Secession And International Law: Conflict Avoidance-regional Appraisals PDF
Preview Secession And International Law: Conflict Avoidance-regional Appraisals
This page intentionally left blank SECESSION AND INTERNATIONAL LAW - - Regional Appraisals Prepared under the auspices of The Consortium on International Dispute Resolution, Geneva, on the basis of regional conferences organized by and in collaborationw ith: The TM.C . Asser Institute, The Hague The Santa Clara Universiw School of Law, California The Diplomatic Academy and The Russian Association of International Law, Moscow Edited by Julie Dahlitz Published in cooperation with the T.M.C. Asser Press UNITED NATIONS NEW YORK AND GENEVA, 2003 Note The designations employed and the presentation of the material in this publication do not imply the expression of any opinion what- soever on the part of the Secretariat of the United Nations con- cerning the legal status of any country, territory, city or area, or of its authorities, or concerning the delimitation of its fiontiers or boundaries. The views expressed are those of the persons who wrote them, as indicated, and do not necessarily reflect the posi- tions of the sponsoring organizations or any other institution or Govemment. Copyright 0U nited Nations 2003 All rights reserved Written permission for any extensive reproduction should be obtained fiom: Secretary, Publications Board, United Nations, New York, NY 1001 7, United States of America Hardcover edition published for and on behalf of the United Nations by T.M.C. Asser Press: ISBN 90-6704-142-4 Softcover edition published by United Nations, New York and Geneva. (UN Sales Number:) Sales No. GV.E.0 1. O.23 ISBN 92- 1-0001 44-3 TABLE OF CONTENTS Introduction Participating Institutes PART I Secession in Society and Law Self-determination and Secession Judge Rosalyn Higgins (United Kingdom) Order, Stability and Political Reality J. Holmes Armstead (United States) Self-determination and Secession: The Jurisprudence of International Human Rights Tribunals Dinah Shelton (United States) PART I1 Fundamental Legal Concepts Ongoing Global Legal Debate on Self-Determination and Secession: Main Trends Stanislav V. Chernichenko and Vladimir S. Kotliar (Russian Federation) A Legal Basis for Secession: Relevant Principles and Rules John Dugard (South Africa) Secession and International Law Secession and the Ban on the use of Force: Some Reflections Nico Schrijver (The Netherlands) PART I11 Evolving Principles Territorial Integrity and Secession: The Dialectics of International Order W.E. Butler (United Kingdom) Sovereignty And Secession: Then and Now, Here and There Rein Mullerson (Estonia) PART TV Specific Issues Qukbec's Right to Secessionist Self-Determination: The Colliding Paths of Canada's Clarity Act and Qukbec's Fundamental Rights Act Daniel Turp (Canada) Secession in North America: The United States & Puerto Rico J.L.A. de Passalaqua (Puerto Rico) Latin America: Self-Determination, Minorities, Indigenous People, Stability of Borders and Problems of Secession Fernando Flores (Ecuador) Table of Contents The Role of Recognition and Non-Recognition with respect to Secession: Notes on Some Relevant Issues Malcolm N. Shaw (United Kingdom) 243 Conclusions and Recommendations 259 Notes on the Authors 275 Abbreviations and Acronyms 283 This page intentionally left blank INTRODUCTION The underlying perception motivating this series of studies is, that a system of legality that is practical in its application and perceived to be just by those to whom it applies, is a necessary element in maintaining a peaceful society. Further, that this princi- ple is also valid in the international arena, where it is an indispen- sable element for conflict prevention. Regarding matters affecting the supreme security interests of States, identifying and developing international law and the rules of the road for international conduct, are truly daunting tasks. They cannot be achieved merely by scholarly research into the minutiae of precedents. Yet, any departures or re-formulations must be undertaken with great caution, so as to ensure that the achievements of the past are not compromised. One method of exercising the necessary caution is for non-gov- ernmental academic entities to conduct the exploratory work, with the assistance and in close co-operation with the United Nations and its Member Governments. This book is such a work in progress. From their inception, these studies on Secession and Interna- tional Law were designed to enable the diplomatic community to arrive at consensus positions in the matters under consideration - not by papering over the divisive problems but by solving them. For helpful outcomes in this terrain, it is essential to realign the work in keeping with the evolving global political outlook. That can only be achieved in a United Nations context. The background to the decision to explore secession related in- ternational law, was provided by a Study initiated by the Consor- tium on International Dispute Resolution (CIDIR) on the Peaceful Resolution of Major International Disputes, resulting in a book by that title1, which was presented at the Centenary commemoration of the first International Peace Conference, held at The Hague in
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