Self-Determination, Secession, and State Recognition: A Comparative Study of Kosovo, Abkhazia, and South Ossetia

University essay from Lunds universitet/Juridiska institutionen

Abstract: The principle of self-determination has come a long way from its origins as a tool for political rhetoric to its current status as a right of international law valid erga omnes. However, the contents of the right to self-determination, as well as its applicability, remain unclear. This holds true especially concerning national minorities, which have not traditionally been considered recipients of this right. This thesis investigates the extent to which national – particularly ethnic – minorities have a legal right to self-determination, both internally within a State and externally, allowing for secession and the formation of a new State. The thesis furthermore analyses the importance of State recognition for these secessionist entities, as well as its possible determinative effects on international law. A comparative analysis between the Serbian province of Kosovo and the Georgian provinces of Abkhazia and South Ossetia, all three of which have de facto seceded from their sovereigns, provides an insight into the practical application of the right to self-determination. From the relevant international legal instruments and practice concerning the principle of self-determination, this thesis concludes that the right to internal self-determination, i.e. representative and indiscriminate government, belongs to all peoples in their entirety, thus including all national minorities. However, concerning the right to external self-determination, the thesis finds that the only two fields in which this right has been consistently upheld without controversy are those relating to non-self governing territories in the process of decolonisation and those relating to territories under unlawful foreign occupation. An alleged remedial right to external self-determination through secession, ostensibly applicable when the internal self-determination of a minority is utterly frustrated, and primarily basing itself in an e contrario reading of the so called ‘safeguard clause’ of the Friendly Relations Declaration of 1970, has little to no support in the international community. Consequently, neither Kosovo nor Abkhazia and South Ossetia are found to have had a right to secede based on self-determination; this conclusion holds true in any event, since none of the entities fulfil the prerequisite for this proposed remedial secession. This thesis finds that State recognition, while not an explicit criterion for statehood according to the Montevideo Convention of 1933, is virtually indispensable on a practical level concerning the de facto ability to enter into relations with other States. The unlimited discretion with which States may recognise other States is found to have an undesirable impact on international law, in that it may legitimise unfounded claims for statehood. Kosovo, Abkhazia, and South Ossetia all demonstrate this problem to various degrees, as the thesis finds that none of them is sufficiently independent to constitute their own State. The case of Kosovo in particular, being presently recognised by nearly half of all UN member States, is found to have a potentially revolutionary impact on future international law.

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