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Chuuk Secession Draft Legal Analysis

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Chuuk Secession Draft Legal Analysis

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Chuuk Secession Draft Legal Analysis

  1. 1. 1 SHERRY P. BRODER Law Offices of Sherry P. Broder Seven Waterfront Plaza, Suite 400, 500 Ala Moana Blvd., Honolulu, HI 96813 Phone: 808-531-1411 sherrybroder@sherrybroder.com November 7, 2017 CONFIDENTIAL 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 State Legislature? I. Recent Efforts in Chuuk to pursue secession. In 2012, the Chuuk State Legislature established the Chuuk State Political Status Commission, as 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 1 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- micronesian-independence/7317044.
  2. 2. 2 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 United States.”3 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 FSM.6 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 regional instability.7 2 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- 15c0e5f7b1c6/downloads/CSPSC_Act_of_2011.pdf?0caca47f. 3 Id. 4 “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) 5 Id. 6 Id. 7 Id. at 3.
  3. 3. 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; 8 See Chuuk State Reform, Commentaries on Chuuk Political Status Public Hearing in Hilo (Dec. 3, 2014), http://www .chuukstate.org/reactions-to-chuuk -political- status-public-hearing-in-hilo/. 9 Office of the President, Palikir, Pohnpei, Presidential Order (FSM Task Force on National Unity) (Jan. 27, 2015), http://www.fsmpio.fm/Executive_Order/presidential_order_2015/national_unity_task_for ce.pdf. 10 Office of the President, Palikir, Pohnpei, Presidential Order (FSM Task Force on National Unity) (Jan. 27, 2015), http://www.fsmpio.fm/Executive_Order/presidential_order_2015/national_unity_task_for ce.pdf. 11 “FSM Department of Justice: The Legality of Secession From the FSM,” The Fourth Branch Micronesia (Feb. 11, 2015), http://www.tfbmicronesia.com/articles/2015/2/11/the-legality-of-secession-from-the-fsm. 12 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/.
  4. 4. 4 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 Governor 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 elections.15 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 political arrangement.17 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 13 FSM Department of Justice Responds to Tadasy Wainit, The Fourth Branch Micronesia (Feb. 7, 2015), http://www.tfbmicronesia.com/articles/2015/2/7/fsm- department-of-justice-responds-to-tadasy-wainit. 14 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. 15 Mulalap, “Micronesia in Review,” supra note XXX, citing Kaselehlie Press, Pohnpei (Feb. 25, 2015), http://www.kpress.info. 16 Id. 17 Chuuk Political Status Commission, Home, http://chuukstate.info/ (accessed Nov. 3, 2017).
  5. 5. 5 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 Constitution: ARTICLE ___ 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 Constitution: ARTICLE _____ 18 JMCC V.2 at 931.
  6. 6. 6 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 19 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 within Constitution).
  7. 7. 7 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 part:20 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 When the 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 instructions.”22 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 On 20 Committee on Government Structure, Delegate Proposal No. 88-90, Second Constitutional Convention of the Federated States of Micronesia (Jul./ Aug 1990) 21 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.”). 22 Id. at 7. 23 Id. 24 J. of the Third Constitutional Convention of the Federated States of Micronesia, V.2, Palikir, Pohnpei, at 72 (Nov./ Dec. 2001).
  8. 8. 8 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 secession.27 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 States.”29 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 25 J. of the Third Constitutional Convention of the Federated States of Micronesia, V.1, Palikir, Pohnpei, at cv (Nov./ Dec. 2001). 26 J. of the Third Constitutional Convention of the Federated States of Micronesia, V.1, Palikir, Pohnpei, at cxix (Nov./ Dec. 2001). 27 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. 28 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 national government. 29 Jasmine J. Henry, “Another Traditional Pohnpei Leader Upset Over Secession Talk,” Pacific Islands Report, East-West Center (Dec. 4, 2001), http://www.pireport.org/articles/2001/12/04/another-traditional-pohnpei-leader-upset- over-secession-talk (accessed Nov. 5, 2017).
  9. 9. 9 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 Congress. 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 30 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). 31 Ref: 09KOLONIA140, Cablegate: Pohnpei State Concludes Its Constitutional Convention (Friday, 6 November 2009, 5:43 am), Wikileaks, http://www.scoop.co.nz/stories/WL0911/S02291/cablegate-pohnpei-state-concludes-its- constitutional-convention.htm (accessed Nov. 5, 2017). 32 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”).
  10. 10. 10 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. executing. 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 33 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 1995, Massachusetts
  11. 11. 11 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 34 “FSM Department of Justice: The Legality of Secession From the FSM,” The Fourth Branch Micronesia (Feb. 11, 2015), http://www.tfbmicronesia.com/articles/2015/2/11/the-legality-of-secession-from-the-fsm. 35 SCREP No. 6, Preamble to the Micronesia Constitution (Committee Proposal No. 5), Micronesian Constitutional Convention J., V. I, 774 (Aug. 20, 1975). 36 Id. 37 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).
  12. 12. 12 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 The plain 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 The FSM 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 provision.42 38 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 at 1113. 39 Rodrigues, 63 Haw. at 414, 629 P.2d at 1113 (citations omitted). 40 County of Hawaii v. Ala Loop Homeowners, 123 Hawai`i 391, 412–13, 235 P.3d 1103, 1124–25 (2010) (citations omitted). 41 Sierra Club, 136 Hawai`i at 516, 364 P.3d at 224 (citations omitted). 42 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 held: 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.
  13. 13. 13 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. provisions. 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 and definite. 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 43 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. 1985).
  14. 14. 14 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 44 Journal of The Micronesian Constitutional Convention of 1975 (1976). 45 At para. 40, http://www.un.org/en/decolonization/pdf/decolonization/decon_num_16-2.pdf. 46 Norman Meller, Constitutionalism in Micronesia (1985), at 177-81, 184, 302- 03, 336-37. 47 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).
  15. 15. 15 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 make.”48 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 Micronesia.49 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 48 1979 UN Trusteeship Council Report at 13 ¶¶39-40. 49 Pub. L. No. 7-2 (1977) (amending 3 T.T. CODE § 1 (1980)). 50 See Radio Australia ‘FSM Faichuk Statehood Plan Passes Nine to One’ December 01, 2000 at www.pidp.eastwestcenter.org. 51 See also, Truk Legislature Resolution 1-191 (June 6, 1980) urging FSM Congress to enact legislation establishing Faichuk as separate state.
  16. 16. 16 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 52 The National Union 4:12 (June 30, 1983), at 5. 53 James A. Dator, “Preliminary briefing paper on issues related to the possibility of Ponapean secession from the Federated States of Micronesia” (1982). 54 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. 55 La Constitution de la République de Madagascar [Constitution] tit. V, art. 1 (Madag.). 56 Comoros's Constitution of 2001 with Amendments through 2009, Art. 6 (accessed Nov. 2, 2017), https://www.constituteproject.org/constitution/Comoros_2009.pdf?lang=en.
  17. 17. 17 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 And it 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 unity.” 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 57 Id. at Art. 7. 58 Id. at Art. 7.1. 59 Constitution of Equatorial Guinea, Art. 3, section 3, ttps://www.constituteproject.org/constitution/Equatorial_Guinea_2012.pdf?lang=en ( accessed Nov. 3, 2017). 60 Constitution of Slovakia, Art. 3, section (a), http://www.slovakia.org/sk- constitution.htm. 61 Id. at section (b).
  18. 18. 18 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 and Peoples.63 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”), which provides: 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 62 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) 63 Declaration on the Granting of Independence to Colonial Countries and Peoples, G.A. Res. 1514 (XV), U.N. Doc. A/4684 (Dec. 14, 1960). 64 Id. para. 2. 65 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 colonial type.”). 66 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. 67 G.A. Res. 50/6, U.N. GAOR, 50th Sess., U.N. Doc. A/RES/50/6, at 1 (Oct. 24, 1995).
  19. 19. 19 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 independence,69 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 independence. 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. 68 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, http://webarchive.nationalarchives.gov.uk/20130102230945/http://www.number10.gov.u 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 2017. 69 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.
  20. 20. 20 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 subsistence. 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 right. 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 Political Rights72 confirm the right to self-determination. The 1975 Helsinki Final 70 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 ICESCR]. 71 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. 72 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. para. 2.
  21. 21. 21 Act,73 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 [nations].”76 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 There 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 73 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]. 74 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. 75 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. 76 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). 77 Treaty of Versailles art. 119, June 28, 1919, 1919 U.S.T. Lexis 7, 2 Bevans 43. 78 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).
  22. 22. 22 and self-determination.79 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 of Namibia.80 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 were held. The ICJ reaffirmed the principle of self-determination in the Western Sahara Advisory Opinion.81 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 following questions: 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 79 Id. at para. 31. 80 Nambia Advisory Opinion, supra note XXX. 81 Id. 82 Id. at para. 81-3.
  23. 23. 23 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 1979. 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 83 Id. at para. 162. 84 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). 85 Hannah Armstrong, “North Africa’s Next War,” NYTimes (Jan. 16, 2017), https://www.nytimes.com/2017/01/16/opinion/north-africas-next-war.html.
  24. 24. 24 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 ‘encouraged’.86 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 86 Friendly Relations Declaration, supra at Principle V, para. 7. 87 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). 88 Framework Convention for the Protection of National Minorities and Explanatory Report, 1 February 1995, 34 ILM 351 (1995), Art. 21. 89 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).
  25. 25. 25 legitimacy.90 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 Kosovo Opinion(Advisory)93 provides an encouraging precedent for unilateral declarations of self-determination. On February 17, 2008, Kosovo's parliament declared Kosovo's independence.94 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 The 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 90 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). 91 Id. 92 Clarity Act, S.C. 2000, c. 26, art. 1 (Can.); Reference re Secession of Quebec, supra note 21. 93 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). 94 Declaration of Independence (Kos. 2008). 95 G.A. Res. 63/3, U.N. Doc. A/RES/63/3 (Oct. 8, 2008). 96 Kosovo Opinion (Advisroy), supra note 24.
  26. 26. 26 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
  27. 27. 27 and Lithuania to oppose the forced reincorporation into the Soviet Union in 1944. 97 The 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 subsequent referendum.99 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 97 ”Estonia commemorates the Baltic Chain – the longest unbroken human chain in history,” Estonian World (Aug. 23, 2015), http://estonianworld.com/life/estonia- commemorates-the-25th-anniversary-of-the-baltic-way/. 98 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 WL 17714611. 99 Slovak Republic Const. art. 7. 100 Id. at art. 84, § 3, art. 98, § 2. 101 Czech Republic Const. art. 11.
  28. 28. 28 amendment. No referendum vote by the population is required to approve new borders and reunification.102 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 After reviewing 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 aspects. 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 political unity.104 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 102 Czech Republic Const. art. 9, § 1; Czech Republic Const. art. 39, § 4. 103 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). 104 Åland Island Question, at 27, League of Nations Doc. b7.21/68/106 (1921).
  29. 29. 29 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 Åland had 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 its action.107 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 Guinea-Bissau (Portugal). The independence of Bangladesh (Pakistan), Eritrea (Ethiopia), Bosnia- Herzegovina, Croatia, Macedonia, Montenegro, Slovenia, Serbia 105 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). 106 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), 107 1921 Convention on the Non-Fortification and Neutralization of the Aland Islands.
  30. 30. 30 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. B. Kosovo 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 Yugoslavia. 108 South Sudan might alternatively be considered a consensual secession, since independence was ultimately achieved by way of a referendum. 109 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).
  31. 31. 31 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 Kosovo. 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 Albania. 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 110 C.I.A. World Factbook, https://www.cia.gov/library/publications/the-world- factbook/geos/kv.html, last accessed May 22, 2017. 111 “About the ICTY.” United Nations: International Tribunal for the former Yugoslavia (UNICTY), http://www.icty.org/en/about. 112 Id. at http://www.icty.org/en/content/infographic-icty-facts-figures
  32. 32. 32 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 Metohija.115 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.118 113 Security Council Res No 1244, UN Doc S/RES/1244 (1999). 114 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. 115 Serbs form rival Kosovo Assembly, BBC NEWS, 17:31 GMT, Sunday, 15 June 2008. 116 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). 117 The World Factbook, CIA, Kosovo, https://www.cia.gov/library/publications/the-world-factbook/geos/kv.html (age last updated Oct. 27, 2017). 118 For the states that have recognized Kosovo, see http:// www.kosovothanksyou.com (accessed Oct. 27, 2017).
  33. 33. 33 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 matters.121 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 neutral.123 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 119 UNGA Res. 63/3, UN Doc A/63/PV.22 (Oct. 8, 2008). 120 Id. at 10-11 (noting voting record). 121 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 para. 82. 122 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. 123 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).
  34. 34. 34 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 foreign occupation.127 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: 124 Id. at Written Statement of the Russian Federation, 16 April 2009, para. 88. 125 Statements by China's legal representative Xue Hanqin, Tanjug Beta, “China: Kosovo declaration violates intl. law,”b92,(December7,2009), http://www.b92.net/eng/news/politics.php?yyyy=2009&mm=12&dd=07&nav_id=63568. Seealso Kosovo Opinion(Advisory),Oral Statement of China (Xue), CR 2009/29, 7 December 2009, para. 25. 126 Id. 127 Id.
  35. 35. 35 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 Council. 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 Court. 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 128 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, http://www.icj-cij.org.. 129 Id. at para. 51.

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