in 2010 (delayed since 2000). The elections were held in a peaceful manner and international observers ‘expressed overall satisfaction with the conduct of the election’.⁸³ As neither the incumbent president, President Gbagbo, nor the principal contender, Mr Ouattara, received an overall majority, a run-off election was arranged. Some violence followed this election. The Constitutional Court of Côte d’Ivoire determined that there had been massive electoral fraud, discounted several thousand votes for the contender, Ouattara, and thereby secured victory for the incumbent, President Gbagbo. This was contrary to the position of the Independent Electoral Commission, whose findings were endorsed by the SRS-G.⁸⁴ Further violence ensued and following the position of ECOWAS and the African Union (but not that of the Constitutional Court), the Security Council urged recognition of Ouattara as properly elected.⁸⁵ This decision legitimised the imposition of economic measures against Gbagbo and his supporters and, as no longer the legitimate government, made his consent to the deployment of UN and French peacekeepers legally irrelevant.⁸⁶ Multiple attempts were made, primarily through ECOWAS and the African Union, at finding a negotiated solution amidst concerns about civilian security and the potential for the commission of mass atrocities. The situation on the ground worsened and in March 2011, expressing concern about the possibility of civil war between the sides (and with intercommunal and inter-ethnic dimensions) the Security Council stressed UNOCI’s mandate to protect civilians. The SC reaffirmed the primary responsibility of the State to protect its citizens and authorised UNOCI ‘to use all necessary means…to protect civilians under imminent threat of physical violence, within its capabilities and its areas of deployment’.⁸⁷ Military action by UNOCI and French troops enabled Ouattara to be installed as president.

The Côte d’Ivoire situation raises questions about the extent to which authorisation of intervention for civilian protection legitimates regime change and SC intervention into domestic elections. Elections in divided countries may be a flashpoint for violence and SC support for one side may trigger State fragmentation. In this instance, reunification of the country remained fragile and with the potential for a further outbreak of civil war. In such circumstances, creation of a further State remained conceivable, but has been avoided and territorial integrity upheld. There was disagreement, even among those States that had voted for it, about whether SC Resolution 1975 extended UNOCI’s protective mandate or simply reiterated the mandate as set out in earlier Resolutions.⁸⁸ India stressed that peacekeepers ‘cannot be made instruments of regime change’ and the Russian foreign minister stated that ‘[w]e are looking into the legality of this situation [taking the side of Ouattara against Gbagbo] because the peacekeepers were authorised to remain neutral, nothing more’.⁸⁹

4 Conclusion

SC decision-making with respect to territorial disposition and State governance enhances the legitimacy of the entity and simultaneously augments the Council’s relevance in global politics and power. This partly explains why there has been a return to the SC after an unauthorised military action,⁹⁰ or following a peace agreement conducted outside its auspices. But it has also become compromised by the use of multilateral decision-making to pursue what is essentially the US political agenda behind the smokescreen of democracy, good governance and human rights. While decisions around statehood and State authority have always been subject to the interests of the great powers,⁹¹ the security priorities created by fears of terrorism have added a further dimension that discounts or co-opts local choices. The SC is a variously, even simultaneously, active player, a latecomer to a prearranged outcome and a frustrated bystander to the formation and constitution of States.

1 Introduction

To honour James Crawford on this special occasion, it is proposed to examine statehood in its dynamic aspect, drawing on legal aspects of recognition, State responsibility and State immunity that most prominently feature among the multiple areas of law that he has mastered as a distinguished scholar and practitioner.

From Althusius and Grotius onwards, the study of statehood has focused upon the original derivation of sovereignty and the options to share or alienate it.¹ The doctrinal consolidation along with the positivist approach was led by the nineteenth-century German classical school, notably Paul Laband and Georg Jellinek, to identify the initial criteria of what makes a State.² These criteria – territory, population and government (or public authority) – have eventually developed into the commonly accepted standard for State creation. These have been thoroughly examined,³ so there is no pressing need to revisit them.

The focus will instead be upon the continuous exercise of sovereign authority once the above static criteria of statehood are both established and undisputed in relation to the relevant entity. The dynamic aspect of statehood relates to manifesting the State’s sovereign character through regular acts of public authority that draw on the patterns of daily operation of the international legal system, and their opposability on the international plane.

2 Introducing the dynamic aspect of statehood

The key conceptual issue is the unity and divisibility of statehood. The commentary to the International Law Commission’s (ILC) Article 4 on State responsibility specifies that ‘The principle of the unity of the State entails that the acts or omissions of all its organs should be regarded as acts or omissions of the State for the purposes of international responsibility.’⁴ However, in an early but extremely important contribution on State immunity, Crawford has articulated the non-absolute nature of State immunity as following from the divisibility of sovereign authority that every State possesses.⁵

The divisibility or unity of States can be seen either in factual terms of the structural arrangement of States, or in terms of the substantive scope of their sovereign powers. Whether statehood is structurally indivisible, in relation to which question the national law of the State will, according to the principle stated in the ILC’s Article 4(2), be an initial starting point, is not a question identical to whether the substantive scope of the sovereign authority encompasses the totality of State activities. For, through any of its structural components, the State can enter into the multitude of dealings and transactions that do not require the exercise of sovereign authority. If, along these lines, sovereignty is divisible, then international law cannot invariably attach identical consequences to all acts performed by the State in both sovereign and non-sovereign areas.

As Krabbe has explained, this dilemma, either the State is a power arrangement (Machterscheinung) that creates law and thus is not subject to private law or, if it is indeed subjected to private law just like any other private entity, then its essence cannot be explained by reference to sovereign authority alone. The State exercises public authority differently from the way it administers postal services or a railway network. Krabbe proposed relying on the concept of legal sovereignty instead of that of State sovereignty, which would then mean that the legal standing of the State in relation to citizens, including its ‘added value’ (Mehrwertigkeit) in the area of public authority proper, would materialise only through the framework of law.⁶ If Krabbe’s equation could be exported to the international legal realm when particular acts and transactions of States fall to be assessed for their public and sovereign character, then the sovereign authority of the State would validly exist to the extent that international law recognises it as such.

In any case, the scope and essence of the public, sovereign or governmental authority of the State must be seen in prescriptive, not factual, terms, for authority as such is a prescriptive construct, not a fact; it is created and maintained through prescriptive ordering. Whether seen through Sir Henry Maine’s articulation of legal fictions,⁷ or through Hans Kelsen’s imputation theory,⁸ governmental authority is not what the organ in question is doing factually, but the scope of functions that the legal system bestows upon that organ in its particular capacity as an organ of the State.

Some clues as to the substance of the prescriptive standard are provided in the ILC’s commentary to Article 5 on State responsibility. This suggests that the ‘governmental authority’ of the State does not cover situations where domestic law confers powers upon, or authorises conduct by, citizens or residents generally, or as part of the general regulation of the affairs of the community, but only where it specifically authorises the conduct as involving the exercise of public authority. ‘Governmental authority’ does not attach to private activities. As for the specific content of this standard, the ILC has observed that ‘Beyond a certain limit, what is regarded as “governmental” depends on the particular society, its history and traditions.’⁹

The ILC’s is a nuanced statement, which effectively suggests that there may be a complementary international standard with respect to the valid and internationally opposable exercise of governmental authority. A shared international understanding of public, sovereign and governmental authority would, in the first place at least, be premised on the inherent nature of States that all States share and aspire to maintain. As Hans Kelsen has observed, the State is similar to the individual in its aspiration to achieve its aims, to develop and prosper.¹⁰ Philip Jessup has similarly observed that States, too, have ‘feelings’.¹¹

But these factors are not among the immediate concerns of international law. Whether we take a dualist position that States are at the roots of the international legal system, or subscribe to Kelsen’s monist approach that statehood is the characterisation imputed by international law to the entities that qualify, it obtains in either case that international law does not initially create States as socio-political realities. It merely attaches certain consequences to the fact of their existence. The State initially gets organised on a basis unrelated to international law; the latter has hardly any say as to the reasons and factors – historical, socio-economic, trade-related, cultural and so on – that motivate the organisation of an entity as a State,¹² still less does it pronounce on the ultimate justification of statehood. The formation, transformation and related development of States constitute a complex socio-political process displayed through the specificity of individual situations that do not lend themselves to a crude generalisation. International law can, then, only take cognisance of the essence of statehood as is inherent to it across the board; it cannot construct the substantive rationale of statehood afresh.

In a way that applies to all States, Ludwig Gumplowicz has described the State as the organisation of power and domination through the legal order.¹³ Similarly, if we follow Max Weber’s approach, statehood relates to the organised use of coercion, legitimating and monopolising the use of force within the relevant territorial boundaries, and the corresponding obedience from men and women. The justification of domination – and depending also on its extent – can be explained through religious considerations, habitual traditional obedience, charisma and grace, or alternatively through legality that consists in the validity of the legal rules that the State enacts by virtue of its functionally delimited authority. In all those cases obedience could in practice be determined by what Weber denotes as ‘highly robust motives of fear and hope – fear of the vengeance of magical powers or of the power-holder’.¹⁴

What Weber thus focuses upon is how the power-holder sells the justification and how that justification comes across to people. The two may not always overlap in practice, and the visions of legitimation may thus diverge at the opposing ends of the equation. Nor does that actual process of legitimation always have to be concomitant with the ‘terms and conditions’ officially stated in the relevant State’s constitution, but could also embrace more informal but widely perceived grounds.

Out of the approximately 200 States to which international law applies, not all operate in the same way. Some States are premised on a more or less straightforward constitutional pattern of representation and accountability, the use of coercion being limited to carefully demarcated instances of violating legal prescriptions, beyond which individuals retain complete freedom of choice as to their activities in various areas of social life without fearing coercion, oppression or reprisal. Other States, however, are dominated by more unspoken premises that often divide rather than unite communities and, in order to survive, carry on and command submission, either in terms of domestic governance or of occupation and colonisation of foreign territories. The political systems in question need to rely on fear and violence. For instance, the concept of public and sovereign authority underlying Denmark or the Netherlands shows no viable similarity with that on which the current political regime in Zimbabwe or the Turkish domination of Northern Cyprus (created through massive eviction of inhabitants and importing settlers) are premised. The latter will, quite simply, not survive without oppression and continuing efforts to consolidate the fruits of those oppressive efforts factually, and validate them both domestically and internationally.

If, as observed above, international law does not specify the nature of States and their political regimes in any a priori or comprehensive manner, it should not be the task of courts to draw themselves into those complex processes. It was in this spirit that Lord Wilberforce warned against ‘involv[ing] English courts in difficult and delicate questions as to the motivation of a foreign State, and as to the concept of public good, which would be unlikely to correspond with ours’.¹⁵ Nor has a top-down attempt at excluding, totally or partially, States from the international legal system proposed, for instance, by liberal theory,¹⁶ succeeded in its aims any more than radical monism succeeded in ensuring the supremacy of international law. The task of international law and of the courts that apply it seems to be more modest, namely to evaluate the nature of particular State activities when it comes to the application of international law to facts.

3 Applying the dynamic aspect of statehood

4 The three areas evaluated

The dynamic aspect of statehood addresses the extent to which a State can validly use its sovereign authority or rely on it to evade responsibility. Obviously the test of governmental or sovereign authority is bound to be the same for all pertinent areas of international law, focusing on the authority available only to States, not acts or rights that can also be performed by private or other non-State entities. A State cannot be more or less sovereign in different areas or contexts. To operate viably and predictably, the three above areas of international law rely on that single overarching concept of public authority for their own purposes and focus upon the aspects of it to be applied to each of those areas, thereby reinforcing the unity of that test and mutual interconnectedness of its various elements.

The law of recognition and State responsibility law are concerned only with situations when the entity other than the State acts in a legitimate or purported exercise of State authority. The law of immunities aims not just to prove facts of State involvement but to classify them for the further additional purpose, and to delimit the extent to which the ordinary course of justice can be evaded. In the end, the historical process of elaboration upon all these standards has served the common and overriding goal to secure efficient accountability.

Furthermore, the notion of ‘separate entity’ operates to enable the State to get away from foreign proceedings when the relevant act is jure imperii. Thus, in the law of immunities, ‘governmental authority’ assumes the same dimension as in the law of State responsibility as per UPS, the way that it includes – and in this case immunises – actions performed within the valid scope of sovereign authority as recognised under international law, and excludes other actions.⁵⁵ The application of section 14 SIA in Kuwait Air Co. broadly fits within this approach.

Thus, if a State delegates public authority to a ‘separate entity’ for whatever purpose, that State is responsible for everything factually done in the exercise of that delegated or outsourced authority; even though, depending on its substance, the actual specific act performed within the area covered by Article 5 ASR, that is under the guise of ‘governmental authority’, may or may not be a genuine exercise of that authority. The ILC commentary does not require that it should be. Nor does it have to be, for the use of the ‘governmental authority’ test in Article 5 is merely to channel the factually occurred incidents back to the State so that the latter’s liability materialises. Again, Article 5 is not about the governmental or official nature of specific acts, it is about the a priori generalised conferral, by the State to a non-State entity, of the authority to perform activities in that particular area.

If the ‘governmental authority’ test is used in terms of defining the nature of a particular wrongful act, it could be used homogenously for the purposes of both State responsibility and State immunity. For Article 5 purposes, the delegating State does not, at the point of delegation or conferral, determine unilaterally what ‘governmental authority’ covers; it merely ends up transferring to the non-State entity the powers that, under international law and independently of State will expressed at the point of delegation, already possess such governmental character. The underlying formula is not ‘I determine if X is governmental and then delegate it’, but ‘I delegate what already is governmental.’

The outcome specifically for the purposes of immunities is that the State can claim immunity for acts of a ‘separate entity’ only if those acts were validly performed as part of that delegated ‘governmental authority’, with the effect that the outsourcing State itself would, as a matter of international law, be validly entitled to claim immunity for those acts under the restrictive doctrine of immunity. For, the restrictive doctrine addresses not just general systemic and constitutional patterns of delegation and outsourcing, but also crucially focuses on the governmental or private nature of that very specific act in relation to which immunity is being claimed.

The relevant activities can initially be described as governmental or private: compare an arrest with the sale of tickets. What also matters, however, is whether individual acts are undertaken within the area that broadly involves governmental authority, whether by the State or delegated to a non-State entity. We can thus contrast a general context of policing or maintenance of discipline in prisons to the supply of food to or torture of inmates, which are specific acts undertaken within the broader task of governmental authority to run prisons. If the government outsources to a private entity the broader governmental authority to run the prison, particular acts performed within this framework will be channelled back to the State through the principle stated in Article 5 ASR. For the private entity would not commit these acts if governmental authority had not been delegated to it from the State. Once attribution to the State is determined, however, its responsibility will attach to individual acts, not to that overall framework of governmental authority. Correspondingly, for the purposes of the law of immunities, it is these specific acts that fall to be assessed for their sovereign or private character. Thus, for instance, acts perpetrated by a PMC and channelled to the State through Article 5 ASR would not, under the restrictive doctrine, attract immunity.

A PMC interrogating prisoners and torturing them enters the field through the use of conferred public authority, but the act in question does not become sovereign for the purposes of State immunity. For immunities focus on specific acts, not general authority; the latter does not cover, nor would be intended at the point of conferral to authorise, those specific acts. Similarly, the State torturing in peacetime enters the field through the private activity in the first place and is thus not immune. The State would not thus be immune for the PMC’s torture either.

5 Conclusion

The advantage of focusing on the dynamic aspects of statehood, as developed in judicial practice and the ILC’s work, is to promote effective accountability of States in various contexts, on inclusive terms and through the application of the existing law. The areas examined above demonstrate that in the twenty-first century there could hardly be room for the absolute and indivisible version of statehood. The reasoning that preaches pragmatism, and alludes to imaginary needs of stability that could be threatened by human rights litigation, in effect tries to superimpose a preconceived ideology over the merit of legal evidence, and is essentially a reasoning developed from the position of intellectual and evidentiary weakness.

The comparative advantage, and thus power, of judicial reasoning is that it holds the grip on the continuous process of the application of established rules and principles of international law. Instead of projecting some liberal transnational compact and on that basis discriminating between States, the focus on the role of courts is premised on the inclusive approach that applies to all States, great or small, liberal or ‘rogue’, integrating them all within the same process of lawmaking and law enforcement. It is not completely free of inconsistencies, but the difference it has already made is undeniable. Following this route is far more feasible than unrealistically waiting for some great systemic changes leading to a constitutional revolution – especially if it is a revolution that most of us do not want to happen.

The mechanisms and procedures of recognition: a practical problem

A wide variety of situations arise in international relations upon which States may judge it necessary to express a view. Claims by States to territory or maritime jurisdiction, attempts to transfer the assets of an international organisation, challenges to the status and immunities of government officers, alterations in the public law of an occupied territory and constitutional crises which cast doubt on the representative capacity of a government as agent of a State are among the recurring examples. Perhaps the most notable is that where a new State is claimed to have emerged. Where an existing State resists relinquishing responsibility over the territory of the putative new State, the situation is particularly delicate.

There were tentative suggestions at the start of the United Nations era that the international response to the putative emergence of new States should be resolved centrally – not by the individual State exercising a unilateral discretion, but by a collective organ of the international community acting in the name of all its members and, perhaps, even applying international law rules. Norway, at the Dumbarton Oaks Conference, proposed that the Member States vest in the United Nations an exclusive authority to recognise new States; the idea attracted little support.¹ Perhaps it was thought that recognition, in the relevant sense, was a decision for States alone and not one to be taken by an organisation; but, if that were the case, then certainly it would have been for States, if they chose, to confer the power over that decision to an organisation of their own making. The Secretary-General, not long after, evidently saw no obstacle in principle to the organisation recognising new States: he proposed that, by Charter amendment or by treaty, the Member States might assign the organisation a power in this respect – in the Secretary-General’s words, ‘[t]o establish the rule of collective recognition’.² That and similar proposals such as Hersch Lauterpacht’s³ notwithstanding, the traditional position – recognition as a unilateral and discretionary act – was left undisturbed.

And so has it been largely since. Thus Serbia could reassert the unilateral and discretionary character of recognition in the advisory proceedings in respect of Kosovo;⁴ and Western European States, like France and the United Kingdom, while disagreeing with Serbia as to most aspects of the situation, agreed on that threshold point.⁵ The European Union (EU), in respect of Eritrea, seems to have confirmed that recognition of a new State is not an action restricted by any general rule to States – the EU established a European position on recognition of Eritrea⁶ – but, in respect of Kosovo, where a consensus of all its Member States (as at 2008) did not exist, the EU refrained from asserting a position. According to the Council of the EU, ‘Member States will decide, in accordance with national practice and international law, on their relations with Kosovo.’⁷ The evidence is, then, that the law has changed little since the early 1990s, when the Badinter Commission had been able to reach much the same conclusion.⁸ The law indeed has changed little on the point since the United States’ Permanent Representative famously referred to recognition as that ‘high political act’ which ‘[n]o country on earth can question’,⁹ even if States and their representatives in recent times would be unlikely to express the matter as stridently as that; and even given the general rule of non-recognition in respect of situations created by a serious breach of a peremptory norm.¹⁰

When States deal with a question of recognition ‘in accordance with national practice and international law’, international law, depending on the situation, thus may entail some substantive constraints, but it is the national practice which will be of primary importance when it comes to the mechanisms and procedures of recognition. It comes as little surprise, where a matter has remained de-centralised to this extent, that little if any systematic treatment has been given to the mechanisms or procedures.

Yet the mechanisms and procedures may be important when disputes arise over statehood. Disputes over statehood arise from time to time at the international level, for example in respect of the treatment an international organisation is to accord an entity.¹¹ It would seem that disputes over statehood are at least as frequent, perhaps more so, at the municipal level, such as in respect of how a national court is to treat the entity,¹² its acts,¹³ agents¹⁴ or property.¹⁵ It hardly can be expected in national systems which respect the rule of law that courts in all circumstances will automatically defer to the executive determinations of the government; but when it comes to recognition of States, executive certification is important in many jurisdictions.¹⁶ Few courts, if any, ignore entirely whether or not the executive offices of the State have recognised (or declined to recognise) the entity in question.¹⁷ Only in unusual circumstances would a court be likely to adjudicate a challenge against the act of recognition itself.¹⁸

In any circumstance, it might be supposed that whether or not recognition has taken place is easy to determine. After all, the executive organs of the State, when called on to do so, usually have been perfectly clear whether or not the State has recognised a given situation. This is why it is possible to ‘presuppose…that the judiciary can understand what the executive has said’.¹⁹ In some cases, however, the executive has not been so clear. Consequently, the question may itself be one of contention between parties to a dispute. This is one way in which the mechanisms and procedures of recognition may assume a practical significance – that is to say, in the forensic process.

There is also the case where the State is obliged not to recognise a given situation but seeks to preserve some scope for normal transactions. The International Court of Justice (ICJ) addressed this as a matter of protecting the interests of the inhabitants of a territory subject to a rule of non-recognition.²⁰ In practice, it well may be that persons or institutions elsewhere wish to invest in the territory or to engage in commerce with its inhabitants and thus are concerned that the rule of non-recognition not get in the way of their interests.²¹ There, too, what mechanisms and procedures are understood as conferring recognition is an important question, for it is those mechanisms and procedures from which the State must refrain if it is to remain in accord with the obligation not to recognise.

The difficulty, as suggested above, is that the mechanisms and procedures have been subject to little systematic consideration. It is well enough established that, in considering close questions of statehood, recognition is a probative factor; whether a given act is to be understood as conferring recognition is the question which now may be considered.

Recognition expressly indicated

The case where a State has adopted a clear statement that it recognises the situation in question may be dealt with briefly. For example, Japan, through a statement by its foreign minister, said as follows: ‘Japan recognized the Republic of South Sudan as a new state as of today.’²² The United States, in a statement through its president, said, ‘the United States formally recognizes the Republic of South Sudan as a sovereign and independent state upon this day’.²³ India recognised South Sudan through a letter from its prime minister to the president of the new State.²⁴ The Member States of the European Union did so jointly through a declaration.²⁵ The United States recognised Bosnia and Herzegovina, Croatia and Slovenia by a presidential statement in the following terms: ‘The United States recognizes Bosnia-Hercegovina, Croatia, and Slovenia as sovereign and independent states.’²⁶

There are also occasions when a State has incorporated a statement recognising another in a treaty. Greece did this in the Interim Accord of 13 September 1995, under Article 1, paragraph 1, of which Greece recognised the Former Yugoslav Republic of Macedonia:

Then there are reciprocal exchanges of recognition, such as that between the Federal Republic of Yugoslavia and the Republic of Bosnia and Herzegovina:

Israel and Jordan took a similar approach:

These are statements announcing recognition in terms; they do not leave recognition to inference.

The matter becomes more complicated, where the State has given no explicit indication that it recognises the situation but its practice, in other respects, presents the possibility that it has. There, inquiry will turn to the intention of the State to recognise (or not to recognise). This raises a question: by what evidence can the intention be established? As will be seen, there has been a tendency to answer the question categorically by reference to particular types of conduct – for example, by saying that by entering into an agreement the State necessarily evinces the intention to recognise the other party as a State. Whether the State’s conduct, in itself, will necessarily settle the question is far from clear, however. Before turning to the question of how conduct may be identified as entailing the intention to recognise, it is worth considering how intention relates to recognition.

Recognition as an intentional act

Intention has been ascribed importance in the field of recognition for some time. The Institut de Droit International addressed the matter in 1936 as follows:

This made clear that the act of recognition is not necessarily an explicit statement like the examples given above. The act of recognition need not be ‘une déclaration expresse’. If the act is one ‘marquant clairement l’intention d’accorder cette reconnaissance…’ then the State adopting the act has recognised the situation in question.

The formula is obviously of limited utility. To determine that a given act is an act of recognition, the formula has us ask whether the act is intended to be an act of recognition. Without more, this is circular. The one multilateral instrument to address the matter around the time of the Institut’s Resolution is no more helpful. According to Article 7 of the Montevideo Convention:

So, again, the emphasis is removed from form: the act need not be express; it may be ‘tacit’. This hardly narrows the category of potential acts; it widens it. Recognition may result from ‘any act’, so long as it ‘implies the intention of recognizing’. The problem is that these statements say nothing as to the content of the intention to which they refer. And attempts to pinpoint the intention behind recognition, in terms of legal effects, run up against the oft-noted uncertainty as to the legal character of recognition. To complete the picture, it seems there may be no better way forward than further analysis of the practice.

Courts considering recognition have done so in connection with particular disputes and so have not aimed to systematise the matter. The Singapore Court of Appeal, for example, was asked to consider the extensive relations that the Singapore government maintained with Taiwan as possible evidence of recognition. The Court of Appeal concluded that it could not infer that Singapore had recognised Taiwan as a State because ‘[f]or there to be implied recognition, the acts must leave no doubt as to the intention to grant it’.³² The European Court of Human Rights also seems to have understood recognition to require intention: to acknowledge that a functioning court system exists in a territory, absent an intention to extend recognition, is not to imply recognition.³³

In the Kosovo Advisory Opinion, it was not necessary for the ICJ to say what acts amount to recognition. The Court restricted its observations about recognition to saying that it had not been asked ‘about the validity or legal effects of the recognition of Kosovo by those States which have recognized it as an independent State’.³⁴ In other cases, the Court has referred to the intentional element in connection with unilateral declarations. In the Nuclear Tests cases, the Court said, ‘When it is the intention of the State making the declaration that it should become bound according to its terms, that intention confers on the declaration the character of a legal undertaking.’³⁵ It referred to this passage in Burkina Faso/Mali and added (it would seem for emphasis) that ‘it all depends on the intention of the State in question’.³⁶ The Court was considering certain acts in these cases because it was possible that they gave rise to specific legal obligations for the declarant States.³⁷ Because what specific legal obligations arise from an act of recognition remains a matter of uncertainty – as noted, the Court would not say what the ‘legal effects of…recognition’ might be – the Court’s earlier observations about intention and obligation do not necessarily apply strictly to recognition. Yet, while recognition is not exactly the type of unilateral act which the Court was considering in Nuclear Tests or Burkina Faso/Mali, recognition in its classic sense has been a unilateral act. To identify intention as a necessary element of unilateral acts seems, at least in a general way, to say something about recognition.

The modern law codification projects, like their forebears, have identified intention as an element in recognition. In the 1965 Restatement, the American Law Institute (ALI) said, ‘Implied recognition may take place in a variety of ways by which a state manifests its intention to treat an entity as a state.’³⁸ The 1987 Restatement described recognition as an act ‘confirming that the entity is a state, and expressing the intent to treat it as a state’.³⁹

The International Law Commission (ILC) Special Rapporteur for unilateral acts acknowledged that ‘[i]t is not easy to define the act of recognition, specifically the recognition of a State’ and then rallied to the intention requirement:

Agreement, in the end, was not reached to associate recognition with the topic. As the Special Rapporteur admitted, it had not been included with the Commission’s mandate as such.⁴¹ The Guiding Principles which the ILC eventually adopted in respect of unilateral acts were restricted ‘to unilateral acts stricto sensu, i.e., those taking the form of formal declarations formulated by a State with the intent to produce obligations under international law’.⁴² So this text is relevant to the act of recognition, only when the act takes ‘the form of a formal declaration’, and only if the act is performed with the intent to produce obligations – which it is not always clear it is, given the uncertainties surrounding the legal effects of recognition. Nor under other topics has the ILC yet adopted a text to address recognition of States.⁴³ Thus the conclusions which can be drawn about recognition from the ILC’s work are limited, but the possible connections to recognition were certainly being considered under the topic of unilateral acts. And there the Commission as a whole placed stress on intentionality: the concern there is with ‘[d]eclarations publicly made and manifesting the will to be bound’.⁴⁴

Modern writers who address recognition in its strict sense largely agree that the element of intent is central. According to Pellet, ‘l’essentiel est que la volonté de reconnaître soit établie de façon certaine…’⁴⁵ Shaw, too, places the stress on intention: ‘recognition is founded upon the will and intent of the state that is extending the recognition’.⁴⁶Brownlie’s Principles of Public International Law, though with a slightly different emphasis, draws attention to intent as well:

Verhoeven⁴⁸ and Jennings and Watts⁴⁹ also referred to intent as a requirement.

Recognition is not like strict liability; an act does not constitute recognition unless it evinces the intention to recognise. That much is clear from judicial practice, the work of codifiers and academic commentary. The question, however, remains: how is it to be determined whether a given act evinces the requisite intention?

Categories of acts and the intention to recognise

States at one time believed that a wide variety of acts were tantamount to recognition – to the extent that it may be asked whether intention was necessary to the act at all. For example, the legal advisors to the Privy Council said that private commerce by British subjects would not be consistent with non-recognition of the independence of St Domingo.⁵⁰ Sending a consul to Warsaw could ‘be considered…as amounting in fact to a recognition of [Poland’s] independence’.⁵¹

Sending a consular officer today would still likely suggest an intention to recognise,⁵² but even extensive and continuous contacts do not in themselves necessarily amount to recognition.⁵³ The fact that France negotiated the Geneva Agreements of 20 July 1954 did not mean it had recognised the Democratic Republic of Viet Nam.⁵⁴ The Croat, Muslim and Serb communities in Bosnia and Herzegovina participated in negotiations but this did not deprive Bosnia and Herzegovina of its territorial integrity.⁵⁵ Certainly, negotiating with aeroplane hijackers does not say anything about their representative capacity or about the legal identity of the movement they purport to represent.⁵⁶ In conferences⁵⁷ and in standing organisations⁵⁸ States undertake a range of contacts without implying recognition.

The substantial flexibility evident in practice notwithstanding, this is a field where the limits are still sometimes characterised in categorical terms. The act of concluding an agreement at the international level in particular has been said necessarily to imply recognition. For example, under the heading ‘Manifestation of Intention to Recognize’, the American Law Institute (ALI) says as follows:

The ILC Special Rapporteur for unilateral acts also identified the conclusion of an agreement as an implicit act of recognition:

These are categorical positions, in that they attribute the intention to a category of acts; there is no reservation here for examples of agreements which do not imply recognition.

The difficulty is that the adoption of an international agreement does not necessarily in itself imply the statehood of either party. By entering into an agreement with a multilateral organisation, a State does not intend to recognise the organisation as a State.⁶¹ The view from the early stages of the drafting of the International Centre for Settlement of Investment Disputes (ICSID) Convention had been that an investor and a State may enter into an agreement to arbitrate,⁶² and this could well be an international agreement.⁶³ Nobody would say that the host State thinks it is the respondent in an inter-State proceeding when the investor institutes arbitration!

So it is not satisfactory to say that all such acts necessarily evince the intention to confer recognition. Other factors must be considered.

Factors identifying the act of recognition

As noted above, the factor which makes it easiest to identify an act of recognition is the content of the statement which a State adopts; express acts of recognition largely remove the doubt. Some suggestions may briefly be made as to factors which are relevant in the closer cases.

Conclusion

The purpose here has been to consider a particular dimension of a well-known problem in international law. States, by making their positions explicit one way or the other, typically have avoided the question whether they intend to recognise a given situation. The conduct of States, however, is not always clear.

In summary, four factors may help identify whether a particular act amounts to recognition:

1. (i) the content of the relation or statement

2. (ii) the usual functions performed by the organ or agent which operationalises the relation or adopts the statement

3. (iii) disclaimers accompanying the establishment or adoption of the relation or statement

4. (iv) the positions expressed by third parties

5. (v) any other circumstances, including especially the conduct and characteristics of the entity with which the relation is entered or toward which the statement is adopted.

In a situation where non-recognition is obligatory, States may wish to enter into relations which would imply at least certain capacities in the other party. Whether the act of entering into a given relation or adopting a particular statement would amount to recognition there will have practical significance as the State seeks to maintain accordance between its conduct and its obligations.

1 Introduction

This chapter will examine the so-called ‘Act of Free Choice’, which took place in West Papua in 1969, and which resulted in the incorporation of West Papua into Indonesia. ‘West Papua’ is the name by which the Papuans themselves refer to their homeland. The territory was originally known in colonial times as West New Guinea, and the territory is referred to as ‘West Irian’ in Indonesia. In this chapter the term ‘West Papua’ will be used to refer to the territory, except in those instances when it has been officially referred to either as West New Guinea or West Irian. The population of West Papua will be referred to as ‘Papuans’.

Leaders of the West Papuan independence movement assert that the population of West Papua was not accorded any real opportunity to exercise its right of self-determination upon the decolonisation of the territory in 1969. They argue that the so-called ‘Act of Free Choice’ administered by Indonesia was manipulated so as to ensure that West Papua was absorbed into Indonesia, without the true will of the population having been taken into account. As a result, the events surrounding the Act of Free Choice remain a source of deep and abiding grievance amongst Papuans. Indonesia, on the other hand, has always denied that there was anything untoward about the Act of Free Choice, and that West Papua was legally incorporated into Indonesia and now forms an integral part of the country. Recently no less a personage than Indonesian President Yudhoyono, referring to West Papua, declared that there ‘exist no manipulations of history that must be revised’.¹ This chapter will examine the events leading up to and involving the 1969 Act of Free Choice, in the context of the legal requirements of the right of self-determination as it existed at that time, in order to ascertain whether the West Papuans were indeed denied a real opportunity to exercise their right to self-determination, and, if so, to analyse the consequences which flow from such a denial.

2 The development of self-determination in international law

In examining the legality of the 1969 act of self-determination in West Papua, it is first necessary to consider the status of self-determination in international law at that time. Up until World War II, self-determination had for the most part been solely a political process. Since then, it has increasingly become an established legal right in international law. This began with its inclusion in the Charter of the United Nations (UN), in Articles 1(2) and 55. Self-determination was not defined in the Charter, but in the 1950s it came to mean the process of decolonisation, for a majority of the members of the General Assembly. Colonies, or ‘dependent territories’, were addressed in Chapters XI, XII and XIII of the Charter. Although the term ‘self-determination’ was not utilised in these chapters, the fact that the term was increasingly associated with decolonisation meant that the provisions of these chapters were understood to constitute a primary application of the principle.

The UN Charter categorised these territories into two types: trust territories, which were addressed in Chapters XII and XIII of the Charter, and non-self-governing territories, which were addressed in Chapter XI. West Papua had been declared to be a non-self-governing territory by the General Assembly in 1960,² and therefore the provisions of Chapter XI applied to it. Chapter XI comprised two articles, Articles 73 and 74. Article 73 obliged Member States administering non-self-governing territories to develop self-government in those territories. However, the Charter had not defined when a territory would be considered to be non-self-governing, nor when it would cease to be non-self-governing.³

Consequently the General Assembly sought to define and elaborate these issues in a number of Resolutions adopted in the 1950s, and to exert pressure on administering states to end the non-self-governing status of such territories as quickly as possible. Amongst the many Resolutions adopted by the General Assembly in this regard, the two most important ones were Resolution 1514(XV) of 14 December 1960 and Resolution 1541(XV) of 15 December 1960.

Resolution 1514(XV) was entitled ‘The Declaration on the Granting of Independence to Colonial Countries and Peoples’. This Resolution equated self-determination with decolonisation. This can be seen in the juxtaposition of paragraphs 1 and 2. Paragraph 1 condemned the ‘subjection of peoples to alien subjection and exploitation’ and declared that this was ‘contrary to the Charter of the United Nations and is an impediment to promotion of world peace and co-operation’. The Resolution then linked the reference to ‘peoples’ in Article 1 to their right to self-determination in Article 2:

The preamble declared ‘the necessity of bringing to a speedy and unconditional end colonialism in all its forms and manifestations’. Paragraphs 3 and 5 provided further elaboration in this regard. Paragraph 5 called for the immediate transfer of ‘all powers to the peoples of those territories, without any conditions or reservations, in accordance with their freely expressed will and desire, without any distinction as to race, creed or colour in order to enable them to enjoy complete independence and freedom’. This grant of independence to non-self-governing territories was not to be delayed, according to paragraph 3, by any inadequacy of political, economic, social or educational preparedness.

Paragraph 6 emphasised that the process of decolonisation was not to affect or alter the territorial boundaries of the newly independent State from the boundaries which had defined it as a colony:

Resolution 1514(XV) was adopted by the General Assembly by a vote of eighty-nine in favour, none against, and nine abstentions. Both Indonesia and the Netherlands voted for the Resolution.⁵

The day following the adoption of Resolution 1514(XV) the General Assembly adopted Resolution 1541(XV). This Resolution was also directed at dismantling colonialism. It laid down twelve principles with regard to Article 73 of the Charter and non-self-governing territories. Principle I specified that Chapter XI applied to territories which were ‘known to be of the colonial type’. Principle VI set out the three ways in which a non-self-governing territory could obtain a full measure of self-government: independence, free association with an independent State or integration with an independent State. General Assembly Resolutions up to this point had stressed that independence was ‘the normal and expected way in which a full measure of self-government would be achieved’.⁶ It was therefore assumed in Resolution 1541(XV) that independence would be the usual outcome of an act of self-determination, and as a result Resolution 1541(XV) did not enumerate conditions for the attainment of independence by a non-self-governing territory. For the other two types of self-government, which were seen to be derogations from the normal and expected outcome of independence, the Resolution did lay down conditions. The conditions laid down for integration were particularly stringent, because integration was considered to be irreversible. Principle VIII declared that integration must occur ‘on the basis of complete equality’. Principle IX declared that integration ‘should come about’ as follows:

1. (a) The integrating territory should have attained an advanced stage of self-government with free political institution, so that its peoples would have the capacity to make a responsible choice through informed and democratic processes.

2. (b) The integration should be the result of the freely expressed wishes of the territory’s peoples acting with full knowledge of the change to their status, their wishes having been expressed through informed and democratic processes, impartially conducted and based on universal adult suffrage. The United Nations could, when it deems it necessary, supervise these processes.⁷

Integration was thus discouraged in all but the most politically advanced of territories, that is those which would be the least likely to adopt this alternative.⁸ Resolution 1541(XV) was adopted by the General Assembly by a vote of sixty-nine in favour, two against, and twenty-one abstentions. Indonesia voted for the Resolution; the Netherlands abstained.⁹

3 The uncertain status of West New Guinea

On 17 August 1945 the Indonesian nationalist leader Sukarno proclaimed the independence of the Republic of Indonesia, becoming its first president.¹⁰ The new State of Indonesia emerged from the colony of the Dutch East Indies, and the Dutch attempted unsuccessfully to reassert control over their colonial possession. In 1949 the United Nations Commission on Indonesia was established. The Commission set up the ‘Round Table Conference’ at The Hague in order to resolve the Indonesian question. On 27 November 1949 the Netherlands and Indonesia signed the Hague Agreement, by which the Netherlands transferred sovereignty over the Dutch East Indies to Indonesia.¹¹

During the Round Table negotiations the two sides could not agree on whether West Papua,¹² which had been a constituent part of the Dutch East Indies, should be transferred to Indonesia, or whether it should remain under Dutch sovereignty. There were on-going but fruitless negotiations on the status of West Papua throughout the 1950s. The Dutch argued that West Papua should develop as a separate colony under Dutch administration and should eventually become an independent State in its own right, because the population of West Papua had nothing in common with the population of Indonesia. The Melanesian population of West Papua was not only racially different from the Malay Indonesians, but also differed completely from them in terms of languages spoken, culture and religion.¹³ The population of West Papua was also at a much lower level of social and political development than the population of Indonesia, and the Dutch seriously doubted whether the Indonesians would be capable of administering a population which was so different and so undeveloped in comparison with other parts of Indonesia.

Indonesia argued that the territory of West Papua rightly belonged to it, and that the exercise of continued Dutch sovereignty over the territory amounted to a violation of its territorial integrity. Indonesia noted that West Papua had been administered by the Dutch as an integral part of the colony of the Dutch East Indies.¹⁴ Whatever differences might exist between the Malay Indonesians and the Melanesian West Papuans were not relevant, according to the Indonesians, because the essential factor which united all of the diverse groups within the former Dutch East Indies was that they had all equally suffered under Dutch colonialism.¹⁵ Moreover, because Indonesian nationalists had been imprisoned by the Dutch in West Papua during the struggle for independence, Indonesia argued that West Papua had become ‘a sacred site in the national imagining’.¹⁶

In 1950 the Netherlands proposed that the question of West Papua be dealt with either by the United Nations Commission on Indonesia or by the International Court of Justice. Indonesia, however, rejected this proposal out of hand.¹⁷ Indonesia sought instead to mobilise the General Assembly into supporting Indonesia’s claim on West Papua. Between 1954 and 1957 Indonesia put forward four draft Resolutions to the General Assembly, but in each case the Resolution was not adopted by the Assembly.¹⁸ Indonesia thereupon decided that it had to embark on a different course of action in order to obtain West Papua. Throughout Indonesia the securing of West Papua had become the primary focus of nationalist expression, extending ‘across the entire political spectrum’.¹⁹ Amongst Indonesians the dispute over West Papua was understood as simply the most recent episode in their on-going struggle against the Dutch imperialists. This struggle, as Smith and Ng point out, was ‘at the heart of Indonesian nationalism’ and was one of its most fundamental aspects.²⁰ In December 1957 the 50,000 Dutch nationals living in Indonesia were expelled from the country and their businesses were nationalised. Indonesia now began a campaign which involved threats of military force, as well as the infiltration of armed Indonesians into West Papua, in order to attain its end.²¹

4 The growth of West Papuan nationalism

Throughout the 1950s the Dutch began to prepare the population of West Papua for eventual independence. Schools were set up in the territory, in order to train Papuans as teachers, bureaucrats, paramedics, police and tradesmen. The Dutch made sure that this small but educated class of Papuans found employment within the colonial administration as well as in the wider community,²² and they cultivated the notion of greater autonomy amongst this local elite.²³ The rapid expansion of opportunities intensified pro-independence sentiments within the territory and several political parties were formed, all of which supported the eventual independence of West Papua, apart from one party which was exclusively Indonesian in composition.²⁴ However, the growth of this pro-independence sentiment amongst the educated class of West Papuans must be seen in light of the fact that approximately half of the population of West Papua at this time still lived in areas which were not even under Dutch administration.²⁵ Most West Papuans in these areas lived in very primitive conditions, and had no understanding whatsoever of such concepts as self-determination, autonomy and independence.²⁶

Nevertheless, the Dutch pushed ahead with plans to implement self-government in West Papua, preparatory to the eventual grant of independence to the territory. In 1959 the Dutch set up both a central representative body, known as the West New Guinea Council, as well as regional councils throughout the territory. The first election for the West New Guinea Council was held in February 1961. Sixteen councillors were elected in the developed areas from amongst ninety candidates, and an additional twelve councillors were appointed by the Dutch to represent those areas thought not to be politically ready for the electoral process.²⁷

In September 1961 the Netherlands submitted a Resolution to the General Assembly, in which it proposed to relinquish sovereignty over West Papua, which would then be administered by a United Nations Commission. The Commission would organise a plebiscite amongst the population in order to determine West Papua’s ultimate political status.²⁸ The proposed Resolution received a majority of votes in the General Assembly, but failed to achieve the two-thirds majority required for its adoption.²⁹ The West New Guinea Council, however, endorsed the proposed Resolution on 1 December 1961, and issued a statement calling on all states to respect the right of the West Papuans to self-determination.³⁰ The Council renamed the territory West Papua, and adopted a national anthem and a national flag, known as the ‘Morning Star’.³¹

Indonesia reacted forcefully to these moves by the Netherlands and the West New Guinea Council. On 19 December 1961 President Sukarno delivered a speech in which he declared that Indonesia would never permit the Dutch to set up a ‘puppet State’ in West Irian, and that it was the Indonesian flag which must inevitably fly over this territory. Sukarno called for a general mobilisation of the Indonesian people in order to ‘liberate’ West Irian, and proceeded to set up a military task force to integrate West Papua into Indonesia by force.³²

5 The New York Agreement

Since 1957 the Soviet Union had been supplying arms to Indonesia and giving it diplomatic support with regard to the ‘liberation’ of West Papua.³³ During this same period the Indonesian Communist Party had become the largest political party in the country. It garnered significant support among Indonesians by promoting a nationalist campaign for the integration of West Papua into Indonesia.³⁴

These developments caused considerable alarm in the United States. In the broad context of the Cold War the primary concern of the United States was to ensure that Indonesia did not become aligned to the Communist bloc. From the United States’ perspective, Indonesia’s claim on West Papua seemed to be a very minor issue and certainly not one which should jeopardise the Cold War balance of power.³⁵ The Americans therefore began to bring considerable pressure upon the Dutch to come to some sort of agreement with Indonesia concerning West Papua. Negotiations between the two sides began in March 1962, with the American diplomat, Ellsworth Bunker, appointed by the United Nations as mediator.

The negotiations between the Netherlands and Indonesia proved to be very difficult, and talks were broken off several times. The Dutch sought to ensure that the West Papuans were accorded an act of self-determination, whereas the Indonesians were only ‘prepared to give the Papuans the opportunity to confirm that they wanted to continue on as part of Indonesia’.³⁶ The United States proposed a plan whereby administration of the territory would be granted for an initial period to the United Nations, and then administration would pass to the Indonesians, with an act of self-determination for the Papuans taking place some years later. This proposal eventually became the basis for the New York Agreement, which was signed by the Netherlands and Indonesia on 15 August 1962. At no point in the proceedings did any Papuans take part.³⁷

By virtue of Article II of the Agreement the Netherlands was to transfer administration of West Papua to a United Nations Temporary Executive Authority (UNTEA). UNTEA would then administer the territory for a minimum period of seven months. At the end of the minimum period the head of UNTEA would then determine, pursuant to Article XII, when to transfer administration to Indonesia, and the territory would then be administered by Indonesia. Article XIV stated that once administration of West Papua had been transferred to Indonesia, Indonesian national laws and regulations would be applicable in the territory. However, Article XXII(1) specified that both UNTEA and Indonesia would ‘guarantee fully the rights, including the rights of free speech, freedom of movement and of assembly, of the inhabitants of the area’. The Article went on to state that these rights would ‘include the existing rights of the inhabitants of the territory at the time of the transfer of administration to the UNTEA’.

Article XX specified that the ‘act of self-determination’ was to be ‘completed before the end of 1969’.³⁸ Of particular note were Articles XVII and XVIII. Article XVII specified that the arrangements for ‘the Act of Free Choice’, as it was referred to, were the ‘responsibility of Indonesia’, but that the ‘Representative of the Secretary-General’ would ‘advise, assist and participate in the arrangements’ together with Indonesia. The Representative, by virtue of Article XVI, would be supported by a ‘number of United Nations experts’, who would ‘participate at the appropriate time in the arrangements for self-determination’, but whose functions would ‘be limited to advising on, and assisting in, preparations for carrying out the provisions for self-determination’. Indonesia was thus to have effective control in the organising and implementation of the ‘act of free choice’, and the role of the United Nations was to be limited to ‘advising‘ and ‘assisting’.

Article XVIII set out the parameters for the Act of Free Choice, as follows:

Thus, although Indonesia had control over the way in which the Act of Free Choice would be conducted, the parameters of such arrangements were circumscribed by the provisions set out in Article XVIII.

6 The Act of Free Choice

Although no maximum period had been set for the administration by UNTEA, the UN Authority transferred the administration of West Papua to Indonesia within the precise minimum period of time set out in the Agreement, on 1 May 1963.³⁹ The territory was thereafter administered by Indonesia. On 4 May 1963, the newly installed Indonesian administration banned all existing Papuan political parties, and prohibited unauthorised political activity. Protests by West Papuans against Indonesian rule were brutally suppressed, and the Indonesian military undertook a ‘sustained campaign of violence, conditioning and intimidation’ against the West Papuans.⁴⁰ This led to a number of mutinies amongst Papuan policemen, and an on-going series of armed rebellions in the various parts of the territory. In 1965 the Papuan resistance movement known as the OPM (Organisasi Papua Merdaka, or ‘Free Papua Movement’) was formed to fight the Indonesians.⁴¹ The Indonesian military responded with counter-insurgency operations, in which many thousands of West Papuans were killed.

When the UN team arrived in 1968 to assist in the arrangements for the act of self-determination they discovered that the Indonesians had already decided on the method to be used. There would not be a ‘one person, one vote’ process. Instead, the Indonesian practice of musyawarah would be used. Smith and Ng define musyawarah as a ‘process of consultation towards consensus to secure the people’s approval’.⁴² In the context of the self-determination of West Papua the Indonesians decided that musyawarah would involve a consultation process with the representatives of an enlarged version of the eight regional councils of West Papua. The existing members of the regional councils had been appointed by Indonesia and, as it turned out, the additional members were also handpicked by Indonesian officials. The membership of the eight enlarged councils amounted to 1,022 representatives. Only these representatives would be involved in the process of musyawarah, which, according to Indonesia, would then constitute the appropriate act of self-determination for West Papua. Indonesia justified the use of musyawarah on the basis that West Papua was ‘one of the most primitive and undeveloped communities in the world’ and that Western democratic procedures would therefore be totally inappropriate.⁴³ The eight regional councils voted successively in the Act of Free Choice throughout July 1969, and into the first week of August 1969. From early July the representatives of the councils had been isolated by Indonesian authorities, and there is very credible evidence that most, if not all, of them were either bribed, threatened or otherwise intimidated by the Indonesian military or other Indonesian officials.⁴⁴ When the votes of the representatives were tallied, not unsurprisingly all 1,022 had voted that West Papua be integrated into Indonesia.

The Act of Free Choice was clearly nothing of the kind, and certainly did not represent the view of the vast majority of Papuans, who had shown their resistance to becoming a part of Indonesia through repeated demonstrations and armed rebellions throughout the entire period of Indonesian administration. Numerous observers remarked on the fact that the Papuans manifestly did not want to be integrated into Indonesia. The UN team of experts, sent to ‘assist and advise’ the Indonesians, privately expressed the view that some 95 per cent of Papuans did not want to become a part of Indonesia, and instead wanted to become independent.⁴⁵ A confidential briefing paper written by a member of the British Foreign Office was even more blunt, noting that ‘the people of West Irian have no desire to be ruled by the Indonesians who are of an alien (Javanese) race, and that the process of consultation did not allow a genuinely free choice to be made’.⁴⁶

The matter was then brought to the General Assembly. Although there was some debate about the legitimacy of the Act of Free Choice, particularly from African states, the General Assembly adopted Resolution 2504(XXIV) on 19 November 1969.⁴⁷ The wording of this Resolution was cloyingly vague and anodyne, but the thrust of it was that the General Assembly granted its imprimatur to the Act of Free Choice.⁴⁸ Thus, with the blessing of the General Assembly, West Papua was incorporated into Indonesia.

7 Analysis

During the Paris Peace Conference of 1919, the principle of self-determination had been applied by its progenitor, President Woodrow Wilson, largely on an ethnic basis. This meant that the reconfiguration of European boundaries, in conformity with this understanding of the principle, occurred largely on the basis that the new states of Europe would reflect as much as possible the geographic distribution of particular ethnic groups. Ideally, each new State would comprise a single ethnic group.

However, as has been seen above, a new understanding of self-determination arose subsequent to World War II, one which equated self-determination with decolonisation.⁴⁹ This new understanding of self-determination did not sit well with the older understanding. Many colonies had been arbitrarily established with no consideration of the various ethnic groups within a particular colony. In such situations the question for the General Assembly was how appropriately to effect the decolonisation of a non-self-governing territory in a way which would accommodate the political needs and desires of that colony’s diverse and often mutually hostile ethnic groups. In the 1950s the practice of the General Assembly was occasionally to permit the division of a non-self-governing territory into a number of states when it was apparent that the ethnic groups comprising that non-self-governing territory would not be able to co-exist in a single independent State.⁵⁰ This was precisely the situation pertaining in the Dutch East Indies, where the population of West Papua could not have been more different from the Malay population of the rest of the colony, and where the vast majority of Papuans repeatedly made it clear that they did not want to be a part of an independent Indonesia. That such a radically different group as the West Papuans should be entitled to determine their own political destiny was recognised not only as a legitimate but as a ‘paramount’ right by no less than the legal counsel of the United Nations, Constantin Stavropoulos, who in 1962 wrote as follows:

Indonesia, however, countered the argument that the West Papuans were entitled to a separate right of self-determination by pointing to paragraph 6 of Resolution 1514(XV), which required that a non-self-governing territory retain its territorial integrity upon decolonisation.⁵² The necessary concomitant of paragraph 6 was that the population of West New Guinea could not be entitled to self-determination, because the ‘people’ who are so entitled under Resolution 1514(XV) must comprise the entire population of the non-self-governing territory.

This argument, however, cannot apply in the context of the relationship of Indonesia to West New Guinea. This is so for two reasons. First, when the General Assembly in 1960 listed West Papua specifically as a separate non-self-governing territory, this necessarily meant that it was then the population of West Papua who constituted the ‘people’ who were entitled to the right of self-determination by virtue of paragraphs 2 and 5 of Resolution 1514(XV), and whose territory, the territory of West Papua, was protected from dismemberment by virtue of paragraph 6.⁵³ Secondly, once West Papua had been recognised by the General Assembly as a separate non-self-governing territory, Indonesia could not then rely on Paragraph 6 as the basis for its claim to West Papua, because the provisions of the Resolution were now applicable to West Papua rather than to Indonesia.

By signing the New York Agreement, Indonesia itself explicitly acknowledged, particularly in Articles X and XVIII(d),⁵⁴ that the population of West Papua was entitled to an act of self-determination. This meant that the population of West Papua did indeed constitute a ‘people’, since only ‘peoples’ are entitled to self-determination at international law.⁵⁵ It also meant that Indonesia was barred from relying on paragraph 6 to claim the territory of West Papua.

Resolution 1514(XV) addresses those cases of decolonisation in which the act of self-determination results in the independence of the non-self-governing territory. However, with West Papua it was questionable whether this was actually the issue to be decided. The wording of Article XVIII(c) of the New York Agreement frames the issue in terms of the Papuans having to decide whether or not to separate themselves from Indonesia and become an independent State in their own right.⁵⁶ In this scenario, the provisions of Resolution 1514(XV) only would apply. But the wording of Article XVIII(c) does not reflect the true nature of the dispute between the Netherlands and Indonesia or the context in which that dispute was to be resolved, in several respects. Whereas Article XVIII(c) referred to the ‘inhabitants’ of West Papua, the population of West Papua was actually a ‘people’, as indicated above. Moreover, as the General Assembly had listed West Papua as a separate non-self-governing territory in 1960, the wording of Article XVIII(c), in framing the issue in terms of whether the Papuans desired ‘to remain with Indonesia’, was at variance with reality, because at this point West Papua was not a part of Indonesia. The real issue to be decided by the people of West Papua was not whether they wished to ‘remain’ with Indonesia, but rather whether they wished to become integrated into Indonesia.

The provisions of Resolution 1514(XV) govern those cases of self-determination in which the independence of the non-self-governing territory is the end result. But in those exceptional cases in which integration of a non-self-governing territory into another State is in issue, it is the provisions of Resolution 1541(XV) which apply. The integration of West Papua into Indonesia should therefore have conformed to the conditions set out in Resolution 1541(XV) in order to constitute a legitimate act of self-determination. The reference to ‘international practice’ in Article XVIII(d) of the New York Agreement underscores this requirement. But the conditions set out in Resolution 1541(XV) were egregiously violated by Indonesia.⁵⁷

Under the conditions set out in Principles VIII and IX of Resolution 1541(XV) an act of self-determination involving the integration of West Papua into Indonesia should not have taken place, as it was premature, given the level of political and social development of the people of West Papua. Principle VIII required integration to occur only ‘on the basis of complete equality’, and Principle IX(a) required that the integrating territory have ‘attained an advanced stage of self-government with free political institutions’, so that its people ‘have the capacity to make informed and democratic processes’.⁵⁸ When the Act of Free Choice took place in 1969 the people of West Papua clearly had not yet attained the level of political and social development envisaged in Resolution 1541(XV). Indonesia itself acknowledged as much when it argued that musyawarah was the appropriate voting procedure for the ‘primitive Papuans’.⁵⁹

Although paragraph 3 of Resolution 1514(XV) declares that the ‘inadequacy of political, economic, social, or educational preparedness’ cannot be invoked to delay the process of decolonisation, Indonesia cannot rely on this provision, because paragraph 3 declares that the enumerated forms of unpreparedness ‘should never serve as a pretext for delaying independence’. In other words, paragraph 3 applies only in the context of an act of self-determination resulting in independence. But when the act of self-determination involves the integration of a non-self-governing territory into another State, as was the case with West Papua, it is Resolution 1541(XV) which applies: inclusio unius, exclusio alterius. When integration is in issue, the provisions of Resolution 1541(XV) derogate from paragraph 3 of Resolution 1514(XV), and very stringent conditions with regard to the preparedness of the people must be complied with.

However, even if the people of West Papua could be said to have reached a stage of preparedness which would have enabled them to engage in an act of self-determination involving the question of integration, Indonesia itself, during the period of its administration of West Papua, fundamentally violated the requirements set out in Resolution 1541(XV), in ways which ensured that the act of self-determination could not comply with those requirements. Principle IX(a) required that an act of self-determination involving integration occur only after the integrating territory had attained ‘an advanced stage of self-government with free political institutions’. Principle IX(b) required the act of self-determination to occur ‘through informed and democratic processes’ and to be ‘based on universal suffrage’. Upon assuming control of West Papua, the Indonesian administration banned all political parties, appointed the members of the regional councils, and suppressed free speech and demonstrations. For its part the Indonesian military brutally oppressed the local population and resorted to violence whenever it encountered Papuan opposition to Indonesian domination. These acts were all flagrant breaches of Article XXII of the New York Agreement.⁶⁰ There was thus nothing remotely resembling real self-government in West Papua during this time, nor were there in place ‘free political institutions’ and ‘informed and democratic processes’. The process of musyawarah was a blatant violation of the requirement set out in Principle IX for ‘universal adult suffrage’.

The use of musyawarah was, however, not simply a violation of the requirement of universal adult suffrage set out in Principle IX, but was also a violation of the terms of the New York Agreement itself. Indonesia argued that neither the word ‘referendum’ nor that of ‘plebiscite’ had been used in the New York Agreement, whereas the word musyawarah had been explicitly used in Article XVIII(a). Indonesia also stressed that Article XVIII(a) granted it, in consultation with the representative councils, the right ‘to determine the procedures and appropriate methods to be followed for ascertaining the freely expressed will of the population’. In the light of these provisions and given the political and social level of the West Papuans, musyawarah, in Indonesia’s opinion, was the most appropriate method of determining the will of the population.

Although the term musyawarah was used in Article XVIII(a), the Article as a whole makes it clear that the musyawarah form of proceeding was to be limited to the initial consultation process between the Indonesian authorities and the regional councils in determining the appropriate method of proceeding.⁶¹ Moreover, although Indonesia was granted the right to determine the appropriate method of proceeding, the method chosen had to be one which enabled the entire population of West Papua to participate. The wording of Article XVIII allows for no other interpretation. The introductory clause of Article XVIII specifies that Indonesia was to make arrangements ‘to give the people of the territory the opportunity to exercise freedom of choice’. Subsection XVIII(a) contains the phrase ‘for ascertaining the freely expressed will of the population’. Subsection XVIII(d) refers to the ‘eligibility of all adults, male and female, not foreign nationals, to participate in the act of self-determination to be carried out in accordance with international practice’. These phrases indicate unequivocally that, whatever the form of proceeding Indonesia might adopt to determine the will of the people of West Papua, it had to be one which allowed for universal suffrage by the population of West Papua. The reference to ‘international practice’ in Article XVIII(d) is particularly significant. International practice with regard to the integration of a non-self-governing territory, as has already been seen, specifically requires universal suffrage. Moreover, should the issue fall solely within the parameters of Resolution 1514(XV) rather than those of 1541(XV), ‘international practice’, as Robinson points out, also connotes universal suffrage.⁶² Therefore not only did Indonesia not comply with the requirements set out in Resolutions 1514(XV) and 1541(XV), but in addition it failed to fulfil the clear and unambiguous requirements of the New York Agreement.

Indonesia failed even to conduct a valid act of musyawarah, because the Papuan representatives chosen to participate in the act were isolated, coerced and bribed by the Indonesian authorities to ensure that they voted for integration. It is self-evident that in such circumstances the Papuan representatives were unable to give a valid consent to the integration of West Papua. It is an elementary principle of law that there cannot be a valid consent when that consent has been obtained through coercion or corruption.⁶³

In his report to the General Assembly, the head of the UN Mission to West Papua failed to make mention of the coercion and corruption by which Indonesia manipulated the votes of the musyawarah representatives. The report did acknowledge, albeit in vague language, that Indonesia had complied with neither the requirements of Resolution 1541(XV), nor with the terms of the New York Agreement, by noting that the Indonesian administration had ‘exercised at all times a tight political control over the population’ and that ‘an act of free choice’ had taken place in West Irian ‘in accordance with Indonesian practice’ by the ‘representatives of the population’.⁶⁴ Yet in adopting Resolution 2504(XXIX) the General Assembly ‘chose to do nothing about the terrible abuses of the consultation process’.⁶⁵

8 Conclusion

There is no doubt whatsoever that the process of self-determination in West Papua was nothing more than a sham and amounted to a gross travesty. From whatever angle the situation is considered, be it the requirements of Resolutions 1514(XV) and 1541(XV), or the terms of the New York Agreement, or basic principles of general international law, Indonesia not only failed to fulfil its international obligations but in fact consistently acted in a manner which traduced those obligations. As a result, the people of West Papua were never given any real opportunity to exercise their right of self-determination and West Papua was incorporated into Indonesia without the true consent of its people.

In November 1969, after the General Assembly had confirmed the Act of Free Choice, and West Papua was incorporated into Indonesia, President Suharto declared that Indonesia had no further territorial ambitions. A mere six years later, however, Indonesia invaded the Portuguese colony of East Timor and incorporated this non-self-governing territory into the country. This also occurred without the people of East Timor having any opportunity to exercise their right of self-determination. But in 1995, the International Court of Justice addressed the issue of self-determination for the people of East Timor, in the East Timor case (Portugal v. Australia).⁶⁶ Although the Court decided that it did not have jurisdiction to hear the case, the Court nevertheless noted that the right of self-determination was a right erga omnes, and that the people of East Timor continued to possess this right.⁶⁷ In other words, they possessed it against Indonesia. On 27 January 1999 Indonesia announced that it would permit a referendum to be held in East Timor and on 30 August 1999 the people of East Timor voted in favour of independence, by a margin of 78.5 per cent.⁶⁸

Like the people of East Timor until 1999, the people of West Papua have not been able to exercise a genuine act of self-determination, and like the people of East Timor, their territory was incorporated into Indonesia without their consent. And therefore like the people of East Timor, the people of West Papua are still entitled to exercise a right of self-determination, which right is exercisable erga omnes. In other words, the people of West Papua possess a right to self-determination which neither Indonesia nor the General Assembly can gainsay.

East Timor seemed irrevocably integrated into Indonesia in 1975. But twenty-four years later, the East Timorese exercised their right of self-determination, and when they did so, it was to separate themselves from Indonesia and to create their own independent State. The West Papuans have now been waiting to exercise a genuine right of self-determination for forty-six years. When they finally get the opportunity to do so, they may very well take the example of East Timor to heart in determining their chosen future.

1 Introduction

In 1990 James Crawford wrote ‘The Creation of the State of Palestine: Too Much Too Soon?’, rejecting the claim that in Resolution 43/177 the UN General Assembly (UNGA) recognised the existence of a State of Palestine.¹ Surprisingly, perhaps, in 2012 a similar question arose, whether UNGA Resolution 67/19, in the operative part of which the General Assembly decided ‘to accord to Palestine non-member observer State status in the United Nations’,² recognised the existence of the State of Palestine. And no less than in 1990, ‘[i]t seems difficult for international lawyers to write in an impartial and balanced way about the Palestine issue’.³ Scholars who support the Palestinian cause at times converge the ‘ought’ with the ‘is’, citing the resolution as confirmation of their position that a State of Palestine already exists, without delving into the resolution’s content;⁴ while those less convinced that such a State already existed prior to the resolution, are correspondingly more reserved about the legal consequences of the resolution.⁵ The differences of view concern practically every element involved, including an assessment of the effectiveness criteria, of the effect of recognition and of whether Resolution 67/19 constituted an act of recognition. Partisanship is not unavoidable; it is nonetheless useful to articulate one’s point of departure in order to establish a common ground with the reader. Those who contest it, while unlikely to convert, might nonetheless find interest in the intellectual journey proffered in the following lines.

This chapter adopts the view that the declaratory approach is preferable to the constitutive one. While the comparison between the two, and the drawbacks of the latter, have been discussed primarily with regard to situations where recognition has been denied (at least in part) despite effective functioning, this chapter concerns the converse situation, where recognition is extended in the absence of effectiveness. Acknowledgement of statehood in this situation, too, is problematic, since it accords rights and obligations to an entity which is not fully able to act upon them. With respect to Palestine, this chapter shares in the view that irrespective of the desirability of the establishment of a Palestinian State, such a State probably did not exist prior to the adoption of UNGA Resolution 67/19 because it lacked sufficient independence and consequently effectiveness, and that treating a Palestinian entity as a State for the purposes of international law, be it represented by the PA or the PLO, required engaging in legal fiction, which is undesirable as a matter of legal policy, and not necessarily conducive to rendering statehood a political reality. Nonetheless, whatever the drawbacks of the constitutive approach on the doctrinal, prescriptive level, practice suggests that a critical amount of recognitions combined with some objective features of effectiveness may render statehood close to objective. In other words, that collective recognition is actually constitutive may be the more accurate description of a political reality.⁶

The history of Palestinian participation in the work of the UN leading to UNGA Resolution 67/19 has been canvassed elsewhere, including the request for admission of Palestine as a member to the UN, which is formally still pending before the Security Council, and Palestine’s admission as member of UNESCO.⁷ This chapter focuses on UNGA Resolution 67/19 itself. First, it examines whether the General Assembly can generate an objective statehood through collective recognition. It then examines whether UNGA Resolution 67/19 actually recognises the existence of – or creates – a State of Palestine. If the answer is negative, this does not mean that the Resolution has no consequences; those are considered in the final section. The article does not purport to settle the question of whether the entity under Palestinian Authority governance presently fulfils the effectiveness criteria, since the situation on the ground has not changed as a result of the adoption of the resolution.

2 Can a General Assembly resolution on recognition create objective statehood?

The drafters of the Charter did not intend for the General Assembly resolutions to have, in themselves,⁸ binding authority other than in its relations with other organs of the UN.⁹ However, while General Assembly resolutions do not directly create obligations for States, in practice they may have legal effect and operative consequences.¹⁰ It is in this category that a General Assembly resolution on recognition may fall, in that it purports to establish a new state of legal relations, or at least declare a fact that carries legal consequences.

A General Assembly resolution on admission is generally perceived as confirming ‘objective’ statehood of the new member, triggering the applicability not only of the UN Charter but also of customary international law between the new member and all other States, regardless of the stance they had taken towards the admission and of their bilateral relations with that State. While the jurisprudential basis for this law is neither agreed upon nor beyond controversy, it is reflected in practice.¹¹

A separate question is whether a UN General Assembly resolution recognising the statehood of an entity but stopping short of admitting the latter as a member of the Organisation can also create an objective status. Dugard suggests that the answer is positive, since admission is, ultimately, a matter of procedure¹² that is unrelated to the merits of the case, and therefore non-admission does not necessarily indicate failure to fulfil the criteria for statehood. As an example he cites the 1948 General Assembly resolution declaring that ‘there has been established a lawful government (the Government of the Republic of Korea) having effective control and jurisdiction over that part of Korea…in which the great majority of the people of all Korea reside’,¹³ which was regarded as recognition of the fulfilment of the criteria of statehood with respect to Korea for all purposes.¹⁴ However, it is submitted that the various possible jurisprudential grounds for regarding a resolution on admission to the UN as evidence of, or confirming, objective statehood, do not apply in the same manner to a resolution on recognition that does not encompass UN membership.

For example, if admission resolutions are universally binding because under UN Charter Article 4(1) States have delegated their competence to recognise new States to the organisation, as advocated by Kelsen,¹⁵ then resolutions outside Article 4(1) do not necessarily have the same universal effect. States may have subjected themselves to majority vote in order to facilitate effective functioning of the organisation, which would be hampered if member status was non-uniformly applicable; but they cannot be deemed to have made the same concession to majority vote with respect to all other matters. Similarly, if the universally binding character of the resolution derives from co-membership in the organisation, as proposed by Briggs,¹⁶ then a resolution that does not lead to co-membership does not have the same binding effect.

A different strand of views is that admission to the UN provides compelling¹⁷ or prima facie¹⁸ evidence of a determination by States individually, or by the international community as a whole,¹⁹ that an entity fulfils the criteria for statehood. These views differ from the previous ones in that they perceive UN admission resolutions as establishing only a factual presumption of objective statehood, rather than normative status. In other words, while recognition according to the previous views is constitutive, the present strand perceives recognition as declaratory. Whether the presumption of objective statehood is equally compelling when the resolution concerns recognition short of admission to the UN can be debated. Since a vote on recognition does not trigger the applicability of the UN Charter, it is reasonable to argue that the weight of a vote in favour of recognition as indicating an assessment on the fulfilment of the effectiveness criteria is not the same as that of a vote in favour of admission.

Finally, the weight of practice in developing the law differs with regard to recognition through admission and to direct resolutions on recognition. The conclusiveness of recognition through admission is largely a matter of practice,²⁰ based on numerous instances where admission to the UN preceded bilateral recognition, including some in which entities were admitted despite strong controversy as to their compliance with the effectiveness requisites.²¹ In contrast, collective recognition short of admission occurred in the single resolution regarding the Republic of Korea. Practice can therefore hardly be said to have led to the crystallisation of new law on collective recognition that is unaccompanied by admission to the UN.²²

In conclusion, no immediate extrapolation can be made from the law regarding collective recognition through admission to the UN, to collective recognition that is not linked to admission. There is (at least as yet) no rule that majority recognition outside the framework of admission to the UN is binding on third States.²³ To the extent that Resolution 67/19 constitutes recognition of statehood, it might of course add to the development of such law. This leads, naturally, to the question of whether the resolution purports to recognise or establish a Palestinian State.

3 Does General Assembly Resolution 67/19 constitute collective recognition of a State of Palestine?

While admission to the UN is generally perceived as implying recognition of statehood since only States may become members of the organisation,²⁴ the grant of observer status (to a State or any other actor) is not regulated by the Charter, and since it does not entail any pre-set organisational substantive rights or obligations, it cannot be regarded as an implicit confirmation of legal status.²⁵ However, this does not preclude the possibility that the content of the resolution constitutes recognition of statehood, whether express or implicit – irrespective of the organisational status that it confers.

That Resolution 67/19 does not expressly recognise the existence of a State is obvious. This is no bar since recognition may be implicit; but it must be unequivocal.²⁶ It is therefore necessary to ascertain whether the references in the resolution to the ‘State of Palestine’ are an acknowledgement of existing statehood (in which case the resolution may generate legal consequences if it is regarded as universally binding) or merely an exhortation for future development. There are no established rules on interpretation of General Assembly resolutions. Nor is there much practice or scholarship on the matter. The lack of interest in interpreting General Assembly resolutions is not surprising since they are not, in themselves, binding sources under international law. Guidance on interpretation of international instruments other than treaties is generally sparse, and, with the exception of the ILC’s Guiding Principles applicable to unilateral declarations of States capable of creating legal obligations,²⁷ is almost entirely limited to interpretation of Security Council resolutions adopted under Chapter VII.

It has repeatedly been proposed that the point of departure for interpretation of international instruments other than treaties should be by analogy from the Vienna Convention on the Law of Treaties (VCLT),²⁸ namely an exercise to give effect to the drafters’ intention as expressed by the use of the words in light of surrounding circumstances,²⁹ taking into account the particular character of the instrument in question.³⁰ For example, the a priori non-binding nature of General Assembly resolutions might require that endowing them with a binding quality be subject to the rigorous demand relating to a unilateral declaration, which ‘entails obligations for the formulating State only if it is stated in clear and specific terms’.³¹ In addition, interpretation of General Assembly resolutions might resemble that of Security Council resolutions, given the essentially political character of both types of resolutions. Nonetheless, there are pertinent differences: the interpretation of Security Council resolutions, for example, involves limited reliance on preambular language for interpreting operative parts, since preambles tend to be used as dumping grounds for proposals that are not acceptable in the operative paragraphs.³² In contrast, with respect to General Assembly resolutions which are prima facie non-binding, the absence of normative gap between preambular and operative paragraphs invites a greater interpretative role for preambular paragraphs.

The present analysis proceeds on the basis of these guidelines. It begins with an interpretation of the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose, taking into account surrounding circumstances. Where the outcome is inconclusive, the circumstances of adoption and preparatory work may be of particular significance,³³ namely statements in anticipation of and following the vote.

4 The consequences of Resolution 67/19

The conclusion that General Assembly Resolution 67/19 does not establish Palestinian statehood does not mean that it is entirely without consequence. First and foremost it has a procedural consequence within the UN. The effect of the vote was well captured by Cuba (in favour), which laconically congratulated ‘the Palestinian people and authorities on their victory in this Hall today on obtaining the new status of a non-member observer State’.⁶⁶

If the only outcome of the resolution is the upgrade in status, the victory is a hollow one. There are various differences between observer States and other observers, but Palestine (the PLO) already enjoyed most of the preferential benefits of observer States, such as participation in Security Council debates, placement on the list of speakers, and the right to have documents circulated.⁶⁷ A benefit that has now been added is the right of an observer to change its designation upon informing the Secretariat and without requiring prior approval by the General Assembly,⁶⁸ but clearly it was not for this that the Palestinian campaign had been launched. Moreover, the reactions to the adoption of General Assembly Resolution 67/19 indicate that both its proponents and its opponents assume that its impact goes beyond cosmetic changes within UN procedures, even if the Resolution does not put the existence of a State of Palestine beyond dispute.

Arguably, the minutiae of the resolution’s wording and States’ linguistic and diplomatic acrobatics are all of limited significance, if – correctly or otherwise – States perceive the resolution as having recognised or established a State of Palestine. In this vein, Akande suggests that if the resolution ‘is capable of effecting the legal changes hoped for (by proponents) or feared (by those who oppose the decision), this will provide strong support to the view that collective recognition is capable of creating Statehood’.⁶⁹ Prima facie, this proposition turns the matter on its head: consequences should follow from the resolution rather than the resolution being interpreted on the basis of subsequent events. Thus, if the resolution does not (in itself) effect any legal change, it can only give political support for subsequent measures. Accordingly, any decision by States or international organisations such as to recognise Palestine on a bilateral level, to admit it into an organisation reserved to states, or to hold it responsible under customary international law applicable only to states, can rely on UNGA Resolution 67/19 no more than it can rely, for example, on UNGA Resolution 43/177.⁷⁰ Whether the accumulated effect of such legal changes would eventually amount to the emergence of a State if such was not previously recognised is a separate question, which will not be discussed here. However, doctrine does recognise the proposition that subsequent practice in the application of the treaty establishes the agreement of the parties regarding its interpretation.⁷¹ It may well apply also to General Assembly resolutions.

The distinction between the resolution’s political and (absence of) legal effect cannot be completed without making reference to a particular type of reliance on General Assembly resolutions, the UN Secretary-General’s practice as depositary of multilateral treaties. This is particularly pertinent in the present instance, since the 2012 campaign for UN recognition was carried out very much in the shadow of the debate on the capacity of the Palestinians to consent to ICC jurisdiction,⁷² either by accession to the ICC Statute or by consenting to jurisdiction under Article 12(3).

The Statute of the International Criminal Court (ICC) allows accession by ‘all states’.⁷³ Whether the Palestine is a ‘state’ is a matter to be decided, in the first instance, by the despositary, namely the UN Secretary-General. It is the UN Secretary-General’s practice as the depositary of multilateral treaties which refer to accession by ‘all states’ to follow General Assembly practice in determining whether an entity wishing to deposit an instrument of accession should be regarded as a State.⁷⁴ This is intended to relieve the Secretary-General of having ‘to determine, on his own initiative, the highly political and controversial question of whether or not the areas whose status was unclear were States’.⁷⁵ To date, the Secretary-General has relied, in accepting instruments of accession in cases of doubt, on unequivocal indications from the Assembly that it considered particular entities to be States,⁷⁶ as well as on resolutions which noted ‘the accession to independence’ of various countries.⁷⁷ As demonstrated above, Resolution 67/19 is neither an unequivocal statement that Palestine is a State, nor even an implicit one. As for independence, the resolution indicates that this is a goal yet to be achieved.⁷⁸ Thus, notwithstanding numerous claims that following the adoption of UNGA Resolution 67/19 Palestine can now accede to the ICC Statute,⁷⁹ it is doubtful whether the Resolution delivers the goods so vehemently sought. Moreover, the resolution may actually block other routes previously adopted by the Secretary-General. For example, in the past the Secretary-General has relied on a decision on statehood by the World Health Assembly. The reliance on a special agencies’ resolutions was justified by the Secretary-General where their ‘membership was fully representative of the international community’. However, such reliance is appropriate only if ‘[t]he guidance the Secretary-General might have obtained from the General Assembly, had he requested it, would evidently have been substantially identical’ to the decision of the special agency.⁸⁰ In the case of Palestine, there is a resolution admitting Palestine into membership in UNESCO.⁸¹If the Palestinians had attempted to accede to the ICC Statute prior to the adoption of UNGA Resolution 67/19, the Secretary-General might have been able to rely on the UNESCO resolution. But once UNGA Resolution 67/19 has been adopted, it is clear that the General Assembly’s guidance (or lack thereof) is substantially different form that of UNESCO. The Secretary-General’s ability to rely on the latter now is at least questionable.⁸²

Taking the matter a step further, it should be noted that admission to international legal institutions such as treaty relations, even when those are reserved only to States, does not necessarily imply a general recognition of statehood. In addition to the doctrinal difficulties in deducing statehood from procedural processes⁸³ based on diverse political agendas,⁸⁴international practice evinces a distinction between treaty membership and statehood. For example, when in the 1980s the UN Council for Namibia joined several international treaties on behalf of Namibia, Namibia continued to be regarded as not yet being a State. One might hazard to suggest that even within UNESCO, Palestinian statehood is not beyond debate; this is hinted in the Executive Committee’s Resolution in the lead-up to admission which noted that ‘the status of Palestine is the subject of ongoing deliberations at the United Nations’; and by the fact that membership was accorded to ‘Palestine’ rather than to the ‘State of Palestine’.⁸⁵

A separate but equally political issue would arise if the ICC Prosecutor decides to revisit the question of accepting a declaration by Palestine under Article 12(3) on the basis of General Assembly Resolution 67/19. This provision engages the ICC Prosecutor’s authority to determine whether Palestine is a State or not. It is not clear that the test for jurisdiction is the same as that applied by the Secretary-General with respect to accession to treaties. The ICC Prosecutor’s decision of April 2012 suggested that a General Assembly resolution might seal the matter also for the purpose of jurisdiction under ICC Article 12(3). In explaining why he could not regard Palestine as a State, the Prosecutor noted, inter alia, that despite wide bilateral recognition, ‘the current status granted to Palestine by the United Nations General Assembly is that of “observer”, not as a “Non-member State”’.⁸⁶ By implication, the new status is a game-changer. The position of the new ICC Prosecutor, however, may be different. Reportedly, she regards Resolution 67/19 as paving the way for Palestinian accession to the ICC Statute,⁸⁷ but not necessarily for acceptance of its declaration under Article 12(3).⁸⁸ Treaty accession is, ultimately, an institutional procedure. Jurisdiction of the ICC requires a direct determination of statehood as an objective legal status.

5 Conclusion

The legal significance of Resolution 67/19 might not be as great as would appear at first sight. For those who regarded Palestine as a State prior to the adoption of the resolution, the latter merely removes procedural obstacles.⁸⁹ For those who considered that Palestine lacked certain requisites for statehood, Resolution 67/19 does not necessarily fill the gap. It might give political courage to leading international players, such as the UN Secretary-General. But notwithstanding its political significance, it is submitted that the Resolution should not be viewed as effecting any legal change.

Supporters of the Palestinian cause strove for an all-round recognition of statehood. Realising that they could not achieve that directly, they settled for a formulation which would be acceptable to all. However, the ambiguity which allowed the adoption of the resolution is critical, since being all things to all men (and women), it does not feature the definitive statement that is necessary for statehood to be confirmed. As noted by Crawford, ‘[f]or a Palestinian State to be properly described as “nasciturus”, what is needed is statesmanship on all sides, and respect for the rights of the peoples and states of the region. The manipulation of legal categories is unlikely to advance matters.’⁹⁰ More than twenty years down the road, these words have lost none of their poignancy.

A The colonial uti possidetis principle

Calls to extend and apply the uti possidetis principle in maritime situations are based upon its purported success in the past in resolving conflicts over land boundaries, especially in colonial Latin America and Africa. Before joining the debate on the merits of a maritime uti possidetis, I feel it is essential to summarise my previous findings with regard to the actual impact of the principle in the colonial context.

As a result of my in-depth study of nineteenth-century Latin American State practice and breaking with the general doctrinal trend, I argued in my thesis that the uti possidetis principle had played neither a significant nor a particularly successful role in settling boundary issues between the new Iberian republics. References to colonial territorial units in early instruments represented the application of established rules on State succession and did not address the question of the precise location of the new international boundaries. Only once their independence had been consolidated, and international recognition had been extended, did the new States turn to the question of the precise delimitation of their mutual frontiers. And even in this limited role, uti possidetis had precious little impact because of theoretical and practical problems.

One of the most problematic aspects of the Latin American uti possidetis principle was the conflicting meanings it came to possess, particularly the Brazilian uti possidetis de facto formula and the Spanish American version, uti possidetis juris. According to Brazil’s interpretation, the uti possidetis principle referred to actual and effective possession. Territorial limits were to be determined on the basis of what each State actually possessed at the time of independence. However, as interpreted by the Spanish American republics, uti possidetis constituted a rule of constructive possession. The territorial extent of each State was to be founded on royal titles and official Spanish colonial instruments granting a right of jurisdiction, a type of fictitious possession at the theoretical date of independence. In addition to these two dominant interpretations of the principle, State practice during the period of decolonisation also revealed a number of other alternative interpretations of the principle: for example, uti possidetis before independence;²⁰uti possidetis of 1826;²¹uti possidetis of 1874;²²uti possidetis juris of 1880.²³

It must be emphasised that the commitment to respect the colonial heritage found in all of the different Latin American versions of the uti possidetis principle concerned lines dividing units that the struggle for independence had already placed under the control of the new international actors. Indeed, the uti possidetis principle was never allowed to displace boundary lines established as a result of revolutionary activity, force of arms or unequal bargaining power.

In addition to competing interpretations of the principle, inconsistent State practice also prevented uti possidetis from having much of an impact in Latin America. Though the Spanish American Republics professed adherence to the uti possidetis juris principle, there is clear evidence that the Latin American Republics were inconsistent in their reliance on any given interpretation of the principle, choosing the particular version which, in a given dispute, most favoured their claim.²⁴

A number of practical difficulties also severely curtailed the effectiveness of the uti possidetis principle in the colonial Latin American context. Many regions in Spanish America were unexplored and other parts were only vaguely known. Consequently, jurisdictional limits between the administrative units were often imprecise and, in certain areas, had not been fixed at all. Furthermore, in some of the more remote regions, the territory had in fact never been allocated to any particular unit. Thus, even in those fairly rare cases where the parties were able to agree on a precise and common definition of the principle and then to submit their dispute to international adjudication, decision-making bodies were in most instances unable to apply the principle because of insufficient information; the decisions were ultimately based on post-independence effectivités or equitable considerations or by reference to natural geographical features.²⁵

Therefore, despite many cavalier references to the ‘Latin American’ principle of uti possidetis, I argued that it was difficult to maintain that the nineteenth-century Latin American Republics had bequeathed to international law a clearly defined and consistently applied principle that could then serve as a precedent in other boundary disputes or that could elevate uti possidetis to the status of a general principle of international law.

In the period of independence, African leaders debated the principles of regional organisation, and in 1963 the Organisation of African Unity (OAU) was created. The outcome of the debate was the adoption of a general programme of African unity, but in practical terms this was to be based upon a unity of action between independent States. Article 3(3) of the OAU Charter affirmed every member’s adherence to ‘respect for the sovereignty and territorial integrity of each State and for its inalienable right to independent existence’.²⁶ As an important aspect of the policy-making of this period, the members of the OAU, meeting in Cairo the following year, adopted a Resolution in which the Assembly of Heads of State and Government reaffirmed ‘the strict respect by all member States of the organisation for the principles laid down in Article III, paragraph 3 of the Charter’ and declared ‘that all member States pledge themselves to respect the frontiers existing on their achievement of national independence’.²⁷

As noted, many commentators have argued that this respect for boundaries inherited from the colonial past is simply the application in the African context of the Latin American principle of uti possidetis. Indeed, the Charter and the Resolution of the OAU are considered strong evidence that the uti possidetis had a major impact in the decolonisation of the African continent. One such commentator is Quéneudec: ‘It was therefore possible to consider, from that time, that the Heads of State and of Government meeting in Addis Ababa in 1963 had defended “the principle of an African uti possidetis”.’²⁸

The Chamber of the International Court of Justice tasked with determining a sector of the Burkina Faso–Mali land frontier also shared this vision, declaring in its 1986 judgment that elements of uti possidetis were latent in many declarations made by African leaders ‘in the dawn of independence’.²⁹ The Chamber emphasised at the outset that the uti possidetis principle was not a special rule pertaining solely to one specific system of international law:

However, unlike the process in nineteenth-century Latin America, independence in Africa was a goal promoted by the UN Charter under Chapter XI and a right conferred by Chapter XII upon those territories within the international trusteeship system. This obligation to promote and support the self-government of the African colonies was subsequently confirmed by the Colonial Declaration.³¹ An international legal framework was therefore in place to oversee the accession to independence of the African colonies. The right of self-determination, which was territorially defined and was thus granted to each colonial people as a whole, together with the principle of territorial integrity, which then protected the new State from internal and external claims, largely accounted for the maintenance of colonial boundary lines into the period of independence. In addition, as independence was conferred through acts of devolution, the nemo dat principle – that a sovereign entity can only relinquish as much territory as it actually possesses – would also have contributed to maintaining the policy of the territorial status quo in Africa.

In fact, no actual reference to the uti possidetis principle can be found in any of the official African instruments or pronouncements of the decolonisation period. Early calls to revise the arbitrary colonial lines³² cast considerable doubt on the existence of a binding rule of international law mandating the automatic transformation of administrative lines into international boundaries. And even once African leaders had agreed that the risks inherent in redrawing the map of Africa were too great, the solution adopted, which international law already provided, was to accept the boundary lines existing at the date of independence. However, this pledge to respect existing borders concerned the de facto colonial lines on the ground and did not entail referring back to legal instruments of the former colonial power to determine the legitimacy of those lines. Therefore, if African State practice was evidence of a commitment to the uti possidetis principle, it did not support the dominant uti possidetis juris version favoured by the Spanish American Republics. Howsoever described, the African status quo policy was never intended to create new legal obligations and simply reflected the rights and duties of States as defined according to well-established rules of international law.

A final disturbing aspect concerned claims that uti possidetis guaranteed the sanctity of African borders established by treaty between two distinct metropolitan powers.³³ This interpretation appeared to signal a misplaced belief that uti possidetis had become the incarnation of every principle and rule of international law bearing on the question of territory, for such boundaries were already protected by long-established and undisputed rules concerning State succession to treaties and fundamental change of circumstances. In the final analysis, and despite later interpretations, it did not appear as if African State practice in the period of independence had consecrated uti possidetis juris as a rule of customary international law ‘connected with the phenomenon of the obtaining of independence wherever it occurred’.³⁴

While African State practice and judgments of the International Court of Justice, particularly in cases such as Burkina Faso/Mali, might have conferred a normative status on the colonial uti possidetis principle, I argued that its status had been inflated. Though undoubtedly an influential rule for the determination of the international land boundaries of States that had emerged from the colonial rule of a single metropolitan power, uti possidetis was no more than a presumption as to the location of the boundaries of an entity which had achieved independence. It was not a binding solution which could be imposed in advance of formal independence under the mantle of a customary rule of international law.

B A brief overview of some international decisions in favour of the application of the uti possidetis principle to maritime delimitations

Latin American State practice in the nineteenth century does not provide much of a context for an analysis of the role of uti possidetis in maritime delimitations. International norms regarding the maritime domain were embryonic and rights over maritime zones were considered very limited. This fact explains why Spain and Portugal did not include any references to their respective maritime zones in the principal treaties which divided the Latin American continent between them.³⁵

Yet by virtue of a Royal Decree dated 17 December 1760, Spain did claim that its territorial waters off the coasts of Latin America extended for 6 nautical miles. There is also formal evidence that certain areas of the sea, like bays and estuaries, were historically considered by the Spanish Crown as being subject to a special regime. This was notably the case of the Gulf of Fonseca on the western coast of Central America. In the first round of the dispute between El Salvador and Nicaragua in 1917, the Central American Court of Justice declared that the Gulf constituted a historic bay:

The case, however, does not shed any light on the issue of pre-existing colonial maritime lines and their treatment by successor States or international judicial tribunals. Both parties in the course of their pleadings had in fact recognised that no demarcation lines existed between them prior to their constitution as independent entities. Indeed, the Court concluded that, with the exception of a short line of division agreed to by Honduras and Nicaragua in 1900, the great majority of the waters of the Gulf had remained undivided.³⁷ Thus according to the majority, ‘since it is true in principle that the absence of demarcation always results in community’,³⁸ the three riparian States (El Salvador, Honduras and Nicaragua) were co-owners of the waters of the Gulf.³⁹

In the Beagle Channel arbitration (1977) between Argentina and Chile, the Court of Arbitration was asked to determine sovereignty over Picton, Nueva and Lennox islands and to fix the maritime boundary in the area of the Beagle Channel. The award does consider the uti possidetis principle but only in its traditional role as a mechanism for the determination of ownership of certain tracts of land – in this case, islands, islets and rocks near the extreme end of the South American continent.

While both Argentina and Chile had formally recognised in their 1855 Treaty of Peace, Friendship, Commerce and Navigation ‘as the boundaries of their respective territories those existing at the time when they broke away from Spanish dominion in the year 1810’,⁴⁰ no attempt had been made to define what those boundaries were, including in the Beagle Channel. Rather, the two neighbours had agreed ‘to defer the questions that have arisen or may arise regarding this matter in order to discuss them later’. Thus, for decades following their independence, the limits between the two former Spanish colonial divisions had remained uncertain. In fact, both Argentina and Chile had at various times relied on uti possidetis to claim most of the continent south of the Rio Negro and east of the Andes down to the far south.

The Court concluded that it was ‘no part of its task to pronounce on what would have been the rights of the Parties on the basis of the uti possidetis juris of 1810’ because those rights, whatever they might have been, had been overtaken and transcended by the regime deriving from the 1881 Treaty.⁴¹ Indeed, with the exception of the limits of the two countries’ respective claims in Antarctica, the boundaries between Argentina and Chile had been fixed by the 1881 Treaty, Article III of which provided for the allocation of islands in Tierra del Fuego and in the vicinity of the Beagle Channel. Applying the literal method of interpretation and also taking into consideration the context and overall effectiveness of the Treaty,⁴² sovereignty over the disputed islands was awarded to Chile. The Court then proceeded to draw a median line through the Beagle Channel, with some minor adjustments for reasons of coastal configuration, convenience and navigability.⁴³ Thus like a number of other boundary disputes in Latin America,⁴⁴ the Beagle Channel dispute was resolved on the basis of an existing treaty which reflected the will of the parties, and not as a result of the operation of the uti possidetis principle.

The 1992 decision of a Chamber of the ICJ in the Land, Island and Maritime Frontier Dispute⁴⁵ considers at some length the uti possidetis juris principle and has in fact come to exert the same kind of influence in the maritime context as has the Burkina Faso/Mali judgment in cases involving uti possidetis and former colonial land frontiers. For the purposes of this chapter, only the Court’s reasoning with respect to the maritime issues submitted to it by the parties (El Salvador, Honduras with Nicaragua intervening) will be examined.

The Special Agreement concluded at Esquipulas (Guatemala) on 24 May 1986 between the Republic of El Salvador and the Republic of Honduras requested a determination of the legal status of the islands in dispute between the parties within the Gulf of Fonseca, which the Court identified as El Tigre, Meanguera and Meanguerita islands. It was El Salvador’s claim that, on the basis of the uti possidetis juris principle, it should be recognised as the successor of the Spanish Crown in respect of all the islands in the Gulf.⁴⁶ It was also Honduras’s contention that the only law applicable to the dispute was the uti possidetis juris of 1821. And the Chamber of the Court agreed with both parties as to the relevance of the uti possidetis juris principle:

Recognising that in the case of the islands there were no land titles of the kind which it had taken into account to reconstruct the limits of the uti possidetis juris on the mainland, the Chamber declared that it could have regard not only to administrative and legislative texts of the colonial period, but also to ‘colonial effectivités’.⁴⁸ However, after a brief consideration of the essential contentions of the parties on the historical basis of their respective claims, the Chamber was forced to conclude that the evidence was confused and conflicting and of no practical value:

The Chamber felt it therefore had to proceed on the basis of the conduct of the parties in the period following independence as indicative of what must have been the 1821 position. It also decided that such evidence could be supplemented by considerations wholly unconnected with the uti possidetis juris principle, in particular, the possible significance of the same conduct, or the conduct of the parties in more recent years, as possibly constituting acquiescence.⁵⁰ Thus, and despite the Chamber’s strong endorsement of the principle, uti possidetis juris as a rule of constructive possession ultimately had no impact whatsoever on the Chamber’s final award of sovereignty over the three islands.

As for the legal situation of the waters of the Gulf of Fonseca, the Chamber indicated that it was ‘necessary to enquire into the legal situation of the waters of the Gulf in 1821 at the time of succession from Spain; for the principle of uti possidetis juris should apply to the waters of the Gulf as well as to the land’.⁵¹ However, in the very next sentence of its judgment, the Chamber acknowledged that no evidence had been presented suggesting that there was for these waters prior to, or at 1821, ‘anything analogous to those boundaries of provincial sway, which have been so much discussed in respect of the land’.⁵² In light of the absence of any maritime administrative boundaries at the time of inheritance, the Chamber confirmed the ratio decidendi of the 1917 judgment of the Central American Court of Justice.

The Chamber therefore declared that the Gulf was a historic bay and that its waters, except for a 3-mile belt, were historic waters subject to the joint sovereignty of El Salvador, Honduras and Nicaragua.⁵³ The Court also determined that the closing line should be the one referred to in the 1917 judgment (from Punta Ampala to Punta Cosigüina) and recognised by the three coastal States in practice.⁵⁴ Finally, the Chamber adjudged that given the tri-partite presence at the closing line, all three of the joint sovereign States had legal entitlements to ocean waters outside the bay.

On 10 October 2002, the International Court of Justice rendered its decision in the Case concerning the Land and Maritime Boundary between Cameroon and Nigeria, Equatorial Guinea intervening.⁵⁵ The application filed by the government of the Republic of Cameroon in March 1994 referred to a dispute with the Federal Republic of Nigeria ‘relating essentially to the question of sovereignty over the Bakassi Peninsula’. However, Cameroon further stated in its application that the delimitation of the maritime boundary between the two States had remained a partial one and that despite many attempts to complete it, the two parties had been unable to do so. In a bid to avoid further incidents between the two countries, Cameroon therefore requested the Court to ‘determine the course of the maritime boundary between the two States beyond the line fixed in 1975’.

As the Court explained at the outset, the dispute between the parties as regards their land boundary fell ‘within an historical framework marked initially, in the nineteenth and early twentieth centuries, by the actions of the European Powers with a view to the partitioning of Africa, followed by changes in the status of the relevant territories under the League of Nations mandate system, then the United Nations trusteeships, and finally by the territories’ accession to independence’.⁵⁶ Indeed, while Nigeria had been a British colony for over half a century (1900–60), present-day Cameroon was initially a German colony. However, following Germany’s defeat in World War I, the colony had been partitioned between the United Kingdom and France under a League of Nations mandate, with Britain’s sector consisting of a strip bordering Nigeria from the sea to Lake Chad.

While the dispute might therefore be considered a classic case for the application of uti possidetis – the determination of a boundary between two former colonies belonging to the same metropolitan power – in fact, international treaties dating back to 1913 and the post-independence conduct of the parties were held to be the determining factors. Indeed the Court commented at the very outset that ‘apart from the Anglo-German Agreements of 11 March and 12 April 1913 in so far as they refer to the endpoint of the land boundary on the coast, all the legal instruments concerning the maritime boundary between Cameroon and Nigeria post-date the independence of those two States’.⁵⁷

After a detailed review of the arguments put forth by both parties,⁵⁸ the Court found that ‘the Anglo-German Agreement of 11 March 1913 was valid and applicable in its entirety’⁵⁹ and that, as a result, it need not ‘pronounce upon the arguments of uti possidetis advanced by the Parties in relation to Bakassi’.⁶⁰ Indeed, the Court concluded that the boundary between Cameroon and Nigeria in Bakassi was delimited by Articles XVIII–XX of the Anglo-German Agreement of 11 March 1913, and that consequently sovereignty over the peninsula lay with Cameroon.⁶¹

With respect to the delimitation of the maritime boundary between the parties, the Court declared that it was ‘anchored’ to the mainland in accordance with Articles XVIII and XXI of the said Agreement.⁶² It then upheld the validity of the Declarations of Yaoundé II and Maroua, pursuant to which the Heads of State of Nigeria and Cameroon had in 1971 and 1975 agreed upon the maritime boundary between the two countries from the mouth of the Akwayafe to a point G. As for the maritime boundary further out to sea, the Court essentially endorsed the delimitation method advocated by Nigeria.⁶³ It drew an equidistance line between Cameroon and Nigeria, declaring that in its view, such a line produced an equitable result. The Cameroon/Nigeria decision is therefore of interest only for the Court’s refusal to equate respect for the provisions of an international treaty with the uti possidetis principle.

By a Notice of Arbitration dated 16 February 2004, Barbados initiated arbitration proceedings concerning its maritime boundary with the Republic of Trinidad and Tobago. No reference to the uti possidetis principle was made in any of the parties’ pleadings or formal arguments, and it is also absent from the final award delivered on 11 April 2006.⁶⁴

The maritime boundary between the two former British colonies was determined by the tribunal by reference to the equidistance/special circumstances rule. In arguing that the provisional equidistance line ought to be adjusted in the Caribbean sector, Barbados had relied upon three core factual submissions, including ‘a centuries-old history of artisanal fishing in the waters off the northwest, north and northeast coasts of Tobago by Barbadian fisherfolk’.⁶⁵ In support of this contention, Barbados had adduced evidence showing that Barbadian fisherfolk had long-range boats and other equipment to enable them to fish off Tobago between the eighteenth and twentieth centuries.⁶⁶ The tribunal, however, ultimately ruled that the factual circumstances invoked by Barbados had not been proven⁶⁷ and consequently that the equidistance line ought not to be adjusted.

While it appears that there were no pre-existing maritime limits between the parties going back to colonial times which deserved consideration, uti possidetis might nonetheless have played a minor or supporting role. It is noteworthy that when invoking centuries-old artisanal fishing activities in the disputed sector, Barbados made no reference to British colonial administrative texts or effectivités. It may be that such colonial evidence was ‘too fragmentary and ambiguous…for any firm conclusion to be based upon it’ as the Court commented in its El Salvador/Honduras ruling.⁶⁸ Yet the complete absence of any reference to the uti possidetis juris principle either by the parties or the tribunal appears to cast some doubt on the purported status of uti possidetis juris as a binding rule of customary international law.

On 8 October 2007, the International Court rendered its decision in the Case concerning the Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea.⁶⁹ The case concerned sovereignty over four islands beyond the territorial sea of the two parties and the delimitation of maritime areas between Nicaragua and Honduras in the Caribbean Sea.

The Court began by acknowledging that ‘the principle of uti possidetis has kept its place among the most important legal principles’ regarding territorial title and boundary delimitation at the moment of decolonisation.⁷⁰ This phrase and conclusion, borrowed from the Burkina Faso/Mali judgment, was then further emphasised by reproducing the key passage from that same case regarding the status of uti possidetis under international law: ‘It is a general principle, which is logically connected with the phenomenon of obtaining of independence, wherever it occurs. Its obvious purpose is to prevent the independence and stability of new States being endangered by fratricidal struggles provoked by the challenging of frontiers following the withdrawal of the administering power.’⁷¹ The Court also endorsed the Chamber’s earlier finding that pre-eminence should be accorded to legal title over effective possession as a basis for sovereignty.⁷² Finally, and quoting from the judgment in the Land, Island and Maritime Frontier Dispute, the Court stressed that ‘uti possidetis juris may, in principle, apply to offshore possessions and maritime spaces’.⁷³

In deciding the question of sovereignty over the islands in dispute, the Court found that ‘in order to apply the principle of uti possidetis juris…it must be shown that the Spanish Crown had allocated them to one or the other of its colonial provinces’.⁷⁴ To underline this key point, the Court again quoted from the Chamber’s judgment in the Land, Island and Maritime Frontier Dispute:

This proved to be the case as the Court found that the parties had not produced documentary or other evidence from the pre-independence period which explicitly referred to the islands.⁷⁶ The Court therefore concluded that ‘notwithstanding the historical and continuing importance of the uti possidetis juris principle so closely associated with Latin American decolonization, it [could] not in this case be said that the application of this principle to those small islands…would settle the issue of sovereignty over them’.⁷⁷ In fact, the Court was compelled to admit, despite its earlier sweeping endorsement, that ‘the principle of uti possidetis affords inadequate assistance in determining sovereignty over these islands’.⁷⁸ The Court therefore ultimately had to rely on post-independence effectivités in awarding sovereignty over the disputed islands to Honduras.

As for the delimitation of the maritime areas, Honduras relied upon a Spanish Royal Decree dated 17 December 1760 which established that Spain’s territorial waters extended for 6 nautical miles. It was Nicaragua’s contention, however, that jurisdiction over the territorial sea fell to Spanish authorities in Madrid, not to local authorities. It insisted that the Spanish Crown’s claim to a 6-nautical mile territorial sea said nothing with regard to the limit of this territorial sea between the Spanish provinces of Honduras and Nicaragua. And the Court agreed, stating:

Having found that the uti possidetis juris principle did not provide a basis for an alleged ‘traditional’ maritime boundary along the fifteenth parallel⁸⁰ and in light of the difficulty in identifying base points along the parties’ mainland coasts, the Court proceeded to rely on the bisector method to define a single maritime boundary.

On 6 December 2001, the Republic of Nicaragua instituted proceedings against the Republic of Colombia in respect of a dispute between the two States concerning title to territory and maritime delimitation in the western Caribbean. Nicaragua asked the Court to adjudge and declare that it had sovereignty over the islands of Providencia, San Andrés and Santa Catalina and all the appurtenant islands and keys and also over Roncador, Serrana, Serranilla and Quitasueño keys insofar as they were capable of appropriation. Secondly, and in the light of its determination as to title over the features specified, the Court was asked to determine the course of a single maritime boundary between the areas of continental shelf and exclusive economic zones (EEZ) appertaining respectively to Nicaragua and Colombia.

In a judgment dated 13 December 2007 regarding preliminary objections raised by Colombia,⁸¹ the Court held that it had no jurisdiction in regards to Nicaragua’s claim to sovereignty over the islands of Providencia, San Andrés and Santa Catalina. The Court ruled that this question had been determined by the Treaty concerning Territorial Questions at Issue between Colombia and Nicaragua signed at Managua on 24 March 1928, by which Nicaragua had recognised Colombian sovereignty over the three islands.⁸²

In regard to the remaining features in dispute, the Court held in November 2012⁸³ that Albuquerque and East-Southeast Cays as well as Roncador, Serrana, Serranilla and Bajo Nuevo islands and one feature (QS 32) on Quitasueño were capable of appropriation.⁸⁴ It then considered the effect of the 1928 Barcenas-Esguerra Treaty and the uti possidetis juris principle invoked by the two parties as sources of their title.⁸⁵

Article 1 of the 1928 Treaty provided:

The Court was therefore compelled to first establish what constituted the San Andrés Archipelago. Unable to make a precise determination on the basis of the geographical location of the maritime features in dispute or on the historical records relating to the composition of the San Andrés Archipelago referred to by the parties,⁸⁶ the Court turned to the second basis of sovereignty invoked by Nicaragua and Colombia in the course of their pleadings: uti possidetis juris at the time of independence from Spain.

Nicaragua claimed that the Captaincy-General of Guatemala (to which Nicaragua was a successor State) held jurisdiction over the disputed islands on the basis of the Royal Decree of 28 June 1568, confirmed in 1680 by Law VI, Title XV, Book II of the Compilation of the Indies, and later, the New Compilation of 1744, which signalled the limits of the Audiencia de Guatemala as including ‘the islands adjacent to the coast’.⁸⁷ It contended that it held original and derivative rights of sovereignty over the Mosquito Coast and its appurtenant maritime features based on the uti possidetis juris at the moment of independence from Spain.⁸⁸ Although, as a result of the 1928 Treaty, it had ceded its sovereignty over the islands of Providencia, San Andrés and Santa Catalina, this did not affect sovereignty over the other maritime features appertaining to the Mosquito Coast.⁸⁹

For its part, Colombia claimed that its sovereignty over the San Andrés Archipelago had its roots in the Royal Order of 1803, which placed the Archipelago under the jurisdiction of the Viceroyalty of Santa Fé (New Granada). Colombia therefore argued that it held original title over the San Andrés Archipelago based on the principle of uti possidetis juris supported by the effective administration of the Archipelago by the Viceroyalty of Santa Fé (New Granada) until the date of independence.⁹⁰

The Court however was quick to point out that with regard to the claims of sovereignty asserted by both parties on the basis of the uti possidetis juris at the time of independence from Spain, ‘none of the orders cited by either Party specifically mentions the maritime features in dispute’.⁹¹ The Court then proceeded to quote paragraph 333 from its 1992 Judgment in the Land, Island and Maritime Frontier Dispute which, as we have seen, it also highlighted in its Nicaragua/Honduras decision:

In the light of this reality, the Court was compelled to admit that the uti possidetis juris principle was of precious little assistance in resolving the dispute between the parties:

The Court ultimately awarded sovereignty over the disputed islands to Colombia on the basis of post-colonial effectivités: ‘It has thus been established that for many decades Colombia continuously and consistently acted à titre de souverain in respect of the maritime features in dispute.’⁹⁴

As for the determination of the single maritime boundary dividing the EEZs and continental shelves of the parties, the Court applied the three-part test it had developed in the Black Sea case.⁹⁵ Notwithstanding arguments by Nicaragua in favour of an alternative approach, the Court proceeded to draw a provisional median line, considered whether relevant circumstances militated in favour of an adjustment of that line, and finally tested the final result for any significant disproportionality.

C An assessment of the actual role of the colonial uti possidetis principle in the resolution of maritime boundary disputes

As a result of my review of relevant cases, it appears that, notwithstanding Judge Bedjaoui’s compelling arguments in his dissenting opinion in the 1986 Guinea Bissau/Senegal case, international courts and arbitral tribunals have firmly established that ‘uti possidetis juris may, in principle, apply to offshore possession and maritime spaces’.⁹⁶ However, the precedents examined reveal the very real limitations of the uti possidetis juris principle. In fact, nearly all of the theoretical and practical difficulties which I identified in my thesis as hindering the effectiveness of uti possidetis for the determination of land boundaries between the former units of a single colonial power were also a factor in the maritime delimitations considered.

Certain theoretical uncertainties and contradictions continue to plague attempts to rely on the uti possidetis juris principle for the settlement of boundary disputes. For instance, in resolving the maritime dispute between Nicaragua and Colombia, the Court had first to establish a definitive meaning for the phrase ‘uti possidetis juris at the time of independence from Spain’. In the Land, Island and Maritime Frontier Dispute, despite recognising the ‘uti possidetis of 1821 as the necessary starting-point for the determination of sovereignty over the disputed islands’, the Chamber ruled that it had to take ‘colonial effectivités’ into account in reaching its decision. And yet, a consideration of actual and effective acts of possession is completely at odds with the task of establishing a formal right of ownership between the parties on the basis of official colonial instruments. It is, in effect, to rely on effective occupation to determine sovereignty and therefore to espouse the uti possidetis de facto formula rather than the mainstream uti possidetis juris principle.

The principal conclusion however which flows from this brief analysis of the cases is that practical difficulties – incomplete knowledge, ambiguous historical records – continue to prevent the uti possidetis juris principle from exercising any real or effective influence on the determination of boundaries.

The lack of any allocation of maritime areas between the various colonial units in all of the cases examined, while not surprising, certainly highlights the limited impact the uti possidetis principle will likely have on the delimitation of maritime boundaries. Indeed, while the ICJ in the Land, Island and Maritime Frontier Dispute appears to have decided that the uti possidetis juris principle could determine the legal status of marine areas, displacing the traditional equidistant-special circumstances method and its recent adjunct, the proportionality test, the absence of pre-existing colonial lines at sea makes this little more than an interesting theoretical possibility.

The strongest confirmation of my earlier conclusions is provided by the cases when sovereignty over islands was at issue. Even in this supporting role, as a key mechanism for the determination of ownership of insular features capable of generating substantial maritime claims, the uti possidetis juris principle had little or no influence. Indeed, despite ringing endorsements of the principle as in the Nicaragua/Honduras case – ‘the principle of uti possidetis has kept its place among the most important legal principles regarding…boundary delimitation’ – in practical terms, uti possidetis proved of little assistance to the courts and tribunals tasked with the peaceful settlement of the boundary disputes examined.

As McEwen notes: ‘[A] doctrine which attempts to crystallize, or maintain the status quo of, boundaries is little more than an abstract proposition unless there is a factual and tangible identification of the boundaries themselves.’⁹⁷ Therefore, and despite claims to the contrary, it appears fairly obvious that, in fact, uti possidetis as a means of establishing maritime boundaries has had and is likely to continue to have less than stellar success. Moore’s assessment of the uti possidetis principle’s influence remains as true today as when he wrote his influential article in 1944: ‘It has not been so constantly invoked nor has its practical effect been by any means so important as writers and learned advocates have sometimes asserted.’⁹⁸

Overview of reasons for scepticism over a distinction between State continuity and State succession

Professor Crawford has argued that international law:

Crawford recognises that the notion of ‘State continuity’ has been criticised by many scholars as a misleading and overly political concept. Ian Brownlie pointed out that ‘the assumption of a neat distinction between categories of “continuity” and “state succession” only make a difficult subject more confused’.² Matthew Craven offers an insightful analysis of the critique of the distinction between continuity and succession, which had been already voiced by Professor O’Connell and later continued by Professor Schachter and others, observing and analysing the processes in Central and Eastern Europe at the beginning of the 1990s. This critique focused on the difficulty of placing legal personality in the centre of the distinction between continuity and succession.³ Craven sums it up:

I have argued elsewhere that a general category of ‘legal personality’ is not really helpful when dealing with specific questions that arise in relation to statehood and changes that might affect it. It is, in fact, not a function of ‘legal personality’.⁵ Legal personality demonstrates the recognition of a particular legal system and means that, in principle, the entity concerned has rights and obligations. It certainly does not point to differences that might distinguish one legal person from another in the sense of being useful for the purposes of separating cases of State succession and State continuity. This is the reason why Crawford proposed to distinguish between a ‘general’ concept of legal personality and a ‘specific’ concept of legal personality,⁶ whereby the latter characterises a particular subject of law. Be that as it may, inquiry into the question of whether the State is the ‘same’ State does not raise the question whether it is the same legal personality, because irrespective of whether it is ‘new’ or ‘old’, the State as such has legal personality. Therefore the search into the ‘new’ or ‘old’ personality should be approached differently. According to Crawford this essentially depends upon the view one takes of the role that international law plays concerning the creation of States. Legal personality is neither a solution to nor a problem for the questions of creation and change.

For Crawford, ‘the determination of identity and continuity [is] dependent on the basic criteria for statehood. A State may be said to continue as such so long as an identified polity exists with respect to a significant part of a given territory and people.’⁷ Thus Crawford clearly moved the debate from a legal personality paradigm, as understood by O’Connell, to an examination of the elements of statehood within the legal system. This fundamental shift entails ramifications and consequences which have not been fully explored. For example, the International Court of Justice in its Advisory Opinion on Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo did not engage in a broader analysis of the issues relevant to the question whether or not an independent State had been created in compliance with the relevant international law criteria of statehood.⁸ For the purposes of this chapter, the practical follow-up to Crawford’s theory of statehood will not be examined.⁹ The aim of this chapter is to develop further a few aspects relating to his theory. I will adapt the thesis that the creation of States is not merely a matter of fact situated outside the realm of international law.¹⁰ Like Crawford I take an opposite view. Where decisions on statehood are taken within the international legal system, it should be possible to determine the changes affecting States and raising questions as to their continuity by reference to, at least, some rules of international law.

To put it differently, one could say that there has always been a certain tension between what could be called private law and public law approaches to changes affecting States. According to the first approach, it is important that there is a legal entity upholding, inheriting or succeeding to the existing obligations, even if it is a different or new subject, since it is legal certainty that matters. According to the latter, the very existence of the ‘same’ subject, referring inter alia to the self-identification of the historical community, is of primary importance and the continuity or discontinuity of rights and obligations normally follow therefrom. As Crawford said: ‘The rights are better referred to the entity than the entity to the rights.’¹¹ Certainly, where no change has taken place no difficulties as to legal certainty should arise since it is presumed that the same State will continue the same international obligations or, at least, as in the case of the Baltic States, this will be a presumption on the basis of which to develop new legal obligations.¹²

For the purposes of this chapter, the relevance of what could be broadly defined as a private versus public law divide in conceptualising State continuity in international law will be explored. I argue that James Crawford’s view in The Creation of States appears to take a constitutionalist reading of the subject of the creation and disappearance of States. I would add that a constitutionalist reading sits more comfortably with the fact that rules such as the prohibition of the use of force and the right to self-determination may have an important impact on claims of statehood or State continuity, or State succession, as seen, for example, during the decolonisation process.¹³

The dissolution of States in Central and Eastern Europe in the early 1990s, while in many ways different from the decolonisation process, reaffirmed the importance of the question of identity of a ‘new State’, and not only in the case of the Baltic States.¹⁴ With the benefit of hindsight, in view of the manner in which new democracies in Central and Eastern Europe have been able to deal with the challenges that they faced following the political change, a proposition emerges that relevant traditions and a clear identity of a particular polity are extremely important for a more successful functioning of that polity as a State. While the claim to identity in the 1990s of the Baltic States unlawfully occupied by the Soviet Union in 1940 was first and foremost a reaction based on a strong sense that the three States and the peoples concerned suffered from one of the most serious violations of international law, there was also another level of thinking which had to do with the need to go back to the origins or the original identity of these States. This explains the return to the pre-occupation with Constitutions and institutional settings within the States.¹⁵ The steps undertaken to reunite with the historical origins of these States have proved to be the strength of the modern Baltic States as compared, perhaps, with the State-building processes in the neighbouring countries. Apart from the example of the Baltic States, all the cases of continuity or succession claims in Central and Eastern Europe are valuable examples for studying whether identity issues are important or not in the context of such claims. There is clearly a basis for suggesting that in situations which, like the decolonisation processes or the Baltic cases, derive from unlawfulness or injustice in international law, questions of identity are highly pertinent. It cannot be said that they lose their relevance in other more classical situations of State succession. In fact, the reunification of Germany and the creation of new States in the territory of the former Yugoslavia underline the importance of identity, which was both a motivating factor and the basis of often serious disputes.

Why is there a difference in the appreciation of the importance of the identity question in scholarly writings on State succession and State continuity? What is the possible ideological or theoretical divide?

Private law reading of State continuity

The wisdom and practicability of distinguishing between State continuity and State succession was strongly criticised in the 1960s by O’Connell who ‘complained that legal doctrine on succession had been derailed by the predominance of Hegelian conceptions of the State, which, from the time of Bluntschli onwards, had placed the issue of identity at the forefront’.¹⁶ In O’Connell’s view the question should be whether existing obligations survive the change, and he considered that the nature and degree of change should be examined with a view to preserving obligations. To put it differently, he was persuaded that a minimal disturbance of existing legal situations is in the greater interest of humanity and that such an approach is consistent with the very nature of law.¹⁷ Craven has summed up the essence of O’Connell’s conviction as follows: ‘Legal continuity thus preceded sovereignty, and sovereignty could only thus mean a competence or right of decision in relation to the array of legal relations that were already in place.’¹⁸

One can indeed agree with O’Connell that succession does not take place in a legal vacuum and that a proper legal system certainly contains guidance as to the nature of change and the consequences. For the purposes of international law as a system, O’Connell’s views have a considerable importance. It has to be noted, however, that O’Connell only refers to legal relations that are in place, and not the rules or criteria that may determine the subject of these relations. It has to be observed further that the criticism that O’Connell addresses to the central role given to liberty and sovereignty of States in international law follows the traditional critique mounted earlier in the British international law scholarship of Hersch Lauterpacht and James Brierly. Lauterpacht also argued in his Private Law Sources and Analogies of International Law that States should be kept to the same standards of behaviour as individuals, but that the Hegelian conception as concerns the status of a State as it had evolved in international law was the main barrier to such a development. Lauterpacht pointed out that:

Lauterpacht’s main argument was that even where States have not consented to some international rules, international law should nevertheless be applied by international judges since there are no gaps in the legal system.²⁰ In other words, there was at the time a very strong view, especially among the British and American schools of international law, that the concept of State sovereignty, as it had emerged following Emer de Vattel’s Droit de gens, was highly problematic for the purposes of the proper development of an international legal system with autonomous rules binding States irrespective of their consent.²¹ Scholars were dealing with this challenge in different ways, one of which was that of Hersch Lauterpacht, bringing back to the discourse State practice and private law analogies to show the effect of rules limiting States. O’Connell’s view on change of sovereignty and international obligations falls clearly within this broader disagreement on the nature of international law as an autonomous legal system. Ever since, scholars have been bound to examine the notions of continuity and succession and to provide their views on the possibility and practicability of a definition in this respect; the differences of view have persisted depending on what theoretical or philosophical outlook one took on international law at large.

The question nevertheless remains whether the critique directed towards the role attributed to a State and the principles of State sovereignty and consent in international law, as introduced above, is fully justified.

Constitutionalist reading of State continuity

There are scholars who take a different view and State practice shows that one cannot completely ignore the issue of identity, which remains important for the political realities of the communities concerned.²² It has been stated that:

It was pointed out earlier in this chapter that, while having legal certainty in relations between the subjects of a legal system is an important value in itself, in a system where States as the main subjects of law are made up of individuals forming a community or a polity with a distinct sense of identity, sovereignty acquired through self-determination is also an important value. This is not limited to the decolonisation process. While the approach to State continuity and State succession as per a private law or even natural law reading would not address the nature of change in sovereignty as part of the analysis, the constitutionalist reading, I submit, is capable of and indeed requires such an analysis since ‘sovereignty protects moral values and has normative value itself’.²⁴

Anne Peters builds on Crawford’s theory and underlines that ‘[f]rom a constitutionalist perspective…states – as international legal subjects – are constituted by international law’.²⁵ This is indeed the value of the proposition that international law contains certain criteria and rules that, if applied, are capable of leading to the determination of the existence of a State. In this regard, Peters observes that the fundamental requirement of effectiveness governing the definition of statehood for a long time has ‘suffered some modifications’.²⁶ ‘One discernible aspect of the constitutionalization of statehood is that the principle of effectiveness has been complemented and to some extent even substituted by the principle of international legality and legitimacy in international recognition practice.’²⁷ The dismemberment of the Socialist Federal Republic of Yugoslavia is likely to be the most striking example of modern State practice where Serbia was not given the ‘legal and moral advantage’ that would stem from the acceptance of its claim to State continuity in view of the particularly grave humanitarian situation that it created.²⁸

It is certainly true that the post-1945 period has seen the growing role of rules of international law, such as the prohibition of the use of force and the prohibition of apartheid, which have prevented de facto effectiveness from acquiring expected legitimacy and legal consequences in international law. We have also seen the effect of these rules as concerns claims to State continuity or succession in the above-mentioned case of the Baltic States. These are processes and developments which give reason to argue in favour of the constitutionalisation of international law and thus a constitutional reading of the concept of State and related issues such as effects of changes in sovereignty. James Crawford argued in favour of ‘a certain peremptory authority’ of modern international law²⁹ in matters eminently political such as the creation of States a couple of decades before the fall of the Berlin wall.

However, apart from the debate on the effect of international rules on decisions relevant to the creation of States and their disappearance, I would argue that a constitutionalist reading of international law suggests at least a slightly different analysis of the distinction between State succession and State continuity since, as explained, the constitutionalisation perspective helps ‘the right questions of fairness, justice, and effectiveness to be asked’.³⁰ Evidently, if the primary concern is the continuity of international obligations as per the private law paradigm, introduced earlier, some of the questions of justice are not always particularly helpful. Indeed most of the debate about the distinction between State succession and State continuity has focused on difficulties that continuity claims raise in terms of their extremely diverse character which, for example, gave ground to significant concern in Europe in the 1990s.³¹ Craven correctly notes that for reasons of presumed difference from the decolonisation era and based on the understanding that international law itself does not require any dramatic change, the presumption of treaty continuity emerged as an appropriate policy response to the uncertainties of that time. He admits, however, that it would have been too radical to fully embrace O’Connell’s position since differentiation between various categories ‘of succession’ could not be easily dismissed.³² His summary of the main view of the events in Eastern and Central Europe in the 1990s is perfectly correct and goes as follows:

If it is accepted that international law constitutes States, it should also follow that it determines the character of changes affecting States, or at least contains a number of elements for such purposes. If one agrees with this proposition in principle, one needs to determine its meaning and importance. I think it is relevant to make a point with regard to the decolonisation era and contemporary challenges posed by it to international law. It should be recalled that in the decolonisation period of the 1960s and 1970s, the manner in which succession issues were addressed represented an attempt to depart from international law’s colonial past.³⁴ The vindication of the principle of ‘clean slate’ in the Vienna Conventions on State Succession,³⁵ even if recognising a number of limitations, was seen as a proper functioning of self-determination and the sovereign equality of States, as reflected in the UN Charter.³⁶ Admittedly, this approach was seen as rather troubling to those advocating a more autonomous character for international law.

It is therefore no surprise that the majority of commentators on the events in the 1990s were engaged in a search for arguments that would support the least possible disruption in legal relations. Matthew Craven notes in this regard that ‘[a]ll were agreed that the “new events” were profoundly different from the past, and the sense of contestation that had underpinned discussions during decolonisation was almost entirely absent’.³⁷ It may well be that there was less contestation, or that at least it was different in nature as compared to the decolonisation era. Nevertheless, and as noted above, the need for change was clearly present in the 1990s and was recognised even if it was approached with great caution. The reasons might be very different but among them there was thinking similar to that present during the decolonisation process among the powerful States for whom legal certainty clearly was more important. The need for change in the 1990s too was in line with the principle of sovereign equality, which in its internal perspective means that the domestic legal order is supreme and determines the compatibility of external decisions with this order. This takes place, however, within the context of a growing constitutional quality of the international legal order.³⁸ It is therefore the case that the acceptance of the changes in statehood that do take place, and that may have consequences for the rights and obligations of the State concerned, does not automatically bring about a dramatic disruption in legal relations. The examination of, and decisions on, status belong to a constitutionalist perspective in international law, as does the process leading to a better identification of applicable rules to consequences of change. One does not conflict with the other. This brings me to some concluding remarks.

Conclusions

James Crawford offers three main reasons for the usefulness of the concept of continuity in international law. In short, they are as follows: first, continuity of a State presumes the continuity of its obligations certainly to a greater extent than in situations of State succession; secondly, there is usually a close relationship between the claim of continuity and the peoples’ self-determination or self-awareness; and, thirdly, the issue of continuity or ‘sameness’ does not arise in general but only in relation to a specific legal question.³⁹

These reasons continue to be perfectly valid and are reinforced by the previous analysis. On a more general level, I agree with Jean L. Cohen that it is not a feasible Utopia to abandon sovereignty in favour of a cosmopolitan world view and that sovereignty has a special role in protecting domestic democratic processes with global implications.⁴⁰ Within the constitutionalist pluralist vision, decisions on status in situations raising questions as to State continuity or State succession are very important since they are linked to internal processes taking place within a particular community. This does not mean that rules should not be further developed and changed at an international level, imposing greater responsibility and accountability on States and other international actors.⁴¹ This is equally necessary in situations where such events arise that are likely to affect States and raise questions as to their identity and continuity. In other words, I would submit that if one takes a constitutionalist perspective on international law, including with respect to questions of State continuity and State succession, the confrontation between the views surveyed above is beside the point and in fact each view can have its valid place in the constitutionalist debate. The notion of State continuity has its legitimate place within the international legal order since it provides the means for accepting valid and lawful claims of the community concerned and responds to important self-determination and self-awareness processes.