Statehood and Self-Determination: Reconciling Tradition and Modernity in International Law

Edited by Duncan French

Cambridge University Press, 2013
581 pp
ISBN 9781107029330 (hardcover)
ISBN 9781107542686 (paperback)

Reviewed by Tero Lundstedt (University of Helsinki)

In this collection of papers, the editor, Duncan French, is attempting to provide the reader with detailed and reasoned analyses – in many cases by using illuminating examples from all over the world – of many of the key debates in the variety of questions related to the right to self-determination. As the title of this volume hints, the key is to try to reconcile the Tradition – the ‘first wave’ of self-determination in the form of decolonization and the non-self-governing territories – with the Modernity in all of its possible forms. As Professor James Crawford puts it in his foreword for this volume, self-determination of today is a constant balancing act between the precepts of the past with all the diverse claims that peoples and communities that have made since.

The book is divided in three main parts. The first part, ‘Statehood and Recognition’, consists of 8 chapters; the second part ‘Self-Determination’ likewise of 8 chapters; and the most discursive third part, ‘Tradition, Opportunities and Challenges: the Changing Nature of the State’, of four chapters on varying topics. However, even some of the chapters wander of the main theme, in the end the book as a whole delivers what professor French promises in the introduction: it gives the reader a comprehensive panorama of the complexities of the specific circumstances and localized details of a number of self-determination struggles. Every single case of self-determination versus territorial integrity is different, yet faces the same uncertainties of international law: the battle between law and politics, and the lack of consensus on almost all of the major questions relating to self-determination. This volume even gives us a painful reminder of what seems to be legally clear cut case of the right to self-determination of the Western Sahara people, confirmed by the ICJ and a great number of states,[1] yet remaining under illegal occupation even after the withdrawal of decolonizing Spain since the 1970s.

The volume can alternatively be divided into the more general, theoretical chapters on the main questions of self-determination and the chapters providing concrete real-life examples of these. This is the approach that I found useful to get the most out of this book. The general chapters deal in great detail with, for instance, the alleged right to ‘remedial secession’. Out of the book’s 20 chapters, two support the right to remedial secession – Grace Bolton, Tamar Megiddo and Zohar Nevo – and three to otherwise unilaterally declare and achieve independence, in either general or specific circumstances, – Jure Vidmar, Jessica Almqvist and Jackson Maogoto. Two of the writers are unquestionably against the right to remedial secession; Katherine Del Mar in general by contesting both the alleged legal right as well as the practical and moral value of it as a whole, and Alexandros Ntovas in the case of Kosovo after analysing it through Yugoslavian and Serbian constitutional law.[2] However, I found some of the less travelled roads even more intriguing. The book opens with a chapter by Yaël Ronen, who argues against what she labels the Taiwanese ‘unilateral statehood avoidance’ (chapter 1). While she admits that imposing statehood would be against the principle of self-determination, she nevertheless insists that certain acts, such as an application for UN membership, may be an implicit claim for statehood and should be recognized as such. Equally interesting is the chapter by James Summers (chapter 9), where he calls for more subdivisions to the ‘traditional’ divide of self-determination to the external and internal versions. He credibly argues that while this divide provides the principle with more manageable content, it at the same time oversimplifies the concrete situations where you need to separate between peoples, sovereign states, sub-national entities within sovereign states and territorial entities distinct from sovereign states.

Some chapters seem at first glance to be out of place in this book, but in the end they do add up to the general theme of the numerous aspects to self-determination questions and the need for change. The reader will be going through, for instance, the legal life-support of the otherwise defunct Republic of Somalia and the subsequent denial of self-determination to the people of Somaliland (chapter 8), the ‘grey area where international law meets (pre)national law’ in African intra-state peace agreements (chapter 11), the rights and status of indigenous peoples in general (chapter 14) and by way of the example of the French Caledonia (chapter 15), and the ‘cultural genocide’ and ‘cultural cleansing’ by targeting cultural property in wartime and how International Criminal Tribunal for the former Yugoslavia took this into consideration (chapter 17).

Then there is the ICJ’s divisive Kosovo Advisory Opinion of 2010.[3] I will consider this aspect of the book in some more detail, since it makes up the most comprehensive part. Seven chapters focus more or less on the different aspects of the Opinion. While interpretations vary, most of the writers take a critical stance, and point out that the Court missed a unique opportunity to clarify at least some of the questions that now continue to baffle international lawyers across the world. As Jessica Almqvist points out, while the Court’s balancing act between the views of the member states of the UN Security Council is understandable, it will only add momentum to political recognitions in the future (chapter 6). French is even more rigorous in his take on the Advisory Opinion in the Introduction, insisting that it reveals how international law suffers when the subject matter is approached overtly formalistically. He argues that the ICJ idealized the role of law to the extreme in this case. The actual role of the law in the process, or on the behaviour and opinions of the key protagonists, was in the end very limited prior to the Kosovo hearings of 2009. The Court nevertheless seemed to read into the situation a legal understanding that had guided the process, and this fictional ex post facto interpretation ended up disconnecting the precepts of law from fact, reducing the credibility of the Opinion – and, according to many scholars, the credibility of the Court itself.

The book challenges the reader to think about the need to rebalance between political considerations and the normative understanding of statehood, especially through the Kosovo case. The continuing tendency of the international community to conceive statehood in legal terms is challenged more than ever. The EC Guidelines on Recognition[4] already spelled out the obvious by stating that EC states ‘affirm their readiness to recognize, subject to the normal standards or international practice and the political realities of each case…’.  In 2006 the UN General Secretary admitted that it is a ‘political reality that no one was going to force Morocco to give up its claim of sovereignty over Western Sahara’ and that ‘obliging Morocco to accept a referendum with independence as one of the options was … unrealistic’.[5] There is an obvious imbalance on display. If statehood is or ought to be understood in normative terms and there is a legal right to self-determination of peoples, then what is the place of the ‘political reality’ requirement? Based on this one might enquire, are there new criteria to be added to the notoriously imprecise Montevideo criteria? Who is to judge when there is a correct political reality for any given people to achieve independent statehood? Here is where ICJ went wrong in the Kosovo case: it took into account the political reality – as many (myself included) have pointed out[6] – unconvincingly hid it behind a legal veil.

Regrettably, the book was written in the pre-Crimean-secession/annexation era, which would have given the authors that are addressing the Kosovo secession case – Almqvist, Bolton, Del Mar, Megiddo, Nevo, Ntovas, Summers and Vidmar – even more fuel to add to their fire. Additionally, it would have been an excellent opportunity to inspect, once more, the political realities of the most controversial cases of secession and self-determination in modern times – especially with the undeniable involvement of a certain UN Security Council member state.

At the end of the day, this is a praiseworthy volume, handling the balancing act between Tradition and Modernity well. That being said, it also has certain flaws. For one, it lacks conclusions, both in the individual chapters as well as overall. The book is user-friendly in the sense that any reader can pick up the chapters or arguments they want and draw their own conclusions. However, at the same time any bigger picture is hard to obtain, since the chapters don’t share much dialogue with each other. Additionally, I find its suggestions in the area of the political realities of each self-determination case to be captivating, only to be let down when the debate on the matter seems to end before it really gets started. In sum, I found this book to be attempting to handle too many different areas in too little space. The editor should have decided whether to try to give the reader a general, comprehensive picture on the questions of statehood and self-determination or to go through in detail some more specific questions. Currently I think the volume is trying to accomplish both, but ends up adding to the general part only what seems to be randomly chosen examples of specific cases of self-determination struggles in the world today. The examples chosen add up information but do not enhance the entire volume.  What the reader is left with is a commendable overview of the complexities of the questions of self-determination but lacking any academic concluding arguments. Articles do not seem to mutually support one another. There is, however, the notable exception of the Kosovo Advisory Opinion which is scrutinized in great detail and from many angles.

I would highly recommend this volume for those who are interested in getting a sense of the great variety of issues and conflicts that come along with struggles for self-determination. I do not, however, think that the book is very useful as a textbook for students who want to learn the basic rules and principles of statehood, as it lacks sufficient cohesiveness for that purpose. Furthermore, those who want to focus on a specific area of self-determination will surely find more extensive analyses of that single issue elsewhere, even though it goes without saying that all the individual chapters are of a very high quality.

[1] Western Sahara, Advisory Opinion, ICJ Reports (1975), p. 36, para. 71. Additionally, under the name of Sahrawi Arab Democratic Republic, the independence of Western Sahara has been recognized by 84 UN member states, including 38 African Union member states. Some of these states have since ‘frozen’ or ‘withdrawn’ their recognition.

[2] He maintains that the independence of Kosovo and its acceptance by the UNMIK is a legal paradox that produced two simultaneous legal orders applicable to Kosovo.

[3] Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, ICJ Reports (2010) 403.

[4] European Community Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union (adopted by the Council of Ministers 16 December 1991), para. 3.

[5] Reports of the Secretary-General on the Situation Concerning Western Sahara, UN Doc. S/2006/817, pp. 3–4, para. 13.

[6] Inter alia, see M. Milanovic and M. Wood (Eds.), ‘The Law and Politics of the Kosovo Advisory Opinion’, Oxford University Press 2015 and D. Jacobs, ‘The Kosovo Advisory Opinion: A Voyage by the ICJ into the Twilight Zone of International Law’, The Hague Justice Portal, 12 October 2010.