Self-determination in Practice

On Quebec. Those exceptional circumstances were "manifestly inapplicable to Quebec under existing conditions", so neither the population of the province, even if characterised as a people, nor its representative institutions possess a right under international law to secede unilaterally. The persistent failure to agree constitutional amendments, "while a matter of concern, does not amount to a denial of self-determination".

And on the domestic question the Court found something more interesting than a right. Democratic institutions accommodate a continuous process of discussion and evolution, reflected in the constitutional right of each participant in the federation to INITIATE constitutional change; and "this right implies A RECIPROCAL DUTY ON THE OTHER PARTICIPANTS TO ENGAGE IN DISCUSSIONS to address any legitimate initiative to change the constitutional order". A CLEAR MAJORITY VOTE ON A CLEAR QUESTION in favour of secession would confer DEMOCRATIC LEGITIMACY which all the other participants would have to recognise.

But the duty runs both ways. Quebec could not, despite a clear referendum result, invoke self-determination to DICTATE THE TERMS of secession; the democratic vote, by however strong a majority, "would have NO LEGAL EFFECT ON ITS OWN and could not push aside the principles of federalism and the rule of law, the rights of individuals and minorities, or the operation of democracy in the other provinces". Equally, the continued existence and operation of the Canadian constitutional order "could not be INDIFFERENT to a clear expression of a clear majority" that they no longer wish to remain, and the other participants "would have no basis to deny the right of the government of Quebec to pursue secession", so long as Quebec respects the rights of others. There would be NO CONCLUSIONS PREDETERMINED BY LAW on any issue.

Why the decision matters here. It is the fullest judicial statement of the internal and external distinction; it identifies the three exceptional situations; and it shows a constitutional court answering a secession claim not with a right or a prohibition but with a PROCEDURE.

Kosovo, 2010

The question, put by General Assembly resolution 63/3 of 8 October 2008: "Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?" Thirty-six States filed written statements; twenty-eight States and the authors of the declaration took part in oral proceedings from 1 to 11 December 2009.

The Court's answer, delivered on 22 JULY 2010: that "the declaration of independence of Kosovo adopted on 17 February 2008 DID NOT VIOLATE INTERNATIONAL LAW".

How it got there, and this is what earns marks.

It reframed the question. It was NOT REQUIRED to decide whether international law conferred a POSITIVE ENTITLEMENT upon Kosovo to declare independence; it had to determine whether A RULE OF INTERNATIONAL LAW PROHIBITED such a declaration. Everything follows from that choice.

On general international law. State practice during the eighteenth, nineteenth and early twentieth centuries "points clearly to the conclusion that INTERNATIONAL LAW CONTAINED NO PROHIBITION OF DECLARATIONS OF INDEPENDENCE".

On territorial integrity, which is the proposition to remember. "THE SCOPE OF THE PRINCIPLE OF TERRITORIAL INTEGRITY IS CONFINED TO THE SPHERE OF RELATIONS BETWEEN STATES." So the principle constrains other STATES, not a group within a State.

On the Security Council precedents. No general prohibition could be deduced from resolutions condemning other declarations of independence, because those had been made in the context of AN UNLAWFUL USE OF FORCE OR A VIOLATION OF A JUS COGENS NORM.

On resolution 1244 of 10 June 1999. Its object and purpose was to establish "a temporary, exceptional legal régime which superseded the Serbian legal order on an interim basis". The authors of the declaration were NOT the Provisional Institutions of Self-Government but "persons who acted together in their capacity as REPRESENTATIVES OF THE PEOPLE OF KOSOVO OUTSIDE THE FRAMEWORK of the interim administration". And the two instruments "operate on a different level": resolution 1244 was SILENT ON THE FINAL STATUS, whereas the declaration was an attempt finally to determine it.

What the opinion decides and does not decide. It decides that making the declaration broke no rule. It does not decide that Kosovo is a State, that it had a right to secede, or that other States must recognise it. A candidate who says the Court upheld a right of secession has misread it.

Chagos, 2019

The questions, put by General Assembly resolution 71/292 of 22 June 2017 under article 65 of the Statute: whether the decolonisation of Mauritius was LAWFULLY COMPLETED when it was granted independence in 1968, following the separation of the Chagos Archipelago and having regard to obligations reflected in General Assembly resolutions 1514 (XV) of 1960, 2066 (XX) of 1965, 2232 (XXI) of 1966 and 2357 (XXII) of 1967; and what consequences arise from the continued administration by the United Kingdom, including with respect to the inability of Mauritius to resettle its nationals of Chagossian origin.

The Advisory Opinion of 25 FEBRUARY 2019.

On the law. The adoption of RESOLUTION 1514 (XV) "represents a defining moment in the consolidation of State practice on decolonization"; and "both State practice and opinio juris at the relevant time CONFIRM THE CUSTOMARY LAW CHARACTER OF THE RIGHT TO TERRITORIAL INTEGRITY OF A NON-SELF-GOVERNING TERRITORY AS A COROLLARY OF THE RIGHT TO SELF-DETERMINATION". The peoples of non-self-governing territories are entitled to exercise the right IN RELATION TO THEIR TERRITORY AS A WHOLE, whose integrity the administering Power must respect.

On the facts. The detachment of the Chagos Archipelago "WAS NOT BASED ON THE FREE AND GENUINE EXPRESSION OF THE WILL OF THE PEOPLE CONCERNED", although the colony of Mauritius had agreed in principle to it.

The first answer. As a result of the Archipelago's UNLAWFUL DETACHMENT and its incorporation into a new colony, "the process of decolonization of Mauritius WAS NOT LAWFULLY COMPLETED when Mauritius acceded to independence in 1968".

The second answer. The United Kingdom's continued administration "CONSTITUTES A WRONGFUL ACT ENTAILING THE INTERNATIONAL RESPONSIBILITY OF THAT STATE"; it "has an obligation TO BRING TO AN END its administration AS RAPIDLY AS POSSIBLE"; and ALL MEMBER STATES MUST CO-OPERATE with the United Nations to complete the decolonisation.

And the proposition that reaches furthest. Since respect for the right to self-determination is an obligation ERGA OMNES, ALL STATES HAVE A LEGAL INTEREST IN PROTECTING THAT RIGHT. Resettlement was held to be a question of the human rights of those concerned, to be addressed by the General Assembly during the completion of the decolonisation.

Why the three answers differ

Because the question asked was different in each case, and a candidate who sees that has the chapter.

Quebec asked: is there a RIGHT to secede? Answer: only in the three exceptional situations, none of which applied. Domestically, a clear majority on a clear question creates a duty to negotiate.

Kosovo asked: is a declaration PROHIBITED? Answer: no, and the Court expressly declined to decide whether there was a right. Territorial integrity constrains States, not groups.

Chagos asked: was decolonisation LAWFULLY COMPLETED? Answer: no, because the territory was detached without the free and genuine expression of the will of the people, and the right applies to the territory AS A WHOLE.

And the pattern is consistent. Where the case is COLONIAL, the right operates powerfully, and Chagos shows it operating fifty years after the event and against a permanent member of the Security Council. Where the case is NOT colonial, no court has yet found a right of external self-determination; what it finds instead is either a procedure, as in Quebec, or the absence of a prohibition, as in Kosovo.

A worked example

A region within a democratic State holds a referendum in which a clear majority votes for independence. Its representatives then declare independence. Assess.

Is there a right of external self-determination? On Quebec, only in the three situations: a former colony; a people oppressed, as under foreign military occupation; or a definable group DENIED MEANINGFUL ACCESS TO GOVERNMENT. A region of a democratic State with representation in the national institutions is in none of them.

Does the declaration break international law? On Kosovo, international law contains NO PROHIBITION of declarations of independence, and the scope of the principle of territorial integrity is confined to relations between States. So the declaration itself violates nothing.

Does that make the region a State? No. The Kosovo opinion decides only that no rule prohibited the declaration; it says nothing about statehood or recognition.

Does the State owe anything? Under its own constitutional order it may. Quebec's answer is a DUTY TO NEGOTIATE arising from the constitutional right of each participant to initiate change and the reciprocal duty to discuss any legitimate initiative; but the vote has NO LEGAL EFFECT ON ITS OWN, and the negotiation must respect federalism, the rule of law, and the rights of individuals and minorities.

And if the group were a colonial people? Chagos: the right applies to the territory as a whole, its integrity must be respected by the administering Power, a detachment not based on the free and genuine expression of the people's will is unlawful, and every State has a legal interest in the right being respected because the obligation is erga omnes.

Distinctions

What it does NOT mean

It does not mean the Kosovo opinion recognised a right of secession. The Court said expressly that it was not required to decide whether international law conferred a positive entitlement, only whether a rule prohibited the declaration.

It does not mean Quebec had no remedy. It had a domestic one: a clear majority on a clear question confers democratic legitimacy which the other participants must recognise, giving rise to a duty to negotiate.

It does not mean a referendum decides anything by itself. The Supreme Court of Canada said a democratic vote, by however strong a majority, would have no legal effect on its own.

It does not mean the Chagos opinion binds the United Kingdom as a judgment. It is an ADVISORY opinion under article 65 of the Statute; its force is the authority of the Court's statement of the law and the General Assembly's role in acting on it.

And it does not mean territorial integrity has no force against a seceding group. It means that the international law PRINCIPLE of territorial integrity operates between States; the constraint on a group is domestic constitutional law, which is why the Quebec answer was constitutional and the Indian answer, worked in the previous chapter, is constitutional too.

Quick revision

Reference re Secession of Quebec 1998: self-determination is normally fulfilled through INTERNAL self-determination, a people's pursuit of its development WITHIN THE FRAMEWORK OF AN EXISTING STATE; external self-determination arises "in only the most extreme of cases and, even then, under carefully defined circumstances"; the three situations are a FORMER COLONY, a people OPPRESSED as under foreign military occupation, and a DEFINABLE GROUP DENIED MEANINGFUL ACCESS TO GOVERNMENT, in all of which the people are entitled to external self-determination BECAUSE THEY HAVE BEEN DENIED THE ABILITY TO EXERT THE RIGHT INTERNALLY; none applied to Quebec, and failure to agree constitutional amendments is not a denial of self-determination. Domestically: each participant may initiate constitutional change and the others have a reciprocal duty to discuss any legitimate initiative; a clear majority on a clear question confers democratic legitimacy the others must recognise; but the vote has no legal effect on its own, cannot push aside federalism, the rule of law or the rights of individuals and minorities, and no conclusions are predetermined by law.

Kosovo, Advisory Opinion 22 July 2010, on General Assembly resolution 63/3: the declaration of 17 February 2008 did not violate international law. The Court had to decide whether a rule PROHIBITED the declaration, not whether there was a positive entitlement; State practice points clearly to there being NO PROHIBITION of declarations of independence; THE SCOPE OF THE PRINCIPLE OF TERRITORIAL INTEGRITY IS CONFINED TO THE SPHERE OF RELATIONS BETWEEN STATES; Security Council condemnations of other declarations turned on an unlawful use of force or a violation of jus cogens; resolution 1244 established a temporary, exceptional régime and was silent on final status, and the authors acted as representatives of the people of Kosovo outside the framework of the interim administration.

Chagos, Advisory Opinion 25 February 2019, on General Assembly resolution 71/292: resolution 1514 (XV) was a defining moment in the consolidation of State practice on decolonisation; the right to TERRITORIAL INTEGRITY OF A NON-SELF-GOVERNING TERRITORY is customary law and a COROLLARY of self-determination; the detachment was not based on the free and genuine expression of the will of the people; decolonisation was NOT LAWFULLY COMPLETED in 1968; continued administration is a WRONGFUL ACT and must be brought to an end AS RAPIDLY AS POSSIBLE; all Member States must co-operate; and the obligation is ERGA OMNES, so all States have a legal interest.

Test yourself

1. State the Quebec Court's three exceptional situations. A former colony; a people oppressed, as for example under foreign military occupation; and a definable group denied meaningful access to government to pursue its political, economic, social and cultural development. In all three the people are entitled to external self-determination because they have been denied the ability to exert the right internally.

2. What did the Quebec Court hold about a clear referendum result? That a clear majority on a clear question would confer democratic legitimacy which all other participants in Confederation would have to recognise, giving rise to a duty to negotiate; but that the vote would have no legal effect on its own and could not push aside federalism, the rule of law, or the rights of individuals and minorities.

3. How did the International Court reframe the Kosovo question, and why does it matter? It held that it was not required to decide whether international law conferred a POSITIVE ENTITLEMENT to declare independence, only whether a rule PROHIBITED such a declaration. It matters because the opinion therefore decides nothing about a right of secession.

4. What did the Court say about territorial integrity in the Kosovo opinion? That the scope of the principle of territorial integrity is confined to the sphere of relations between States.

5. Why was the decolonisation of Mauritius held not to have been lawfully completed? Because the detachment of the Chagos Archipelago was not based on the free and genuine expression of the will of the people concerned, and the peoples of non-self-governing territories are entitled to exercise the right in relation to their territory as a whole, whose integrity the administering Power must respect.

6. What follows from the obligation being erga omnes? That all States have a legal interest in protecting the right to self-determination, and that all Member States must co-operate with the United Nations to complete the decolonisation of Mauritius.

7. Why do the three decisions reach different results? Because the question asked was different in each: whether there was a RIGHT to secede, whether a declaration was PROHIBITED, and whether decolonisation was LAWFULLY COMPLETED. Where the case is colonial the right operates powerfully; where it is not, no court has yet found a right of external self-determination, and what a claimant gets instead is either a procedure or the absence of a prohibition.