1. Procedure to date
1. The motion for a resolution on “National sovereignty
and statehood in contemporary international law: the need for clarification”
was transmitted to the Committee on Legal Affairs and Human Rights
for report on 21 June 2010.
At
its meeting on 5 October 2010, the committee appointed Mr Holger
Haibach (Germany, EPP/CD) as its rapporteur.
2. At its meeting on 16 December 2010, the committee held a hearing
with the following experts:
- Professor Helen Keller (University
of Zürich, Switzerland)
- Professor Vladimir Kotlyar (State University of International
Relations, Moscow, Russian Federation)
- Professor Alain Pellet (University of Paris Ouest – Nanterre,
France)
- Professor Matthias Herdegen (University of Bonn, Germany)
3. At its meeting on 26 January 2011, the Committee appointed
as its new rapporteur Ms Marina Schuster (Germany, ALDE).
2. Purpose of the present report
4. As indicated in the text of the motion for a resolution,
the concepts of national sovereignty and statehood have in recent
years undergone important transformations. Developments in actual
state practice, including within and among member states of the
Council of Europe, have shown that the criteria for statehood remain a
contentious issue in international law. There is outright confusion
as to the legality of certain recent developments, including the
emergence of new entities that claim recognition as fully fledged
states.
5. The most recent examples are the secessions from the Republic
of Georgia declared unilaterally by South Ossetia and Abkhazia (Georgia),
under the protection of the Russian military. The Russian Federation itself,
which emerged from the generally peaceful breakup of the former
Soviet Union, is still threatened by irredentist movements in its
North Caucasus region. Moldova’s Transnistria region has not been
under central government control for many years. Spain is grappling
with a separatist movement in the Basque country, Turkey with a
powerful Kurdish nationalist movement. The former Socialist Federal
Republic of Yugoslavia has split up after a violent war. The latest
episode is the unilateral declaration of independence of Kosovo
from Serbia. The Czech
Republic and the Slovak Republic, by contrast, succeeded in “divorcing”
peacefully. Belgium is in a state of permanent political turmoil
pending a compromise solution between Flanders and Wallonia. Cyprus’s
independence, linked to an outdated trilateral guarantee arrangement,
was the last act of decolonisation in Europe. The island has remained
divided
de facto for decades,
despite the quasi-unanimous non-recognition of the breakaway entity
in the north, set up under the protection of the Turkish military.
6. These examples appear to show that lack of clarity about the
criteria for statehood and about the meaning of national sovereignty
poses a grave threat to peace and stability, even in Europe. The
purpose of this modest report is to recall some basic principles
of international law in this field and to mobilise support for further
in-depth debate at the level of the United Nations, in the form
of a follow-up conference to the International Commission on Intervention
and State Sovereignty (ICISS), whose conclusions were published in
2001. Basing my findings on the results of the hearing with learned
experts on international law in December 2010, I will begin by briefly
recalling the main generally accepted principles on criteria for
statehood and national sovereignty and the conclusions of the ICISS.
I will then draw some tentative conclusions regarding the practical
issues raised in the motion for a resolution, highlighting the points
to be clarified.
3. Basic principles governing statehood and national
sovereignty
3.1. Criteria for statehood
7. As Professor Keller pointed out at the hearing, the
definition of statehood given by Georg Jellinek in 1900
is
still generally accepted: a state requires a people, a territory
and a state authority. The existence of these elements is seen as
a merely factual issue.
8. According to the prevailing doctrine in public international
law, the recognition of a new state by others is purely declaratory
in nature. A state either exists or it does not, regardless of recognition
by others. The reason for this prevailing doctrine is that no state
must be in a position to decide about the status of another state
– this would be in contradiction to the sovereign equality of all
states.
9. This being said, recognition by numerous other states, or
its absence, constitutes a factual consideration that weighs heavily
in the assessment of whether the necessary elements of statehood
are actually present.
Professor
Herdegen pointed out in his presentation before the committee that
the assessment of the required “effectiveness” of state authority
necessitates a complex evaluation of all relevant factors, including
a prognosis as to whether the new state authority will be able to
prevail over the competing authority of the predecessor state in
the long run. The result of such a prognosis may well be influenced
by the attitude of other states and also of international organisations
vis-à-vis the new state, in particular their readiness to co-operate
with and support the new state.
10. Professor Herdegen pointed out that there is no duty under
international law to recognise new states. This gives states and
international organisations the opportunity to make recognition
or accession to an organisation conditional upon the fulfilment
of certain substantial criteria. I agree with Professor Herdegen
that the Council of Europe should formulate certain substantive
standards as preconditions for the recognition and accession of
new states. In fact, the Assembly, in its more recent opinions on
the accession of new member states, has shown the way: accession
was made conditional upon a certain number of commitments whose implementation
is being followed up by the Assembly’s Monitoring Committee. The
Assembly’s criteria resemble those laid down in the “Guidelines
on the recognition of new States in Eastern Europe and in the Soviet
Union”
adopted by the foreign ministers of
the European Union member states:
- respect
for democracy, the rule of law and human rights;
- guarantees for ethnic groups and minorities;
- the recognition of the inviolability of existing borders;
- the recognition of existing commitments to disarmament
and nuclear non-proliferation;
- the obligation to peaceful settlement of disputes.
11. In the discussion at the hearing, the question was raised
whether recognition of a state can be “withdrawn” if the conditions
under which it was granted are no longer fulfilled. Our learned
experts did not think that recognition as such could be subject
to withdrawal, but international organisations had the possibility
of reacting to infringements of membership duties by withdrawing
some or all of the rights linked to membership. We should indeed
be aware of this possibility and not hesitate to make use of it
in appropriate cases.
3.2. Evolution of the notion of national sovereignty
12. Once a state exists, it is “sovereign”, both internally
and externally, and has the right “freely to choose and develop
its political, social, economic and cultural systems”.
13. The classic definition of state sovereignty denotes the competence,
independence and legal equality of states. The concept is normally
used to encompass all matters in which each state is permitted by
international law to decide and act without intrusions from other
sovereign states.
This
positivistic definition according to which international legal obligations
derive exclusively from the consent of sovereign states still underlies
the famous Lotus judgment of the Permanent Court of International
Justice of 1927.
14. However, as former United Nations Secretary-General Boutros
Boutros-Ghali stated: “The time of absolute sovereignty … has passed;
its theory was never matched by reality.”
Professor Keller aptly summed up
the modern understanding of state sovereignty as “sovereignty under
law”, in other words, sovereignty rooted in and limited by law.
15. Ever since human rights and their international protection
have been recognised and strengthened, there are increasing doubts
as to whether respect for human rights may continue to be left to
the states’ sovereign
domaine réservé. A
more human-rights-oriented approach to national sovereignty was
developed by former United Nations Secretary-General Kofi Annan
in his famous article in
The Economist:
“States are now widely understood to be instruments at the service
of their peoples, and not vice versa. At the same time individual
sovereignty – by which I mean the fundamental freedom of each individual
… has been enhanced by a renewed and spreading consciousness of
individual rights. When we read the Charter today, we are more than
ever conscious that its aim is to protect individual human beings,
not to protect those who abuse them.”
16. With respect to the Council of Europe, whose members are all
States Parties to the European Convention on Human Rights (ETS No.
5), the issue is resolved: violations of human rights protected
under the Convention cannot be regarded as “internal affairs” of
the states concerned. Such violations are subject to the scrutiny
of the European Court of Human Rights, whose judgments must be implemented
under the supervision of the Committee of Ministers. This clearly
constitutes a voluntary relinquishment of sovereign rights.
17. Such voluntary relinquishment of aspects of national sovereignty
is progressing, in particular in the framework of European integration.
One of the consequences of economic globalisation is that any European state
on its own would have great difficulties in asserting its “independence”
in international trade. European countries have relinquished parts
of their sovereign powers in such policy areas as trade, tariffs,
competition law and the like and allow the European Union to act
on their behalf in these fields. More recently, states inside and
outside the eurozone having allowed fiscal deficits to accumulate
for too long have come to realise that they are no longer free to
set their social and other spending or their fiscal policies at
will. Escalating risk premiums in the international financial markets
have effectively curtailed national sovereignty – on a voluntary basis
only to the extent that countries have at some point “chosen” to
go into debt in an unsustainable way.
18. Another step further is the question of the legality of intervention
against the will of the state concerned in a case where the said
state gravely violates human rights. This issue of the emergence
of a “responsibility to protect” is the main subject of the report
of the ICISS. As we know, this argument was fielded – rightly or wrongly
– for the interventions by Turkey in Cyprus, by NATO in the Federal
Republic of Yugoslavia and by the Russian Federation in Georgia.
There is a danger that such a “responsibility to protect” can be
abused in order to justify the use of force in cases where the true
agenda is other than that of preventing or stopping serious, massive
human rights violations. It is therefore necessary, on the one hand,
to define strictly the scope and conditions of any intervention
rights for humanitarian reasons. On the other hand, in the light
of the Srebrenica massacre or of the genocide in Rwanda, the case
for some kind of right or even duty to intervene to prevent or stop
massive human rights violations is very strong. But the precise
definition of the legal basis and the scope of such a right to intervene
would go beyond the framework of this report.
4. Summary of the ICISS conclusions
19. At the United Nations General Assembly in 1999, Secretary
General Kofi Annan pleaded with the international community to “forge
unity” around the question of humanitarian intervention: “If humanitarian intervention
is indeed an unacceptable assault on sovereignty, how should we
respond to a Rwanda, to a Srebrenica – to gross and systematic violations
of human rights that affect every precept of our common humanity?”
It was
in response to this challenge that the Government of Canada, together
with a group of major foundations, announced at the United Nations
General Assembly in September 2000 the establishment of the ICISS.
The report’s central theme is reflected in its title, “The responsibility
to protect”, namely, the premise that sovereign states have a responsibility
to protect their own citizens from avoidable catastrophes such as
mass murder, rape or starvation, and when they are unwilling or
unable to do so, that responsibility must be borne by the broader
community of states.
20. The conclusions, which it should be noted were adopted by
consensus among the 12 ICISS commissioners, representing a wide
geographical and political spectrum of academic and practical expertise in
international law and international relations,
are
summed up in a synopsis in the Appendix.
21. The commission’s key finding is that state sovereignty implies
responsibility. If the state itself is unwilling or unable to halt
or avert serious harm to its population, the principle of non-intervention
yields to the international responsibility to protect. The commission
then breaks up the responsibility to protect into three sub-sets
of responsibilities: to prevent, to react and to rebuild. Priority
is given to the responsibility to prevent.
22. The exercise of the responsibility to prevent or to react
should always involve the least obtrusive and coercive measures.
Military intervention for protective purposes should remain an exceptional
and extraordinary measure. There must be “serious and irreparable
harm” being inflicted on human beings or “imminently likely to occur",
in the form of a large-scale loss of life, or large-scale “ethnic
cleansing”. The commission also lays down “operational principles”
for any intervention, including clear objectives, a clear and unambiguous
mandate at all times and resources to match.
23. Significantly, the commission insists on the primary responsibility
of the United Nations Security Council, whose authorisation should
be sought prior to any military intervention. It appeals to the
permanent members of the Security Council not to apply their veto
powers to obstruct the passage of resolutions authorising military intervention
for protective purposes for which there is otherwise strong majority
support. But the commission also addresses the situation in which
the Security Council rejects a proposal or fails to deal with it
in a reasonable time, leaving the door open to regional or sub-regional
organisations under Chapter VIII of the Charter of the United Nations
to take action subject to their seeking subsequent authorisation
from the Council. Finally, the commission invites the Security Council
to “take into account in all its deliberations that, if it fails
to discharge its responsibility to protect in conscience-shocking
situations crying out for action, concerned states may not rule
out other means to meet the gravity and the urgency of that situation
– and that the stature and credibility of the United Nations may
suffer thereby”. The commission thus leaves the door open for urgent action
– if only in “conscience-shocking situations crying out for action”
– without the approval of the United Nations Security Council.
24. The conclusions of the ICISS gave rise to debates at the 59th
and 60th sessions of the United Nations General Assembly. At its
60th session, the General Assembly adopted a resolution
confirming the principle of the “responsibility
to protect” of every state and of the international community as
a whole. It also defines four situations that may engage the responsibility
of the international community, namely, genocide, war crimes, ethnic
cleansing and crimes against humanity. But, as Professor Maria M.
Kenig-Witkowska stresses in her paper, the United Nations General
Assembly resolution differs in several respects from the proposals
of the ICISS report. In particular, it does not answer the question
of what shall be done in the absence of a common position of the
United Nations Security Council, and it rejects the right to unilateral
humanitarian intervention. There is clearly some “unfinished business”
to be wrapped up in another conference, which could take account
of the reception given the ICISS's 2001 proposals.
5. Practical issues pertaining to the evolution of
the criteria for statehood and national sovereignty
5.1. Right to secession?
25. The question whether there is a (unilateral) right
to secession is not new – and the standard answer has always been
that there is no such right, in principle, as the state’s territorial
integrity prevails. However, unilateral declarations of independence
have been considered legitimate in state practice as part of the decolonisation
process, in which peoples who had been subjected to foreign dominance
and exploitation declared their independence from their colonial
powers, as an expression of their right to self-determination.
26. Outside the decolonisation process, the right to self-determination
is not seen by prevailing opinion as giving rise to a right for
any regional minority group to secede from an existing state.
Self-determination
of minority groups should be realised rather by way of participation
in the government of the state as a whole and by the devolution
of power through the development of regional autonomy, namely, self-government
in matters such as education, culture, etc., falling short of independence.
27. In view of the general recognition of the “responsibility
to protect” (see above), the question arises whether a regional
minority group may have a right to “remedial secession” when its
legitimate claim to regional autonomy has been thwarted by the central
authorities, especially when the denial of self-government goes along
with serious human rights violations against the minority population.
At least
de lege ferenda,
this point of view is widely defended in contemporary international
law doctrine, which poses varying conditions, including the impossibility
to realise self-government within the framework of the existing
state by way of negotiations and widespread human rights violations
against members of the secessionist group committed by the state.
28. The International Court of Justice (ICJ), in its Advisory
Opinion of 22 July 2010 on “accordance with international law of
the unilateral declaration of independence in respect of Kosovo”,
did
not answer this question in a clear-cut manner.
It interpreted the question
asked by the United Nations General Assembly narrowly, limiting
its opinion to the question whether the declaration as such violated
either general international law or the framework of United Nations
Security Council Resolution 1244 (1999) or the Constitutional Framework
that was created in the framework of the United Nations Interim
Administration Mission in Kosovo (UNMIK). The ICJ held that the
declaration of independence of 17 February 2008 did not violate
general international law, which it considers does not contain an
applicable prohibition of declarations of independence (according
to the ICJ, the declaration also did not violate Resolution 1244
or the UNMIK Framework). The ICJ drew an
argumentum
a contrario supporting this position from the fact that
the Security Council had found it necessary to adopt specific resolutions
condemning unilateral declarations of independence in individual
cases.
The ICJ also found that
territorial integrity only concerned relations between states. But
it did not go so far as to comment on the legal effect of this declaration
of independence, namely, whether it actually had as a consequence
the emergence of a new state:
the
ICJ “does not consider that it is necessary to address such issues
as whether or not the declaration has led to the creation of a State or
the status of the acts of recognition in order to answer the question
put by the General Assembly”
since the General Assembly,
in particular, “does not ask whether or not Kosovo has achieved
statehood”.
29. Even if one were to recognise a right to “remedial” secession
in certain cases, recent examples such as the situation in Georgia/South
Ossetia show how difficult the application of such a rule would
be in practice. The divergent positions of different states, which
were partly reflected in the positions taken by the experts at the
hearing on 16 December 2010, show that objective assessment of the
facts is often overshadowed by political considerations. Furthermore,
as the experts pointed out, if every more or less discontented minority group
in Europe alone were granted the right to secede, international
organisations, including the Council of Europe, would soon become
ungovernable, and the political stability of many a member state
would be seriously threatened. Also, as was pointed out, secession
often does not solve a minority problem. Mostly, it simply results
in the reversal of the minority/majority roles, and the new minority
becomes subject to similar ill-treatment at the hands of the former
minority (as is the case of Georgians in South Ossetia (Georgia)).
30. Also, the question arises for how long any “right to secession”
owing to the large-scale ill-treatment of a given minority would
remain applicable once the ill-treatment ended. The question arose,
for example, in Kosovo after the end of the Milosevic regime in
Serbia and the readiness of the new Serbian authorities to negotiate
a regime of autonomy falling short of outright independence. The
International Court of Justice failed to provide guidance on this
issue in its Advisory Opinion.
31. In light of the difficulties attached to a right to unilateral
secession based on the right to self-determination of minority groups,
the experts at our hearing were in favour of maintaining a strict
interpretation of the conditions giving rise to unilaterally declared
secession. In my view, the proper protection of minority rights
as foreseen, in particular, in the Council of Europe’s Framework
Convention on the Protection of National Minorities (ETS No. 157)
is an appropriate way of implementing the right to self-determination.
5.2. Consequences of unlawful secession
32. What are the consequences of a secession that is
in breach of international law? First and foremost, other states
have a duty not to recognise the secessionist entity. This may result
from an express resolution of the United Nations Security Council,
as in the cases mentioned in footnote 22, or it may simply result
from states’ duty to respect the territorial integrity of the state
from which the secessionist entity is breaking loose.
The International Law Commission,
in its “Articles on State Responsibility”,
formulates
the duty of states to refuse recognising and promoting in any way
a state of affairs caused by a serious violation of international
law within the meaning of Article 40 as follows:
“No State shall recognise as lawful a situation created
by a serious breach within the meaning of article 40, nor render
aid or assistance in maintaining that situation.” (Article 41, paragraph
2)
33. The duty not to recognise states that owe their existence
to a violation of the prohibition of the use of force was explicitly
stated in resolutions of the United Nations Security Council in
the case of northern Cyprus,
whilst
such a resolution has not been adopted, for obvious reasons, in
the case of Abkhazia and South Ossetia (Georgia). But as Professor
Keller pointed out at the hearing in December 2010, the Assembly condemned
the recognition of Abkhazia and South Ossetia by Russia as a violation
of international law.
34. Also, as our experts pointed out, the state from which the
secessionist entity has attempted to break loose continues to benefit
from all rights and prerogatives concerning the whole of its territory,
at least insofar as actual territorial control is not required.
The Government of the Republic of Cyprus, for example, represents internationally
the whole territory of the island – which is why the accession of
Cyprus to the European Union on 1 May 2004 applied to the whole
of Cyprus. But the inhabitants of the area that is not under the
de facto control of the Cypriot
Government cannot benefit from all the advantages of accession.
Protocol 10 of the Accession Treaty suspends the application of
EU legislation in this area. The situation will change once a Cyprus
settlement enters into force, and it will then be possible for EU
rules to apply over the whole of the island.
Meanwhile,
failure by Turkey to recognise the Republic of Cyprus (whilst being
the only state recognising the so-called Turkish Republic of Northern
Cyprus) constitutes a major obstacle in the path of Turkey’s own
accession to the European Union.
35. In order to guarantee the protection of human rights in the
case of an unlawful secession, the European Court of Human Rights
has developed a jurisprudence that holds the occupying power responsible
for violations committed in the territory under its
de facto control. The Court developed
this case law in dealing with applications concerning the enforced
disappearance of Greek Cypriots in the wake of the Turkish military intervention
in 1974
and in cases concerning the property rights
of displaced Greek Cypriots
in
view of the
de facto control
exercised by Turkey through the presence of a strong military contingent
in this part of the Cypriot territory. It was also applied in the
Ilaşcu case
, in which the Russian Federation, alongside
the Republic of Moldova, was held responsible for the unlawful detention
of a political opponent of the
de facto authorities
of Transnistria, due to the territorial control exercised by the
Russian military in this breakaway region of Moldova. This case
law of the Court is fully in line with the above-mentioned
development of a more human-rights-oriented
understanding of national sovereignty.
5.3. Strengthening of multilateralism and bilateral
guarantees
36. Another trend in the evolution of the notion of state
sovereignty is the strengthening of multilateralism, as opposed
to unilateral action.
37. As regards the “responsibility to protect”, we have already
seen that a multilateral mandate, preferably based on a United Nations
Security Council resolution, is required in order to justify a humanitarian intervention.
The cautious exceptions advocated by the ICISS in case of a blockade
in the United Nations Security Council would still require at least
the support of a regional organisation. It may therefore be safely argued
that unilateral interventions, or ones based on bi- or plurilateral
guarantee agreements, can no longer be in line with a modern understanding
of public international law.
38. The example of Cyprus is a case in point. As Professor Herdegen
noted at the hearing in December 2010, the continued validity of
the 1960 “Treaty of Guarantee” for Cyprus is doubtful since it may
have become inoperative according to the principle of Wegfall der Geschäftsgrundlage (disappearance
of the substantive circumstances on which the treaty was based)
or because of a material breach by one party to the agreement (in
the form of the unilateral military intervention by Turkey in 1974).
39. In fact, the Treaty of Guarantee for Cyprus could be considered
as void, in line with the above argument put forward by Professor
Herdegen and because it appears to conflict with Articles 2.4 and
103 of the Charter of the United Nations and a peremptory norm of
international law prohibiting the use of force. Article 2.4 of the Charter
significantly limits the circumstances in which one state may lawfully
use force on the territory of another. Article 2.4 of the charter
provides that “all Members shall refrain in their international
relations from the threat or use of force against the territorial
integrity or political independence of any State, or in any other manner
inconsistent with the purpose of the United Nations.” It is likely
that a treaty purporting to authorise military action in such broad
terms on the territory of one of its parties, irrespective of whether
that party consented to such action at the time, would be held contrary
to a peremptory norm of international law (
jus cogens)
since the prohibition on the use of force contrary to Article 2.4
of the charter has generally been regarded as the paradigm of such
a peremptory norm. If so, such a treaty would be void under the
principle stated in Article 53 of the Vienna Convention on the Law
of Treaties.
It would also
be rendered ineffective by Article 103 of the Charter of the United
Nations, which reads: “In the event of a conflict between the obligations of
Members of the United Nations under the present Charter and their
obligations under any other international agreement, their obligations
under the present Charter shall prevail”.
40. In any case, treaty-based instruments such as the Treaty of
Guarantee for Cyprus are displaced by any intervention of the United
Nations Security Council under Chapter VII of the Charter of the
United Nations. The obsolescence of the Treaty of Guarantee may
also put into question the continued legitimacy of the “Sovereign Base
Areas” in Akrotiri and Dhekelia,
which are
based on another element of the package of decolonisation treaties
leading to the independence of Cyprus, the Treaty of Establishment.
It is doubtful whether an “unequal treaty”, which Cyprus was forced
to enter into in order to shed colonial rule in 1960, can still
justify withholding from Cypriot sovereign control such large tracts
of territory, namely, the “Sovereign Base Areas”.
6. Conclusion
41. We have seen that the notions of statehood and national
sovereignty have evolved. Statehood criteria have come to include
such substantive standards as respect for democracy, the rule of
law and human rights, guarantees for ethnic groups and minorities
and the obligation to settle disputes peacefully. Sovereignty has evolved
into “sovereignty under law”, that is to say, sovereignty rooted
in and limited by law, including international human rights norms.
In the light of these developments, the International Commission
on Intervention and State Sovereignty has developed the notion of
a collective “responsibility to protect”, which may, in certain
circumstances, overcome entrenched conceptions of national sovereignty
and which is taking the place of bi- or plurilateral “guarantees”
that are becoming progressively obsolete.
42. The most important conclusion is that these new developments
are far from being complete and give rise to continuing disputes,
both from a legal point of view and in terms of the assessment of
the factual situations in question. The important contribution made
by the ICISS to the further development and clarification of the
“responsibility to protect” in my view shows the way forward: a
follow-up conference to the ICISS, bringing together under the auspices
of the United Nations leading practitioners and academics in the field
of international law who represent all regions of the world and
relevant traditions in this field, should take up those international
legal issues that continue to give rise to conflict situations,
including, but not limited to, those touched upon in this report.