Unilateral Non-Colonial Secession in International Law and Declaratory General Assembly Resolutions: Textual Content and Legal Effects
Anderson, Glen, Denver Journal of International Law and Policy
TABLE OF CONTENTS I. INTRODUCTION II. THE DECLARATION ON PRINCIPLES OF INTERNATIONAL LAW CONCERNING FRIENDLY RELATIONS AND CO-OPERATION AMONG STATES IN ACCORDANCE WITH THE CHARTER OF THE UNITED NATIONS ("FRIENDLY RELATIONS DECLARATION") A. The Meaning of "Peoples" B. A Right of Peoples to UNC Secession C. Conclusion--The Friendly Relations Declaration III. THE DECLARATION ON THE OCCASION OF THE FIFTIETH ANNIVERSARY OF THE UNITED NATIONS ("FIFTIETH ANNIVERSARY DECLARATION") A. The Meaning of "Peoples" B. A Right of Peoples to UNC Secession C. Conclusion--The Fiftieth Anniversary Declaration IV. SUMMATION OF DECLARATORY GENERAL ASSEMBLY RESOLUTIONS A. Legal Effect of Declaratory General Assembly Resolutions 1. Declaratory General Assembly Resolutions as Authentic Interpretations of the U.N. Charter: Article 38(1)(a) of the Statute of the ICJ 2. Declaratory General Assembly Resolutions as Customary Law: Article 38(1)(b) of the Statute of the ICJ i. Are Statements Included Under Article 38(1)(b) of the Statute of the ICJ ii. Various Forms of State Practice and Relative Weight Thereof iii. The Impact of Repetition iv. Opinio Juris 3. Declaratory General Assembly Resolutions as General Principles of International Law: Article 38(1)(c) of the Statute of the ICJ 4. Declaratory General Assembly Resolutions as "Consensus": Beyond Article 38(1) of the Statute of the ICJ B. Distillation V. CONCLUSION
Since the conclusion of World War II several new states have been created as a result of unilateral non-colonial ("UNC") secession. (1) These include Bangladesh (Pakistan), Eritrea (Ethiopia), Bosnia-Herzegovina, Croatia, Macedonia, Montenegro, Slovenia, Serbia, Kosovo (Yugoslavia), and South Sudan (Sudan). (2) Some well-known examples of attempted UNC secession include Serbian Krajina (Croatia), Chechnya (Russian Federation), Gagauzia (Moldova), Transnistria (Moldova), Abkhazia (Georgia), (3) and South Ossetia (Georgia). (4) These examples--along with many others--demonstrate that UNC secession is an important method of state creation.
The present article examines whether a right to UNC secession is contained in United Nations ("U.N.") declaratory General Assembly resolutions, and if so, what might be the legal effect of such a right. Examination of declaratory General Assembly resolutions is critical to establishing a right to UNC secession in international law. (5) This is because scant--if any--support for such a right can be found in treaty law. (6) Yet UNC secession is a well-recognised method of state creation, (7) which by its very nature leads to a sovereignty conflict between the existing state and the (putative) secessionist state. The primary rules invoked for the resolution of this conflict are those relating to the international law of self-determination. It is this body of law, as developed and applied primarily by the U.N., which provides justification for the creation of a new state by way of UNC secession.
Two declaratory General Assembly resolutions arguably provide a qualified (8) right to UNC secession for peoples: The Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance With the Charter of the United Nations (9) ("Friendly Relations Declaration") and the Declaration on the Occasion of the Fiftieth Anniversary of the United Nations (10) ("Fiftieth Anniversary Declaration"). The article's first half examines the textual content of these instruments asking two interrelated questions: first, "what does the term 'peoples' mean?"; and second, "does the law of self-determination provide peoples--however defined--with a right to UNC secession? …