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Recognition of States: International Law or Realpolitik? The Practice of Recognition in the Wake of Kosovo, South Ossetia, and Abkhazia

Published online by Cambridge University Press:  06 May 2011

CEDRIC RYNGAERT  and
SVEN SOBRIE
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Abstract

This article deals with the fundamental evolution that the process of state recognition has gone through during the past few decades. Whereas the recognition of new states used to be subject to a relatively concise and clear-cut normative framework consisting of factual criteria, the dissolution of Yugoslavia marked the introduction of a new set of moral norms used to determine whether or not an entity should be recognized as a state. This evolution gave rise to a high level of uncertainty, among both authors and the state community, as was painfully shown by the international discord during the crises in Kosovo and South Ossetia/Abkhazia. A renewed normative framework for recognition that integrates both factual and moral criteria is needed if the international community wants to prevent each claim to statehood becoming a threat to international stability.

Keywords

Kosovorecognitionself-determinationstate discretionstatehood
Type
CURRENT LEGAL DEVELOPMENTS
Information
Leiden Journal of International Law , Volume 24 , Issue 2 , June 2011 , pp. 467 - 490
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2011

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References

1 See, e.g., J. Crawford, The Creation of States in International Law (2006), v; R. Sloane, ‘The Changing Face of Recognition in International Law: A Case Study of Tibet’, (2002) 16 Emory ILR 107, at 118.

2 R. Mullerson, International Law, Rights and Politics: Developments in Eastern Europe and the CIS (1994), 119; see generally R. Rich, ‘Recognition of States: The Collapse of Yugoslavia and the Soviet Union’, (1993) 4 EJIL 36; and also Thomas, R., ‘Self-Determination and International Recognition Policy: An Alternative Interpretation of Why Yugoslavia Disintegrated’, (1997) 160 World Affairs 17Google Scholar.

3 D. Raic, Statehood and the Law of Self-Determination (2002), especially at 3: ‘[I]t has been suggested that the recognition of the new States which were formed within the boundaries of the former Yugoslavia and the former Soviet Union must mainly be explained in terms of politics. In other words, the creation and recognition of these new States should be seen to have taken place mainly outside the domain of international law.’

4 J. Almqvist, ‘The Politics of Recognition, Kosovo and International Law’ (working paper), (2009), Real Instituto Elcano, at 2: ‘[I]n the case of Kosovo at least, and until now, it may well be asserted that international law has failed, in a rather blunt way, to offer something like a common framework with the capacity of constraining the range of reactions of third states.’

5 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion of 22 July 2010, [2010] ICJ Rep. (Kosovo Advisory Opinion), para. 51 (in which the Court noted that the question posed did not ‘ask about the validity or legal effects of the recognition of Kosovo by those States which have recognized it as an independent State’). Decision available at www.icj-cij.org/docket/files/141/15987.pdf.

6 Ibid., para. 79.

7 H. Köchler (ed.), The Use of Force in International Relations: Challenges to Collective Security (2006), 16.

8 Ibid.; see also T. Gazzini, The Changing Rules on the Use of Force in International Law (2005), 266.

9 Rich, supra note 2, at 64; C. Levine, ‘The Legacy of Humpty Dumpty: The Role of Recognition in the Dissolution of Yugoslavia’, in M. Spencer (ed.), The Lessons of Yugoslavia (2000), 140.

10 S. Mahmoudi, ‘Recognition of States: The Case of Former Yugoslav Republics’, in O. Bring and S. Mahmoudi (eds.), Current International Law Issues: Nordic Perspectives (1994), 158.

11 J. Dugard and D. Raic, ‘The Role of Recognition in the Law and Practice of Secession’, in M. Kohen (ed.), Secession: International Law Perspectives (2006), 97.

12 P. Menon, The Law of Recognition in International Law: Basic Principles (1994), 8; T. Grant, The Recognition of States: Law and Practice in Debate and Evolution (1999), 97.

13 Sloane, supra note 1, at 116–17.

14 Crawford, supra note 1, at 21; K. Marek, Identity and Continuity of States in Public International Law (1968), 132.

15 Sloane, supra note 1, at 115.

16 Art. 1, 1933 Montevideo Convention on Rights and Duties of States, 165 LNTS 19; see further the discussion in section 3.1, infra.

17 Raic, supra note 3, at 32.

18 Crawford, supra note 1, at 23; Deutsche Continental Gas Gesellschaft v. Polish State, Germano-Polish Mixed Arbitral Tribunal, Decision of 1 August 1929, (1929) AD 5, at 13; Arbitration Commission of the Peace Conference on the Former Yugoslavia (Badinter Commission), Opinion No. 1, 29 November 1991, (1992) 3 EJIL 1, at 182; Badinter Commission, Opinion No. 10, 4 July 1992, (1993) 4 EJIL 1, at 90.

19 B. Roth, Governmental Illegitimacy in International Law (1999), 128.

20 G. Kreijen, State Failure, Sovereignty and Effectiveness: Legal Lessons from the Decolonization of Sub-Saharan Africa (2004), 16.

21 Raic, supra note 3, at 125.

22 R. Caplan, Europe and the Recognition of New States in Yugoslavia (2007), 57; Kreijen, supra note 20, at 18. Compare this practice with the analysis of the ICJ in the Kosovo Advisory Opinion, para. 81: the Court notes that in all of those instances of the Security Council's making a determination as to the illegality of a declaration of independence, ‘the illegality attached to the declarations of independence . . . stemmed not from the unilateral character of these declarations as such, but from the fact that they were, or would have been, connected with the unlawful use of force or other egregious violations of norms of general international law, in particular those of a peremptory character (jus cogens)’.

23 Crawford, supra note 1, at 5.

24 Marek, supra note 14, at 139; Crawford, supra note 1, at 27.

25 See J. Verhoeven, La reconnaissance internationale dans la pratique contemporaine (1975), 679; J. d'Aspremont, ‘Regulating Statehood: The Kosovo Status Settlement’, (2007) 20 LJIL 649, at 655.

26 For criticism of the theoretical approaches, see, e.g., Roth, supra note 19, at 129: ‘Even declaratists are bound to concede that entities are assured of enjoying rights under international law only after recognition, just as constitutivists concede that once recognized, the entity's status is retroactive to the point at which the factual circumstances justified the claim to the status. What is important is that international law operates to protect the interests of an entity only once the entity gains widespread legal (as opposed to political) recognition by other states. In that sense, recognition is clearly constitutive; beyond that, the debate begins to resemble a discussion of metaphysics.’ See also I. Brownlie, ‘Recognition in Theory and Practice’, in R. MacDonald and D. Johnston (eds.), The Structure and Process of International Law: Essays in Legal Philosophy, Doctrine and Theory (1986), 634: ‘In the literature the theories have tended to stand in front of the issues and to have assumed a “theological” role as a body of thought with its own validity which tends to distract the student, and to play the role of master rather than servant.’

27 H. Lauterpacht, Recognition in International Law (1947), 427.

28 L. Hammer, A Foucauldian Approach to International Law: Descriptive Thoughts for Normative Issues (2007), 29; Almqvist, supra note 4, at 6; H. Lauterpacht, ‘Recognition of States’, in E. Lauterpacht (ed.), International Law, Being the Collected Papers of Hersch Lauterpacht, Vol. I (1970), 320.

29 Rich, supra note 2, at 37.

30 Crawford, supra note 1, at 98; A. Hurell, ‘Conclusion: International Law and the Changing Constitution of International Society’, in M. Byers (ed.), The Role of Law in International Politics: Essays in International Relations and International Law (1999), 331.

31 Caplan, supra note 22, at 55.

32 Art. 1, 1933 Montevideo Convention on Rights and Duties of States, 165 LNTS 19.

33 Raic, supra note 3, at 82.

34 Crawford, supra note 1, at 46; Kreijen, supra note 20, at 109.

35 Raic, supra note 3, at 51.

36 The US State Department, for example, declared in 1976 that the USA would decide on matters of recognition based on the establishment of certain facts, including ‘effective control over a clearly-defined territory and population; an organized governmental administration of that territory; and a capacity to act effectively to conduct foreign relations and to fulfil international obligations’. See. E. McDowell, ‘Contemporary Practice of the United States Relating to International Law’, (1977) 71 AJIL 337. See also, in relation to Canada, J. Beesley and C. Bourne (eds.), ‘Canadian Practice in International Law during 1971 as Reflected Mainly in Public Correspondence and Statements of the Department of External Affairs’, (1972) 10 CYIL 287, at 308–9. On a similar note, the British Foreign Office justified the non-recognition of Bophuthatswana as follows: ‘The normal criteria which the Government apply for recognition of a state are that it should have, and seem likely to continue to have, a clearly defined territory with a population, a Government who are able of themselves to exercise effective control of that territory, and independence in their external relations’; see G. Marston (ed.), ‘United Kingdom Materials on International Law’, (1986) 57 BYIL 507.

37 V. Gowlland-Debbas, Collective Responses to Illegal Acts in International Law: United Nations Action in the Question of Southern Rhodesia (1990), 282. It is noted that this refusal was not based on the violation of a universal norm, but on the infringement of a treaty. This limited the scope of the newly created practice. However, this code of conduct (duty of non-recognition) gradually evolved into a collective and effective international legal rule as a result of its linkage to jus cogens as a nucleus of elementary legal norms that are universally binding merely by their fundamental nature; cf. J. Dugard, ‘Recognition and the United Nations’, in International Law Commission, Hersch Lauterpacht Memorial Lectures (1987), 133, at 137–47.

38 This wording also shows that the scope of the obligation is not limited to non-recognition of states: it also includes other acts such as unlawful territorial expansions and occupations. Cf. Dugard, supra note 37, at 135. Obviously, the question immediately arises as to what norms can be regarded as of such importance as to constitute jus cogens. While an in-depth examination of this issue falls outside the scope of this article, the following norms could arguably be so considered: the prohibition of aggression, the prohibition of acquisition of territory by force, the prohibition of racial discrimination and apartheid, and the right to self-determination.

39 V. Gowlland-Debbas, ‘The Functions of the UN Security Council in the International Legal System’, in Byers, supra note 30, at 280.

40 Mahmoudi, supra note 10, at 137; Rich, supra note 2, at 36.

41 Raic, supra note 3, at 91.

42 J. Wouters, B. De Meester, and C. Ryngaert, ‘Democracy and International Law’, (2003) 34 NYIL 139, at 156; Caplan, supra note 22, at 9.

43 P. Radan, The Break-Up of Yugoslavia and International Law (2002), 160.

44 Levine, supra note 9, at 128.

45 Radan, supra note 43, at 162.

46 EC Declaration on the ‘Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union’, 16 December 1991, (1993) 4 EJIL 72.

47 Wouters, De Meester, and Ryngaert, supra note 42, at 157.

48 W. Grewe, The Epochs of International Law (2000), 710.

49 According to the Badinter Commission, recognition ‘was a discretionary act which other States were entitled to perform when they chose and in a manner of their choosing, subject only to compliance with the imperatives of public international law’; see Badinter Commission, Opinion No. 10, 4 July 1992, (1993) 4 EJIL 90, at 90.

50 One-third of that territory was being occupied by Croatian Serbs who declared their own Republic of Serbian Krajina in these regions, which had triggered a bloody civil war; cf. T. Musgrave, Self-Determination and National Minorities (1997), 206.

51 Badinter Commission, Opinion No. 5, 11 January 1992, (1993) 4 EJIL 76; the EC, however, deemed a declaration of Croatian president Tudjman, in which he guaranteed that this gap would be filled, sufficient – from a legal perspective, a very dubious procedure indeed: cf. Raic, supra note 3, at 432–3.

52 Rich, supra note 2, at 51. More than two-thirds of the Bosnian territory was being controlled by rebellious Bosnian Serbs, who had declared their own Serbian Republic of Bosnia and Herzegovina a few months earlier; cf. Musgrave, supra note 50, at 206.

53 J. Dugard, International Law: A South African Perspective (2005), 90.

54 Radan, supra note 43, at 194–5.

55 Greece rejected the use of the name ‘Macedonia’ and other Hellenistic symbols mainly for fear of possible future territorial claims of its new neighbour; cf. S. Murphy, ‘Democratic Legitimacy and the Recognition of States and Governments’, in G. Fox and B. Roth (eds.), Democratic Governance and International Law (2000), 135; N. Gianaris, Geopolitical and Economical Changes in the Balkan Countries (1996), 152. This deadlock was only broken in 1993, when the new republic was accepted as a member of the UN under the provisional name of the ‘Former Yugoslav Republic of Macedonia’; cf. Radan, supra note 43, at 195. During the following months, all European member states recognized the republic under the same name – save for Greece, which only recognized the entity as a state in September 1995. The issue is still not entirely settled, though – witness the case that the FYROM brought against Greece before the ICJ, on the grounds that the latter would unlawfully have opposed the former's entry to NATO: Application of the Interim Accord of 13 September 1995 (The Former Yugoslav Republic of Macedonia v. Greece) (see www.icj-cij.org for the current status of the case).

56 Cf. President Bush's statement on the recognition of Bosnia and Herzegovina, Croatia and Slovenia, 7 April 1992, in S. Trifunovska (ed.), Yugoslavia through Documents: From Its Creation to Its Dissolution (1994), 521: ‘The United States recognizes Bosnia and Herzegovina, Croatia and Slovenia as sovereign and independent states . . .. We take this step because we are satisfied that these states meet the requisite criteria for recognition.’

57 N. Gammer, From Peacekeeping to Peacemaking: Canada's Response to the Yugoslav Crisis (2001), 126; Markusic, D., ‘The Rocky Road to International Recognition’, (1993) 30 Political Thought: Croatian Political Science Review 19, at 25Google Scholar.

58 S. Lucarelli, Europe and the Breakup of Yugoslavia: A Political Failure in Search of a Scholarly Explanation (2000), 278; Thomas, supra note 2, at 17.

59 Cf. D. Wippman, ‘Introduction: Ethnic Claims and International Law’, in D. Wippman (ed.), International Law and Ethnic Conflict (1998), 12: ‘In practice, the international community has yet to settle on any single version of self-determination. . . . The normative confusion generated by this state of affairs is evident in the divergent invocations of self-determination in the context of the breakup of the Socialist Federal Republic of Yugoslavia’; see also J. Duursma, Fragmentation and the International Relations of Micro-States: Self-Determination and Statehood (1996), 72.

60 Rich, supra note 2, 56.

61 Ibid., at 43 (referring to the recognition of Croatia and Bosnia and Herzegovina to back their claim, since neither of those entities passed the Montevideo test at the moment of their recognition).

62 Musgrave, supra note 50, at 204; J. Vidmar, ‘International Legal Responses to Kosovo's Declaration of Independence’, (2009) 42 Vand. JTL 779, at 841 (finding support in the aforementioned EC Declaration that explicitly mentions ‘the normal standards of international practice’ as a factor taken into account when assessing a claim to statehood).

63 Other authors, however, are more nuanced in their analysis of state practice, still seeing a role for international law. J. Charpentier, ‘Les déclarations des douze sur la reconnaissance des nouveaux etats’, (1992) 96 RGDIP 343, at 347: ‘Il n'était pas inconcevable que les Douze confèrent au résultat de leur concertation une valeur juridique obligatoire. Les deux déclarations auraient été alors des accords en forme simplifiée. Mais en réalité, les engagements souscrits ne dépassent pas la portée d'engagements politiques c'est-à-dire d'engagements qui, tout en étant destinés à orienter le comportement des Etats dans le sens indiqué, ne sauraient les y contraindre’; see also M. Weller, ‘The International Response to the Dissolution of the Socialist Federal Republic of Yugoslavia’, (1992) 86 AJIL 569, at 588.

64 C. Chinkin, ‘International Law and Human Rights’, in T. Evans (ed.), Human Rights 50 Years On: A Reappraisal (1998), 107; Dugard, supra note 53, at 90; Wouters, De Meester, and Ryngaert, supra note 42, at 158–9.

65 See B. Boczek, International Law: A Dictionary (2005), 100: ‘At least some of the criteria articulated by the EC in its Guidelines for recognition of the states emerging from the break-up of the Soviet Union and the SFRY were purely political conditions transcending the traditional qualifications for statehood required by international law. However, it appears that the standards devised by the EC, especially those pertaining to democracy, human rights, and treatment of minorities, have been rapidly evolving into legal criteria acquiring the nature of general standards of international law used in the recognition of states and governments.’

66 See also Mullerson, supra note 2, at 117: ‘The emergence of new states in Eastern Europe and the former Soviet Union has raised issues relating to the recognition of states and has once more engendered discussions on whether such recognition is a political or legal phenomenon or whether it has a declaratory or constitutive nature.’

67 This article does not purport to be an exhaustive essay on contemporary recognition cases. Rather, it intends to analyse the relation between law and politics in the process of state recognition and the way in which states deal with this tension, by taking a closer look at some – though not all – recent recognition situations.

68 Kosovo Advisory Opinion, para. 56.

69 Art. 41, ILC Articles on the Responsibility of States for Internationally Wrongful Acts, (2001) YILC. See also Y. Ronen, Transition from Illegal Regimes in International Law (forthcoming 2011).

70 Kosovo Advisory Opinion, para. 80.

71 Council of the European Union, Press Release of 18 February 2008 (regarding proceedings at the 2850th meeting on General Affairs (6946/08)), available at www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/gena/98818.pdf.

72 See, e.g., Statement of the Republic of China (Taiwan) on Kosovo, 19 February 2008, available at www.mofa.gov.tw; see also Kingdom of the Netherlands, Nieuwsbericht: Nederland erkent onafhankelijkheid Kosovo, 4 March 2008, available at www.minbuza.nl.

73 Almqvist, supra note 4, at 8; see also, e.g., Statement of HE Mr Ali Babacan (minister of foreign affairs of the Republic of Turkey), ‘Regarding the Recognition of Kosovo by Turkey’, 18 February 2008, available at www.mfa.gov.tr.

74 See, e.g., Press Briefing of the Ministry of External Affairs of India in Response to Questions on Developments Regarding Kosovo, 18 February 2008, available at http://meaindia.nic.in; see also, e.g., Press Release of the Ministry of Foreign Affairs of the Russian Federation, 15 February 2008, available at www.mid.ru.

75 A. Cooley and H. Spruyt, Contracting States: Sovereign Transfers in International Relations (2009), 203.

76 Cf. Statement by Russian deputy minister of foreign affairs Alexander Grushko at the Opening of the OSCE Annual Security Review Conference, 1 July 2008, available at www.mid.ru: ‘The unilateral declaration of Kosovo's independence came as a serious challenge, as it has created a dangerous precedent of going beyond the confines of the underlying principles of the Helsinki Final Act. Questions of territorial integrity of states and inviolability of borders have again taken center stage on the European agenda.’

77 Statement by Secretary of State Condoleezza Rice, ‘U.S. Recognizes Kosovo as Independent State’, 18 February 2008, available at www.state.gov: ‘The unusual combination of factors found in the Kosovo situation – including the context of Yugoslavia's breakup, the history of ethnic cleansing and crimes against civilians in Kosovo, and the extended period of UN administration – are not found elsewhere and therefore make Kosovo a special case. Kosovo cannot be seen as a precedent for any other situation in the world today’; see also Canada, ‘Canada Joins International Recognition of Kosovo’, News Release, 18 March 2008, available at www.international.gc.ca.

78 Council of the European Union, supra note 71.

79 V. Chetarian, War and Peace in the Caucasus: Ethnic Conflict and the New Geopolitics (2008), 373.

80 For a more detailed overview, see Independent International Fact-Finding Mission on the Conflict in Georgia, Report (30 September 2009), Vol. III, at 199–226, available at www.ceiig.ch/Report.html.

81 Statement by the Ministry of Foreign Affairs of the Russian Federation, 29 August 2008, available at www.mid.ru.

82 Statement by the Ministry of Foreign Affairs of the Russian Federation, 26 August 2008, available at www.mid.ru.

83 See Kosovo Advisory Opinion, para. 80; Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States of America), Judgment at the Merits Phase, [1986] ICJ Rep. 1, at 101–3, paras. 191–193). Remedial secession is tackled in para. 5(7) of the Declaration on Principles of International Law Concerning Friendly Relations and Co-Operation among States in Accordance with the Charter of the United Nations, GA Res. 2625 (1970), Annex, 25 UN GAOR, Supp. (No. 28), UN Doc. A/5217, at 121, which provides that the principle of territorial integrity in a context of self-determination of peoples only applies to states ‘conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour.’

84 Ibid.: ‘Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States.’

85 See Council of the European Union, ‘Presentation of the Report of the Independent International Fact-Finding Mission on the Conflict in Georgia’, Press Release 13875/09, 30 September 2009, available at www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/er/110370.pdf.

86 R. Weitz, Global Security Watch – Russia: A Reference Handbook (2010), 154.

87 For instance, in the preparatory works of its act of recognition, Russia aims to distinguish the situation of Kosovo from the situation of South Ossetia and Abkhazia for self-determination, independence, secession, and recognition purposes; cf. Chetarian, supra note 79, at 377.

88 Independent International Fact-Finding Mission on the Conflict in Georgia, Report (30 September 2009), Vol. II, at 127–35, available at www.ceiig.ch/Report.html; in the report, it was concluded that neither South Ossetia nor Abkhazia should be recognized, due to the preconditions of statehood not being met, the unlawfulness of the secession, and the lack of minority and human-rights protection.

89 Cf. Vidmar, supra note 62, at 818; Independent International Fact-Finding Mission on the Conflict in Georgia, Report (30 September 2009), Vol. III, at 127–35.

90 Letter from the UN Secretary-General addressed to the President of the Security Council dated 26 March 2007, UN Doc. S/2007/168 (2007).

91 See, e.g., Canada, ‘Canada Joins International Recognition of Kosovo’, News Release, 18 March 2008, available at www.international.gc.ca; see also Kingdom of the Netherlands, supra note 72.

92 Cf. Almqvist, supra note 4, at 2.

93 B. Coppieters, ‘The Recognition of Kosovo: Exceptional but Not Unique’, in M Emerson (ed.), Readings in European Security: Volume 5 (2009), 97.

94 W. Worster, ‘Law, Politics, and the Conception of the State in State Recognition Policy’, (2009) 27 Boston U. ILJ 115, at 117.

95 J. Castellino, International Law and Self-Determination (2000), 118.

96 UN Secretary General, An Agenda for Peace: Preventive Diplomacy, Peacemaking and Peace-Keeping, UN Doc. A/47/277 – S/24111 (1992), No. 17: ‘Yet if every ethnic, religious or linguistic group claimed statehood, there would be no limit to fragmentation, and peace, security and economic well-being for all would become ever more difficult to achieve.’

97 A. Cassese, Self-Determination of Peoples: A Legal Reappraisal, International Law Commission, Hersch Lauterpacht Memorial Lectures (1995); K. Henrard, Devising an Adequate System of Minority Protection: Individual Human Rights, Minority Rights and the Right to Self-Determination (2000), 298; K. Knop, Diversity and Self-Determination in International Law (2002), 18.

98 Raic, supra note 3, at 287–8.

99 M. Shaw, International Law (2003), 444.

100 Raic, supra note 3, at 328; L. Buchheit, Secession: The Legitimacy of Self-Determination (1978), 94.

101 See for the application of the remedial-secession discourse to the case of Kosovo and the argument that the criteria for its application are not satisfied in the case Ryngaert, C. and Griffioen, C., ‘The Relevance of the Right to Self-Determination in the Kosovo Matter’, (2009) 8 Chinese Journal of International Law 573CrossRefGoogle Scholar.

102 K. Henrard, Minority Protection in Post-Apartheid South Africa: Human Rights, Minority Rights and Self-Determination (2002), 22.

103 See, e.g., D. Nincic, The Problem of Sovereignty in the Charter and in the Practice of the United Nations (1970), 248; M. Pomerance, Self-Determination in Law and Practice (1982), 37.

104 Canada Supreme Court, Reference Re Secession of Quebec, Judgment of 20 August 1998, (1998) ILM 1371, at 1373 (emphasis in original): ‘The recognized sources of international law establish that the right to self-determination of a people is normally fulfilled through internal self-determination – a people's pursuit of its political, economic, social and cultural development within the framework of an existing state. A right to external self-determination . . . arises only in the most extreme of cases and, even then, under carefully defined circumstances.’ The Court continues by distinguishing three situations in which the right to external self-determination comes into play: ‘[T]he international law right to self-determination only generates, at best, a right to external self-determination in situations of former colonies; where a people is oppressed, as for example under foreign military occupation; or where a definable group is denied meaningful access to government to pursue their political, economic, social and cultural development. In all three situations, the people in question are entitled to a right to external self-determination because they have been denied their ability to exert internally their right to self-determination.’

105 Case Concerning the Frontier Dispute (Burkina Faso/Republic of Mali), Judgment of 22 December 1986, [1986] ICJ Rep. 567; Castellino, supra note 95, at 141.

106 A. Bayefski (ed.), Self-Determination in International Law: Quebec and Lessons Learned (2000), 147; J. Preece, National Minorities and the European Nation-States System (1998), 46.

107 Badinter Commission, Opinion No. 3, 11 January 1992, (1992) 3 EJIL 1, at 185.

108 S. Lalonde, Determining Boundaries in a Conflicted World: The Role of Uti Possidetis (2002), 202; T. Potier, Conflict in Nagorno-Karabakh, Abkhazia and South Ossetia: A Legal Appraisal (2001), 44.

109 M. Fabry, Recognizing States: International Society and the Establishment of New States since 1776 (2010), 206; Radan, supra note 43, at 232.

110 R. Mullerson, ‘Introduction’, in R. Mullerson, M. Fitzmaurice, and M. Andenas (eds.), Constitutional Reform and International Law in Central and Eastern Europe (1998), xx.

111 Lalonde, supra note 108, at 240.

112 Rich, supra note 2, at 64.

113 Chinkin, supra note 64, at 106–7 (as to human rights); Wouters, De Meester, and Ryngaert, supra note 42, at 158 (as to democracy).

114 Hammer, supra note 28, at 31; Sloane, supra note 1, at 114.

115 Rich, supra note 2, at 64.

116 Cf. Kreijen, supra note 20, at 13: ‘Because centralized coercion and compulsory adjudication are essentially lacking in the international legal order, this order must almost entirely rely on the factual ability of its subjects to provide the implementation and enforcement of its norms. To put it another way, to endow entities, which do not possess the factual ability to act in accordance with the normative requirements of a decentralized legal order – i.e., to confer on them the legal capacity to be the bearers of rights and duties under the order, while merely presuming their factual capacity – is to put at risk the functioning of that order.’

117 C. Hillgruber, ‘The Admission of New States to the International Community’, (1998) 9 EJIL 491, at 499.

118 J. d'Aspremont, ‘Post-Conflict Administration as Democracy-Building Instruments’, (2008) 118 Chicago JIL 1, at 15.

119 Dugard, supra note 53, at 89.

120 Raic, supra note 3, at 71; d'Aspremont, supra note 25, at 663; Shaw, supra note 99, at 186.

121 Hillgruber, supra note 117, at 501.

122 K. Buhler, State Succession and Membership in International Organizations: Legal Theories versus Political Pragmatism (2001), 18; Kreijen, supra note 20, at 24.

123 Rich, supra note 2, at 64.

124 Dugard, supra note 53, at 89–90.

125 Lauterpacht, supra note 28, at 316.

126 D'Aspremont, supra note 25, at 662.

127 Caplan, supra note 22, at 85; S. Halperin, War and Social Change in Modern Europe: The Great Transformation Revisited (2004), 30.

128 Lauterpacht, supra note 28, at 320; Hammer, supra note 28, at 31.

129 Lauterpacht, supra note 28, at 322: ‘There are obvious advantages in relating the fundamental features of international relations – and the rise of new States is one of them – to an objective rule of law rather than to the shifting arbitrariness of national expediency.’

130 Even though some authors seem to differ, these moral criteria are legal norms nevertheless. Their discretionary nature follows not from their moral dimension, but from the uncertainty that still exists as to their content.

131 Caplan, supra note 22, at 9.

132 Worster, supra note 94, at 161.

133 H. Kelsen, ‘Recognition in International Law: Theoretical Observations’, (1941) 35 AJIL 605, at 605.