7. The International Community Faced with Illegal Secessions by Sub-State Units

See supra, Chap. 4, note 134.

The day after the unilateral declaration of independence, on 18 February 2008, it was recognized by Afghanistan, Albania, Costa Rica, France, Senegal, Turkey, the United Kingdom, and the United States. Three of these are permanent members of the Security Council. In the following 2 days, recognition was also granted by Australia (19 February), and Latvia and Germany (20 February), until 21 recognitions had been made during the month of February. By the end of 2010, this figure had reached 53 recognitions.

The States recognizing the new situation were Afghanistan, Bolivia, Cuba, Kyrgyzstan, Nicaragua, North Korea, Sudan, Syria, Venezuela and Zimbabwe.

Cfr. Frowein (2010), at para. 6, http://​opil.​ouplaw.​com/​view/​10.​1093/​law:​epil/​9780199231690/​law-9780199231690-e1086?​rskey=​0y3Wx1&​result=​1&​prd=​EPIL.

Cfr. Oeter (2014), p. 45.

Cfr. Tomuschat (2012), p. 31.

Cfr. Jia (2009), p. 42.

Cfr. Dugard (2011), p. 13.

Cfr. Roth (2010), pp. 396–398. Talmon (2005a), p. 180. For an explanation of the debate between the two views see: Grant (1999).

Cfr. Brownlie (1982), p. 206. Frowein (2010), at para. 10. Vidmar (2015), p. 372. Wilson (2009), p. 459.

In the words of Hans Kelsen: ‘By the legal act of recognition the recognized community is brought into legal existence in relation to the recognizing state, and thereby international law becomes applicable to the relations between these states. Hence the legal act of recognition has a specifically constitutive character’. Kelsen (1941), p. 609. Lauterpacht (1947). Anzilotti (1999), pp. 159–177.

Cfr. Briggs (1949), p. 114. Pronin (2015), p. 135.

Cfr. Frowein (2010), at para. 10. Jia (2009), p. 43.

On these lines, James Crawford maintains that ‘an entity is not a State because it is recognized; it is recognized because it is a State’. Crawford (2007), pp. 22–26.

Opinion No. 1, of 29 November 1991, at para. 1(a). 31:6 ILM (1992), 1494; 3:1 EJIL (1992), 182–183, http://​ejil.​org/​pdfs/​3/​1/​1175.​pdf.

The Arbitration Commission of the Peace Conference on Yugoslavia of the EEC, known as the Badinter Arbitration Committee, issued Opinion No. 1 in which it confirmed the process of dissolution of the SFRY. Cfr. Opinion No. 1, of 29 November 1991, supra, Chap. 3, note 70, at para. 2 and 3. See Craven (1995).

Cfr. Jia (2009), p. 43. Vidmar (2015), p. 372.

Cfr. ‘Letter from the President to the President of Kosovo’ of 18 February 2008, at para. 1 and 3. https://​georgewbush-whitehouse.​archives.​gov/​news/​releases/​2008/​02/​20080218-3.​html. United States Recognizes Kosovo as an Independent State, 2008, AJIL 102:638–640, p. 640.

Cfr. Brownlie (1990), p. 93. Jia (2009), p. 44.

Cfr. Brownlie (1990), p. 93, note 3.

Cfr. Vidmar (2012), p. 153.

See supra, Chap. 3, note 68.

Cfr. Talmon (2005a), p. 126. Ryngaert and Sobrie (2011), p. 489.

Cfr. Supreme Court of Canada, Reference re Secession of Quebec, supra, Chap. 2, note 71, p. 274, para. 106.

Cfr. Dugard and Raič (2006), p. 135. Hilpold (2009), p. 59.

Cfr. Crawford (2007), p. 21.

Cfr. Oppenheim et al. (1992), Vol. I, p. 143.

Accordance with the International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, supra, Chap. 1, note 3, p. 437, para. 81.

See supra, Sect. 3.​3.

Cfr. Bismuth (2014), p. 724. Lagerwall (2014), p. 66. Christakis (2011), p. 82. Wilson (2015), p. 220.

On the Stimson Doctrine, see: Current (1954), Turns (2003).

The ‘General Treaty for Renunciation of War as an Instrument of National Policy’, signed at Paris, on 27 August 1928, which was to come into effect on 24 July 1929. 94:1–4 LNTS (1929), No. 2137, 57–64 https://​treaties.​un.​org/​doc/​Publication/​UNTS/​LON/​Volume%20​94/​v94.​pdf.

‘The Secretary of State to the Consul General at Nanking (Peck), Washington, January 7, 1932’, Foreign Relations of the United States Diplomatic Papers, 1932, The Far East, Vol. III, 782, pp. 7–8. https://​history.​state.​gov/​historicaldocume​nts/​frus1932v03/​pg_​7.

Cfr. Christakis (2005), p. 135. Grant (2014), at para. 14, http://​opil.​ouplaw.​com/​view/​10.​1093/​law:​epil/​9780199231690/​law-9780199231690-e697?​prd=​EPIL. Himmer (1992), p. 272. Lagerwall (2014), p. 64. Milano (2014), p. 36.

‘Convention on Rights and Duties of States’ adopted by the Seventh International Conference of American States, signed at Montevideo on 26 December 1933, supra, Chap. 3, note 68, at Art. 11.

Théodore Christakis highlights among others the resolution adopted by the General Assembly of the League of Nations on 11 March 1932 after the occupation of Manchukuo by Japan in 1931, which requested members ‘not to recognize any situation, treaty, or agreement which may be brought about by means contrary to the Covenant of the League of Nations or to the Pact of Paris’ (League of Nations Official Journal 87) (Cfr. Turns (2003), p. 123). This same obligation was restated in the context of the Gran Chaco Conflict (1928–1935) between Bolivia and Paraguay in the shape of the ‘Declaration of Nineteen American Republics’ of 3 August 1932, and of the Leticia Conflict between Colombia and Peru in the resolution of the Council of the League of Nations of 18 March 1933. The hiatus arising from the annexation of Ethiopia by Italy in 1935 in practices prior to the Second World War was no hindrance to non-recognition of this by some States and support for the continuity of the Ethiopian State at the end of World War II. See Christakis (2005), pp. 137–138.

One particularly relevant event was the annexation of the Baltic States by the USSR in June 1940. This seizure was given no recognition by a large number of states, but triggered a movement opposing non-recognition on the grounds of the negative consequences it had for the population. With the break-up of the Soviet Union in 1990, the Baltic States argued that their independence had been restored and that they had no need to make any declaration of independence. This reasoning was supported by various States that had refused recognition of the original annexation. See Christakis (1999), pp. 200–201. Himmer (1992), pp. 253–291. Rich (1993), p. 37. Vidmar (2010), p. 44.

Cfr. UN Doc. A/RES/2022 (XX), of 5 November 1965, at para. 9. UN Doc. S/RES/216 (1965), of 12 November, para. 1. Gowlland-Debbas (1990), p. 282.

See supra, Sect. 3.​3.

Cfr. UN Doc. S/RES/269 (1969), of 12 August, para. 7.

Text of the ‘Draft Articles on Responsibility of States for Internationally Wrongful Acts - Article 41 Commentary’, supra, Chap. 6, note 49, p. 289, para. 8.

See supra, Sect. 3.​3.

Cfr. UN Doc. A/RES/31/6A, of 26 October 1976; A/RES/3411D (XXX), of 28 November 1975; A/RES/32/105N, of 14 December 1977; and A/RES/37/69A, of 9 December 1982. UN Doc. S/RES/402 (1976), of 22 December, and S/RES/407 (1977), of 25 May.

Text of the ‘Draft Articles on Responsibility of States for Internationally Wrongful Acts - Article 41 Commentary’, supra, Chap. 6, note 49, p. 289, para. 8.

See supra, Sect. 3.​3.

Cfr. UN Doc. S/RES/541 (1983), of 18 November, at para. 2 and 7.

See supra, Sects. 3.​3 and 6.​1, note 6.

An account of the resolutions may be found in: Dugard (1987), p. 112.

Cfr. UN Doc. S/RES/662 (1990), of 9 August.

UN Doc. A/RES/2625 (XXV), of 24 October 1970, at Annex, ‘The Principle that States 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 purposes of the United Nations’, para. 10.

UN Doc. A/RES/3314 (XXIX), of 14 December 1974, at Annex.

UN Doc. A/RES/36/103, of 9 December 1981, at Annex, para. 2(III) (e).

UN Doc. A/RES/42/22, of 18 November 1987, at Annex, para. 10.

The text of Art. 41(2) of the ‘Draft Articles on Responsibility of States for Internationally Wrongful Acts,’ supra, Chap. 6, note 49, pp. 43–59), runs as follows:

No State shall recognize as lawful a situation created by a serious breach within the meaning of article 40, nor render aid or assistance in maintaining that situation.

The text of Art. 44(2) of the ‘Draft Articles on the Responsibility of International Organizations’ adopted by the ILC in its sixty-third session (‘Report of the International Law Commission, Sixty-third Session (26 April–3 June and 4 July–12 August 2011)’, UN Doc. A/66/10, 384, pp. 54–69), is the following:

No State or international organization shall recognize as lawful a situation created by a serious breach within the meaning of article 41, nor render aid or assistance in maintaining that situation.

Cfr. Vidmar (2012), p. 166.

Article 17 of the ‘Charter of the Organization of American States’, signed in Bogotá, on 30 April 1948, 119 UNTS (1952), No. 1609, 3-97, declares:

The territory of a State is inviolable; it may not be the object, even temporarily, of military occupation or of other measures of force taken by another State, directly or indirectly, on any grounds whatever. No territorial acquisitions or special advantages obtained either by force or by other means of coercion shall be recognized.

‘Protocol of amendment to the Charter of the Organization of American States’, signed in Buenos Aires, on 27 February 1967, 721 UNTS (1970), No. 1609, 322–389.

‘Conference on Security and Co-operation in Europe Final Act’, Helsinki, 1 August 1975, supra, Chap. 2, note 61, at ‘Declaration of Principles Guiding Relations between Participating States’ (IV) ‘Territorial Integrity of States’, in which the States declare:

The participating States will likewise refrain from making each other's territory the object of military occupation or other direct or indirect measures of force in contravention of international law, or the object of acquisition by means of such measures or the threat of them. No such occupation or acquisition will be recognized as legal.

‘Declaration of the European Council on the Guidelines on the Recognition of the New States in Eastern Europe and in the Soviet Union’, of 16 December 1991, 31:6 ILM (1992), 1485–1487, UN Doc. A/46/804, of 18 December 1991, at Annex, the last paragraph of which reads:

The Community and its member States will not recognize entities which are the result of aggression. They would take account of the effects of recognition on neighbouring States.

See supra, this chapter, note 12.

For a more detailed study of its content, see: Türk (1993), pp. 66–71.

‘Dissenting Opinion of Judge Skubiszewski’, East Timor (Portugal v. Australia), Judgment, supra, Chap. 2, note 70, p. 262, para. 125.

Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, 136–271, p. 200, para. 159.

Cfr. Christakis (2005), p. 142. Vidmar (2011), p. 371, note 93.

Cfr. Bismuth (2014), p. 725.

Cfr. Cimiotta (2014), p. 493. Milano (2014), p. 39.

During its Cracow meeting of 2005, the Institut de Droit International passed a resolution on ‘Obligations Erga Omnes in International Law’, Art. 1(a) of which defines obligations erga omnes:

an obligation under general international law that a State owes in any given case to the international community, in view of its common values and its concern for compliance, so that a breach of that obligation enables all States to take action; or.

‘Text of the ‘Draft Articles on Responsibility of States for Internationally Wrongful Acts - Article 41 Commentary’, supra, Chap. 6, note 49, p. 289, para. 8.

Cfr. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, supra, Chap. 2, note 70, p. 55, para. 122.

Cfr. Id., p. 55, para. 124.

On this set of measures, see Christakis (2005), p. 144. See also, by the same author Christakis (2014), p. 759. Milano (2014), p. 51.

Cfr. Christakis (2014), p. 758.

Cfr. Talmon (2005b), p. 125.

Cfr. Milano (2014), p. 49.

Cfr. Ibid.

Cfr. Verhoeven (1975), p. 288.

Text of the ‘Draft Articles on Responsibility of States for Internationally Wrongful Acts - Article 41 Commentary’, supra, Chap. 6, note 49, p. 289, para. 8.

Cfr. Christakis (2005), p. 133.

Cfr. Ibid.

With regard to instances of claimed unilateral declarations of independence based on violation of norms of international law, see supra, Sect. 3.​3.

Cfr. Christakis (2014), p. 756. Lagerwall (2014), p. 64. Cimiotta (2014), p. 503. Milano (2014), p. 37.

See supra, this chapter, note 2.

See supra, Sect. 5.​2.​2.

See supra, Sect. 5.​2.​3.

Resolution on ‘Territorial Integrity of Ukraine’, UN Doc. A/RES/68/262, of 27 March 2014, at para. 6.

Cfr. Intervention of Mr. Araud (France); intervention of Sir Mark Lyall Grant (United Kingdom); intervention of Ms. Murmokaitė (Lithuania); intervention of Mr. Quinlan (Australia); and intervention of Ms. Lucas (Luxemburg), UN Doc. S/PV.7138, of 15 March 2014, 12, pp. 5, 5, 6, 9, and 11.

Cfr. Intervention of Mr. Mayr-Harting (European Union); intervention of Ms. Power (United States of America); intervention of Mr. Wenaweser (Liechtenstein); intervention of Mr. Imnadze (Georgia); intervention of Mr. Çevik (Turkey); and Intervention of Mr. Pedersen (Norway), UN Doc. A/68/PV.80, of 27 March 2014, 27, pp. 4, 6, 7, 11, 11, and 14.

Cfr. ‘Joint statement on Crimea by the President of the European Council, Herman Van Rompuy, and the President of the European Commission, José Manuel Barroso’, Brussels, 18 March 2014, http://​europa.​eu/​rapid/​press-release_​STATEMENT-14-74_​en.​htm.

Cfr. ‘Declaration of The Hague’, of 24 March 2014 http://​www.​international.​gc.​ca/​g7/​2014_​hague_​declaration.​aspx?​lang=​eng.

‘NATO Secretary General condemns moves to incorporate Crimea into Russian Federation’, NATO Doc. Press Release (2014) 050, Issued on 18 March 2014, http://​www.​nato.​int/​cps/​en/​natohq/​news_​108100.​htm?​selectedLocale=​en.

Within the EU, Council Decision 2014/145/CFSP was adopted on 17 March, concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of the Ukraine, OJEU L 78, 17.3.2014, 16–21; and the Council Regulation (EU) No. 269/2014, of 17 March, concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine, OJEU L 78, 17.3.2014, 6–15. Thereafter further measures were adopted: Council Implementing Regulation (EU) No. 284/2014, of 21 March, OJEU L 86, 21.3.2014, 27–29; Council Implementing Regulation (EU) No. 433/2014, of 28 April, OJEU L 126, 29.4.2014, 48–50; and Council Implementing Regulation (EU) No. 477/2014, of 12 May, OJEU L 137, 12.5.2014, 3–4; Council Implementing Regulation (EU) No. 577/2014, of 28 May, OJEU L 160, 29.5.2014, 7–10, followed by updates down to the present.

In the United States, the President approved Executive Order 13660 of 6 March 2014, Blocking Property of Certain Persons Contributing to the Situation in Ukraine, Federal Register 79, No. 46, Monday, March 10, 2014, 13493–13495; Executive Order 13661 of 16 March 2014, Blocking Property of Additional Persons Contributing to the Situation in Ukraine, Federal Register 79, No. 53, Wednesday, March 19, 2014, 15535–15538; Executive Order 13662 of 20 March 2014, Blocking Property of Additional Persons Contributing to the Situation in Ukraine, Federal Register 79, No. 56, Monday, March 24, 2014, 16169–16171; and Executive Order 13668, of 19 December 2014, Blocking Property of Certain Persons and Prohibiting Certain Transactions With Respect to the Crimea Region of Ukraine, Federal Register 79, No. 247, Wednesday, December 24, 2014, 77357–77359.

Cfr. Cimiotta (2014), p. 492.

Cfr. Hilpold (2015), p. 269.

Cfr. Cimiotta (2014), p. 496.

Cfr. Ryngaert and Griffioen (2009), p. 586.

Cfr. Tolstykh (2015), p. 139.

Cfr. De Visscher (1967), p. 25.

Cfr. Id., pp. 37–38.

See supra, Sect. 3.​3.

Cfr. Christakis (2011), p. 82.

Cfr. Tancredi (2008), p. 53.

Cfr. Ibid.

See supra, Chap. 3, note 68, and Sect. 7.1

Montevideo Convention, at Art. 1.

Cfr. Tancredi (2006), p. 206.

Cfr. Kohen (2006), p. 13. Christakis (2006), p. 165.

Cfr. Tancredi (2006), p. 181.

Cfr. Id., p. 205.

Cfr. Id., p. 206.

Cfr. Tancredi (2008), p. 54.

Cfr. Ryngaert and Griffioen (2009), p. 586. Tancredi (2012), p. 106.

Cfr. Berlin (2009), p. 590. Ryngaert and Griffioen (2009), p. 586.

Cfr. Müllerson (2009), p. 21. Ryngaert and Griffioen (2009), p. 587.

Cfr. Pegg (1998), p. 122.

Cfr. Christakis (2014), p. 764.