Anthony Aust. Handbook of International Law
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Secession
The principle of self-determination was originally conceived primarily for colonial situations, and so
any proposed secession by the people of part of a metropolitan state is likely to be highly
contentious. Not only is the notion of a ‘people’ not easy to apply,
38
but the principle of self-
determination is inevitably in tension with those of territorial integrity
39
and uti possidetis.
40
Between 1945 and the end of the Cold War there has been only one successful case of secession by
force (Bangladesh).
41
But during that period there were several failed attempts at secession, such as
those by Biafrans, Eritreans, Katangans, Basque separatists in Spain and the IRA in Northern
Ireland.
Most claims to statehood are likely to come either from a former overseas territory (and should
pose no problem),
42
or from a part of a state that asserts it has become a new state. Somaliland was
a British protectorate until 1960 when, only days after independence, it joined with the former Italian
Trust Territory of Somaliland to form the new state of Somalia, now widely seen as a ‘failed state’.
Since 1991 Somaliland has been effectively independent of Somalia.
Although states are naturally cautious about recognising secession, international law does not
prohibit it. The independence of fourteen former republics of the Soviet Union (Armenia,
Azerbaijan, Belarus, Georgia, Kazakhstan, Kyrgyzstan, Moldova, Tajikistan, Turkmenistan, Ukraine
and Uzbekistan, and the Baltic states of Estonia, Latvia and Lithuania) was quickly achieved by
1991, the predecessor state not having seriously opposed it. The Minsk Agreement of 8 December
1991, establishing the Commonwealth of Independent States, and the Alma Ata Declaration of 21
December 1991, together recognised the end of the Soviet Union and the independence of those
former republics.
43
Attempts to secede have generally not been successful if the predecessor state
has opposed it.
44
It is also easier if there is no government in effective control of the predecessor
state, the state then not being able either to oppose or to agree to secession.
Recognition is also easier if the original state has dissolved, especially if it was a somewhat
artificial creation. Other states therefore soon accepted
38. See Cassese, Self-Determination of Peoples, Cambridge, 1995.
39. See p. 41 below.
40. See p. 42 below.
41. Singapore seceded from Malaysia in 1965 by consent.
42. See p. 391 below.
43. See ILM (1992) 138 or www.cisstat.com/eng/cis.htm.
44. See J. Crawford, ‘State Practice and International Law in Relation to Secession’ (1998) BYIL 85–117.
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the fact that the Socialist Federal Republic of Yugoslavia had broken into the states of Bosnia and
Herzegovina, Croatia, Macedonia and Slovenia, which were then admitted to the United Nations.
(The so-termed Federal Republic of Yugoslavia raised difficult questions.)
45
These are good
examples of international law reflecting the realities. In contrast, in the United Nations Macedonia is
referred to as ‘the former Yugoslav Republic of Macedonia’ (emphasis added), Greece having
objected vehemently to Macedonia calling itself by the same name as a neighbouring northern Greek
province. The lower case ‘t’ and ‘f’ indicate that it is not the name of the state.
46
Territorial integrity and uti possidetis
The principle of territorial integrity may be seen as an impediment to recognition. But if the
particular circumstances merit it, states have shown their willingness to recognise secession. Being a
matter of political judgment, recognition is largely dependent on whether secession has become a
political and irreversible fact.
The principle of uti possidetis
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is not an obstacle to recognition of secession of part of a state.
The principle places no obligation on minority groups to stay part of a unit if it maltreats them. If
they establish a separate entity that is shown to have permanence, it will eventually be recognised by
the international community: ‘international law will recognise new realities’.
48
Eritrea was an Italian
colony from 1896, and was occupied by British forces in the Second World War. In 1950 the UN
General Assembly decided that it should be an autonomous part of a federation with Ethiopia. That
did not work and a long period of strife with the central government ensued. In 1993, a referendum
in Eritrea was overwhelmingly in favour of independence, and independence was declared in April
1993, Eritrea becoming a Member of the United Nations the same year.
Recognition of governments
Even though a state and its territory are often seen as synonymous, a state exists only in law. It must
therefore act through its government. One must not confuse recognition of states with that of
governments. In itself,
45. See p. 20 above and pp. 399 and 402 below.
46. See M. Wood, ‘Participation of the Former Yugoslav States in the United Nations’ (1997) YB of UN
Law 231.
47. See p. 42 below.
48. Higgins, pp. 125–6.
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a change of government does not affect the state. Even when the change has been brought about by
unconstitutional or violent means, the legal personality of the state is unaffected (as are treaties to
which the state is bound).
49
The question of recognition of a government arises only when it has
come to power unconstitutionally. Recognition may then be withheld for political reasons, or may be
limited to recognition de facto (see below). Although the new regime may be all too clearly in
effective control of the territory, with a reasonable prospect of permanence and with the obedience
of the mass of the population, recognition may be withheld as a sign of political displeasure. But
since international law is concerned more with the realities, if the new regime was not at first
recognised because of the way it came to power, yet is clearly in effective control and firmly
established, in international law it will be regarded as the government.
50
Numerous unconstitutional changes of government took place in the 1970s, particularly in
developing countries. The practice of formally announcing recognition of a usurper regime was often
politically embarrassing since recognition was sometimes perceived, albeit wrongly, as political
approval of the new regime. This predicament led several states to abandon the practice of formal
recognition. Following the adroit French principle of recognising only states, since 1980 the nature
of the relations that the United Kingdom has with a new regime must be determined and deduced
from the particular circumstances. Where previously the British Government would have accorded
formal recognition to a new government, now it will – but only if asked – say that it deals with it on
a normal government-to-government basis.
51
US practice appears to be more pragmatic: the
Administration may formally recognise an unlawful change of government when it approves of the
change, but otherwise leaves its view of the new government to be deduced from the relations it has
with it: diplomatic, consular, or none.
52
Governments in exile
When a foreign invader or local insurgents have occupied a state, its government may flee abroad
and, provided the state of refuge agrees,
49. See p. 393 below.
50. Tinoco Claims Arbitration (United Kingdom v. Colombia), 2 ILR 34.
51. For the formal statement of the new practice, see (1980) BYIL 367 and C. Warbrick, ‘The New British
Policy on Recognition of Governments’ (1981) ICLQ 568–92. See generally Shaw, pp. 380–2.
52. M. West and S. Murphy, ‘The Impact on US Litigation of Non-Recognition of Foreign Governments’
(1990) Stanford Journal of International Law 435–78.
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operate as a government in exile with the same legal status as it had before. Recognition of a
revolutionary government established abroad before it has gained control over the greater part of the
territory of the state concerned may well be premature and amount to an interference in the affairs of
the state.
53
De jure and de facto recognition
An entity, whether claiming to be a state or a government, may be recognised either de jure or de
facto, which terms qualify the status of the entity, not the nature of the recognition. Recognition de
jure means that the entity fully satisfies the applicable legal criteria; recognition de facto is only of
the current position of the entity, and is therefore usually provisional. De facto recognition can,
however, last a long time. The United Kingdom and other Western states refused to recognise as de
jure the 1940 annexation by the Soviet Union of the Baltic states (Estonia, Latvia and Lithuania).
Instead, they merely recognised that the Soviet Union had de facto control over them. This lasted
until 1991 when the re-emergence of the three Baltic states was recognised by many states, including
the Soviet Union (soon to renamed the Russian Federation).
54
Palestine
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Palestine had been part of the Ottoman Empire. From 1922, it was a League of Nations mandated
territory entrusted to the United Kingdom, which formally relinquished the mandate on 15 May
1948, the day the state of Israel was proclaimed. Israel was admitted to the United Nations in 1949.
General Assembly Resolution 181 ( ) (1947) had recommended the partition of Palestine into two
independent states, one Arab, one Jewish, and the creation of a special international regime for
Jerusalem, but the plan was never implemented. The Arab population of Palestine and the Arab
states rejected this. On the day Israel proclaimed its independence, an armed conflict broke out
between Israel and a number of Arab states. Following Security Council Resolution 62 (1948),
general armistice agreements were concluded in 1949 between Israel and the neighbouring
53. See Oppenheim, pp. 146–7.
54. Oppenheim, pp. 193–4.
55. See www.un.org/Depts/dpa/qpa/; Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory Advisory Opinion, ICJ Reports (2004), paras. 70–8; ILM (2004) 1009; Oppenheim,
p. 131, n. 2, p. 163, n. 9 and pp. 194–6; and Shaw, pp. 221–2.
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states. Articles and of the Agreement between Israel and Jordan fixed the armistice demarcation
line (later called the ‘Green Line’ owing to the colour used for it on maps) separating Israel and the
West Bank, then occupied by Jordan. Article (8) provided that these provisions would not
prejudice any final political settlement, and that the Green Line was without prejudice to future
settlements regarding territory or boundary lines.
During the later conflict with Arab states in 1967, Israeli forces occupied all the territories which
had constituted Palestine under the League of Nations mandate, including the West Bank and East
Jerusalem (from Jordan),
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as well as the Gaza Strip (from Egypt) and the Golan Heights (from
Syria). In Resolution 242 (1967), adopted by unanimity, the Security Council emphasised the
inadmissibility of acquisition of territory by war and called for the withdrawal of Israel’s armed
forces ‘from territories occupied in the recent conflict’.
From 1967 Israel took a number of measures aimed at changing the status of Jerusalem, including
purporting to make it the capital of Israel. The Security Council condemned those measures, and in
Resolution 298 (1971) confirmed that all legislative and administrative actions taken by Israel to
change the status of Jerusalem were invalid and could not change that status. Israel does not claim
sovereignty over the territories occupied since 1967, and under customary international law in those
territories Israel therefore has the status of an occupying power. Subsequent events in the territories
have done nothing to alter this situation. The continued occupation by Israel is a military occupation
subject to the limitations of the Hague Regulations 1907 (Section ) and the Fourth Geneva
Convention.
57
In November 1988, the Palestine National Council, the Parliamentary Assembly of the Palestine
Liberation Organization, declared a state of Palestine. Since 1993, a number of agreements have
been signed between Israel and the Palestine Liberation Organization. They required Israel to
transfer to Palestinian authorities certain powers and responsibilities exercised in the occupied
territories by its military authorities and civil administration. Such transfers have taken place, but, as
a result of
56. In 1988, Jordan announced its disengagement from the West Bank, although it did not renounce any
claim it had to sovereignty.
57. See pp. 259–60 below, and Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory Advisory Opinion, ICJ Reports (2004), paras. 89–101; ILM (2004) 1009. See also
UNSC Res. 252 (1968), 465 (1980), 497 (1981); UNGA Res. 2253 and 2254 (1967) and 2949 ( )
(1972).
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subsequent events, have remained partial and limited. In 1994, a nascent Palestinian government, the
Palestinian Authority,
58
was established.
Given that Palestine lacks control over so much of the territory it claims, as well as the well-
known and profound political problems, Palestine has not yet succeeded in being generally
recognised as a state. It has not been admitted as a Member of the United Nations, though it does
have permanent observer status there,
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the same as that accorded to non-member states and
regional international organisations. At present, any application by Palestine for membership would
be vetoed in the Security Council.
Western Sahara
Formerly Spanish Sahara, in 1976 the territory (with a population of about 267,000) was partitioned
between Mauritania and Morocco, Morocco taking over the whole when Mauritania withdrew in
1979. The Polisario Front disputes Morocco’s sovereignty and fought a guerrilla war with Morocco.
It ended in 1991 with a UN-brokered ceasefire. A UN-organised referendum on the final status of
the territory has repeatedly been postponed.
60
It is not terra nullius.
61
Means of recognition
Recognition can be express, as in a diplomatic note or formal public announcement. More often it is
effected by means of an act that carries the inevitable implication that it would not have been done if
the entity were not recognised. Supporting admittance to UN membership is the most obvious
example of implied recognition; establishment of diplomatic relations or the conclusion of a bilateral
treaty are others. Participation in an international conference in which the entity takes part, or
becoming a party to a multilateral treaty to which the entity is also a party, does not amount to
recognition.
62
Although legally unnecessary, when ratifying a multilateral treaty which Israel has
ratified some
58. For details, see Shaw, pp. 221–2.
59. See UNSC Res. 3210 and 3237 ( ) (1974), 3375 ( ) (1975) and 43/177 (1988).
60. See www.un.org/Depts/dpko/missions/minurso/.
61. See Western Sahara Advisory Opinion, ICJ Reports (1975), p. 12, paras. 75–83; 59 ILR 14.
62. For numerous examples of acts that do not amount to recognition, see Oppenheim, pp. 170–4.