SHERRY P. BRODER
Law Offices of Sherry P. Broder
Seven Waterfront Plaza, Suite 400, 500 Ala Moana Blvd., Honolulu, HI 96813
November 7, 2017
DRAFT, NOT FOR CIRCULATION
This memorandum responds to the two issues posed by the Chuuk State Political
Status Commission (CSPSC). 1
(1) What is the constitutionality under the Constitution of
the Federated States of Micronesia (FSM), ratified in 1990, of the Chuuk State
Movement to Secede from the FSM and become a politically independent entity as
proposed by the Chuuk State Pollical Status Commission (CSPSC) and approved by the
Chuuk State Legislature? (2) what is the right to secede or become independent under
international law of Chuuk State or the Chuukese people?
QUESTION 1: What is the constitutionality under the Constitution of the Federated
States of Micronesia (FSM), ratified in 1990, of the Chuuk State Movement to
Secede from the FSM and become a politically independent entity as proposed by
the Chuuk State Pollical Status Commission (CSPSC) and approved by the Chuuk
I. Recent Efforts in Chuuk to pursue secession.
In 2012, the Chuuk State Legislature established the Chuuk State Political Status
representative of the people of Chuuk State, which will have broad authority to
examine alternative political options for Chuuk State, and to make one or more
recommendations regarding a desirable future political status to the Legislature
But the effort is not to also sever all ties with the U.S. or forego benefits of the
U.S. Compact of Free Association. According to Chuuk’s Attorney General, Sabino
Asor, “The independence we are pursuing now would be in the same context as Palau,
the Marshalls and the FSM with the US. We still need the US as a major partner,
financial and security wise, but at the same time we're looking at the way events are
evolving in our part of the region and we don't feel peace.” Ben Bohane, “Island of
Chuuk looking to break free from Federated States of Micronesia” (Apr. 10, 2016)
available at: http://www.abc.net.au/news/2016-04-11/diving-paradise-chuuk-pushes-for-
and the Governor for approval by the people of Chuuk State in a plebiscite under
applicable state or national laws.2
The primary mandate of the Political Status Commission was to “review and recommend
possible political status suitable for long term financial survival” of Chuuk after the
expiration of the COFA economic provisions in 2023. The legislation was clear that the
Commission had broad authority to “make such studies as it may deem necessary”
including “complete independence from any political state, independence with free
association with the United States, maintain the status quo, or as a territory or state of the
After hearings, research, debates and studies, the Commission decided to
recommend that Chuuk become a “fully independent sovereign republic.” The
Commission concluded that this was the only option that “offered potential for a modern,
healthy and productive Chuuk.”4
The Political Status Commission then formulated a
public education program for Chuuk’s forty municipalities and communities abroad.5
Chuuk Law No. 11-18 gave the Political Status Commission eighteen months to
conduct its public education program before submitting the final report, but this was
extended to twenty-five months.
On December 15, 2014, the Chuuk State Political Status Commission filed their
final report which recommended that Chuuk secede and become independent from the
The Chuuk Political Status Commission concluded in relevant part:
The right to independence was recognized by the International Court of Justice in
its 2009 finding that the people of the Kosovo region (then within the nation of
Serbia) had acted in accordance with international law in their declaration of
independence from their former nation. Furthermore, the undeniable right to a
nationality is enshrined in the United Nations Universal Declaration of Human
Rights, Article 15. While the legal foundation for secession is sound, the
Commission is confident that Chuuk’s secession from the FSM will not result in
Act 11-08, Eleventh Chuuk State Legislature, 1st Reg. Session, 2nd Special
Session, §3 (Jan. 2012), https://websites.godaddy.com/blob/c0145927-2791-48d9-b4ad-
“CPSC Final Report to the Chuuk Legislature as Required by Chuuk State Law
11-12-08,” at 1-2, (Dec. 15, 2014), http://www.chuukstate.org/wp-
content/uploads/2015/01/Chuuk-Political-Status-Commission-Final-Report.pdf. See also,
Clement Yow Mulalap, “Micronesia in Review: Issues and Events, 1 July 2014 to 30
June 2015,” 28 The Contemporary Pacific 172 (2016)
Id. at 3.
Pursuant to Act 11-08, the Final Report was to be sent to the Chuuk State Election
Commission and the Chuuk Legislature. On December 19, 2014, the Chuuk Legislature
accepted the Final Report with no amendments.8
Thereafter, the Chuuk Legislature
approved a recommendation from the Chuuk State Political Status Commission that “a
Chuuk State wide plebiscite be held on March 3, 2015 for eligible Chuukese voters to
express their choice, for or against, a proposed initiative by CSPSC that Chuuk State
secede as one of the four states of [FSM].”9
In advance of the March 3, 2015 plebiscite on Chuuk secession, on January 27,
2015, FSM President Mori issued an Executive Order establishing the “FSM Task Force
on National Unity whose purpose is to assist and educate Chuukese voters on the
question of whether Chuuk State should or should not secede from the Federation.”10
In February 2015, the FSM Department of Justice (DOJ) offered an analysis of
the legality of Chuuk secession, which concluded that the FSM Constitution does not
allow for secession, although a legal pathway towards secession exists through the
amendment of the FSM Constitution.11
FSM based its argument upon the following
components of the FSM Constitution: Preamble; article XIII, §3, intention of the framers
of the constitution; the Micronesian Constitutional Convention Journal of 1975; and,
Standing Committee Report (SCREP) No. 40, Committee on General Provisions, October
30, 1975 (Comm. Proposal No. 27) re Secession and Admission of New States.
Micronesia’s Fourth Branch12
hosted a series of articles reflecting both sides of
the Chuuk Independence argument. On February 7, 2015, the Fourth Branch published a
three part “dialogue” between FSM legal counsel James Stovall, who provided eight
points on the negative implications of Chuuk secession regarding U.S. Compact benefits;
See Chuuk State Reform, Commentaries on Chuuk Political Status Public
Hearing in Hilo (Dec. 3, 2014), http://www .chuukstate.org/reactions-to-chuuk -political-
Office of the President, Palikir, Pohnpei, Presidential Order (FSM Task Force
on National Unity) (Jan. 27, 2015),
Office of the President, Palikir, Pohnpei, Presidential Order (FSM Task Force
on National Unity) (Jan. 27, 2015),
“FSM Department of Justice: The Legality of Secession From the FSM,” The
Fourth Branch Micronesia (Feb. 11, 2015),
Fourth Branch is an online news aggregator whose objective is to collect
information to involve citizens in their respective states in serving as a “check” on their
governments and to hold them accountable. See Fourth Branch “Mission,” (accessed
May 3, 2017), http://www.tfbmicronesia.com/our-mission/.
Tadasy Wainit, who provided counterarguments to Stovall, and then FSM DOJ’s
responses to Wainit.13
On February 11, 2015, the Chuuk Political Status Commission adopted a
resolution “[e]xpressing disappointment over the failure of the Chuuk State Election
Commission to implement the Chuuk State Political Status Plebiscite as provided
by law and recommending the Governor to take appropriate remedial action.”
On February 23, 2015, Governor of the State of Chuuk, Johnson Elimo issued an
Executive Order severing the Chuuk State Political Status Plebiscite from the National
Election effort scheduled to be held on March 3, citing shortcomings by the Chuuk State
Election Commission on their ability to conduct the plebiscite as scheduled.14
Elimo’s executive order specifically cited the Chuuk Election Commission’s failure to
print the ballots for the plebiscite in the manner required by law in time for the
On February 25, 2015, President Mori suspended further efforts and activities
of the FSM Task Force on National Unity.16
It has been announced that on July 4th of 2018, the people of Chuuk will vote to
determine whether Chuuk will maintain the political status quo or seek an alternative
I. Constitutional History of article III, FSM Constitution
In 1975, members of the Committee on General Provisions at the Constitutional
Convention discussed permitting states to secede and issued SCREP No. 40, which was
signed by thirteen of fifteen committee members.
The Committee Proposal is based on the assumption that a State, by
sending Delegates to the Convention and by ratifying the final document, has
made a firm commitment to join the Federated States of Micronesia. The
Proposal does not allow a later reassessment of this commitment which may be
motivated by a change in the economic or political conditions within a State. To
allow a State to secede makes it uncertain whether that State is making a full
effort to meet its responsibilities to the new nation or only buying time until the
FSM Department of Justice Responds to Tadasy Wainit, The Fourth Branch
Micronesia (Feb. 7, 2015), http://www.tfbmicronesia.com/articles/2015/2/7/fsm-
Office of the President, FSM Information Services, “Chuuk State Postpones its
Plebiscite on Political Status,” Press Release No. 1502-03, Palikir, Pohnpei (Feb. 25,
2015) available at: http://www.fsmpio.fm/RELEASES/2015/feb_15/02_03_15.html.
Mulalap, “Micronesia in Review,” supra note XXX, citing Kaselehlie Press,
Pohnpei (Feb. 25, 2015), http://www.kpress.info.
Chuuk Political Status Commission, Home, http://chuukstate.info/ (accessed
Nov. 3, 2017).
conditions are ripe for secession. It may be difficult for the central government to
operate efficiently when faced with such uncertainties.
This is especially true when dealing with international affairs. The central
government lacks credibility when it attempts to negotiate as the representative of
all States if secession is allowed. Any foreign government which is aware of the
situation is free to deal with the individual States and play them off against each
other and the central government. This will quite possibly result in a loss of
overall Micronesian bargaining power.
The purpose of forming a union is so that all states might work together
for the betterment of all. It is not desirable to allow a State, which may in the
future receive additional revenues, to withdraw from the union rather than to
share for the good of the union. The same logic which would allow a rich State to
withdraw the expulsion of a poor State. Such thinking goes against the whole
concept of the establishment of national unity for the benefit of all Micronesians.
Your Committee is of the opinion that unity is necessary if the Federated
States of Micronesia is to become a strong and respected member of the
international community. Therefore, we urge that the Micronesian Constitution
not allow secession.
Although SCREP No. 40 presented a rationale against secession, provisions
prohibiting secession were rejected. Initially, the draft Committee on General Provisions
Proposal No. 27, dated October 21, 1975, was titled, “Relating to secession and the
admission of new States” and explicitly prohibited secession.
RESOLVED, that the following be agreed upon as the Micronesian
SECESSION AND ADMISSION OF NEW STATES
SECTION ___. Secession. No State or political subdivision thereof shall
be allowed to secede from the union established by this Constitution.
SECTION ___. Admission of New States. New States may be formed
and admitted by law, subject to the same rights, duties and obligations as provided
for in this Constitution. 18
A later draft of Committee Proposal No. 27 was titled “Relating to the unity and
admission of new states,” and provided in relevant part:
RESOLVED, that the following be agreed upon as part of the Micronesian
JMCC V.2 at 931.
SECTION _____. It is the solemn obligation of the national and state
governments to uphold the provisions of this Constitution and to advance the
principles of unity upon which this Constitution is founded.
SECTION _____. New states may be formed and admitted by law, subject
to the same rights, duties, and obligations as provided for in this Constitution.
The Constitutional Convention adopted Committee Proposal No. 27 on October
23, 1975. The current FSM Constitution reflects passages from Committee Proposal No.
27 in article XIII, §3 and article I, §4 respectively. By rejecting the limiting language
specifically prohibiting secession, the Committee indicated secession was not prohibited
and it is reasonable to conclude that the secession can be permitted.
The U.S. Ninth Circuit concluded that “when Congress does not adopt limiting
language contained in a draft bill, such an action is ordinarily deemed evidence of
Congressional intent to reject the limitation.” Nuclear Info. & Res. Serv. v. U.S. Dept. of
Transp. Research & Special Programs Admin., 457 F.3d 956, 962 (9th Cir. 2006)
((second draft of law omitted a provision limiting scope of actions subject to direct
review was evidence of intent to permit review for a wider scope of actions (citing Doe v.
Chao, 540 U.S. 614, 623 (2004)).19
The 1975 Committee’s specific decision to remove
the prohibition against secession from its proposed language for articles XIII, §3 and I, §4
is evidence that the Committee did not intend for this prohibition to be amongst the
general provisions under article XIII.
On July 12, 1978, a referendum was held on the FSM Constitution. The Marshall
Islands, Palau, Ponape, Yap and Kosrae, which had recently become one of the districts,
participated. The Marshall Islands and Palau did not ratify proposed constitution because
the majority vote requirement was not satisfied. The Mariana Islands did not take part in
the referendum because it had earlier pursued its own arrangements with the United
States. On April 01, 1978, the United States approved its commonwealth status.
After the vote by the four Districts, on October 1, 1978, U.S. Secretariat Order
3027 from the U.S. Secretary of the Interior established separate legislatives for the three
Under FSM law, resort to U.S. case law is appropriate after careful
consideration of the language and history of the FSM Constitution. FSM v. Tipen, 1 FSM
Intrm. 79, 83 (Pon. 1982) (If doubt as to meaning of constitutional provision still remains
after careful consideration of language and constitutional history, the court should
proceed to other sources for assistance. These include interpretations of similar language
in U.S. Constitution, decisions of Trust Territories High Court, generally held notions of
basic justice within international community, and consideration of law of other nations,
especially others within the Pacific community); Lonno v. Trust Territory (I), 1 FSM
Intrm. 53, 71 (Kos. 1982) (the FSM Supreme Court may look to law of other nations,
especially other nations of Pacific community, to determine whether approaches
employed there may prove useful in determining the meaning of particular provisions
polities: Interim Congress of Micronesia, Palau Legislature, and the Marshall Islands
Nitjela. FSM became a sovereign nation on November 3, 1986.
In the 1990 and 2001 Constitutional Conventions, a majority rejected pro-
secession proposals. On August 4, 1990, Delegate Ioanis Artui of Pohnpei submitted
Delegate Proposal No. 88-90 “To amend article I of the Constitution of [FSM] by adding
a new section 5 to provide for secession from the Federation,” which stated in relevant
Section 5. A state may secede from the Federated States of Micronesia upon a
popular initiative affirmed in a referendum by 75% of the qualified voters in the
state seeking to secede and approval by a majority of Congress.
Pohnpei’s DP No. 88-90 was not finally approved by the 1990 Convention.21
secession proposal was briefly taken up in committee, the FSM's acting secretary of
External Affairs (who was a Constitutional Convention delegate) opposed it because he
believed it would make FSM appear unstable to potential foreign investors. “Moreover,
he continued, the US government would be inclined to view such a measure as a threat to
the FSM's security agreements with the US under the Compact of Free Association, and
if it were enacted he would immediately be called in by the US for consultations and
Given these complications, former FSM president Tosiwo Nakayama
asked, “‘Why do we need this in the Constitution?’ to which a Pohnpeian delegate
replied, ‘Our people asked for it.’ Nakayama responded, ‘In other words, there are people
here in Pohnpei who would like to secede?’ Then the reply was, ‘All of them.’”23
On November 23, 2001, the 12th day of the Constitutional Convention, three
delegates from Pohnpei introduced Delegate Proposal no. 01-49, “To amend article 1, by
adding a new section, section 5, which should provide for the procedure for a State to
secede from the Union.24
On November 30, 2001, DP No. 01-49 was deferred.25
Committee on Government Structure, Delegate Proposal No. 88-90, Second
Constitutional Convention of the Federated States of Micronesia (Jul./ Aug 1990)
See Constitutional Convention of the Federated States of Micronesia, Proposed
Amendments to the Constitution of the Federated States of Micronesia, Palikir, Pohnpei
(1990) (at the archives of the University of Hawai‘i). See Glenn Petersen, “Ethnicity and
Interests at the 1990 Federated States of Micronesia Constitutional Convention,” Regime
Change and Regime Maintenance in Asia and the Pacific, Discussion Paper No. 12,
Australian Nat’l U., at 7 n. 6 (1993) (noting “The ConCon's official Journal has never
appeared; preliminary transcripts of some plenary meetings were circulated. Official
records of committee meetings exist only in summary minutes and standing committee
[sic] reports, which rarely recount the give and take of discussion and debate.”).
Id. at 7.
J. of the Third Constitutional Convention of the Federated States of
Micronesia, V.2, Palikir, Pohnpei, at 72 (Nov./ Dec. 2001).
December 16, 2001, Delegate Moses of the Committee on Government Structure and
Functions moved to table DP-01-49. The motion was unanimously adopted.26
Pohnpei and its Legislature have continued to intermittently raised the issue of
The reasons usually advanced for secession are the perceived inequities in
the allocation of United States grant funds among the several states and excessive power
being asserted by the national government.28
In 2001, there was discussion about secession in Pohnpei and a report was
submitted by the Legislature Committee on Seceding from the FSM. “That report stated
that secession is an issue particular to Pohnpei and therefore does not involve the other
In 2009, there was dispute over social security payments from the FSM federal
government. The U.S. Embassy reported: “Ten years ago only traditional leaders and a
handful of native-born Pohnpeians expressed their desire to secede from the Federation.
Now, however, the voices of secession appear much more numerous.” “President Mori's
proposed amendments to the Federated States of Micronesia's (FSM) Social Security law
ignited criticism from politicians and the public alike, particularly in Pohnpei State. The
J. of the Third Constitutional Convention of the Federated States of
Micronesia, V.1, Palikir, Pohnpei, at cv (Nov./ Dec. 2001).
J. of the Third Constitutional Convention of the Federated States of
Micronesia, V.1, Palikir, Pohnpei, at cxix (Nov./ Dec. 2001).
The history of the political status negotiations is discussed in Hanlon &
Eperiam, Federated States of Micronesia: Unifying the Remnants, in Politics In
Micronesia 79 (R. Crocombe & A. Ali, eds. (1983)) at 93-94.
See, Pohnpei State Legislature's criticism of the Compact, STAND. COMM.
REP. No. 48, 2d Pohnpei Leg., Reg. Sess. (1983) (on L. Res. No. 144- 83) (copy on file
at law review office). The Resolution cites among the shortcomings of the Compact:
substantial and unnecessary danger to our people from nuclear attack or accidental
detonation of nuclear weapons which danger may be made possible through distortions in
the interpretation of the . . . Compact . . . restraints on the sovereignty of this country for
an indeterminate period of time [inadequate recognition of) the potential adverse effects
these agreements [the Compact and related documents) may have on the Constitutional
balances of authority and responsibility within the Federation .... In other words, the
Compact would give the United States too much power over Micronesia and it would
enhance FSM national power against the states because most revenues would be from
foreign aid passing through the budgetary and auditing control mechanisms of the
Jasmine J. Henry, “Another Traditional Pohnpei Leader Upset Over Secession
Talk,” Pacific Islands Report, East-West Center (Dec. 4, 2001),
over-secession-talk (accessed Nov. 5, 2017).
proposal gave more ammunition to those calling for secession ahead of Pohnpei's
upcoming constitutional convention.”30
The issue of secession was discussed at the Pohnpei Constitutional Convention
but “Proposals to secede from the FSM, one of the main issues that drove voters to
approve the convention in the first place, did not make the final cut.” 31
The longstanding efforts by FSM states to amend the FSM Constitution to
specifically allow for secession provides a strong basis for setting up negotiations and
procedure when a state has decided in a fair election that it wants to secede.
II. Analysis of Chuuk Attorney General Memorandum
By memorandum to the Chuuk State Political Status Commission dated January
20, 2016, Chuuk Attorney General Sabino S. Asor (“Asor”) wrote that the FSM
Constitution did not prohibit a FSM state from pursing a separate political status outside
of the Federation.32
Asor reasoned: (1) territorial boundaries defined in article I of the
FSM Constitution does not prohibit secession; (2) article XIII, §3, obliging member states
to uphold the FSM Constitution and principles of unity, is unenforceable and not self-
executing; and (3) article IX, §8, providing for state representation in the FSM Congress,
does not impose restrictions on the number or identity of states represented in the FSM
Silence of articles I & III indicate secession is not prohibited.A.
Article I of the FSM Constitution defines FSM territorial boundaries and provides
for adding new territories or creating new states in the FSM. Most notable is article I, §1,
which provides in part: “The territory of the Federated States of Micronesia is comprised
of the Districts of the Micronesian archipelago that ratify this Constitution.” In 1978,
Chuuk ratified the Constitution, becoming one of the referenced Districts in article I, §1.
As Asor noted, article I, which defines the territorial boundaries of the FSM, is
silent on the issue of secession and may therefore be interpreted to support more than one
result. FSM v. Tipen, 1 FSM Intrm. 79, 82 (Pon. 1982) (analysis of the constitution must
Douglasswd, “Rift Over FSM Social Security Law Highlights Pohnpei's
Secessionist Movement, Cable,” ((2009 April 9, 08:11 (Thursday)), Wikileaks,
https://wikileaks.org/plusd/cables/09KOLONIA47_a.html (accessed Nov. 5, 2017).
Ref: 09KOLONIA140, Cablegate: Pohnpei State Concludes Its Constitutional
Convention (Friday, 6 November 2009, 5:43 am), Wikileaks,
constitutional-convention.htm (accessed Nov. 5, 2017).
Memorandum from Sabino S. Asor, Attorney General, Chuuk State, Federated
States of Micronesia, to the Chuuk State Political Status Commission, Subject:
Constitutionality of Chuuk State’s Movement to Separate from The Federated States Of
Micronesia, at 1 (Jan. 20, 2016) (on file with author) (“Asor Memo”).
start with words of constitutional provision. If these words are clear and permit only one
possible result, the court should go no further). Because the text of article I is not
conclusive as to its governance over secession, the next step in determining intent of
framers is to review the Journal of the Micronesian Constitutional Convention to locate
any discussion in convention about the provision.
Scholars have also opined that the FSM Constitution is silent on secession. “The
Constitution does not expressly address the question of secession from the FSM, which is
defined as comprising those districts that ratified the Constitution.”33
Article XIII, §3 obligations to advance principles of unity are not self-B.
Constitutional provisions are not self-executing if they merely set forth a line of
policy or principles without supplying the means by which they are to be effectuated. No
definition has been elaborated nor have any parameters establishing been set forth
establishing what the duty is. Moreover, there are no details which set forth the principle
may be enforced. Article IV, Declaration of Rights, Section 1, protects the rights of the
people within the state government of Chuuk to “freedom of expression.”
Article XIII, §3 imposes upon the nation and state governments “the solemn
obligation” of “uphold[ing] the provisions of this Constitution and to advance the
principles of unity upon which this Constitution is founded.” This is a very general
statement and is aspirational. The principle of FSM unity is also stated in the
constitution’s preamble. The FSM Department of Justice (DOJ) has argued that the FSM
Constitution prevented secession based on the Preamble, which states that the
Constitution is an instrument by which member states “affirm our common wish to live
together in peace and harmony, to preserve the heritage of the past, and to protect the
Alan B. Burdick, “The Constitution of the Federated States of Micronesia,” 8
U. Haw. L. R. 419, 439-441 (1986). Alan B. Burdick was an attorney in private practice
and taught the Pacific Islands Legal Systems course at the University of Hawai'i School
of Law. Previously he was staff counsel to the Political Status Commission of the
Federated States of Micronesia and was plaintiffs' counsel in a suit brought by the People
of Satawal against the M/V Oceanus for serious reef damage in Micronesia. He was
admitted to practice law in the following jurisdictions as follows:
1973, California and Trust Territory of the Pacific Islands
1982, Hawaii and Federated States of Micronesia
1983, Northern Mariana Islands
1984, Pohnpei State Courts
1989, Republic of the Marshall Islands
promise of the future.”34
The preamble was introduced by the constitutional
convention’s Committee on General Provisions.35
The committee noted “[t]he proposed
preamble does not contain a succinct legal statement of constitutional purposes, rather
these purposes are more eloquently stated in its ‘poetry.’ . . . It declares the strong desire
for unity of the people in midst of diversity. . . .”36
Asor opined that obligations to advance “principles of unity” imposed by article
XIII § 3 are not binding because they are not enforceable, self-executing provisions.
Asor Memo at 2. Asor concluded:
Accordingly, despite the fundamental policy objective enshrined in Article XIII
Section 3, it does not have the legally binding effect nor does it create a legal or
constitutional right for anyone that can be enforced in court against a Chuuk State
secession from the FSM.
Asor Memo at 2.
Asor’s opinion would also extend to constitutional preambular statements
concerning unity, “Having been divided, we wish unity.” This is unquestionably a non-
substantive provision. The Preamble does not have any binding effect. In Yazoo &
Mississippi Valley R. Co. v. Thomas, 132 U.S. 174, 188, 10 S.Ct. 68, 33 L.Ed. 302
(1889), the Court held that “as the preamble is no part of the act, and cannot enlarge or
confer powers, nor control the words of the act, unless they are doubtful or ambiguous,
the necessity of resorting to it to assist in ascertaining the true intent and meaning of the
legislature is in itself fatal to the claim set up.”
Article XIII § 3 did not impose enforceable obligations on Chuuk to advance
principles of unity because these obligations were not self-executing. Under U.S. and
Hawai‘i law, a “constitutional provision is self-executing when it establishes “a sufficient
rule by means of which the right given may be enjoyed and protected, or the duty
imposed may be enforced[.]”37
“[A] non-self-executing constitutional provision is one
“FSM Department of Justice: The Legality of Secession From the FSM,” The
Fourth Branch Micronesia (Feb. 11, 2015),
SCREP No. 6, Preamble to the Micronesia Constitution (Committee Proposal
No. 5), Micronesian Constitutional Convention J., V. I, 774 (Aug. 20, 1975).
State v. Rodrigues, 63 Haw. 412, 414, 629 P.2d 1111, 1113 (1981) (quoting
Davis v. Burke, 179 U.S. 399, 403 (1900) quoting T. Cooley, Constitutional Limitations
99-100 (6th ed. 1890); see also, Convention Cntr Referendum Cmttee v. Bd of Elections,
399 A.2d 550 (D.C.App.1979); Commonwealth v. Nat’l Gettysburg Tower, Inc., 454 Pa.
193, 311 A.2d 588 (1973); Student Govt Assn. v. Bd of Supervisors, 262 La. 849, 264
So.2d 916 (1972); Wolverine Golf Club v. Hare, 24 Mich. App. 711, 180 N.W.2d 820
(1970), affirmed, 384 Mich. 461, 185 N.W.2d 392 (1971); Figueroa v. State, 61 Haw.
369, 604 P.2d 1198, reconsideration denied, 61 Haw. 661 (1979).
that “merely indicates principles, without laying down rules by means of which those
principles may be given the force of law.”38
“[A] constitutional provision which only
establishes a general principle is not self-executing and requires more specific legislation
to make it operative.”39
Notably, Hawai‘i constitutional provisions have been found to
be non-self-executing despite article XVI, § 16 of the Hawai‘i Constitution, which
provides “The provisions of this constitution shall be self-executing to the fullest extent
that their respective natures permit.”
The test for a self-executing constitutional provision considers first, whether the
language of the provision indicates that the adoption of implementing legislation is
necessary; and second, whether the history of the provision discloses the framers’ intent
as reflected in that history confirms our analysis of the plain language.40
language of article XIII, §3 describes “principles of unity” and does not “lay down rules
by means of which those principles may be given the force of law[.]”41
legislature has not promulgated rules outlining the principles of unity, nor rules for
advancing those principles. However, no FSM case law holds to the contrary, under the
first prong of the test, and article XIII, §3 is not a self-executing constitutional
Sierra Club v. D.R. Horton-Schuler Homes, LLC, 136 Hawai`i 505, 516, 364
P.3d 213, 224 (2015) quoting Save Sunset Beach Coal. v. City & County of Honolulu,
102 Hawai`i 465, 475, 78 P.3d 1, 11 (2003) quoting Rodrigues, 63 Haw. at 414, 629 P.2d
Rodrigues, 63 Haw. at 414, 629 P.2d at 1113 (citations omitted).
County of Hawaii v. Ala Loop Homeowners, 123 Hawai`i 391, 412–13, 235
P.3d 1103, 1124–25 (2010) (citations omitted).
Sierra Club, 136 Hawai`i at 516, 364 P.3d at 224 (citations omitted).
Of note is that the FSM Supreme Court could interpret article XIII, §3 and
thereby create case law that could be considered a means of executing this provision. In
regard to the State of Texas’ efforts to secede from the U.S., the U.S. Supreme Court
When, therefore, Texas became one of the United States, she entered into
an indissoluble relation. All the obligations of perpetual union, and all the
guaranties of republican government in the Union, attached at once to the State.
The act which consummated her admission into the Union was something more
than a compact; it was the incorporation of a new member into the political body.
And it was final. The union between Texas and the other States was as complete,
as perpetual, and as indissoluble as the union between the original States. There
was no place for reconsideration, or revocation, except through revolution, or
through consent of the States.
Texas v. White, 74 U.S. 700, 725, 19 L.Ed. 227 (1868) overruled on other grounds
Morgan v. United States, 113 U.S. 476, 494, 5 S.Ct. 588, 594, 28 L.Ed. 1044 (1885).
Like the FSM Constitution, the U.S. Constitution lacks provision for secession.
The history of article XIII, §3 disclosed no intent to either promulgate specific
rules relating to unity, nor that the advancement of such principles would be self-
executing. This is a separate question from whether the framers intended that secession
be expressly permitted under article XIII, §3. Under the second prong, article XIII, §3
was also not a self-executing provision. Because article XII, §3 did not impose
enforceable obligations on Chuuk or other member states to advance principles of unity
by any means or specifically by refraining from secession, this provision does not
prohibit Chuuk from seeking secession.
FSM case law is consistent with Hawai‘i & U.S. law on self-executingC.
The following is a compilation of FSM Supreme Court holdings that fall within
the judicial reasoning of Hawai‘i and U.S. decisions on self-executing constitutional
provisions. Provisions of the FSM Constitution spelling out jurisdiction and vesting the
entire judicial power of the national government in the FSM Supreme Court were found
to be self-executing. United Church of Christ v. Hamo, 4 FSM Intrm. 95, 105-06 (App.
1989). The language of Article XI, §1 of the FSM Constitution is clearly self-executing,
“The judicial power of the national government is vested in a Supreme Court and inferior
courts established by statute.” Vesting the power is not aspiration; rather it is very clear
The Hamo Court cited the interpretation by the U.S. Supreme Court of a U.S.
bankruptcy act provision calling for exclusive jurisdiction in the federal court, which was
held "self-executing." See Kalb v. Feuerstein, 308 U.S. 343, 443, 60 S. Ct. 343, 348
(1940). The U.S. Supreme Court found that no action by the defendant in the state court
proceedings was required because the federal jurisdiction was exclusive, and the statute
clearly stated, “All such property shall be under the sole jurisdiction and control of the
court in bankruptcy.” Hamo, 4 FSM Intrm. at 122.
A political question arose where a plaintiff sought review of his entitlement to be
seated in the FSM Congress. Aten v. National Election Comm'r (III), 6 FSM Intrm. 143,
145 (App. 1993); Tuitasi v. Lualemaga, 4 ASR 798 (1973) (qualifications of American
Samoan senator constituted a political question). The Court found that the FSM was
clear that it was for the Congress to decide: “Our Constitution states that ‘Congress shall
be the sole judge of the elections and qualifications of its members.’”43
In that case, the
FSM Court relied on the mandatory language establishing the clear rule that Congress
should decide. There is no comparable language relating to “unity,” rather it is the
opposite. The constitutional language is unquestionably aspirational, to “wish unity” and
“to advance the principles of unity.” Such terms are not the kind that a Constitution uses
See further discussion of self-executing provisions in the FSM Constitution.
See FSM Const. art. IX, § 17(a). Article III, §§ l and 2, of the FSM Constitution are self-
executing and the framers did not contemplate, or imply the need for, court action to
confirm citizenship where no challenge exists. In re Sproat, 2 FSM Intrm. 1, 7 (Pon.
to create substantive rights—especially those that are enforceable against a co-sovereign
State such as Chuuk.
The modern history of Micronesia underscores there was and continues toD.
be debate on unity versus sovereign independence for some of the different
cultural and linguistic groups and these debates support the interpretation
that the FSM Constitution should be interpreted to allow for secession.
The Micronesian Constitutional Convention was held in sessions totaling ninety
days between July and November 1975. All six districts as then constituted-Ponape
(including the people of Kosrae), Truk, and Yap, plus the Marianas, Palau, and the
Marshall Islands-were represented.44
It was very clear that the delegates planned that
there might be different possible combinations of states comprising the FSM.
Accordingly, Article I, section 1, of the FSM Constitution provided that the FSM would
only include those “Districts of the Micronesian archipelago that ratify this Constitution.”
The United Nations Trusteeship Council had clarified that it had a concern for the
continued unity of the Trust Territory. But nonetheless it recognized for the first time in
1972 that separate talks between the Northern Marianas and the United States “would
probably lead to a separate political status for that district.”45
During the negotiations of the language of the Constitution, the Palau delegation
was very concerned to have a provision included to allow for secession. Political
compromises were made to accommodate Palau the strong position in support of
secession expressed by the Palau delegation. 46
Despite the compromise on the issues
relating to secession, the Constitution was defeated in Palau by a vote of 55% for no.
It is important to note that at the time of the drafting of this provision the
Marshalls and Palau had delegates to the Constitutional Convention to participate in the
drafting and voting. Yet the Constitution was rejected by them.
In the "Hilo Principles" adopted in April 1978, the United States formally
recognized the negotiating delegations of Palau and the Marshall Islands as being
legitimate representatives of their districts.47
The vote on the draft constitution of the Federated States of Micronesia held on
July 12, 1978, indicated that the final vote tally had resulted in four districts approving
the constitution and two rejecting it. The U.N. Trusteeship Council accepted the decision
Journal of The Micronesian Constitutional Convention of 1975 (1976).
At para. 40,
Norman Meller, Constitutionalism in Micronesia (1985), at 177-81, 184, 302-
Statement of Agreed Principles of Free Association ("Hilo Principles"), in U.S.
Dep't Of State, 1978 Trust Territory of The Pacific Islands 24-25 (1978).
of the people of Micronesia to not be unified and recognized their right to make that
decision. “The people had not only decided on their future constitutional arrangements,
but they also had before them the important question of whether there would be unity or
separation of the Micronesian people. Those decisions had been made. Some might
question the wisdom of their choice, but none should question whether it was theirs to
The people of Chuuk are entitled to assert that same right today.
Moreover, there was the successful effort to separate Kosrae from Pohnpei.
During the Trust Territory period, Kosrae was administered as one of the municipalities
of the Pohnpei District. Until 1976, Kosrae was a part of Ponape and known as Kusaie. It
became a separate district in 1976, pursuant to law enacted by the Congress of
Thus, during the periods Congress of Micronesia and the Constitutional
Convention were convened and there were ongoing negotiations, it was not an
independent state. Had Kosrae not been created as a separate state, the FSM Constitution
would not have had the requisite number of votes and not have been adopted.
The quest for Faichuk, one of the four regions of the Chuuk State, to secede from
Chuuk State and become the fifth state of the Federation began in 1979. After a two-
decade old aspiration for statehood, 90% of Faichuk voters residing in Faichuk, Guam,
Northern Mariana Islands, and Hawaii ratified their constitution on November 28, 2000.
On October 01, 2001, the Faichuk interim government was established.50
The desire of
the Faichuk people for statehood was documented in the late 1970s, when a referendum
demonstrated that more than 80% of the people of Faichuk wanted to become a separate
district. The Truk Legislature supported this effort in Resolution No. 1-191 (June 6,
1980), urging the FSM Congress to enact legislation granting statehood to Faichuk. In
1981, the Second FSM Congress did unanimously approve a bill to make Faichuk the
fifth state, but President Nakayama vetoed the bill. After many frustrating years,
delegates from Faichuk drafted a Constitution, and on Nov. 28, 2000 the Faichuk voters
approved this Constitution for the new state of Faichuk, by 5,620 (91.1 % ) to 54 7
(8.9%). An interim Faichuk government was then formed in 2002. 51
1981 Second FSM
Congress unanimously approved a bill to make the Faichuk Islands a separate state (CB
2-5, CD1) but the President vetoed it.
Pohnpei has indicated interest in the past to separate. “Governor Resio Moses,
citing the large percentage of Ponape voters [70%] who marked their ballots for
independence [as an alternative, if free association were not possible] . . . said, ‘Upon
entering into free association with the United States, FSM leaders should prepare for
1979 UN Trusteeship Council Report at 13 ¶¶39-40.
Pub. L. No. 7-2 (1977) (amending 3 T.T. CODE § 1 (1980)).
See Radio Australia ‘FSM Faichuk Statehood Plan Passes Nine to One’
December 01, 2000 at www.pidp.eastwestcenter.org.
See also, Truk Legislature Resolution 1-191 (June 6, 1980) urging FSM
Congress to enact legislation establishing Faichuk as separate state.
independence, as far as Ponape is concerned.’”52
Pohnpei State delegates to the 1990 as
well as the 2001 Constitutional Convention discussed their peoples’ desire to secede from
the Federation and form their own nation. In 1982, the Ponape State Legislature debated a
bill calling for a plebiscite on the state withdrawing from the Federal States and
negotiations its own separate status.”53
While Yap State delegates noted during the 2001 Constitutional Convention that
the people have been entertaining the idea of seceding from the Federation and joining
Palau. The grounds for secession were based on strong cultural ties with the Palauans.54
Thus it is clear that there was and continues to be debate on unity versus
sovereign independence for some of the different cultural and linguistic groups and these
debates support the interpretation that the FSM Constitution should be interpreted to
allow for secession.
Comparison to other constitutions clear demonstrate that the languageE.
of language of Article XIII, Sec. 3 is aspirational.
The language of the FSM Constitution in no way even remotely suggests that
there is an eternal constraint on the state and its citizens to remain as one entity. This is
not a constitution frozen in time. This is a constitution that intended to preserve for its
people the powers of self-definition and redefinition that give democracy its meaning. It
does not entrench permanence.
It is very informative to compare the FSM Constitution to other constitutions that
do place an eternal constraint on the territorial composition of the state.
The Constitution of Madagascar provides that “No one may infringe the territorial
integrity of the Republic. The national territory is inalienable.”55
The Constitution of Comoros states: “inviolability of the borders of the Comoros
as internationally recognized. . .”56
“Respecting the unity of the Union and the
inviolability of its borders as internationally recognized, each island shall administer and
The National Union 4:12 (June 30, 1983), at 5.
James A. Dator, “Preliminary briefing paper on issues related to the possibility
of Ponapean secession from the Federated States of Micronesia” (1982).
L. Sohnel Johnson, “The Federated States of Micronesia's Presidential Election
System and Proposed Constitutional Analysis (Working Paper),” 6 J. South Pacific L. 12
(2002). OCHR Database: http://ap.ohchr.org/documents/alldocs.aspx?doc_id=7620.
La Constitution de la République de Madagascar [Constitution] tit. V, art. 1
Comoros's Constitution of 2001 with Amendments through 2009, Art. 6
(accessed Nov. 2, 2017),
manage its affairs freely.”57
“Any secession or attempt at secession of one or several
autonomous islands shall be prohibited.”58
The Constitution of Equatorial Guinea states “The national territory shall be
unalienable and irreducible.”59
The Constitution of Slovakia has language insisting that the territory is
indivisible: “The territory of the Slovak Republic is united and indivisible.”60
explains that the only way to change to borders is by constitutional amendment.61
It is clear that the FSM Constitution includes an acceptance of the fundamental
political accommodations that were made at the time to those states that participated in
the Constitutional Convention but did not ultimately choose to be part of the FSM. The
statement on “unity” is merely “to advance the principle of unity. . . .” This language is
aspirational. There is no language asserting that the integrity of the FSM territory is
inviolability or indivisible or inseparable. There is no specific requirement of adherence
to territorial integrity. Even in the Preamble, the explanation of the word “unity” clarifies
that it is an aspirational goal, something that is hoped for: “Having been divided, we wish
The Preamble is very special in its expression of its ambitions for a better future.
And it is clear what it seeks from each other, “peace, friendship, cooperation, and love in
our common humanity.”
The concept of attempting to force the people of Chuuk to remain part of the FSM
when it seeks its own independence would violate the philosophy and objectives of the
fundamental basis of the FSM Constitution. The delegates were trying to achieve a new
state but at the same time respect the Micronesian people of the different island groups
who represent many diverse cultures and speak many different languages.
QUESTION 2: What is the right to secede or become independent under
international law of Chuuk State or the Chuukese people?
Self-Determination and SecessionI.
Secession (colonial or non-colonial) is the effort of a group or section of an
existing state to withdraw territory and its peoples from the political and constitutional
Id. at Art. 7.
Id. at Art. 7.1.
Constitution of Equatorial Guinea, Art. 3, section 3,
accessed Nov. 3, 2017).
Constitution of Slovakia, Art. 3, section (a), http://www.slovakia.org/sk-
Id. at section (b).
authority of the existing state. The goals are to redraw the boundaries, create a new
independent sovereign state and be recognized by other states.62
Unilateral non-colonial secession (UNC) can occur without the consent of the
existing state. It may or may not involve the use or threat of force.
Self-determination became an integral part of international law in 1960 with the
passage of the U.N. Declaration on the Granting of Independence to Colonial Countries
This declaration provides that all peoples under colonial rule have the
right to “freely determine their political status.”64
This right was specifically limited to
colonial peoples in this declaration.65
The right to secession in customary international law in a non-colonial context
finds its genesis in Principle 5 paragraph 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 (“Friendly Relations Declaration”),
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
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 color.66
The same text is repeated in Article 1 of the Declaration on the Occasion of the Fiftieth
Anniversary of the United Nations.67
See G.A. Res. 1514 (XV), ¶ 2, UN Doc A/RES/1514 (Dec. 14, 1960) (declaring
statuses that all peoples may freely determine by virtue of the right to self-determination)
Declaration on the Granting of Independence to Colonial Countries and
Peoples, G.A. Res. 1514 (XV), U.N. Doc. A/4684 (Dec. 14, 1960).
Id. para. 2.
G.A. Res. 1541 (XV), Annex, princ. 1, U.N. Doc. A/RES/1541(XV) (Dec. 15,
1960) (“Chapter XI [of the U.N. Charter, Declaration Regarding Non-Self-Governing
Territories] should be applicable to territories which were then known to be 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,
G.A. Res. 2625(XXV), U.N. Doc. A/8082 (Oct. 24, 1970) [hereinafter Declaration on
Friendly Relations] at Principle 5.
G.A. Res. 50/6, U.N. GAOR, 50th Sess., U.N. Doc. A/RES/50/6, at 1 (Oct. 24,
International law regarding statehood demands that four criteria be satisfied to
establish statehood enumerated in Article 1 of the 1933 Montevideo Convention on the
Rights and Duties of States, which states:
The state as a person of international law should possess the following
qualifications: (a) a permanent population; (b) a defined territory; (c) government;
and (d) capacity to enter into relations with other states.
The Montevideo Convention requires that all four attributes of statehood be satisfied in
an objective manner, so the new state can be a responsible member of the international
community. With all four criteria satisfied, statehood provides political existence to a
state; however, political recognition by other states does not necessarily establish the
legality of statehood.
It is when the parent state opposes secession that the question of a right
to unilateral secession under international law becomes of concern. The United
Kingdom had committed itself to accept the outcome of the referendum on Scottish
independence of September 18, 2014 in advance.68
Had Scotland voted for
it would have been an example of consensual secession, since the UK
government had approved the referendum and committed itself to accept a vote for
Secession is a process which leads to an outcome. It always implies a complex
series of claims and decisions, negotiations and/or struggle, which may - or may not -
lead to the creation of a new State.
Common Article 1 of the International Covenant on Civil and Political Rights and
the International Covenant on Economic, Social and Cultural Rights also addresses the
right to self-determination and explicitly states:
1. All peoples have the right of self-determination. By virtue of that right they
freely determine their political status and freely pursue their economic, social
and cultural development.
The Edinburgh Agreement was signed by Scottish First Minister Alex Salmond
and the UK Prime Minister David Cameron and gave Scotland the powers to hold a
referendum. Edinburgh Agreement,
k/wp-content/uploads/2012/10/Agreement-final-for-signing.pdf. The Scottish Parliament
approved the terms of the plebiscite in the Scottish Independence Referendum Bill, SP
Bill 25B, 27 June 2013,
http://www.parliament.scot/parliamentarybusiness/Bills/61076.aspx. Accessed October
55.3 % of the Scottish population voted against independence. See “Scotland
independence referendum—Results’, http://www.bbc.com/news/events/scotland-
decides/results. Accessed October 2017.
2. All peoples may, for their own ends, freely dispose of their natural wealth and
resources without prejudice to any obligations arising out of international
economic co-operation, based upon the principle of mutual benefit, and
international law. In no case may a people be deprived of its own means of
3. The State Parties to the present Covenant, including those having responsibility
for the administration of Non-Self-Governing and Trust Territories, shall promote
the realization of the right of self-determination, and shall respect that right, in
conformity with the provisions of the Charter of the United Nations. 70
The key word in these provisions is the word “peoples.” It refers to groups of individuals
that have a common culture, religion, shared traditions, language, ethics, customs and
above all history. Peoples form the basis for a nation. The phrase ‘all peoples’ – instead
of ‘everyone’- attached to the right to self-determination indicates that the right to self-
determination is a collective right; that is, only a ‘people’, not an individual, can exercise
The U.N. Charter contains two references to self-determination: Articles 1(2) and
55. Article 1(2) provides that one purpose of the United Nations is the development of
“friendly relations among nations based on respect for the principle of equal rights
and self-determination of peoples.” U.N. Charter art. 1, para. 2. Art. 55 states: “With a
view to the creation of conditions of stability and well-being which are necessary for
peaceful and friendly relations among nations based on respect for the principle of equal
rights and self-determination of peoples....”
The Commentaries to the International Convention on the Elimination of All
Forms of Racial Discrimination 71
and to the International Convention on Civil and
confirm the right to self-determination. The 1975 Helsinki Final
International Covenant on Civil and Political Rights art. 1, para.1, Dec. 16,
1966, 999 U.N.T.S. 171 [hereinafter ICCPR]; International Covenant on Economic,
Social and Cultural Rights art. 1, para. 1, Dec. 16, 1966, 993 U.N.T.S. 3 [hereinafter
Comm. on the Elimination of Racial Discrimination, General Recommendation
No. 21, Right of Self-Determination, para. 4, U.N. Doc. CERD/48/Misc.7/Rev.3 (Aug.
23, 1996). The Committee forged a link between the right to self-determination and “the
right of every citizen to take part in the conduct of public affairs at any level.” Id.
Human Rights Comm., General Comment No. 12, Article 1 (Right to Self-
Determination), paras. 1-3, U.N. Doc. HRI/GEN/1/Rev.1 (Mar. 13, 1994). By virtue of
the right to self-determination, peoples have the right to “freely determine their political
status” and to enjoy the right to choose the form of their constitution or government. The
HRC found the right of citizens to participate directly in public affairs, guaranteed by
Article 25 of the ICCPR, distinct but closely linked to the right to self-determination. Id.
the 1981 African Charter on Human Rights, 74
and the 1993 Vienna Declaration
and Programme for Action also provide for the right of self-determination.75
Opinions of the International Court of Justice (ICJ) provide further support for the
right to internal self-determination as part of customary international law.
In the Namibia Advisory Opinion, the ICJ held that “the subsequent development
of international law in regard to non-self-governing territories, as enshrined in the Charter
of the United Nations, made the principle of self-determination applicable to all
At the time, South Africa administered Namibia (former German South
West Africa) by a mandate from the League of Nations following World War I.77
Namibia's white minority had sole representation in South Africa's whites-only
Parliament. After World War II, South Africa refused to place Namibia under a
trusteeship, which would have made it subject to closer international monitoring.78
was a protracted armed struggle between South Africa and forces fighting for
independence. In 1966, the General Assembly passed resolution 2145 (XXI) which
declared the Mandate terminated and that South Africa had no further right to administer
South West Africa. South West Africa became known as Namibia when the General
Assembly changed the territory's name by Resolution 2372 (XXII) of 12 June 1968.
In 1971, acting on a request for an Advisory Opinion from the United Nations
Security Council, the ICJ ruled that the continued presence of South Africa in Namibia
was illegal, and that South Africa was under an obligation to withdraw from Namibia
immediately. The ICJ, notwithstanding UNSCR 276 (1970) (expressing the sentiment of
the Security Council that the occupation of Namibia by South Africa had grave
consequences for the rights and interests of the people of Namibia but stopping short of
explicitly mentioning any right to self-determination), endorsed the principle of secession
Conference on Security and Cooperation in Europe Final Act art. 1(a)(VIII),
Aug. 1, 1975, 14 I.L.M. 1292 [hereinafter Helsinki Final Act].
African Charter on Human and Peoples' Rights art. 20, June 27, 1981, 1520
U.N.T.S. 217. Perhaps, the African Charter extends, on a regional level, the right of
political self-determination to the right of economic self-determination.
Vienna Declaration and Programme of Action, para. 2, U.N. Doc. A/
CONF.157/23 (July 12, 1993) [hereinafter Vienna Declaration]. The Vienna Declaration
extended the Declaration on Friendly Relations' from application to “a government
representing the whole people belonging to the territory without distinction as to race,
creed or colour” to application to “a Government representing the whole people
belonging to the territory without distinction of any kind.” Declaration on Friendly
Relations, supra note 8, at 124.
Legal Consequences for States of the Continued Presence of South Africa in
Namibia (South-West Africa) Notwithstanding Security Council Resolution 276 (1970),
Advisory Opinion, 1971 I.C.J. 16, para. 52 (June 21).
Treaty of Versailles art. 119, June 28, 1919, 1919 U.S.T. Lexis 7, 2 Bevans 43.
G.A. Res. 65(I), U.N. Doc. A/65(I) (Dec. 14, 1946); G.A. Res. 9(I), U.N. Doc.
A/9(I) (Feb. 9, 1946).
It also ruled that all member states of the United Nations were
under an obligation not to recognize as valid any act performed by South Africa on behalf
It took 24 years of revolt and warfare for Namibia to gain its independence from
South Africa. During the years of revolt and warfare, 1966 – 1990, between 20 000 and
25 000 people died. In 1994, the first elections following the country’s independence
The ICJ reaffirmed the principle of self-determination in the Western Sahara
After World War II. Spain began to divest itself of most of its
remaining colonial possessions. In 1974–75, Spain issued promises of a
referendum on independence in Western Sahara but both Morocco and Mauritania
claimed the territory even as Spain and Algeria support its independence. But despite the
promises of Spain, the referendum was not held. On December 13, 1974, UN General
Assembly Resolution 3292 requested that the ICJ render an advisory opinion on the
I. Was the Western Sahara (Rio de Oro and Sakiet El Hamra) at the time of
colonization by Spain a territory belonging to no one (terra nullius)?
If the answer to the first question is in the negative,
II. What were the legal ties between this territory and the King of Morocco and
the Mauritanian entity?
For the former question, the Court decided by a vote of 13 to three that the court could
decide on the matter, and unanimously voted that at the time of colonization (defined as
November 28, 1884), the territory was not terra nullius (that is, the territory, did belong
to someone). Western Sahara was not a No-Man’s-Land. Western Sahara belonged to a
people, but it was neither Morocco nor Mauritania. Based on all the evidence, the Court
found that the lands were “inhabited by peoples which, if nomadic, were socially and
politically organized in tribes and under chiefs competent to represent them.” The fact
that Spanish colonial officials had made agreements with these indigenous inhabitants
further invalidated any suggestion of terra nullius.82
The ICJ decided by a vote of 14 to two that it would decide the answer to question
2 and by another vote of 14 to two that there were legal ties of allegiance between this
territory and the Kingdom of Morocco. It found, by 15 votes to one, that there were legal
ties between this territory and the "Mauritanian entity" Finally the Court specifically
found a right of "self-determination through the free and genuine expression of the will of
Id. at para. 31.
Nambia Advisory Opinion, supra note XXX.
Id. at para. 81-3.
the peoples of the Territory."83
Accordingly, the Court found that there were no valid
claims by either Morocco or Mauritania of territorial sovereignty over Western Sahara
that would affect the rights of self-determination by the peoples of Western Sahara.
Despite the recognition of the rights of the indigenous Saharawi people to self-
determination, Morocco annexed the area in 1975 and has continued to exercise control.
The indigenous Saharawi peoples84
formed the Polisario Front (Popular Front for
the Liberation of the Saguia el Hamra and Rio de Oro), and in February 1976 formally
proclaimed a government-in-exile of the Sahrawi Arab Democratic Republic (SADR), in
Algeria. Morocco, Mauritania, and Spain initiated tripartite negotiations. The resulting
Madrid agreement amounted to a Spanish endorsement of a decolonization formula that
involved partition of the territory between Morocco and Mauritania. U.N. General
Assembly Resolution 3458A, adopted by the General Assembly on December 10, 1975,
reaffirmed the right of the inhabitants of Western Sahara to self-determination but also
noted the Madrid agreement and called for further consultations with the territory's
population without offering any formal timetable or condemnation of Moroccan actions.
The territory was partitioned between Morocco and Mauritania in April 1976 when Spain
withdrew, with Morocco acquiring and annexing the northern two-thirds; Mauritania,
under pressure from Polisario guerrillas, abandoned all claims to its portion in August
There was a 1991 cease-fire promised the people of Western Sahara a referendum
on self-determination brokered by the UN. But no referendum has ever been held.85
Many neighboring states reject Moroccan administration of Western Sahara;
several states have extended diplomatic relations to the "Sahrawi Arab Democratic
Id. at para. 162.
Although there is no fully accepted definition of indigenous peoples, references
are often made to a definition proposed by UN Special Rapporteur Martínez Cobo in his
study on discrimination against indigenous populations:
Indigenous communities, peoples and nations are those which, having a
historical continuity with pre-invasion and pre-colonial societies that developed
on their territories, consider themselves distinct from other sectors of the societies
now prevailing in those territories, or parts of them. They form at present non-
dominant sectors of society and are determined to preserve, develop and transmit
to future generations their ancestral territories, and their ethnic identity, as the
basis of their continued existence as peoples, in accordance with their own
cultural patterns, social institutions and legal systems.
Jose R. Martinez Cobo, “Study of the Problem of Discrimination Against
Indigenous Populations,” Sub-Commission on the Prevention of Discrimination and the
Protection of Minorities, UN Doc. E/CN.4/Sub.2/1986/7/Add.4 (1986).
Hannah Armstrong, “North Africa’s Next War,” NYTimes (Jan. 16, 2017),
Republic" represented by the Polisario Front in exile in Algeria. Others recognize
Moroccan sovereignty over Western Sahara.
II. The principle of territorial integrity
International law highly values the territorial integrity of States and expects
States as well as non-State actors to uphold this fundamental principle.
Article 2(4) of the U.N. Charter provides, “All Members shall refrain in their
international relations from the threat or use of force against the territorial integrity or
political independence of any state, or in any other manner inconsistent with the Purposes
of the United Nations.”
The Friendly Relations Declaration’s indicates that the ‘dismemberment’ or
‘impairment’ of the territorial integrity of a State is not ‘authorized’ or
The UN Declaration on the Rights of Indigenous Peoples employs
similar restrained terminology.87
What is more, the Framework Convention for the
Protection of National Minorities specifies that the rights proclaimed in the Convention
should not be understood ‘as implying any right to […] act contrary to’ the principle of
the territorial integrity of States.88
III. How to achieve secession
The preferable way to achieve secession is through peaceful means. The United
Nations has been clear that all people have the right to express their political will through
universal, periodic, and genuine elections.89
Ordinarily, this would take the form of a
referendum, although in some instances (dissolution of Czechoslovakia), concurrent
decisions of the elected national and regional assemblies have been taken to be sufficient.
Constitutional secession occurs with the existing state's consent, and does not involve the
use or threat of force. Frequently, a process is put in place to accomplish the secession
after a referendum. A constitutional amendment can be negotiated, which allows for the
lawful secession of part of the existing state's territory.
In the case addressing the effort of French Canadians to secede in Quebec
in Reference re Secession of Quebec, the Canada Supreme Court explained that a clear
majority must unequivocally express its will in an election to secede for secession to have
Friendly Relations Declaration, supra at Principle V, para. 7.
Declaration on the Rights of Indigenous Peoples, UN General Assembly
Resolution 61/295 (2007), UN Doc. A/RES/47/1 (2007), 7 September 2007, Art. 46(1).
Framework Convention for the Protection of National Minorities and
Explanatory Report, 1 February 1995, 34 ILM 351 (1995), Art. 21.
See G.A. Res. 217 (III), art. 21 ¶ 3, UN Doc. A/RES/217 (Dec. 10, 1948)
(defining the political elections to which all people are entitled).
The right to external self-determination “arises only in the most extreme
cases and, even then, under carefully defined circumstances.” The court further
explained that those circumstances would need to include an environment where people
are “prohibited from a meaningful exercise of self-declaration” within the state or where
“a people are subject to alien subjugation, domination, or exploitation.”
In Reference re Secession of Quebec,91
the Canadian Supreme Court indicated
that in the future, Quebec or any other Canadian province may be able to secede
constitutionally from Canada, provided a constitutional amendment effecting secession
was negotiated. In 2000, the Canadian federal parliament passed the Clarity Act, which
reaffirmed the constitutional process prescribed by the Supreme Court of Canada: a clear
referendum vote in favor of secession, followed by negotiated agreement between
Quebec and the rest of Canada, and finally the passage of a constitutional amendment
lawfully effecting Quebec's secession. 92
The General Assembly of the United Nations referred to the ICJ the question of
the legality of the declaration of independence by the Kosovar Albanians. The landmark
provides an encouraging precedent for unilateral
declarations of self-determination.
On February 17, 2008, Kosovo's parliament declared Kosovo's
Serbia submitted a request to the United Nations General Assembly to
have the ICJ issue an advisory opinion, and the General Assembly agreed to do so, asking
the following question: “Is the unilateral declaration of independence by the Provisional
Institutions of Self-Government of Kosovo in accordance with international law?”95
ICJ emphasized the particularities of Kosovo’s recent tragic history. The ICJ ruled that
Kosovo's unilateral declaration of independence from Serbia in 2008 did not violate
international law or the 1999 United Nations resolution that placed Kosovo under interim
UN administration. The Court found that general international law does not contain a
prohibition on declarations of independence. The ICJ stated, “General international law
contains no applicable prohibition of declarations of independence.”96
See Reference re Secession of Quebec (1998), 2 S.C.R. 217, 5 (Can. Que)
(opining that a clear majority would express the unambiguity of Quebec's desire to
secede, and if that majority were reached, the people of Canada would have no legitimate
objections to Quebec's secession).
Clarity Act, S.C. 2000, c. 26, art. 1 (Can.); Reference re Secession of Quebec,
supra note 21.
Accordance with International Law of the Unilateral Declaration of
Independence in Respect of Kosovo, Advisory Opinion, 2010 I.C.J. 141 (July 22)
[hereafter Kosovo Opinion (Advisory)]. All materials regarding this matter are found at
the ICJ website (http://www.icj-cij.org).
Declaration of Independence (Kos. 2008).
G.A. Res. 63/3, U.N. Doc. A/RES/63/3 (Oct. 8, 2008).
Kosovo Opinion (Advisroy), supra note 24.
IV. Historical Case Studies – Politically Negotiated Secession
Numerous historical examples of peaceful and politically negotiated secession
exist. It is most likely to occur when the existing state fails to provide any pre-exiting
constitutional process for secession for national minority groups and when relations
between the existing sovereign and secessionist entity are amicable.
In 1905, Norway seceded from the union with Sweden and Norway after a
plebiscite for independence was endorsed by ninety-nine percent of Norwegians. After
the plebiscite, Norwegian and Swedish delegates met and negotiated the terms and
procedure for the dissolution. A second plebiscite that same year decided that Norway
should be a Monarchy rather than a republic.
Iceland had been under the control of the Denmark since 1380, although formally
it had been a Norwegian possession until 1814. In 1874, Denmark granted Iceland limited
home rule and its own constitution. In 1918, Iceland seceded from Denmark and assumed
the status of an autonomous territory in Denmark through the Act of Union, an agreement
negotiated with Denmark. Under the terms of the Act of Union/Union Treaty, Iceland
could reopen the treaty in 1941. If, after three years of negotiations, no agreement could
be reached, then Iceland could dissolve the union and secede. In 1944, 97% of the voters
of Iceland cast their ballots to terminate the Union with Denmark and form a republic;
95% approved the new constitution and independence.
After World War II, the colonies of French West Africa began pushing for
increased self-determination and to redefine their colonial relationships with France.
Algeria engaged in a bitter, brutal war from 1953 to 1962 to gain its independence. The
colonies of French West Africa were given the chance to vote for immediate
independence or to join a reorganized French Community (an arrangement which
allowed the colonies some self-determination while maintaining ties to France).
Only Guinea voted for full independence and the other colonies of French West Africa
voted to join the French Community. The Mali Federation was founded as a territory with
self-rule within the French Community in 1959 and by 1960 had evolved into a country
in West Africa linking the French colonies of Senegal and the Sudanese Republic (or
French Sudan). After just two months, in 1960, the Senegal government seceded from the
Mali Federation, arguing that the federation was comprised of sovereign states, all of
which retained an inherent right to withdraw.
The Baltic States (Estonia, Latvia, and Lithuania) declared independence when
the USSR collapsed. The USSR denied their previous independent status when it annexed
them in 1940. The Baltic states put the question of independence to a referendum relying
on claims of self-determination. The Baltic Way or Baltic Chain (also Chain of Freedom)
was a peaceful political demonstration on August 23, 1989. An estimated 2 million
people joined hands to form a human chain extending 370 miles across Estonia, Latvia
and Lithuania to oppose the forced reincorporation into the Soviet Union in 1944. 97
Balts argued that if their populations voted for self-governance, then continued rule from
Moscow would be impermissible. In Estonia, 78% voted for independence, while in
Latvia and Lithuania the corresponding figures were 74% and 90%, respectively.
On March 11, 1990, the Lithuanian Supreme Soviet declared Lithuania's
independence. On March 30, 1990, the Estonian Supreme Soviet declared independence.
On 4 May 4, 1990, the Latvian Supreme Soviet made a similar declaration. The Soviets
sent troops. Negotiations ensued which eventually led to independence. The Soviet Union
recognized the Baltic independence on September 9, 1991. The Russian troops stayed for
an additional three years, claiming that Russian minorities needed protection.
Subsequently other Soviet republics, such as Azerbaijan, Kazakhstan, Kirgizstan,
Tajikistan, Turkmenistan, Uzbekistan, Armenia, Belarus, Georgia, Moldova and Ukraine,
moved to negotiate their secession from the USSR.
On January 1, 1993, Czechoslovakia was dissolved by the simultaneous
secessions of the Czech Republic and the Slovak Republic. The states mutually agreed on
the procedures for secession and it was peaceful. 98
The new Constitutions of both the
Czech and Slovak Republics have provisions that allow for territorial modification,
particularly reunification. The Slovak Republic Constitution provides:
On the basis of its free decision, the Slovak Republic can enter into a state
alliance [zvazok] with other states. The right to secession from this alliance must
not be restricted. The decision on entering into a state alliance with other states or
on secession from this alliance will be made by a constitutional law and a
The Slovak Constitutional mechanism requires a sixty percent majority in the parliament
and a majority vote in a nationwide referendum.100
The Czech Republic's Constitution also provides for the possibility of altering the
national borders of the state and requires a constitutional amendment.101
A sixty percent
majority is required in a bicameral legislative system to adopt a constitutional
”Estonia commemorates the Baltic Chain – the longest unbroken human chain
in history,” Estonian World (Aug. 23, 2015), http://estonianworld.com/life/estonia-
Czechoslovakia was peacefully divided by mutual agreement in 1993 into the
Czech Republic and Slovakia. ‘We Respected the Wish of the Slovaks and the Country
Was Split Peacefully,’ Business World (Philippines), May 17, 1999, available in 1999
Slovak Republic Const. art. 7.
Id. at art. 84, § 3, art. 98, § 2.
Czech Republic Const. art. 11.
amendment. No referendum vote by the population is required to approve new borders
The sovereignty of the Åland Islands was an early problem dealing with self-
determination decided by the League of Nations. The islands are an archipelago of more
than 6,500 islands and islets located between Sweden and Finland in the Baltic Sea and
considered strategically important to Sweden and Finland as well as Russia. The Åland
Islands were historically and ethnically Swedish. They were under Swedish control from
1157 to 1809 and continued to retain their Swedish linguistic and cultural heritage. After
Sweden's defeat by Russia in 1809, in the peace treaty, Sweden ceded Finland (including
the Åland Islands) to Russia, and Finland became an autonomous Grand Duchy within the
Russian empire. Finland achieved its independence from Russia in 1917. At that time the
Åland Islanders overwhelmingly sought reunification with Sweden.
The League of Nations appointed the Åland Commission of Jurists and asked
them to render an advisory opinion on the legal aspects of the dispute.103
the facts that the vast majority of people of Åland supported reunification with Sweden,
nonetheless the Commission concluded that the principle of self-determination had not
been firmly established in international law, that the expressed desires of the people were
relevant but did not allow automatically for a right to secession. Moreover, the principle
of self-determination had to be examined in isolation of other economic and political
A second commission was then appointed by the Council, this time of a political
nature to propose possible solutions. It was called the Commission of Rapporteurs. It
generally supported the principle of territorial integrity of the parent state:
To concede to minorities, either of language or religion, or to any fractions
of a population the right of withdrawing from that community to which they
belong, because it is their wish of good pleasure, would be to destroy order and
stability within states and to inaugurate anarchy in international life; it would be
to uphold a theory incompatible with the very idea of the State as a territorial and
It rejected the application of the principle of self-determination as implying a right
to secession by the Åland Islands, However, the Commission did suggest that under
extreme oppression self-determination by Åland citizens might be possible. The
Commission proposed a strengthening of the autonomy of the islands as well as support
Czech Republic Const. art. 9, § 1; Czech Republic Const. art. 39, § 4.
The Permanent Court of International Justice was not yet in existence when the
Aaland Commission was entrusted with its task. Report of the International Committee of
Jurists Entrusted by the Council of the League of Nations with the Task of Giving an
Advisory Opinion upon the Legal Aspects of the Aaland Islands Question, League of
Nations O.J. 5 (Special Supp. No. 3, 1920).
Åland Island Question, at 27, League of Nations Doc. b7.21/68/106 (1921).
for the Swedish language used on the islands. Sovereignty over the islands was found to
belong to Finland.
This resulted in an agreement between Finland and Sweden giving the Åland
Islanders a degree of autonomous local government.105
As part of the resolution of the
issues, in 1921, the League of Nations decided that the islands would remain part of
Finland's territory but would need to be de-militarized and neutralized.106
become demilitarized as part of the peace negotiations in Paris in 1856 after the Crimean
War. When the sovereignty issue was solved by the League of Nations in 1921, the
demilitarization of 1856 was confirmed. In response to Finland's concerns about
protecting the islands in the face of a threat, the Council of the League of Nations agreed
that Finland would have the right to act should the islands be “imperiled by a sudden
attack,” but that Finland must immediately notify the Council of the League of Nations of
Today Åland Islands continue to be a semiautonomous region and its official
language is Swedish.
V. Historical Case Studies – Unilateral Secession -- Twentieth Century
A. Unilateral Secession
Unilateral secession occurs without the existing state's consent and may also
involve the use or threat of force. It usually occurs in the absence of relevant
constitutional provisions and political negotiation. However unilateral secession can
occur despite the existence of constitutional provisions which may be considered to be
inadequate by the secessionists. Unilateral secession is frequently preceded by attempts at
political negotiation, which have failed.
Examples of successful unilateral colonial secessions include Indonesia (the
Netherlands), the Democratic Republic of Vietnam (France), Algeria (France) and
The independence of Bangladesh (Pakistan), Eritrea (Ethiopia), Bosnia-
Herzegovina, Croatia, Macedonia, Montenegro, Slovenia, Serbia
See Minutes of the Thirteenth Session of the Council of the League of Nations,
in 2 League of Nations O.J. 701-02 (1921) [hereinafter Aaland Islands Agreement]
(providing the text of the agreement).
Convention relative à la non-fortification et à la neutralisation des iles d'Aland
(Convention on the Non-Fortification and Neutralization of the Aland Islands), 9
L.N.T.S. 211 (Oct. 20, 1921),
1921 Convention on the Non-Fortification and Neutralization of the Aland
and Kosovo (Yugoslavia) and South Sudan (Sudan) are arguably instances of successful
unilateral non-colonial (UNC) secessions.108
Other attempts at unilateral non-colonial secession, such as Tibet (China),
Katanga (Congo), Biafra (Nigeria), Kashmir (India), the Karen and Shan States (Burma),
the Turkish Republic of Northern Cyprus (Cyprus), Tamil Elam (Sri Lanka), Kurdistan
(Iraq/Turkey), Bougainville (Papua New Guinea), Serbian Krajina (Croatia), Anjounan
(the Islamic Republic of Comoros), Nagorny-Kharabakh (Azerbaijan), Somaliland
(Somalia), Chechnya (Russian Federation), Gagauzia (Moldova), Transnistria (Moldova),
Abkhazia (Georgia) and South Ossetia (Georgia), have been unsuccessful.
The Republic of Kosovo is a partially recognized state that unilaterally declared
independence from Serbia in February 2008. To get to that point, Kosova had to endure
repression, wars, genocide, violence and other human rights abuses.
It is bordered by Serbia to the north and east. Serbia had come to accept the
administration of the territory by Kosovo's elected government, but it continues to claim
it as part of its own sovereign territory as the Autonomous Province of Kosovo and
Metohija. About 90 per cent of the two million inhabitants of Kosovo are of Albanian
descent who have maintained their own separate ethnicity for centuries.109
It is bordered
by Albania on the southwest.
Kosovo was ruled, along with other Balkan states, for 500 years by the Turkish
Ottoman Empire. In the first Balkan War from 1912 -1913, the Balkan states gained their
independence. In the early 20th century Kosovo was incorporated into Serbia (later part
of Yugoslavia). At the end of World War II, Communist Yugoslavia was created, and
Kosovo was granted the status of an autonomous region of Serbia. Kosovo was granted
the status of an autonomous province in 1963.
The 1974 Constitution of Yugoslavia created Kosovo as a province and granted it
some autonomy, including its administration, assembly, and judiciary, and membership in
the collective presidency and the Yugoslav parliament. Kosovar Albanians argued that
their minority status in greater Yugoslavia made them second-class citizens and
demanded that Kosovo be a constituent republic, alongside the other republics of
South Sudan might alternatively be considered a consensual secession, since
independence was ultimately achieved by way of a referendum.
See NATO, Final Report: The Kosovo Crisis in an International Law
Perspective: Self-Determination, Territorial Integrity and the NATO Intervention (June
16, 2001) (prepared by Dajena Kumbaro), http:// www.nato.int/acad/fellow/99-
01/kumbaro.pdf (recognizing that Kosovar Albanians have maintained their Albanian
language, culture, and traditions for centuries).
Protests by those of Albanian descent in 1981 over the status of Kosovo resulted
in Yugoslavia sending in military and declaring a state of emergency. The Yugoslavian
government dissolved the Kosovar Assembly, fired Kosovar Albanians from state jobs,
closed local schools and media, engaged in massive arrests and denied Kosovar
Albanians any political participation in the government.
In 1989, Serbian President Slobodan Milošević reduced Kosovo's autonomous
status within Serbia and commenced a program of cultural oppression of the ethnic
Albanian population. Kosovo Albanians responded with a non-violent separatist
movement, employing widespread civil disobedience and creation of parallel structures
in education, medical care, and taxation, with the goal of achieving the independence of
In July 1990, the Kosovar Albanians proclaimed the existence of the Republic of
Kosova, and in September 1992 they declared it a sovereign and independent
state. During its existence, the Republic of Kosova was only officially recognized by
The status of Kosovo was not resolved by the 1995 Agreement ending
the Bosnian War. In the 1990s the Kosovo Liberation Army, ethnic Albanian
guerrilla paramilitary group, was formed and began fighting for the independence of
Kosovo and creation of a Greater Albania. The Kosovo War began in March 1998 and
lasted until June 1999; more than 13,000 civilians were killed, and more than one million
ethnic Albanians fled or were forcefully driven from Kosovo.110
In a three-month
NATO military operation against Serbia, NATO bombed Serb positions to halt massacres
and the mass ethnic cleansing. The NATO operation forced Serbia to agree to withdraw
its military and police forces from Kosovo. Milošević agreed to a foreign military
presence in Kosovo and the withdrawal of his troops.
The International Criminal Tribunal for the former Yugoslavia (ICTY) is a United
Nations court that was established by Resolution 827 of the United Nations Security
Council in May 1993. It is the first war crimes court ever created by the United Nations
and the first international war crimes tribunal since the tribunal held in Nuremberg in
1946 after World War II. 161 people were indicted, 111
resulting in 83 people being
sentenced and 13 referrals to a national court.112
UN Security Council Resolution 1244 (1999) established a transitional UN
protectorate administration for Kosovo and the UN Interim Administration Mission in
Kosovo, pending a determination of Kosovo's future status. Resolution 1244 provided
autonomy to Kosovo but within the Federal Republic of Yugoslavia. Thus the United
C.I.A. World Factbook, https://www.cia.gov/library/publications/the-world-
factbook/geos/kv.html, last accessed May 22, 2017.
“About the ICTY.” United Nations: International Tribunal for the former
Yugoslavia (UNICTY), http://www.icty.org/en/about.
Id. at http://www.icty.org/en/content/infographic-icty-facts-figures
Nations continued a commitment to the territorial integrity of Yugoslavia, which had
been succeeded by the Republic of Serbia:
Reaffirming the commitment of all Member States to the sovereignty and
territorial integrity of the Federal Republic of Yugoslavia and the other States of
the region . . . .113
A UN-led process of negotiations regarding the status of Kosovo began in late 2005 and
continued through 2007 but no agreement was reached.
The Parliament of Kosovo unilaterally declared independence as a sovereign
nation on February 17, 2008 by.114
Serbia refused to recognize the Republic of Kosovo.
The UN Security Council did not vote for approval due to objections from Russia and
China. The Serb minority in Kosovo opposed the declaration of independence and
formed an alternative government, the Community Assembly of Kosovo and
The day after Kosovo's Assembly declared the independence of Kosovo,
Secretary of State Condoleezza Rice announced that the US recognized Kosovo as an
independent state and further explained:
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.116
Over 110 countries have recognized Kosovo.117
Kosovo is not a member of the
United Nations. Kosovo has joined the International Monetary Fund, World Bank, and
European Bank for Reconstruction and Development. This recognition by states is
important to its claim to statehood under the fourth element of the Montevideo criteria --
the capacity to engage in foreign relations.118
Security Council Res No 1244, UN Doc S/RES/1244 (1999).
Kosovo Declaration of Independence (Feb. 17, 2008), 47 ILM 461, available at
http://www.assemblykosova.org/common/docs/declaration_ independence.pdf. This was
its second declaration of independence.
Serbs form rival Kosovo Assembly, BBC NEWS, 17:31 GMT, Sunday, 15
Rice Statement on Recognition of Kosovo as Independent State, America.gov
(Feb 18, 2008), https://2001-2009.state.gov/secretary/rm/2008/02/100973.htm (visited
Oct. 27, 2017).
The World Factbook, CIA, Kosovo,
https://www.cia.gov/library/publications/the-world-factbook/geos/kv.html (age last
updated Oct. 27, 2017).
For the states that have recognized Kosovo, see http://
www.kosovothanksyou.com (accessed Oct. 27, 2017).
On October 8, 2008, the UN General Assembly adopted Resolution 63/3,119
proposed by Serbia, to request the ICJ to render an advisory opinion on the legality of
Kosovo's unilateral declaration of independence with 77 votes in favor, 6 votes against
and 74 abstentions. Russia and China voted in favor. Albania, Federated States of
Micronesia, Marshall Islands, Nauru, Palau and United States opposed the resolution.120
The ICJ noted there was a “sharp difference of views” among States on these
43 states (excluding Kosovo) made submissions and they were mostly
Western States: 14 asserted that the right of remedial secession/self-determination existed
in principle, 14 denied its existence, and the remaining 25 were silent or neutral.
In addition to Kosovo, only eleven States expressed support for the existence of
a right to remedial secession under contemporary international law.122
Of the five
permanent members of the Security Council, only Russia supported the right of remedial
self-determination in principle but at the same time reasoned that it did not apply to
Kosovo based on the facts. China opposed it, and France, the UK, and the US remained
Those nations in favor of secession generally argued that the principle of
territorial integrity constrains only other states, not domestic actors, and the right of self-
determination, which the ICJ found to be jus cogens in the East Timor case, is a right of
UNGA Res. 63/3, UN Doc A/63/PV.22 (Oct. 8, 2008).
Id. at 10-11 (noting voting record).
Accordance with International Law of the Unilateral Declaration of
Independence in Respect of Kosovo, Advisory Opinion, 2010 I.C.J. 141, P 35 (July 22) at
These States were Albania, Estonia, Finland, Germany, Ireland, Jordan, the
Netherlands, Poland, the Russian Federation, Slovenia, and Switzerland. Some States
merely touched upon the acknowledgement of a right to remedial secession or even
accepted it rather implicitly, but most commented on the matter at length. See e.g., Id.,
Written Statement of Albania, 14 April 2009, paras. 81–95; Id.., Written Statement of
Estonia, 13 April 2009, paras. 2.1–2.2; Id.., Written Statement of Finland, 16 April
2009, paras. 6–12; Id.., Written Statement of Germany, 15 April 2009, paras. VI.1–
VI.2; Id.., Written Statement of Ireland, 17 April 2009, paras. 28–34; Id.., Oral
Statement of Jordan (Al Hussein), CR 2009/31, 9 December 2009, paras. 35–38; Id..,
Written Statement of the Netherlands, 17 April 2009, paras. 3.6–3.22; Id.., Oral
Statement of the Netherlands (Lijnzaad), CR 2009/32, 10 December 2009, paras. 9–10;
Id.., Written Statement of Poland, 14 April 2009, paras. 6.1–6.12; Id.., Written
Statement of the Russian Federation, 16 April 2009, paras. 76–103; Id.., Written
Comments of Slovenia, 17 July 2009, para. 8; Id.., Written Statement of Switzerland,
25 May 2009, paras. 63–97.
For detail/references, see chapter “Arguing the Kosovo Case,” in M. Milanovic
and M. Wood (eds.), The Law and Politics of the ICJ’s Kosovo Advisory
Opinion (Oxford University Press, 2015) 21).
all peoples, not only of those in a colonial context. Most of the States supporting the
existence of a right to secession substantiated their claims with reference to the
safeguard clauses of the Friendly Relations Declaration and the Vienna Declaration and
Programme of Action, the reports in the Åland Islands case, and the relevant paragraphs
in the Reference re Secession of Quebec.
The Russian Federation argued that a right to remedial secession could emerge
but only under “truly extreme circumstances:”
. . . limited to truly extreme circumstances, such as an outright armed
attack by the parent state, threatening the very existence of the people
in question. Otherwise, all efforts should be taken in order to settle
the tension between the parent state and the ethnic community
concerned within the framework of the existing state.124
China was clear that in its view sovereign states have a right to prevent unilateral
secessions and protect their territorial integrity. China made a statement:
There is no doubt that after the breakup of the Socialist Federal Republic
of Yugoslavia, Kosovo was a part of the Federal Republic of Yugoslavia, that is,
Serbia. Integral parts of sovereign states, under international law, do not have a
right to unilateral secession ... while the principle of protection of territorial
integrity is a cornerstone of international legal order.125
China further asserted that the unilateral proclamation was a violation of the mandatory
terms in UNSC Resolution 1244 (1999) and this resolution was binding. China explained
that It had demanded that recognition of territorial integrity and sovereignty be included,
which came after NATO's “illegal military attack” and for this reason China did not
block Resolution 1244.126
China noted that people of Kosovo did not have a right to self-
determination, which belongs only to peoples or territories of colonies or areas under
The ICJ Kosovo Advisory opinion, which is not binding over decisions by states
to recognize or not recognize Kosovo, was rendered on July 22, 2010, by a vote of 10 to
4. The ICJ held that:
Id. at Written Statement of the Russian Federation, 16 April 2009, para. 88.
Statements by China's legal representative Xue Hanqin, Tanjug Beta, “China:
Kosovo declaration violates intl. law,”b92,(December7,2009),
Seealso Kosovo Opinion(Advisory),Oral Statement of China (Xue), CR 2009/29, 7
December 2009, para. 25.
1. [T]he adoption of the declaration of independence of the 17 February 2008
did not violate general international law because international law contains no
“prohibition on declarations of independence."
2. Kosovo's declaration of independence was not in violation of the specific
international law – UN Security Council Resolution 1244 – which did not define
the final status process nor reserve the outcome to a decision of the Security
3. Whether the declaration was in fact an official act of the Provisional
Institutions of Self-Government was unclear; in the end, the Court determined it
was issued by "representatives of the people of Kosovo" acting outside the
normal Provisional Institutions of Self-Government. This was significant, since
the Serbian argument was that the Kosovo Provisional Institutions of Self-
Government had exceeded the authority given to them by the Constitutional
Framework (promulgated by UN Mission in Kosovo).128
The ICJ did not confirm whether Kosovo had reached statehood. The ICJ did not
comment on whether premature recognition constitutes a prohibited intervention into the
internal affairs of another state.
The question is narrow and specific; it asks for the Court’s opinion on whether or
not the declaration of independence is in accordance with international law. It
does not ask about the legal consequences of that declaration. In particular, it does
not ask whether or not Kosovo has achieved statehood. Nor does it ask about the
validity or legal effects of the recognition of Kosovo by those States which have
recognized it as an independent State. Accordingly, the Court does not consider
that it is necessary to address such issues as whether or not the declaration has led
to the creation of a State or the status of the acts of recognition in order to answer
the question put by the General Assembly.129
Accordingly, the Court limited its opinion to whether the declaration was prohibited by
international law. In its view, it was not called upon to decide whether Kosovo had a right
or entitlement to declare independence. Thus, issues relating to self-determination and
whether there was a right of minorities to “remedial secession” were not addressed by the
The Court contrasted the question before it with the question that the Canadian
Supreme Court was asked in the Reference Re Secession of Quebec Case (1998):
The question put to the Supreme Court of Canada inquired whether there was a
right to “effect secession”, and whether there was a rule of international law
Kosovo Opinion (Advisory), supra note XXX. The basic documents, press
releases, and related materials for this opinion are available on the Court's Web site,
Id. at para. 51.