overseas countries and territories

8/9/2019 Overseas Countries and Territories

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Overseas countries and territories (OCT)

The twenty-one overseas countries and Territories (OCTs) depend constitutionally on fourof the European Union (EU) Member States !enmar"# $rance# the %etherlands# and theUnited &in'dom OCT nationals are European citi ens*owever# these countries do not form part of EU territory +ccordin'ly# they are not

directly sub,ect to EU law# but they benefit from associate status conferred on them bythe Treaty of isbon The aim of this association is principally to contribute to theireconomic and social development

• Overseas countries and territories (OCTs) towards a new partnership• $uture relations between the EU and Overseas Countries and Territories (OCTs)• +ssociation of the OCTs with the European Community• .ud'etisation of the European !evelopment $und• European !evelopment $und (E!$)

Overseas countries and territories (OCTs) towards a new partnershipThe European Union intends to reform the principles which form the basis of itscooperation with overseas countries and territories (OCTs) This new approach shallsupport the sustainable development of OCTs whilst ta"in' due account of theirspecificities

ACT

Communication from the Commission to the European Parliament, the Council,the European Economic and Social Committee and the Committee of the Regionsof 6 Novem er !""# $ Elements for a ne% partnership et%een the E& and theoverseas countries and territories (OCTs) ' CO (!""#) 6! final * Not pu lishedin the Official +ournal -

SUMMARY

/elations between the European Union (EU) and Overseas Countries and Territories(OCTs) should evolve into a reciprocal partnership# founded on mutual interests Theserelations are currently defined by the framewor" for association established by !ecision011234003EC

This Communication presents a ne% approach aimed at supportin' the sustainabledevelopment of OCTs by adaptin' the cooperation principles and priorities to thespecificities of these countries and territories 5n addition# if their level of development is

http://europa.eu/legislation_summaries/development/overseas_countries_territories/dv0010_en.htmhttp://europa.eu/legislation_summaries/development/overseas_countries_territories/rx0005_en.htmhttp://europa.eu/legislation_summaries/development/overseas_countries_territories/r12301_en.htmhttp://europa.eu/legislation_summaries/development/overseas_countries_territories/r12110_en.htmhttp://europa.eu/legislation_summaries/development/overseas_countries_territories/r12102_en.htmhttp://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52009DC0623:EN:NOThttp://europa.eu/legislation_summaries/development/overseas_countries_territories/r12301_en.htmhttp://europa.eu/legislation_summaries/development/overseas_countries_territories/r12301_en.htmhttp://europa.eu/legislation_summaries/development/overseas_countries_territories/rx0005_en.htmhttp://europa.eu/legislation_summaries/development/overseas_countries_territories/r12301_en.htmhttp://europa.eu/legislation_summaries/development/overseas_countries_territories/r12110_en.htmhttp://europa.eu/legislation_summaries/development/overseas_countries_territories/r12102_en.htmhttp://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52009DC0623:EN:NOThttp://europa.eu/legislation_summaries/development/overseas_countries_territories/r12301_en.htmhttp://europa.eu/legislation_summaries/development/overseas_countries_territories/r12301_en.htmhttp://europa.eu/legislation_summaries/development/overseas_countries_territories/dv0010_en.htm


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'enerally hi'her than that of +frican# Caribbean and 6acific (+C6) states# certain OCTsshall continue to benefit from European aid to fi'ht a'ainst poverty

Supporting sustaina le development

The future partnership# based on +rticle 274 of the Treaty on the $unctionin' of the EU#should prioritise three a8es of cooperation

• the competitiveness of OCTs in "ey areas such as education and trainin'#innovation# the small and medium-si ed enterprises sector# and 'ood political andeconomic 'overnance9

• reducin' their vulnera ilit. to economic shoc"s# environmental issues# ener'ydependency and natural disasters9

• regional integration throu'h increasin' intra-re'ional economic e8chan'es#carryin' out cooperation pro,ects (specifically for cross-border environmental protection)and increasin' cultural e8chan'esCooperation should be tailored to the situation of each partner

European financial and technical assistance shall be improved# specifically bycoordinatin' financial instruments with those for the Outermost /e'ions# +C6 states orother countries nei'hbourin' the OCTs

OCTs may participate in certain Communit. programmes (such as the : th /esearch$ramewor" 6ro'ramme) The pro'rammes must therefore be adapted to the newpriorities

Cooperation priorities

The Commission has identified a set of areas for cooperation which should enable thepotential of OCTs to be developed They involve

• establishin' centres of e/cellence and e8pertise to mana'e the advanta'es anddifficulties of each territory9

• up'radin' OCT le'islation to E& rules and standards # specifically to encoura'ethe trade of 'oods and services (for e8ample by brin'in' customs procedures andsanitary and phytosanitary standards closer to'ether) and compliance with the principlesof transparency on ta89

• developin' environmental cooperation to support the transition of OCTs to a'reener economy# and helpin' them adapt to climate chan'e# biodiversity protection# thepromotion of renewable ener'ies and disaster ris" reduction9

• improvin' the OCTs; accessi ilit. by developin' information and communicationtechnolo'ies and transport infrastructures9

• increasin' trade and economic cooperation in terms of international tradeliberalisation# which entails reciprocal trade relationships and specific rules of ori'in0ac1ground


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The Communication follows the


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4f not, Scotland would have to apply for membership as a new 5accession6 state1 'he distinction issignificant as this would mean the &ritish opt-out from the euro would not apply and Scotlandwould be forced to .oin the single currency at some point after .oining1

Scottish ministers are believed to have commissioned legal advice examining the issue, but theyhave refused an application for it to be released under "reedom of 4nformation laws1

4ain 7ray, 2abour6s +olyrood leader, said %iss +yslop6s comments made 8unanswerable9 thecase for the information to be published1

Related Articles

• Independent Scotland ' would have to join the euro'

26 Oct 2011

• European Commission refuses to confirm independent Scotland membership

28 Feb 2012

• SNP refuses to commit to separate Scotland joining E

09 Sep 2011

• Ale! Salmond drops E meeting demand

08 Sep 2011

• Scots presenters 'should be favoured over English'

02 Dec 2010

8 laiming it is contrary to the public interest is an outrageous attempt to hide the facts and s;irtthe issue, because their plans for separation have not been thought through,9 he said1

8As for the Scotland Alex Salmond wants to see, he cannot tell us what currency it would have,how it would defend itself < or if it could enter the European Union19

E"'A consists of only four European states = 4celand, 2iechtenstein, orway and Swit>erland =while the EU6s )? member states account for the bul; of Scotland6s exports1

%iss +yslop6s admission that E"'A membership was an option surprised opposition parties, whosaid that leaving the EU would be a 8hammer blow9 to the economy1

http://www.telegraph.co.uk/news/uknews/scotland/8850189/Independent-Scotland--would-have-to-join-the-euro.htmlhttp://www.telegraph.co.uk/news/politics/9109197/European-Commission-refuses-to-confirm-independent-Scotland-membership.htmlhttp://www.telegraph.co.uk/news/uknews/scotland/8753748/SNP-refuses-to-commit-to-separate-Scotland-joining-EU.htmlhttp://www.telegraph.co.uk/news/uknews/scotland/8749273/Alex-Salmond-drops-EU-meeting-demand.htmlhttp://www.telegraph.co.uk/news/uknews/scotland/8176118/Scots-presenters-should-be-favoured-over-English.htmlhttp://www.telegraph.co.uk/news/uknews/scotland/8850189/Independent-Scotland--would-have-to-join-the-euro.htmlhttp://www.telegraph.co.uk/news/politics/9109197/European-Commission-refuses-to-confirm-independent-Scotland-membership.htmlhttp://www.telegraph.co.uk/news/uknews/scotland/8753748/SNP-refuses-to-commit-to-separate-Scotland-joining-EU.htmlhttp://www.telegraph.co.uk/news/uknews/scotland/8749273/Alex-Salmond-drops-EU-meeting-demand.htmlhttp://www.telegraph.co.uk/news/uknews/scotland/8176118/Scots-presenters-should-be-favoured-over-English.html


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+er statement came only hours after %r Salmond told %SPs that an independent Scotland wouldhold a referendum on .oining the euro, a prere@uisite of which is EU membership1

'he confusion in senior S P ran;s on such a fundamental issue prompted accusations they have

little idea of what a separation will mean in practice for Scotland1

%r Salmond has argued that Scotland would automatically remain a member of the EU but hasbeen contradicted by Struan Stevenson, a 'ory %EP, and Joe &org, a former European fisheriescommissioner, who said new membership was re@uired1

'here is no precedent for an existing member state being split and the EU is not expected toissue a definitive statement before %r Salmond6s independence referendum1

Senior sources in &russels told this newspaper the existing )? member states would ma;e aruling in the event of a 5yes6 vote, but this means Scots going to the polls not ;nowing whichcurrency a separate Scotland in the EU would use1

'he "reedom of 4nformation re@uest for information on the issue held by Scottish ministers wastabled by atherine Stihler, a 2abour %EP, but was refused last month1

'he re.ection was made on the grounds that releasing the documents would 8pre.udicesubstantially9 the S P administration6s conduct and it would be 8contrary to the public interest91

'he "irst %inister6s senior special adviser attempted to roll bac; on her comments about E"'A1+e said: 8'he position is perfectly clear = an independent Scotland will be a member state of theEuropean Union1

84t is the practice of successive governments, reflected in the Scottish 7overnment ministerialcode, that the fact and content of legal advice is not disclosed1

http://www.telegraph.co.uk/news/uknews/scotland/8753776/SNP-urged-to-

publish-secret-legal-advice-on-separate-Scotland- !-"e"bership.ht"l Subject" Issues relating to E membership

4n its reply to my Bral Cuestion +-($D# $##$%, the ommission said that my @uestion raised many issues ofinternational law but that 5it was not customary for the ommission to state its views on matters which, asthings stand, are purely hypothetical61 "ollowing the Scottish Parliament elections in %ay )$$? the situationis less 5hypothetical6 and 4 call again on the ommission to address my @uestions1

4f part of a current EU %ember State declared its independence, can the ommission confirm whether or

not this new state would automatically assume membership of the EU 4f automatic membership does notfollow, what process would the brea;away state have to go through to become a %ember State Fouldthere be any membership implications for the existing %ember State "urthermore, what financial

$nswer%s&

http://www.telegraph.co.uk/news/uknews/scotland/8753776/SNP-urged-to-publish-secret-legal-advice-on-separate-Scotland-EU-membership.htmlhttp://www.telegraph.co.uk/news/uknews/scotland/8753776/SNP-urged-to-publish-secret-legal-advice-on-separate-Scotland-EU-membership.htmlhttp://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+WQ+E-2007-2886+0+DOC+XML+V0//EN&language=EN#def1http://www.europarl.europa.eu/sides/getAllAnswers.do?reference=E-2007-2886&language=ENhttp://www.telegraph.co.uk/news/uknews/scotland/8753776/SNP-urged-to-publish-secret-legal-advice-on-separate-Scotland-EU-membership.htmlhttp://www.telegraph.co.uk/news/uknews/scotland/8753776/SNP-urged-to-publish-secret-legal-advice-on-separate-Scotland-EU-membership.htmlhttp://www.europarl.europa.eu/sides/getAllAnswers.do?reference=E-2007-2886&language=ENhttp://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+WQ+E-2007-2886+0+DOC+XML+V0//EN&language=EN#def1


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implications, for example, in terms of Structural "unds, would follow for the existing %ember State and thenew state

http://www.europarl.europa.eu/sides/get'oc.do(pub)e*+-// P//, , 0 -1227-1886 2 ' 4 2// N language+ N9de*

Parliamentar& uestions

$( )ul& *++,

Answer given b& -r .arroso on behalf of the Commission

,he 4o""ission "aintains that; as things currentl< stand; the situation envisaged re"ainsh


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Besides, to counterbalance the potentially destabilising effect that external self-

determination might have on the international order, international law also comprises t he

principle of territorial integrity, which basically concerns continuity of borders for

sovereign states, preventing them from being deprived of their “territorial wholeness”.[4] The norm is c losely r elated to the doctrine of uti possidetis juris , which in modern times

has b een associated with the reaffirmation of colonial boundaries a fter former colonies

achieved independence. [5]

This p aper demonstrates t hat in order to reconcile these two notions, international law

has e volved in a way t hat focused on preventing conicts o ver territory, rather than giving

primacy to other claims t hat would seem legitimate in the light of human rights a nd

minority contexts. As a consequence, the principle of territorial integrity has often (albeit

not always) been placed above that of external self-determination, especially since the

general interpretation of the latter, through state practice and codication from

international organisations, remained conned to the context of the post-WWII

decolonisation process. Hence, beyond cases o f decolonisation, self-determination has

not automatically p rovided peoples w ith a right to secession.

In spite of this, international law has t o be seen as a process in constant evolution, and

the aftermaths o f the dissolutions o f the Union of Soviet Socialist Republics (USSR) and

Socialist Federal Republic o f Yugoslavia (SFRY) brought renewed interest in the issue.Some authors h ave revisited the relationship between the two notions, suggesting that

the scope of self-determination could be expanded to cases b eyond decolonisation –

when international supervision is g ranted or gross and systematic v iolations o f human

rights o ccur. The Kosovo case, notwithstanding the e vident contradictions t hat were

involved, can be interpreted as a result of this a pproach, and despite its b eing dened as

a sui generis event, it can have the effect of fuelling future claims f rom other groups.

Some Underlying Concepts and Caveats

The right to self-determination, notwithstanding a persistent ineffable aura, can manifest

itself in two different forms: an internal one (often associated with human rights a nd

democratic va lues), in which peoples’ rights a re recognised within an independent state,

or an external one, meaning either devolution or secession. [6] One important caveat is t hat

international instruments avoid detailing which ‘peoples’ have a right to self-determination

and which form they qualify for. Are these entities the population of a territory as a whole,

minorities, indigenous p eoples, or ethnic g roups? So far, it is s ufficient to notice that apart


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from whom is e ntitled to the right, also how to distinguish these terms c an be

controversial. [7]

The aim of a people seceding via self-determination is t o establish a new state entity. A

huge debate surrounding state creation and its n ature still divides s cholars b etweenconstitutivists and declaratorists, but what unites them is the attention devoted to the act

of recognition. [8] Even if the 1933 Montevideo Convention identied the characteristics that

states sh ould possess t o be d ened as su ch, the list provides necessary but

not sufficient statehood criteria. These include a permanent population, dened territory,

a government, and the capacity t o enter into relations w ith other states. [9] It is evident that

recognition (especially from powerful international community m embers), a c learly

political act, has p roved to be decisive in certain situations, and even viability c an

possibly b e considered an additional criteria. [10] If we accept the declaratory t heory –

namely t hat statehood is d etermined by facts a nd not by recognition – it becomes h ard to

deny de facto st ates l ike Taiwan or Somaliland membership in the community o f states.

Besides, any people seriously co mmitted to secession, including the B asques a nd

Chechens, could aspire to such a status.

Another problem is t hat, given the absence of terrae nullius – territories u noccupied and

unacquired – seceding entities c an obtain the second feature of the Montevideo

Convention only b y infringing two peremptory n orms o f international law, namely theprohibition on the use of force and territorial integrity. [11] This m ost certainly has a

correlation with the pervasiveness and resilience of anti-secessionist positions among

states.

Self-Determination: Origins a nd Its D ecolonisation Interpretation

As w e briey mentioned before, self-determination today is a concept that has g ained full

legal normative status. A whole series of treaties, declarations, and judicial decisionscontribute to make self-determination a norm of international law. Most importantly,

states’ conduct has demonstrated the legal relevance of the principle, reinforcing the

element of opinio juris . Borrowing the words o f Cassese, self-determination means t hat

‘[p]eoples m ust be enabled freely to express their wishes i n matter concerning their

conditions’. [12]

Self-determination, as a political aspiration, began to be discussed after the Great War

(mainly s ponsored by US President Wilson), but it failed to become generally a cceptedas a legal norm; as a matter of fact, during the Aaland Islands c ase, it was c learly d ened


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as a ‘purely p olitical concept’. It was o nly w ith the establishment of the United Nations

(UN) that the notion became more prominent, rstly with the inclusion in the UN Charter,

and subsequently v ia states’ practice. [13]

Denitions of the principle – serving also as a law-creation steps – comprise UnitedNations G eneral Assembly (UNGA) Resolution 1514 (XV), the 1 966 International

Covenants o n Human R ights, the 1 970 Declaration on Principles o f International Law

concerning Friendly Relations an d Cooperation a mong S tates, 1975 Helsinki Accords

Final Act, and 1993 Vienna Conference o n Human Rights. [14] Even the International Court

of Justice (ICJ) was r epeatedly involved in the discussions, conrming the ranking of self-

determination as a new norm of international law – affording it also an erga

omnes character. 15

But all these references, however important and visionary, fail to be precise in dening

the scope and application of the right, and taken outside their context become rather

misleading (especially i f compared to how they t ranslated in reality). The debate

surrounding the Colonial Declaration, for instance, was p articularly important for creating

an intimate association between self-determination and decolonisation; similarly, the

Declaration of 1970 affirmed that in their seeking independence, ‘trusts a nd non-self-

governing territories’ had to respect ‘national unity and territorial integrity of a country’.[15] Even the ICJ c ontributed to reinforcing the link: in 1971, the Court suggested that theprinciple was applicable ‘to all […] non-self-governing territories’, and later in 1975 re-

endorsed this limited interpretation. [16] All these elements, in sum, contributed to the

cryst allization of the principle into a ‘western-European decolonisation rule’ – apparently

opposing secession in general. The interpretation functioned to prevent every d issatised

minority group from disrupting states’ territorial integrity. [17]

For instance, UN resolutions c oncerning self-determination in East Timor – which

resulted in the birth of the independent state of Timor-Leste in 2002 – continued to focuson the link that the territory had with the former colonial power (Portugal), the

‘administering [p]ower’, rather than the actual occupier, Indonesia. [18] Indeed, if East Timor

had to gain independence from Indonesia, it would have b een a ‘new form of

decolonisation’ – one that Russia or China, Permanent 5 (P-5) members w ith veto power

over the UN, would have hardly e ndorsed. Their own disputes with minorities f rom

Chechnya, Tibet, or Xinjiang were powerful reasons t o endorse Timorese independence,

only when a clear differentiation b etween the ca se and their domestic o nes was m ade. [19]


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Nevertheless, Western Sahara shows h ow difficult it may be to assert the right to self-

determination even in the context of ‘traditional’ decolonisation. The ICJ c onsidered the

territory ‘occupied’ by Spain in the nineteenth century, judging in addition the Moroccan

and Mauritanian sovereignty cl aims t o it insufficient (despite arising from some ‘unclear

legal relations’). In spite of this, the result of the decolonisation process was not that of

granting full independence to the Sahrawi Arab Democratic R epublic ( founded by the

Polisario liberation movement in 1 976), but a d eadlock s temming from failed tentatives t o

either accomplish annexation – by both Mauritania and Morocco – or establish a

referendum. [20] The actual conundrum is t he result of contrasting interests a t both

international and local levels: the international community, which supported the

implementation of the legal principle, proved to be not determined enough to overcome

the resistance of conicting regional parties, and ultimately e nforcement failed to

materialise. [21]

Beyond Decolonisation? Human Rights and ‘Remedial Secession’

The aforementioned international instruments s uggest that, in principle, self-

determination extends b eyond the colonial context – at least in its i nternal form. This

remains t rue irrespective of the huge limitation on secession that the principle of territorial

integrity entails. A more controversial question is whether secession would be lawful in

circumstances w here a state denies t he internal form of the right to a people – violatingtheir fundamental human rights.

The global context is assisting an evolution in conict dynamics, shifting from being

primarily state-to-state towards being within states: self-determination, in large-scale

conicts, has o ften been one of the main issues. In this p articular environment, law and

justice have gradually me more

began to gain ground. Secession as a ‘remedial right’ fundamentally r estricts t he scope

of external self-determination to being a last resort measure for those groups t hat witnessserious, persistent injustices. [22] Although existing at least since the writings o f Grotius,

remedial secession was r eaffirmed – albeit with a t wisted language – in UNGA

Resolution 2625 (XXV) and in the 1993 Vienna Declaration; it is a lso partly su pported by

judicial practice, [23]

The Kosovo case was a major turning point for the theory: after Kosovo’s u nilateral

declaration of independence in 2008, the UNGA brought the issue before the Court

enquiring whether the tentative secession was in accordance with internationallaw. 25 Even if the ICJ a voided elaborating specically o n the subject of remedial


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secession, it was a ffirmed that international law does ‘ not preclude [Kosovo’s] declaration

of independence’, indirectly raising Kosovo’s d iplomatic s tanding. [24] Indeed, remedial

secession was t he main legal argument put forward by the states supporting the move

(led by the US and UK, among others). [25] The real issue before the Court, though, should

have been the legality o f international support to the unilateral declaration, rather than

that of UDIs ( Unilateral Declaration of Independence) in general. Russia, which stated

not to disagree with the notion in principle (as a n ultimum remedium ), suggested that

after 1999 – when international administration was e nforced through UN Security C ouncil

(UNSC) Resolution 1244 – Kosovar-Albanians w ere n o longer in ‘extreme ci rcumstances’

that required their secession; it added that since 1999, Serbia has been granting the

Kosovar minority a good degree of autonomy u nder t he Constitutional framework, and

has st opped threatening or using violence against them. [26] It is evident that states practice

reected whether or not national interests w ere at stake, since those that opposed

secession were o ften the same o nes w orried by se cessionist movements at home (Spain

and Cyprus, inter a lia ). [27]

An interesting spillover happened just few months later in the regions of South Ossetia

and Abkhazia, when a Georgian unwise military offensive i n its a utonomous regions –

protected by Russian peacekeepers – was carried out. The outcome was the expulsion of

Georgian forces, followed by Russian (and few more states’) recognition of the two as

independent states. [28] The d eclared intention o f seeing Kosovo a s a u nique c ase,

apparently, was n ot powerful enough to p revent these peoples’ hopes f rom awakening.

The parallelism is p articularly r elevant, since both autonomous r egions s hare some

common constitutional and historical grounds w ith Kosovo. Besides, it is e vident that

Russia, to justify recognition, has undertaken the way of remedial secession theory –

albeit stressing s ome s upposed u niqueness t hat differentiate Abkhazia a nd S outh

Ossetia from Kosovo. [29] Whether the inhabitants o f these two regions w ere in ‘more

extreme situations’ than those of Kosovo is at least controversial; what is less hard to say

is t hat even in this c ase, realpolitik nally had the u pper hand.

Conclusions

There is a fragile balance between the principles of territorial integrity and self-

determination, and careful considerations a re needed before applying them to

international affairs. Dismissing self-determination in too simplistic terms – as it was often

done before Kosovo, to preserve territorial integrity – generated great and widespread

unfairness. In spite of its being a well-established norm of international law, self-


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determination, outside the decolonisation context, has b een largely s acriced in favour of

territorial integrity; in addition, even within decolonisation, many of the existing borders

still do not consider ethnic or tribal realities (especially in Africa). State practice before the

2000s m ade e xternal self-determination a lmost like a s ingle, unrepeatable m oment in

time. [30]

On the o ne h and, that depended o n a n u nderstandable fear of potential chaos t hat could

arise in the international system; on the other hand, it was d ue to diverging states’

interests, which exploited the vagueness su rrounding more basic co ncepts su ch as

‘statehood’ or ‘peoples’.

To best interpret different outcomes i n cases o f external self-determination (Western

Sahara vis-à-vis Timor Leste, or Kosovo versus Abkhazia, for instance), it is necessary tofully understand the interplay between international law and international politics. Political

considerations h ave often prevailed over precedent and principle, and as a consequence,

today s elf-determination remains a rather vague principle of international law, instead of a

more specic a nd p recise rule. [31] To successfully o vercome the justice-interests d ivide, the

international community should be willing to undertake a more decisive shift towards

solidarist stances, which would in turn generate greater coherence in interpreting self-

determination in its e xternal form. Remedial secession theory p rovides t he starting

ground for such a prospect. Nevertheless, as o f today, it remains a t least a long-termobjective.

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136, available online at: http://www.icj-cij.org/docket/les/131/1671.pdf

International Court of Justice (22 July 2 010), Accordance with International Law of the

Unilateral

Declaration of Independence in Respect of Kosovo , Advisory Opinion, I.C.J. Reports

2010, p. 403

Jensen, Erik (2005), Western Sahara: Anatomy of a Stalemate? (London: Lynne R ienner

Pub)

http://www.icj-cij.org/docket/files/141/15624.pdfhttp://www.icj-cij.org/docket/files/141/15624.pdfhttp://www.icj-cij.org/docket/files/61/6197.pdfhttp://www.icj-cij.org/docket/files/61/6197.pdfhttp://www.icj-cij.org/docket/files/84/6949.pdfhttp://www.icj-cij.org/docket/files/84/6949.pdfhttp://www.icj-cij.org/docket/files/131/1671.pdfhttp://www.icj-cij.org/docket/files/141/15624.pdfhttp://www.icj-cij.org/docket/files/141/15624.pdfhttp://www.icj-cij.org/docket/files/61/6197.pdfhttp://www.icj-cij.org/docket/files/61/6197.pdfhttp://www.icj-cij.org/docket/files/84/6949.pdfhttp://www.icj-cij.org/docket/files/84/6949.pdfhttp://www.icj-cij.org/docket/files/131/1671.pdf


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Statement of the Kingdom of Spain o n the Accordance with International Law of the

Unilateral Declaration of Independence by the Provisional Institutions of Self-government

of Kosovo , available online at: http://www.icj c ij.org/docket/les/141/15644.pdf

Kohen, Marcelo, ed. (2006), Secession: International Law Perspective , (Cambridge:

Cambridge UP) Maffei, Maria C lara (1993), ‘ The Case of East Timor before the

International Court of Justice – Some

Tentative Comments ’, European Journal of International Law , vol. 4, pp. 223-238

Mayall, James ( 1990), Nationalism and International Society (Cambridge: Cambridge

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of the Cases o f Kosovo, South Ossetia and Abkhazia ’, Chinese Journal of International

Law , Vol. 8, No. 1, pp. 2–25

OSCE (1 August 1975), Conference on S ecurity a nd Co-operation in E urope: Final Act ,

available online at: http://www.osce.org/mc/39501?download=true

Pomerance, Michla (1982), Self-Determination in Law and Practice: The New Doctrine inthe U nited Nations (The Hague: Martinus N ijhoff)

Raič , David (2002), Statehood and the Law of Self-determination (The Hague: Kluwer

Law International) Republic o f Cyprus ( 17 April 2009), Written Statement of the Republic

of Cyprus on the Accordance with International Law of the Unilateral Declaration of

Independence by the Provisional Institutions o f Selfgovernment of Kosovo , available

online at: http://www.icj-cij.org/docket/les/141/15609.pdf

Republic of Serbia (2006 amended), Constitution of the Republic o f Serbia , available

online at: http://www.wipo.int/wipolex/en/text.jsp?le_id=191258

Republic o f Serbia (15 April 2009), Written S tatement of the G overnment of the R epublic

of Serbia on the Accordance with International Law of the Unilateral Declaration of

Independence by the Provisional Institutions of Self-government of Kosovo , available

online at: http://www.icj c ij.org/docket/les/141/15642.pdf

http://www.icj-cij.org/docket/files/141/15644.pdfhttp://www.icj-cij.org/docket/files/141/15644.pdfhttp://www.osce.org/mc/39501?download=truehttp://www.icj-cij.org/docket/files/141/15609.pdfhttp://www.wipo.int/wipolex/en/text.jsp?file_id=191258http://www.icj-cij.org/docket/files/141/15642.pdfhttp://www.icj-cij.org/docket/files/141/15642.pdfhttp://www.icj-cij.org/docket/files/141/15644.pdfhttp://www.icj-cij.org/docket/files/141/15644.pdfhttp://www.osce.org/mc/39501?download=truehttp://www.icj-cij.org/docket/files/141/15609.pdfhttp://www.wipo.int/wipolex/en/text.jsp?file_id=191258http://www.icj-cij.org/docket/files/141/15642.pdfhttp://www.icj-cij.org/docket/files/141/15642.pdf


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Shaw, Malcolm N. (1996), ‘ The Heritage of States: The Principle of Uti Possidetis Juris

Today ’, British Yearbook o f International Law , 67(1), pp. 75-154

Shaw, Malcolm N. (2008), International Law , 6th e d. (Leiden: Cambridge UP)

Supreme Court of Canada (20 August 1998), Reference r e Secession of Quebec , [1998]

2 SCR 217: 25506. available online at: http://scc-csc.lexum.com/decisia-scc-csc /scc-

csc/scc-csc/en/1643/1/document.do Tancredi, Antonello (2008), ‘ Neither Authorized nor

Prohibited – Secession and International Law after Kosovo, South Ossetia and

Abkhazia ’, Italian Yearbook of International Law , vol 18, pp. 37-62

UN General Assembly (16 December 1966), International Covenant on Civil and Political

Rights , United Nations, Treaty Series, vol. 999, p. 171, available onlineat: https://treaties.un.org/doc/Publication/UNTS/Volume%20999/volume-999-I-14668-

English.pdf

UN General Assembly (16 December 1966), International Covenant on E conomic, Social

and C ultural Rights , United Nations, General Assembly Resolution 2 200A (XXI),

available online at: http://www.ohchr.org/Documents/ProfessionalInterest/cescr.pdf

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International Court of Justice on whether the unilateral declaration of independence of

Kosovo is i n accordance with international law , A/RES/63/3, available online

at: http://www.un.org/en/ga/search/view_doc.asp? sym bol=A/RES/63/3&Lang=E

United Kingdom, Foreign and Commonwealth Office ( 17 April 2009), Written Statement

of the United Kingdom on the Accordance with International Law of the Unilateral

Declaration of Independence by the Provisional Institutions o f Self-government of

Kosovo, a vailable online at: http://www.icj c ij.org/docket/les/141/15638.pdf

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Action , World Conference o n Human Rights, 1993, A/CONF.157/23. Available o nline

at: http://www.ohchr.org/Documents/ProfessionalInterest/vienna.pdf

[1] OSCE (1975)

[2]Brilmayer (1991), p. 182

http://scc-csc.lexum.com/decisia-scc-csc/scc-csc/scc-csc/en/1643/1/document.dohttp://scc-csc.lexum.com/decisia-scc-csc/scc-csc/scc-csc/en/1643/1/document.dohttps://treaties.un.org/doc/Publication/UNTS/Volume%20999/volume-999-I-14668-English.pdfhttps://treaties.un.org/doc/Publication/UNTS/Volume%20999/volume-999-I-14668-English.pdfhttp://www.ohchr.org/Documents/ProfessionalInterest/cescr.pdfhttp://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/63/3&Lang=Ehttp://www.icj-cij.org/docket/files/141/15638.pdfhttp://www.icj-cij.org/docket/files/141/15638.pdfhttp://www.ohchr.org/Documents/ProfessionalInterest/vienna.pdfhttp://scc-csc.lexum.com/decisia-scc-csc/scc-csc/scc-csc/en/1643/1/document.dohttp://scc-csc.lexum.com/decisia-scc-csc/scc-csc/scc-csc/en/1643/1/document.dohttps://treaties.un.org/doc/Publication/UNTS/Volume%20999/volume-999-I-14668-English.pdfhttps://treaties.un.org/doc/Publication/UNTS/Volume%20999/volume-999-I-14668-English.pdfhttp://www.ohchr.org/Documents/ProfessionalInterest/cescr.pdfhttp://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/63/3&Lang=Ehttp://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/63/3&Lang=Ehttp://www.icj-cij.org/docket/files/141/15638.pdfhttp://www.icj-cij.org/docket/files/141/15638.pdfhttp://www.ohchr.org/Documents/ProfessionalInterest/vienna.pdf


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[3] Kohen (2006), p. 3; Crawford (2007), p. 375

[4] Raič, (2002), p. 303; Serbia (2009), p. 152

[5] Shaw (1996), pp. 97, 100-101

[6] Higgins (1994), pp. 119-20; Raič (2002), pp. 272-7

[7]ICCPR (1966), Art. 27; Shaw (2008), pp. 293-8

[8]For an overview, Crawford (2007), pp. 19-26

[9]Montevideo Convention (1933), Art.1

[10] Akehurst (1997), pp. 80-1

[11]UNC Art. 2(4); UNGAR 1514 (XV); Shaw (1996), pp. 86-7

[12] Cassese (1995), p. 128

[13] Shaw (2008) pp. 251-2; UNC Artt. 1(2), 55

[14]UNGAR 1514 (XV); ICCPR (1966), Art. 1(1); ICESCR (1966), Art. 1(1); UNGAR2625 (XXV); UNGAR 48/121 15 ICJ ( 1971), p. 131; ICJ ( 1975), pp. 100-1; ICJ ( 2004), p.

7; ICJ ( 1995), p.16

[15] Shaw (2008), p. 253; UNGAR 2625 (XXV)

[16] Pomerance (1982), pp. 63-72; ICJ ( 1971), p. 31; Cassese (1995), p.71

[17] Mayall (1990), pp.50-7

[18]UNSCR 384; UNSCR 1262

[19] Maffei (1993), p. 230; Berdal (2007), pp. 195-6

[20] Jensen (2005), pp. 27-30

[21] Gardner (2000), pp. 132-4

[22] Buchanan (2004), pp. 217-9


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[23] Grotius ( 1925), p. 261-2; Cassese (1995), p. 112, 118-9; VDPA (1993), par.2; SCC

(1998), par. 134-5, 138 25 UNGAR 63/3 (2008)

[24] ICJ ( 2010), p. 50

[25] ICJ ( 2010), p. 403; UK (2009), pp. 92-3

[26] Russia (2009), pp. 33, 37-9; Serbia (2006), Artt. 75-81

[27] Spain (2009), p. 56 ; Cyprus ( 2009), pp.39-41; Serbia (2009), pp. 208-15

[28] Müllerson (2009), pp.10-7

[29] Tancredi (2008), pp. 49-50

[30] Franck (1995), p. 154; Crawford (2007), p. 409

[31] Gardner (2000), pp. 118-121; Cassese (1995), p. 159-162

—

Written by: Michele C apelto

Written at: King’s College London

Written for: Dr. Natasha Kuhrt

Date written: February 2014

http://www.e-ir.in*o/12 =/25/21/does-sel*-deter"ination-entail-an-auto"atic-right-to-secession/

emorandum . Professor +ohn 2 &sher' 3"4

2 O =E/+ +SSESSME%T

>hether or not the isbon Treaty will constitute a lastin' settlement may beconsidered in the conte8t of three issues its structure# its institutional provisions#and its substantive scope

So far as structure is concerned# while the Constitutional Treaty included all three?pillars? of the EU in a sin'le Treaty (thou'h Euratom would have remainedseparate)# the /eform Treaty ta"es the form of amendments to the e8istin' Treaties(Euratom still remainin' separate) *owever# the /eform Treaty will rename the ECTreaty the ?Treaty on the $unctionin' of the Union?# the word ?Community? will bereplaced by the word ?Union?# and the European Union will have a sin'le le'al

personality >hile this effectively creates a sin'le European Union# and to a lar'ee8tent the same institutional processes will apply in the current first pillar (EC) andthe current third pillar (police and ,udicial cooperation in criminal matters@sub,ect to

http://www.e-ir.info/2014/05/02/does-self-determination-entail-an-automatic-right-to-secession/http://www.e-ir.info/2014/05/02/does-self-determination-entail-an-automatic-right-to-secession/http://www.publications.parliament.uk/pa/ld200708/ldselect/ldconst/84/84we11.htm#note105http://www.e-ir.info/2014/05/02/does-self-determination-entail-an-automatic-right-to-secession/http://www.e-ir.info/2014/05/02/does-self-determination-entail-an-automatic-right-to-secession/http://www.publications.parliament.uk/pa/ld200708/ldselect/ldconst/84/84we11.htm#note105


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transitional arran'ements# and to special arran'ements for the U 5reland and!enmar")# the current second pillar (Common $orei'n and Security 6olicy) remainssub,ect to distinctive institutional procedures# and for the most part continues toescape ,udicial review This arran'ement no doubt reflects the wishes of the currentmembers of the EU# but it does leave scope for further Treaty amendments at somesta'e in the future

*owever# while representation and votin' ri'hts may have been at the heart of thediscussion which led to the +msterdam and %ice Treaties# it may be su''ested thatthe /eform Treaty does considerably reduce the need for future Treaty amendmentswith re'ard to these issues# by removin' specific numbers from the Treaty te8ts Sofar as Aualified ma,ority votin' in the Council is concerned# once the transitionalarran'ements e8pire there will no lon'er be wei'hted numerical votes9 instead# aAualified ma,ority will be represented by BB of the CouncilDs members representin'B of the EUDs population >ith re'ard to the 6arliament and Commission# theTreaty sets out the parameters 'overnin' their membership# leavin' the detaileddecision to the European Council9 other institutions (e' the ECF and the Court of

+uditors) comprise one member from each Member State# or have memberships setout in Statutes which can be amended without amendin' the Treaties (e' the C$5and the EC.)# and the composition of the Economic and Social Committee and of theCommittee of the /e'ions are to be determined by the Council 5t may therefore beconcluded that the relevant Treaty provisions will no lon'er reAuire freAuentamendment

So far as the substantive scope of the Treaties is concerned# the /eform Treatylar'ely represents a consolidation of the current position# ie the position reachedafter the Treaties of Maastricht and +msterdam This in turn perhaps indicates that aplateau has been reached# thou'h it is hi'hly unli"ely that there will never be afuture issue which it is felt appropriate to deal with at Union level *owever# therevised te8ts of what are currently arts 7G and H14 of the EC Treaty will continue toallow a considerable de'ree of fle8ibility even without Treaty amendments

Overall therefore# it may be su''ested that althou'h the /eform Treaty should notbe re'arded as set in stone# it should considerably reduce the need for freAuentTreaty amendments

0 6 EO6 E DS / 5


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be's the Auestion of what happens to national laws and practices which have evolvedinto 'eneral principles of EU law and therefore already have to be observed by theU& in the conte8t of EU law

H 6O>E/S +%! %+T5O%+ SO=E/E5hile the Treaty te8t will contain no e8press statement of the primacy of EU law#there will be a declaration recallin' the e8istin' case-law of the European Court ofFustice on primacy 5ndeed this case-law was well-"nown when the U& first became amember of the then EEC# and it was reflected in the draftin' of the EuropeanCommunities +ct 27:0

>ith re'ard to ?red lines?# in part these have been protected by obtainin' specialtreatment for the U& 5ndeed# far from bein' monolithic# the /eform Treaty not onlyretains the e8istin' opt-outs from EU policies and opt-ins to EU policies but it ta"esthe matter further the Third 6illar provisions on police and ,udicial cooperation incriminal matters will be moved to the same part of the Treaty on the $unctionin' ofthe Union as the current title on asylum# immi'ration and visas# and will becomesub,ect to the same ?opt-in? arran'ements for the U& and 5reland@and indeed it isenvisa'ed the !enmar" will be able to opt-in as well (currently the relevantprovisions are simply not bindin' on !enmar") *owever the relevant 6rotocol alsodeals e8pressly with the conseAuences of this e8tension with re'ard to Third 6illarle'islation currently bindin' on e' the U& 5t envisa'es both substantive andinstitutional issues which mi'ht arise Substantively# e8istin' measures continue# butif they are later amended# and the U& does not participate in the amendment# theCouncil may determine that this non-participation ma"es application of the measureinoperable for other MS# and the ori'inal measure will no lon'er be bindin' on orapplicable in the U& So far as institutional issues are concerned# the relevant6rotocol to the /eform Treaty envisa'es a B year transition durin' which the e8istin'Hrd pillar rules apply (ie a limited role for the Commission# and references to the ECFonly if the Member State concerned allows them) *owever# if a former Hrd pillarmeasure is amended durin' that period# the new rules apply (ie the normal

institutional rules)@thou'h the U& would only be affected if it opted-in to theamended measure Si8 months before the end of the transitional period# U& may'ive notice that it does not accept normal powers of institutions with re'ard to ?old?acts still bindin' on it The result of this is that those acts will cease to apply to U&from the end of the transitional period@and Council (without the participation of theU&) will determine the conseAuences# includin' financial ones Since the Third 6illarmeasures currently bindin' on the U& include matters such as the European +rrest>arrant# the conseAuences could be serious

Other methods of protectin' ?red lines? involve ensurin' the continuation of areAuirement of unanimity in the Council# or simply ensurin' that the treaty does note8tend the EUDs powers# as in the case of ta8ation *owever# it may be su''estedthat the failure e' to 'ive the EU any e8press power to le'islate in the area of directta8ation has a downside 5n a series of recent cases# the ECF has found that


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discriminatory national rules on direct ta8ation may breach the Treaty ?freedoms?#notably freedom of establishment# freedom to provide services and free movementof capital# and such rules may also conflict with the provisions 'overnin' citi enshipof the Union Thus a Member Sate may be reAuired to 'ive ta8 relief for pensioncontributions paid in another Member State# or to 'ive credit for ta8 paid ondividends in another Member State# or to 'ive ta8 relief for losses made in anotherMember State# and it may be su''ested that the situation has now been reachedwhere it would be sensible to a'ree some basic rules at Union level *owever# theTreaty 'ives the Union no competence in this area# other than throu'h a broadinterpretation of what is currently art 7G of the EC Treaty# allowin' appro8imation ofsuch laws as affect the functionin' of the common mar"et (to be referred to as theinternal mar"et under the /eform Treaty)

G OU/ %+T5O%S +%! / E


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are then reAuired ?ta"e account? of the reasoned opinions issued by national6arliaments or by a chamber of a national 6arliament

5t is further provided in art : that where reasoned opinions on a draft Europeanle'islative actDs non-compliance with the principle of subsidiarity represent at leastone third of all the votes allocated to the national 6arliaments# ?the draft must bereviewed? 5n calculatin' such a vote# each national 6arliament would have twovotes# shared out on the basis of the national 6arliamentary system 5n the case of abicameral 6arliamentary system# each of the two chambers would have one vote

This threshold would be a reduced to a Auarter of the allocated votes in the case ofa draft le'islative act submitted on the basis of art 4 of the Treaty on thefunctionin' of the Union on the area of freedom# security and ,ustice +fter carryin'out such a review# the Commission or# where appropriate# the 'roup of MemberStates# the European 6arliament# the Court of Fustice# the European Central .an" orthe European 5nvestment .an"# if the draft le'islative act ori'inates from them# maydecide to maintain# amend or withdraw the draft# but reasons must be 'iven for thisdecision

%ational 6arliaments are also 'iven a right of action before the European Court +rt4 declares that the Court of Fustice of the European Union shall have ,urisdiction inactions on 'rounds of infrin'ement of the principle of subsidiarity by a le'islative act#brou'ht in accordance with the rules laid down in art 0H1 of the Treaty on the$unctionin' of the Union (which 'overns actions for annulment) by Member States#or notified by them in accordance with their le'al order on behalf of their national6arliament or a chamber of it

The national parliaments are also e8pressly involved in the revised te8t of thecurrent art 308 of the EC Treaty 5t provides that if action by the Union should provenecessary# within the framewor" of the policies defined in the Treaties# to attain oneof the ob,ectives set in the Treaties# and the Treaties have not provided thenecessary powers# the Council of Ministers# actin' unanimously on a proposal fromthe European Commission and after obtainin' the consent of the European6arliament# may adopt the appropriate measures *owever# a new art H14(0) thenadds that usin' the procedure for monitorin' the subsidiarity principle# theCommission must draw Member StatesD national 6arliamentsD attention to proposalsbased on this provision

Similarly# the Protocol on the Role of National Parliaments # ori'inally anne8ed tothe Treaty of +msterdam# has been considerably reinforced 5n the version anne8edto the /eform Treaty# not only must Commission consultation documents ('reen andwhite papers and communications) be forwarded directly by the Commission tonational 6arliaments upon publication# but the Commission must also forward theannual le'islative pro'ramme as well as any other instrument of le'islative plannin'or policy to national 6arliaments# at the same time as to the European 6arliamentand the Council 5t would also be reAuired that draft le'islative acts sent to theEuropean 6arliament and to the Council must be forwarded to national 6arliaments9?draft le'islative acts? are defined as proposals from the Commission# initiatives froma 'roup of Member States# initiatives from the European 6arliament# reAuests fromthe Court of Fustice# recommendations from the European Central .an" and reAuestsfrom the European 5nvestment .an" for the adoption of a le'islative act

+rt H of the 6rotocol then provides that %ational 6arliaments may send to the6residents of the European 6arliament# the Council and the Commission a reasoned


22/82

opinion on whether a draft European le'islative act complies with the principle ofsubsidiarity# in accordance with the procedure laid down in the 6rotocol on theapplication of the principles of subsidiarity and proportionality mentioned above

E8pandin' the timescale of the ori'inal te8t# art G would reAuire that an ei'ht wee"period should elapse between a draft le'islative act bein' made available to national6arliaments in the official lan'ua'es of the Union and the date when it is placed on aprovisional a'enda for the Council for its adoption or for adoption of a position undera le'islative procedure E8ceptions would however be possible in cases of ur'ency#the reasons for which would have to be stated in the act or position of the CouncilThe 6rotocol would e8pressly lay down that save in ur'ent cases for which duereasons have been 'iven# no a'reement may be reached on a draft le'islative actdurin' those ei'ht wee"s $urthermore# save in ur'ent cases for which due reasonshave been 'iven# a ten day period would have to elapse between the placin' of adraft le'islative act on the provisional a'enda for the Council and the adoption of aposition Under art B# the a'endas for and the outcome of meetin's of the Council#includin' the minutes of meetin's where the Council was deliberatin' on draft

le'islative acts# would have to be forwarded directly to national 6arliaments# at thesame time as to Member StatesD 'overnments

There is however a direct lin" to what is termed the simplified revision procedure inart of the 6rotocol# which provides that when the European Council intends toma"e use of the simplified revision procedure# national 6arliaments must be informedof the initiative of the European Council at least si8 months before any decision isadopted The simplified revision procedure would introduce a 'eneral power for theEuropean Council# actin' unanimously# to adopt a decision allowin' the Council tomove from actin' by unanimity where it would still be reAuired in a specific area toAualified ma,ority votin' in that area# without amendin' the Treaty# thou'h it wouldstill have to be approved by the Member States in accordance with their respectiveconstitutional reAuirements *owever# any initiative ta"en by the European Councilon this basis must be notified to the national 6arliaments of the Member States# andif a national 6arliament made "nown its opposition within si8 months of the date ofsuch notification# the European decision could not be adopted 5t would only be in theabsence of opposition that the European Council could adopt the decision 5t may beobserved that in this conte8t no distinction is made between the parliament of e'


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C OU/TS +%! T*E FU!5C5+/I

+ notorious 'ap in the current system of ,udicial review under the EC Treaty is thatit is virtually impossible for non-privile'ed liti'ants directly to see" the annulment of'eneral le'islation before the ECF3C$5 since the current art 0H1 of the EC TreatyreAuires applicants to show that the act is of individual concern to them The /eformTreaty will alleviate this problem when applicants are challen'in' ?re'ulatory? acts(presumably meanin' implementin' or dele'ated le'islation)# thou'h the problemwill remain with re'ard to acts adopted under a le'islative procedure

Two other ,urisdictional issues will also be tac"led The first is that the reAuirementunder the current Title 5= of the EC Treaty that references from national courts to theECF for a preliminary rulin' may only be made by courts of final appeal is abolished#thou'h this is of concern to the U& only in so far as it opts in to Title 5= measuresThe second is that while references under the third pillar may currently only be madeif a Member State decides to allow its courts to ma"e such references (and the U&does not allow such references)# they will in principle be sub,ect to the normal ruleson references under the /eform Treaty@thou'h it must be said that althou'h a U&court may not itself ma"e such a reference# the *ouse of ords in the Dabas caselast year followed the case-law of the ECF arisin' from references from other MemberStates .e that as it may# this chan'e is sub,ect to the special arran'ements for theU& discussed in section G of this Evidence there will a B year transition durin' whichthe e8istin' Hrd pillar rules apply but if a former Hrd pillar measure is amendeddurin' that period# the new rules apply (ie the normal institutional rules)@thou'hthe U& would only be affected if it opted-in to the amended measure Si8 monthsbefore the end of the transitional period# U& may 'ive notice that it does not acceptnormal powers of institutions with re'ard to ?old? acts still bindin' on it The result of this is that those acts will cease to apply to U& from end of the transitional period

5n essence therefore# the /eform Treaty will remove certain anomalies in thesystem of references# but these chan'es will be of relevance to the U& only to thee8tent the U& opts-in to the relevant le'islation

$ebruary 0114

21B 6rofessor of European aw and *ead of the School of aw# University ofE8eter .ac"

http://www.publications.parlia"ent.uk/pa/ld122728/ldselect/ldconst/8=/8=we .ht"9note 25

Bn %arch #, )$(G, the Parliament of rimea adopted a !esolution o1(?$)-# (G that provided for a secessionreferendum to be held on %arch (#, )$(G1 +aving been arranged at ($ days notice, the referendum was

characterised by a complete lac; of transparency regarding the composition of the lists of voters, the electoralcommissions as well as the absence of impartial international observers 1 %oreover, the initiativedid not offer its

http://www.publications.parliament.uk/pa/ld200708/ldselect/ldconst/84/84we11.htm#n105http://www.publications.parliament.uk/pa/ld200708/ldselect/ldconst/84/84we11.htm#note105http://www.publications.parliament.uk/pa/ld200708/ldselect/ldconst/84/84we11.htm#note105http://cjicl.org.uk/2014/03/09/crimean-secession-right-divorce/http://cjicl.org.uk/2014/03/09/crimean-secession-right-divorce/http://blogs.fco.gov.uk/simonsmith/2014/03/17/why-should-the-crimean-referendum-not-be-recognised/http://blogs.fco.gov.uk/simonsmith/2014/03/17/why-should-the-crimean-referendum-not-be-recognised/http://www.publications.parliament.uk/pa/ld200708/ldselect/ldconst/84/84we11.htm#n105http://www.publications.parliament.uk/pa/ld200708/ldselect/ldconst/84/84we11.htm#note105http://www.publications.parliament.uk/pa/ld200708/ldselect/ldconst/84/84we11.htm#note105http://cjicl.org.uk/2014/03/09/crimean-secession-right-divorce/http://cjicl.org.uk/2014/03/09/crimean-secession-right-divorce/http://blogs.fco.gov.uk/simonsmith/2014/03/17/why-should-the-crimean-referendum-not-be-recognised/http://blogs.fco.gov.uk/simonsmith/2014/03/17/why-should-the-crimean-referendum-not-be-recognised/


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voters the status quo option by leaving only two possibilities: /(0 to .oin the !ussian "ederation as a federalsub.ect or /)0 to return to the (HH) onstitution of rimea and be 8 an integral part of Ukraine 91 +owever, the (HH)onstitution entitled rimea to full sovereign powers in terms of establishing relations with other States, whichmeans that whatever the choice of the rimeans would be, it would de facto brea; from U;raine /for more detailssee this previous post01 4t was reported that the choice to .oin !ussia was supported by more than H#,?I of all

voters1 4n other words, in rimea a unilateral secession too; place1 Subse@uently, the region declaredindependence and further as;ed the 3remlin to .oin !ussia1 otably, the referedum results were recognised onlyby several developing countries that have close ties with !ussia1

A right to unilateral secession can be defined as a right of a minority-people to separate a part of the territory of the parent State on the basis of that people6s right to self-determination1 +owever, as it follows from the*eclaration on Principles of 4nternational 2aw, the Kosovo Advisory Opinion /4nternational ourt of Justice0 andthe Quebec case /Supreme ourt of anada0, in modern international law unilateral secession of 8sub-states9 isneither prohibited nor allowed1"or instance, in the Kosovo Advisory Opinion, the 4 J evaded the @uestion of whether the 3osovo populationcould legitimately secede as a manifestation of their right to self-determination1 4n theQuebec case, the Supremeourt of anada adopted a conservative construction of 8external self-determination9 as a right that may be

exercised under limited conditions only1 'hus, no precedent for a right to secede was established in judicialpractice 1 'hough, exceptions to this neutrality may arise from the interplay of the principles of territorial integrityand self-determination1'he principle of self-determination allows a people to choose its own political status and to determine its own formof economic, cultural and social development1 4t is recognised in a number of fundamental internationalinstruments, such as the U harter, the *eclaration on Principles of 4nternational 2aw, the *eclaration on the7ranting of 4ndependence to olonial ountries and Peoples, the 4nternational ovenant on ivil and Political!ights, the S E +elsin;i "inal Act, the African harter of +uman and Peoples6 !ights, the S E harter of Paris for a ew Europe, and the ienna *eclaration and Programme of Action1 %oreover, it was affirmed by the4nternational ourt of Justice in the Namibia, Western ahara and !ast "imor cases, where its ergaomnes character was confirmed1 At the same time the abovementioned documents recognise the principle of

territorial integrity, which may be in contradiction with the principle of self-determination1 "or instance, paragraph #of the *eclaration on the 7ranting of 4ndependence to olonial ountries and Peoples stipulates that 8anyattempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country isincompatible with the purposes and principles of the harter of the United ations91'he complete implementation of the principle of self-determination undermines the principle of territorial integrity14n other words,onl& legal secession would not undermine territorial integrit& of the parent state3'here are several circumstances when secession may be regarded as legal: /(0 it shall concern people interritories that are sub#ect to decoloni$ation% &'( it shall be envisaged by the national legislation of the parent stateconcerned% &)( the territory inhabited by a certain people should be occupied or anne*ed after + -.% &-( thesecessionists shall be /a people0% &.( their parent state shall flagrantly violate their human rights and &1( no other effective remedies under national or international la2 may e*ist, if any of these conditions are met3 K(L

4n addition, special attention shall be brought to the paragraph DD of the Fritten Statement by the !ussia inthe Kosovo Advisory 4roceedings before the 4 J where it was stated the following: 8 5"6he 7ussian 8ederation isof the vie2 that 5international la26 may be construed as authori$ing secession under certain conditions3 9o2ever,those conditions should be limited to truly e*treme circumstances, such as an outright attack by the parent tate,threatening the very e*istence of the people in question3 Other2ise, all efforts should be taken in order to settlethe tension bet2een the parent tate and the ethnic community concerned 2ithin the frame2ork of the e*isting tate 19Is the Crimean secession legal4o1 one of these circumstances are present in the case of rimea1"irst, Crimea is not subject to decolonisation 1 Under Article (MG of the onstitution of U;raine /"he

Autonomous 7epublic of :rimea is an integral part of Ukraine and all issues delegated to its authority are

resolved 2ithin its frame2ork of reference as determined by the :onstitution of Ukraine30

http://cjicl.org.uk/2014/03/09/crimean-secession-right-divorce/http://cjicl.org.uk/2014/03/09/crimean-secession-right-divorce/http://rt.com/news/crimea-referendum-results-official-250/http://rt.com/news/crimea-referendum-results-official-250/http://cjicl.org.uk/2014/04/20/international-law-legality-secession-crimea/#_ftn1http://cjicl.org.uk/2014/03/09/crimean-secession-right-divorce/http://rt.com/news/crimea-referendum-results-official-250/http://cjicl.org.uk/2014/04/20/international-law-legality-secession-crimea/#_ftn1


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Second, secession is not envisaged b& the Constitution of 5raine as a parent state 37enerally, all politicalsystems insist on legality of secession only through constitutional means1 "or instance, the Supreme ourt of anada in the Quebec case held that /any attempt to effect the secession of a province from :anada must be

undertaken pursuant to the :onstitution of :anada03 'he Supreme ourt of Alas;a in the Kohlhaas v Alaska case/)$$#0 found that a referendum on secession would be unconstitutional 3 'he U;rainian legislation is no

exception1 Article ?M of the onstitution stipulates that any/alterations to the territory of Ukraine shall be resolved e*clusively by the All;Ukrainian referendum0, not by the local one1'hird, the territor& of Crimea was not occupied or anne!ed after $678 1"ourth, the secessionists # i.e. Russian population of the Crimea% ma& not be regarded as 9a people: 1 As itfollows from theQuebec case /a people0 shall be governed as /part of a colonial empire0, be /sub#ect to aliensub#ugation, domination or e*ploitation0, be /denied any meaningful e*ercise of its right to self;determination2ithin the state of 2hich it forms a part03 And in all other circumstances, /peoples are e*pected to achieve self;determination 2ithin the frame2ork of their e*isting state03

And finally, there is no evidence that the rights of the Russian population in Crimea have ever been subjectto flagrant human rights violations from the government of 5raine3 'he BS E +igh ommissioner onational %inorities found no evidence of violations or threats to the rights of !ussian spea;ers during her visit to

3yiv and rimea1 'hus, all claims that the !ussian spea;ing population of rimea were facing oppression andviolence are, at the very least, groundless1Jus cogens ne!us4nternational law cannot be neutral regarding the unilateral secession of rimea as the declaration of independence of rimea was effected through the !ussian military assistance1 'his argument is supported by the4 J in the Kosovo Advisory Opinion 1 4n particular, in paragraph D( the following is stipulated: 8"he illegality attached to 5some other6 declarations of independence < stemmed not from the unilateral character of thesedeclarations as such, but from the fact that they 2ere, or 2ould have been, connected 2ith the unla2ful use of force or other egregious violations of norms of general international la2, in particular those of a peremptory character us cogens( 19 4n other words, a unilateral declaration of independence will be recogni>ed as illegalwhere a violation of #us cogens principles too; place1 +ere, an unlawful secession in violation of #us

cogens occured as !ussia violated #us cogens principle of non-use of force under Article )/G0 of the U harter1 And where a declaration of independence is adopted in such manner; foreign states are under obligationto withhold or withdraw recognition3 K)L*espite the fact that modern international law is neutral regarding the unilateral secession of sub-states, theneutralit& is not a uestion in the case of Crimea; as its unilateral secession was effected throughRussian militar& assistance3 And, hence, the position of the international community of states should be moretough to stop the aggressor1

K(LQuebec case, ) S1 1!1 )(?, para1()M /(HHD0% Aaland =slands case, 21 1B1J1 Spec1 Supp1 o1M /(H)$0%Pellet A1, Ellet A1, "he Opinions of the >adinter Arbitration :ommittee? A econd >reath for the elf;@etermination of4eoples, M EJ42 (?D3

K)L Articles G$ and G( of 42 Articles on State !esponsibility1 http://c>icl.org.uk/12 =/2=/12/international-law-legalit


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hard time repl(ing in 'talian 0hen the( do, their strong Teutonic accenttakes (ou aback

The()re 'talian citi ens but simpl( don)t feel 'talian +ol ano)s localauthorities estimate that /erman is spoken b( 123 of the 245,555inhabitants of the $lto $dige region 6ocals, however, call it b( its originalname - South T(rol - and man( wish it were independent

Eva 7lot is a co#founder of the separatist part(S8d#Tiroler !reiheit 9SouthT(rolean !reedom: She carries a (ellow card in her wallet that sa(s;/erman is m( mother tongue;

7lot sa(s< ;There are acts of racism each single da( "espite 'talian and/erman both being official languages, ' often bump into police officers whodon)t know /erman The( point at the 'talian flag stitched on their uniformand re*uire ' speak 'talian simpl( because we)re in 'tal( The( don)t evenknow that ' have the right to speak in m( mother tongue so ' show them thiscard 't drives me mad ' call this linguistic imperialism ;

7lot , who wears long T(rolese braids and dresses in traditional costume,

recentl( launched a surve( for a referendum on South T(rol)s right to self#determination ;'t was a huge success< =53 of the >4,555 voters are infavour 'n the future this could either translate into fullindependence from'tal( or re#anne?ation to $ustria,; she sa(s

;@( dream is to reunite with $ustria ')m an 'talian citi en but don)t belongto the 'talian culture, state nor language ' have a T(rolese identit( 'n m(cultural backpack there)s Schiller ;

Advertisement

7lot sa(s there is a glorification of fascism in the region ;This (ear overABbn have been allocated to fund the rest(le of fascist architecture ands(mbols in +ol ano 't)s a disgrace ;

$ sculpture of @ussolini on horseback welcomes visitors at the entrance ofthe local Palace of Custice Thirt(#five miles south of +ol ano, in the town of

Trento, a statue of "ante - the father of 'talian language - holds his handup against the $ustro#/ermanic domination

http://www.suedtiroler-freiheit.com/south-tyrolean-freedom-movement/http://www.theguardian.com/travel/italyhttp://www.newsweek.com/2014/01/17/italiano-nein-part-italy-wants-out-245068.htmlhttp://www.suedtiroler-freiheit.com/south-tyrolean-freedom-movement/http://www.theguardian.com/travel/italyhttp://www.newsweek.com/2014/01/17/italiano-nein-part-italy-wants-out-245068.html


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/reen part( councillor +rigitte !oppa sa(s< ;$t the beginning this wasmeant to protect the /erman minorit(, but now having reached a balanceit)s *uite out of date and there)s a backlash 'talians feel penalised toda(The two linguistic groups have grown apart and there)s a lack of reciprocalunderstanding that leads to pre.udices ;

!oppa comes from what she calls a ;mi?ed; famil( ;' had an 'talianupbringing and m( husband is from !lorence @( kids, on the other hand,feel the( belong to neither linguistic group ;

+ol ano has 'tal()s highest /"P per capita, according to figures from 'tal()sNational Statistics Iffice 6ocals move around on bikes even when it rains

and are proud of showing#off to the worldJt i the 'ceman , a mumm( foundin the glaciers close to $ustria

;+ol ano)s .ust one of the man( cases in 'tal( of language and identit(clashes in border cities,;+runa o sa(s ;Europe)s state#building has beencontinuous over the last centuries but if borders can easil( be changedidentit( cannot;

http://www.theguardian.co"/education/12 =/"a


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History:

4o-governance is encapsulated in the one region; two provinces


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,he population o* South ,orit< o* South ,


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culture and rights within a "a>orit< population. @n so"e cases"inorities will beco"e "a>orities and in the case o* South ,


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II. Environment Aspects

6. Type of Problem: 4ivil

. Environmental Attributes: 4ool

!. "ultural#Political $ac%&roun': ,he DeGasperi-Gruber Agreement o* J=6 lead to the creation o* the $utono"ous )egiono* ,rentino-South ,


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German 25 71.43

Italian 9 27.65

a!in 1 2."6

#ota$ 35 1##.##

$a%le 1 & source ())icial we%site o) the *+tonomo+s ,rovince o) -o+th $ rol

,he J71 Statute o* Provincial $utono"< identi es the oMciallanguages o* the Province and regulates their use in publicinstitutions %d.P.). 3 $ugust J71 ; No. 672&. ith this statuteDer"an does not replace the *or"er oMcial language o* @talian butrather; Der"an is on a par with @talian and both are oMciallanguages. Mcial docu"ents are published in Der"an and @talianand instruction in public schools is in both languages. ,houghstudents are not obligated to attend a public school with

instruction pri"aril< in their native tongue; "ost do. ,he Luestionarises about presence o* these virtuall< "onolinguistic scholasticenviron"ents and whether the< pro"ote integration. ,he goal o*using "other-tongue instruction is "eant to preserve the uniLuecultural and linguistic heritage o* diverse ethnic groups within anat"osphere o* integration;


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I Ethnic 4dentification (H$$-(HH(

%ear &ta$ian Ger'an La(in

1900 4.1 91.7 4.1

1910 3 93 4

1921 11.7 "4 4.3

1961 34.3 62.3 3.4

1971 33.3 63 3.7

1981 29.4 66.4 4.2

1991 27.7 6" 4.3

$a%le 2 - source: *-$*$ -tatistical -ervices/ *+tonomo+s ,rovince o) 0ol ano

&&&. Con!$ict Aspects

). #*pe o! Con!$ict: thnic

Employment Data: !ne"ploorit< o* e"plo


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uropean average and in 1221; 6;=32 %= & o* the work*orce waspositioned in this sector.

"ploorit< o* thesevisitors were Der"an-speaking %see Qigure &. Deographic positionand opti"u" tourist *acilities could eAplain the draw these peoplehave to the area. ,he Gone is easil< accessible *ro" $ustria andSwitGerland and touris" is centered on "ountain culture that is"ore si"ilar to its Der"anic neighbors than to its @talian co-nationals. Sustained touris" *ro" Der"an speaking countries"ost likel< serves to en*orce strong ethnic identit< o* the Der"anpopulation in South ,


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illustrate the eBects o* this touris" on local ethnic divisions. ,he*ollowing chart illustrates the strong presence o* Der"an over@talian speaking tourists in the Province.

ig+re 1 & source: -+mmer 2##3 -tatistical ata )or $o+rism ,rovince o) -o+th $ rol

1 . Le e$ o! Con!$ict: ow

11. 3ata$it* Le e$ o! Dispute: inor *atalities in the J62Es.

&". En iron'ent4Con!$ict O er$ap:

12. En iron'ent4Con!$ict Lin5 an( D*na'ics

1,. Le e$ o! Strategic &nterest: )egion

10. Outco'e o! Dispute: Stale"ate


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".Re$ate( &n!or'ation an( Sources

1 . Re$ate( &CE an( #ED Cases :

@ce"an ( http://www.a"erican.edu/, '/ice"an.ht"

Ionduras/ l Salvador Corder Stud< (http://www.a"erican.edu/, '/soccer.ht"

thnic 4on?ict in Srianka ( http://www.a"erican.edu/, '/ice/lanka-con?ict.ht"

Sahara 'ispute- http://www.a"erican.edu/ted/ice/sahara.ht"

thnic 4on?ict in Tali"antan- http://www.a"erican.edu/ted/ice/kali"an.ht"

1/. Sources6 Re$e ant 7ebsites an( Literature:

uropean Uob Portal: htt e+ro a.e+.int e+res in!e .8s

uropean $cade"


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Sudtiroler andtag: http://www.landtag-bG.org

!nion *or South ,


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2rticle 4"

2 +ny Member State may decide to withdraw from the Union in accordance with its ownconstitutional reAuirements

0 + Member State which decides to withdraw shall notify the European Council of itsintention 5n the li'ht of the 'uidelines provided by the European Council# the Union shallne'otiate and conclude an a'reement with that State# settin' out the arran'ements forits withdrawal# ta"in' account of the framewor" for its future relationship with the UnionThat a'reement shall be ne'otiated in accordance with +rticle 024(H) of the Treaty on the$unctionin' of the European Union 5t shall be concluded on behalf of the Union by theCouncil# actin' by a Aualified ma,ority# after obtainin' the consent of the European6arliament

H The Treaties shall cease to apply to the State in Auestion from the date of entry into

force of the withdrawal a'reement or# failin' that# two years after the notification referredto in para'raph 0# unless the European Council# in a'reement with the Member Stateconcerned# unanimously decides to e8tend this period

G $or the purposes of para'raphs 0 and H# the member of the European Council or of theCouncil representin' the withdrawin' Member State shall not participate in thediscussions of the European Council or Council or in decisions concernin' it + Aualifiedma,ority shall be defined in accordance with +rticle 0H4(H)(b) of the Treaty on the$unctionin' of the European Union

B 5f a State which has withdrawn from the Union as"s to re,oin# its reAuest shall besub,ect to the procedure referred to in +rticle G7

#omments %('

Title

/emember# when readin' Title 5# that ?The Union? has e8clusive competence in manyma,or areas of policy e'

• the customs union• the economic and monetary policy of the EU# includin' sharin' a sin'le currency#

the euro• competition laws• a common position in international trade ne'otiations such as the >TO trade

rounds# as part of a common international trade policy• conservation of marine biolo'ical resources (part of the common fisheries policy

between EU states)• the concludin' of some international a'reements

#omments %3)'

http://secession.org.uk/http://secession.org.uk/http://secession.org.uk/http://secession.org.uk/


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C2TE7OR ES 2N8 2RE2S O9 &N ONCO PETENCE

2 >hen the Treaties confer on the Union e8clusive competence in a specific area# only

the Union may le'islate and adopt le'ally bindin' acts# the Member States bein' able todo so themselves only if so empowered by the Union or for the implementation of Unionacts

#omments %)*'

http://secession.org.uk

Secessionist movements and Euroscepticism: are the. a pro lem for the European &nion;

The result of the recent Scottish referendum on independence# one hand averted the ris" of

destabili ation of the eAuilibrium# on the other hand also raised the issue of the spread of political parties

and independence movements within the European Union

$ollowin' the failed attempt of Scotland# Catalonia also can not pursue the road of independence The

Catalan referendum# which was to be held on %ovember 7# has been bloc"ed by the *i'h Court# which

upheld the appeal filed by the 'overnment in Madrid# temporarily suspendin' the referendum# waitin' for

the ,ud'ment within five months + decision motivated by doubts of the referendum is unconstitutional

because it infrin'es the principle of Jindissoluble unity of SpainK# enshrined in the Constitution +ccordin'

to The 6remier Mariano /a,oy words# the referendum Jattentive to the ri'hts of all the SpaniardsK

+ll over the European Union territory# however# there are many parties that affirmed the reco'nition of

the ri'ht of peoples to self-determination# as enshrined in international law

This ri'ht is a orld >ar• /omania has to face the presence of the *un'arian minority# the most important in terms of

numbers

http://secession.org.uk/http://secession.org.uk/http://secession.org.uk/http://secession.org.uk/


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• 5taly the ma,or claims of independence came from the %orthern ea'ue and the independence

movements of Sicily and Sardinia

+nother problem that the European Union is facin' is the advancin' consensus of Eurosceptic parties

The phenomenon is revealed by the results of the last European elections The theory Eurosceptic#

althou'h not recently codified# today# has been established and widespread in a capillary way# within all

member States of the European Union

+ cause can be identified in the climate of economic crisis and the difficulties that Europe is e8periencin'

This situation comports the increase of the critical elements# of the people discontent and# as a direct

conseAuence# of the utterances of this malaise

The opposition of the Eurosceptic parties primarily concerned the followin' issues the process ofEuropean inte'ration# the adoption of the euro as a uniAue currency and also the immi'ration policies

+ccordin' to the Eurosceptic# in fact# the process of European political inte'ration directly stri"es the

essence of the concept of the soverei'n state These ar'uments are shared and supported by the political

parties and nationalist movements# which-from always-manifest reluctance to accept the loss of state

soverei'nty# the basis for the Union creation

+nother problem concerns the e8cessive bureaucracy of the European Union within the European

institutions 5t would be wron' to slow down# hinder and L at times-bloc" European initiatives

Even within the Eurosceptic parties# however# there are discrepancies Some# in fact# would li"e their

state to come out by the European Union# while others aim to eliminate the European Union itself

>e analyse the main political parties and movements Eurosceptic ('rouped by country)

- +ustria

The +ustrian $reedom 6arty (in ever %=+ claims the independence of $landers# one of the three

re'ions that ma"e up .el'ium 5t also proposes some "ind of federalism and economic proposals relatin'

to the mana'ement of the EU bud'et +mon' the Eurosceptic parties# the %ew $lemish +lliance is the


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party who had the most moderate pro'ram it supports the Euro# the sin'le mar"et# a common defence

and forei'n policy at Community level

- $rance

The $ront %ational (%ational $ront in $rench) a ri'ht-win' nationalist movement founded in 27:0 by

Fean-Marie e 6en and led today by his dau'hter Marine e 6en# who is 6resident +mon' the proposals

in its pro'ram;s it wants the return to national currencies# the implementation of protectionist policies#

the abolition of the Schen'en Treaty (the system of free movement -in EU territory- of citi ens of States

that have si'ned the a'reement) The $% has a stron' opposition about the /oma population presence

-


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brou'ht out by the European Union and the European institutions considered as a real bureaucratic

dictatorship ilders is also "nown for its critical stance towards 5slam and it was always very hard

towards the citi ens of Moroccan ori'in who are in the %etherlands (not immi'rants)# and has always had

'ood relations with the 'overnments of the state of 5srael (an aspect that distin'uishes it from the

positions of other Eurosceptic parties)0 The Socialist 6arty has always opposed to membership of the country to the EU

H The /eformed 6olitical 6arty# the oldest political party# !utch# Calvinist orientation and

Eurosceptic

5n the %etherlands all the Eurosceptic parties have critici ed the free trade a'reement# proposed by the

United States# because it would ,eopardi e the production of local industries for the benefit of

multinational corporations

- United &in'dom

The U&56 was founded in 277H by some members of the more conservative win' of the .ritish

Conservative 6arty +mon' its ma,or policy proposals are the withdrawal of the Maastricht Treaty and the

withdrawal of the U& from the EU The leader of U&56 %i'el $ara'e# after bein' severely critici ed by the

other .ritish parties# mainly as a result of a series of campai'n posters as defined by many observers as

racist# tried to mediate some of its positions confirmed its intention to restrict access to a number of

social benefits to about two million immi'rants Community stayin' in the U& (mainly from the poorer EU

countries such as /omania and .ul'aria)# but has ruled to want to e8pel from the country 5n addition# in

the pro'ram of his party are as"ed to stop immi'ration for the ne8t five years The most discussed topic

was that of labour in the party pro'ram concessions are offered in the labour mar"et for .ritish citi ens#

always at the e8pense of immi'rants

5n any case# the Eurosceptic parties and movements have an impact on important political processes

- 5n 011B# the European Constitution was re,ected in referenda held in $rance and the %etherlands

- 5n 0114 another referendum in 5reland has re,ected the European Treaty# which was to replace

the European Constitution

+ defeat for the Eurosceptic# however# came with ,ust the second 5rish referendum on the isbon Treaty

(held in 0117) +t that : 2 of 5rish voters