CONTENTS OF CHAPTER 2
The history of self-determination 
Self-determination in the UN Charter 
The Declaration on Colonial Countries and Peoples 
The UN covenants 
Declaration on Principles of International Law 
Peoples and people 
Internal/external self-determination 
External self-determination 
The rights of sub-republics 
The future 

Self-Determination
"Perhaps no contemporary norm of international law has been so vigorously promoted or widely accepted as the right of all peoples to self-determination. Yet the meaning and content of that right remain as vague and imprecise as when they were enunciated by President Woodrow Wilson and others at Versailles" [1] (Hurst Hannum)

THE HISTORY OF SELF-DETERMINATION
The 'genesis' of self-determination lies in the American and French Revolutions of the late 18th century. An 'early' exposition of the 'modern' self-determination 'thesis' is 'testified' in the opening words of the American Declaration of Independence of 1776: 'When in the course of Human events it becomes necessary for one People to dissolve the Political Bands which have connected them with one another, and to assume among the Powers of the Earth, the separate and equal Station to which the Laws of Nature and Nature's God entitle them ...' [2] The 'tyranny' of King George III, discarded upon the pretext 'no taxation without representation', provided an absolute illustration of the ultimate sovereignty of the people over their rulers.
Thomas Paine's 'theory' of 'popular sovereignty', enunciated in his essay Common Sense [3], was reflected in the 'theory' of the French Revolution also. According to Sureda, the lesson of the revolution was that, 'government should be based on the will of the people, not on that of the monarch, and people not content with the government of the country to which they belong should be able to secede and organise themselves as they wish. This meant that the territorial element in a political unit lost its feudal predominance in favour of the personal element: people were not to be any more a mere appurtenance of the land' [4]. Ironically, however. Revolutionary France's application of 'self-determination' was misapplied in practice and used to justify the annexation of lands belonging to other sovereigns. Its alleged 'adherence' to (interpretation of?) the principle paved the way for the 1791 annexation of the territory of Avignon and the 1793 annexation of Belgium and the Palatinate. Plebiscites were held, but they were only valid if the vote was pro-French.
During the 19th century, the mantle of 'self-determination' was taken up by Giuseppe Mazzini who, in his campaign for the unification of Italy, invoked it in his political postulate demanding that all nations be allowed freely to choose their status. He wrote: 'God ... divided Humanity into distinct groups upon the face of our globe, and thus planted the seeds of nations. (But) Bad governments have disfigured the design of God ... The divine design will infallibly be fulfilled ... The Countries of the People will rise, defined by the voice of the free, upon the ruins of the countries of the Kings and privileged castes. Between these Countries there will be harmony and brotherhood' [5].
Despite previous 'suggestions', self-determination was not truly explicated until the First World War, thanks, in the main, to the works of Lenin and Wilson.
Lenin's Theses on the' Socialist Revolution and the Right of Nations to Self-Determination, published in March 1916 [6], contains the first definitive enunciation of the principle. According to Lenin's 'thesis', ethnic or national groups (and not just those under colonial rule) would have the right to decide their destiny freely and determine whether to secede from the Power to which they formed a part or, alternatively, to demand autonomy while remaining part of the larger structure. In the case of territorial changes, implementation of the self-determination of nations could be realised through expression in a popular vote, while colonial peoples, 'meanwhile', were entitled to engage in armed violence. For Lenin self-determination was but a device to facilitate the 'implementation' of the revolution. In Theses he emphasised, 'the necessity to subordinate the struggle for the demand under discussion (i.e. self-determination) and for all the basic demands of political democracy directly to the revolutionary mass struggle for the overthrow of the bourgeois governments and for the achievement of socialism' [7]. In essence, self-determination, for the Bolsheviks, was to prove to be but a transitional doctrine separating, merely, the institutions of the Empire from the institutions of the Soviets (viz. the brief independence of Georgia, Armenia and Azerbaijan, et al. [8]).
While Lenin was formulating self-determination for the purposes of world socialist revolution, US President, Woodrow Wilson was developing his own thoughts on the subject. For Wilson, self-determination drew its inspiration from popular sovereignty; it was synonymous with the principle that governments must be based on the 'consent of the governed'. However, it had different applications in different conditions, as demonstrated in his speech of 8 January 1918 on the 'Fourteen Points' [9], While, undoubtedly, it included the right of peoples to choose the 
government under which they would live, it had additional, 'external', dimensions. First, self-determination could be utilised to assist in the restructuring of the States of central Europe in accordance with national desires. Wilson insisted that self-determination should be the guidining principle when it came to dividing the Ottoman and Austro-Hungarian empires [10]. Second, self-determination, in general, could be used as a yardstick for governing territorial change following the end of the First World War. Third, self-determination could be applied for resolving 'competing' colonial claims - although the interests of the colonial Powers would have to be 'protected' [11]. The systematisation of the principle that Wilson provided was to provoke a number of adverse reactions, most eloquently among them from Secretary of State Robert Lansing [12]. Consequently, in a speech to the Committee of Foreign Relations of the Senate, on 19 August 1919, Wilson 'replied': 'When I gave utterance to those words I said them without the knowledge that nationalities existed, which are coming to us day after day ... You do not know and cannot appreciate the anxieties that I have experienced as a result of many millions of peoples having their hopes raised by what I have said' [13]. For Wilson, in the end, the principle came back to 'haunt' him.
Self-determination was very much subordinated when it came to making peace treaties with the vanquished. This is best illustrated by the experience of South Tyrol/Alto Adige. After the outbreak of the First World War, in exchange for fighting on the Allies' side, Italy was promised (by the Allies) by means of Article 4 of the Treaty of London (of 26 April 1915) the award of the southwest Austrian provinces in the event of victory [14]. In January 1918, in his Fourteen Points, Wilson stated that 'A readjustment of the frontiers of Italy should be effected along clearly recognisable lines of nationality' [15]. However, during the peace negotiations, when Austria insisted on respect for the principle of self-determination and the need for a plebiscite, previous assurances were ignored and the 10 September 1919 Treaty of Saint Germain allocated South Tyrol/Alto Adige to Italy.
The 'overlooking' of self-determination (it was not mentioned in the Covenant of the League) undoubtedly contributed to the International Commission of Jurists (of the League) concluding, in its Advisory Opinion upon the Legal Aspects of the Aland Islands Question, that, despite its 'promotion', this had still not given rise to customary international law. Thus: 'Although the principle of self-determination of peoples plays an important part in modern political thought ... it must be pointed out that there is no mention of it in the Covenant of the League of Nations. The recognition of this principle in a certain number of international treaties is not considered as sufficient to put it upon the same footing as a positive rule of the Law of Nations' [16].
Wartime, once again, was to provide the 'motivation' for the 'restoration' of self-determination. The Declaration of Principles by the President of the United States and the Prime Minister of the United Kingdom (better known as the Atlantic Charter) of 14 August 1941 proclaimed self-determination as a general standard governing territorial changes, as well as a principle concerning the free choice of rulers in every sovereign State: 'Second, they [the signatories] desire to see no territorial changes that do not accord with the freely expressed wishes of the peoples concerned. Third, they respect the right of all peoples to choose the form of government under which they will live; and they wish to see sovereign rights and self-government restored to those who have been forcibly deprived of them' [17].

SELF-DETERMINATION IN THE UN CHARTER
Self-determination was missing from the text of the Dumbarton Oaks
proposals, of 1944 [18]. Consequently, for a time, it appeared as if the principle would be left out of its founding instrument, the (soon to become, United Nations) Charter. However, by the end of April 1945, when the United Nations Conference on International Organisation met in San Francisco, self-determination appeared, among the amendments, at the insistence of the USSR [19].
Self-determination's inclusion did not meet with the support of all the State delegations [20]. The 'modernity' of thinking was best demonstrated by Columbia, which formally declared: Tf it means self-government, the right of a country to provide its own government, yes, we would certainly like it to be included; but if it were to be interpreted, on the other hand, as connoting a withdrawal, the right of withdrawal or secession, then we should regard that as tantamount to international anarchy, and we should not desire that it should be included in the text of the Charter' [21].
Subsequently, the Committee responsible for the drafting of the relevant provision agreed on the following four points. First, 'this principle corresponded closely to the will and desires of peoples everywhere and should be clearly enunciated in the Chapter (of the UN Charter)' [22]. Second, 'the principle conformed to the purposes of the Charter only insofar as it implied the right of self-government of peoples and not the right of secession' [23]. Third, it was agreed that the principle of self-determination 'as one whole extends as a general basic conception 
to a possible amalgamation of nationalities if they so freely choose' [24], Fourth, it was agreed that, 'an essential element of the principle is free and genuine expression of the will of the people, which avoids cases of the alleged expression of the popular will, such as those used for their own ends by Germany and Italy in later years [25]. Thus, according to Article 1(2) of the Charter, one of the Purposes of the UN is:
To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples ..." [26]

THE DECLARATION ON COLONIAL COUNTRIES AND PEOPLES
The 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples, General Assembly resolution 1514 (XV), of 14 December 1960 [27], is usually taken to characterise the 'Afro-Asian' account of self-determination, while acting as the 'guardian' of the UN Charter. Paragraphs 1 and 2 stipulate:
'(1) The subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, is contrary to the Charter of the United Nations and is an impediment to the promotion of world peace and cooperation.
(2) All peoples have the right lo self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
It adds in paragraph 5:
'(5) Immediate steps shall be taken, in Trust and Non Self-Governing Territories or all other territories which have not yet attained independence, to transfer all powers to the peoples of those territories, without any conditions or reservations, in accordance with their freely expressed will and desire, without any distinction as to race, creed or colour'.
This is qualified in paragraph 6, however, by:
(6) Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations'.
The 1960 Declaration is a testament to its time. While paragraph 2 of the I960 Declaration states quite clearly: 'All peoples have the right to self-determination ...', the purpose of the Declaration was not to provide a general 'commentary' on the emerging right to self-determination. Its 'subject' was the manifestation of self-determination in the context of colonialism and 'separation' from colonial rule. Consider paragraph 1, it states: 'The subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights'. I am not suggesting for a moment that 'peoples' cannot experience 'subjugation, domination and exploitation' from within an existing State, but I am suggesting that the use by the General Assembly of such phrases could only, especially when one considers the world as it was in 1960, have been intended to apply to colonial territories.

THE UN COVENANTS
Article 1 of the (two) UN Covenants, on Civil and Political Rights and on Economic, Social and Cultural Rights, 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.
(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 cooperation, based on 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 realisation of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations' [28].
The first thing one should note about Article 1 is that paragraph 1 is identical to the first part of paragraph 2 of the 1960 Declaration. Does this, therefore, imply that the 1960 Declaration was providing a right to peoples other than merely colonial peoples? I do not believe so. We must learn to attach and apply UN instruments to the specific 'peoples' to whom they are addressed. We should regard 'repetition' as nothing more than 'repetition' and not distort the meaning and scope of the 'relevant' instrument/s.

DECLARATION ON PRINCIPLES OF INTERNATIONAL LAW
The Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations, General Assembly resolution 2625 (XXV), of 24 October 1970 (henceforth the Declaration on Principles) [29], is one of those instruments to which whole books can be devoted. This is certainly the case regarding the 'sections' on self-determination.
The Declaration on Principles provides, under the rubric 'The Principle of Equal Rights and Self-Determination of Peoples':
'(1st paragraph) By virtue of the principle of equal rights and self-determination of peoples enshrined in the Charter, all peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development, and every State has the duty to respect this right in accordance with the provisions of the Charter.
'(4th paragraph) The establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a people constitute modes of implementing the right of self-determination by that people'.
However:
'(7th paragraph) Nothing in the foregoing paragraphs shall be construed as authorising 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 colour.
'(8th and final paragraph) Every State shall refrain from any action aimed at the partial or total disruption of the national unity and territorial integrity of any other State or country'.
Consider Article 1(1) of the International Covenant again. This had stated: 'All peoples have the right [my emphasis] to self-determination. By virtue of that right ...' This, I think anyone would agree, is fairly unequivocal: self-determination is (after all) a right to be enjoyed by 'all peoples'. Consider though the wording of the Declaration on Principles. It states: 'By virtue of the principle of equal rights and self-determination of peoples enshrined in the Charter of the United Nations, all peoples have the right freely to determine ... and every State has the duty to respect this right in accordance with the provisions of the Charter1. The UN Charter does speak of self-determination as a 'principle'. Article 1(2) states: one of the Purposes of the United Nations is To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples'. The Declaration on Principles again. It states: 'By virtue of the principle ... all peoples have the right freely to determine'. I do not see how this follows. The UN Charter does not, anywhere, 'by virtue of the principle', recognise a 'right' of 'all peoples ... freely to determine' (let alone to 'self-determination' if such were, even, different). Of course, it is the UN Covenants that state: 'All peoples have the right of self-determination. By virtue of that right ...', but the UN Covenants do not speak of the 'right' 'arising' from the 'principle'. 'Understanding' can be achieved only if the UN Covenants are considered a 'reflection' of the UN Charter. However, the UN Covenants are not mentioned. Indeed, the first sentence concludes:'... and every State has the duty to respect this right in accordance with the provisions of the Charter1. Does this, therefore, imply that the 'right' was acquired 'by virtue of the UN Charter? I do not believe so, and to reach such a conclusion would be to misinterpret what the last part of the sentence is trying to say. To my mind, one should read it literally: 'every State has the duty to respect this right in accordance with the provisions of the Charter'. The key word here is 'provisions'. It is speaking here of the provisions not concerning self-determination ('right', 'principle' or both), but the provisions that, as a whole, make up the 'spirit' of the Charter. States must, therefore, not deny or crush the 'self-expression' of the 'right'. Does the Declaration on Principles, therefore, enshrine a 'right' to self-determination? Is it a 'logical' progression from the UN Charter and the UN Covenants? Personally, I think so. One should read the three as if the UN Charter enshrined the 'principle', the UN Covenants enshrined the 'right', and the Declaration on Principles 'enshrined' the two together. The trouble is, the Declaration does not state this. ('By virtue of ...' implies that the 'right' was established, first, in the UN Charter.) The aforementioned is merely the product of my own 'touching up', it is my 'creation'. The sentence could have read: 'By virtue of the principle of equal rights and self-determination of peoples in the Charter of the United Nations, and by virtue of the right of all peoples to self-determination enshrined in the United Nations Covenants, all peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development, every State having the duty to respect this in accordance with the provisions of the Charter'. The sentence could have read this, but it doesn't. Confusion and doubt, therefore, remain.
Does the Declaration on Principles sanction a right of secession? First, we should consider how the Declaration 'defines' the 'exercise' of the right to self-determination. It states: 'The establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a people constitutes modes of implementing the right of self-determination by that people'. The Declaration, as we can see, draws attention to the 'creation' of something 'new': be it in the form of a newly created State, or in the form of a ('physical') 'change' to an existing State. This, conceivably, would seem to imply the existence of a right of 'secession'. However, the next paragraph states: 'Nothing in the foregoing paragraphs shall be construed as authorising or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States ...' If one stops there, the paragraph would appear unequivocal: under no circumstances shall the right to self-determination authorise or encourage 'secession'. However, the sentence continues: '... 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 colour'. 'Suddenly', a proviso arises. The territorial integrity 'and' political unity of sovereign and independent States will be respected 'provided'(?) ... Thus, first a right of 'secession' is suggested, only to be taken away, and then 'restored' again.
Sometimes in conversation, perhaps when making a speech, we try and fit too many words, clauses and phrases into a single sentence. The 'product' is often unintelligible. These three 'sections' are a classic example of this. In truth, I do not believe the answer is as complicated as it might seem. Let us assume that the State is 'sovereign' and that States' territorial integrity 'and' political unity are, under all circumstances, inviolable ('part two'). Where does this 'leave' 'part one'? If we apply the Declaration here, literally, in the context of 'all peoples', then we are left nowhere. For a State cannot be inviolable and yet 'susceptible1. However, is part one referring to 'all peoples', or just 'some'? Consider the opening words to part one. It speaks of 'the establishment [my emphasis] of a sovereign and independent State'. Part one can, therefore, not be applied to existing States, only those being 'established, ie. only pertaining to non-self-governing territories. So where docs this leave 'part three'? It is probably the case that the 'qualification' to the principle of territorial integrity was a 'direct' reference, if not 'warning', to the government of South Africa, concerning its apartheid policy of 'racial' separation. One should never forget the 'presence1 of South Africa in nearly all UN instruments at this time [30]. Juridicial historiography here is very relevant.
While Christian Tomuschat has argued that the formulation is 'too loose ... to sanction a right of secession' [31], Otto Kimminch has interpreted the Declaration in the following way: 'as long as a multiethnic (or poly-ethnic) State respects the collective and individual rights of ethnic groups and their members, these groups can find their protection within the State in accordance with present-day international law. As soon as that State consistently violates these rights a situation arises in which the suppressed people or ethnic group may invoke its right of self-determination in order to bring about constitutional changes within the State or to find an international solution by seceding. The internal changes may aim at minority protection, autonomy or a suitable federal structure. The external solution may consist in creating an independent State, a confederation with one or more other sovereign States (including the one from which secession has taken place), or accession to an existing State' [32].
Otto Kimminieh's interpretation, as 'beautiful' as it is, cannot be correct. When one considers the Declaration on Principles in the context of its time, it is inconceivable that the General Assembly could have been sanctioning a 'general' right of 'secession' [33], If anything, I think the Declaration is attempting to limit the scope of self-determination from that all-embracing 'right' provided in the UN Covenants. It is trying to 'conceptualise' self-determination in a way similar to the 1960 Declaration on Colonial Countries and Peoples. Regrettably, it doesn't do it very well. Is it conceivable that the General Assembly would have rendered itself a 'hostage to the fortune' of the relatively 'vague' terms, 'the principle of equal rights and self-determination' or 'representing the whole people'? I cannot believe so. Without elucidation, these phrases are dynamite! Yet, when one 'imagines' the 'exercises' of self-determination ('The establishment of a sovereign and independent State' etc.), one can 'conceptualise' the 'choices' having to be made by non self-governing territories. The 'game is given away', as Tomuschat himself recognises, by its over-'permissiveness'.
Otto Kimminieh's interpretation is too simplistic. If the international community were ever to sanction a right of secession, it would be done silently. Indeed, if a right to secession ever did 'emerge', 1 am not sure we would know about it. Secession is the 'polities' of the 'nod and a wink'. It is the 'international law of the spiv'. I doubt very much that the General Assembly would 'formulate' a 'process' so systematically: if circumstance 'A' gives rise to circumstance 'B', then 'result' 'Z' may occur. Otto Kimminieh's phrasing is too 'absolute': 'As long as ... these groups can', 'as soon as... the suppressed ... may invoke ... by seceding'. Is the State that vulnerable? Naturally it isn't, and it is absurd to 'pretend' that it is. 4As long as a multi-ethnic (or poly-ethnic) State respects the collective and individual rights of ethnic groups and their members', then everyone, 'ethnic groups' and States alike, will be 'serene'. However, 'as soon as that State consistently violates these rights ... constitutional changes' may occur. The 'ethnic groups and their members' are then provided with a 'supermarket-style' range of 'items for sale'. They can either 'buy' the 'cheaper' and 'easier to digest' 'internal changes', or the 'more expensive' and, possibly, 'indigestible' 'external, solution'. Kimminich fails to address the possibility that 'ethnic groups and their members' may not, on occasions, want to 'find their protection within the State', even if the State itself is respecting their 'collective and individual rights'. As it is Kimminich doesn't 'define' the meaning of the word 'consistently' nor give any indication as to what 'these' 'collective and individual rights' are When Kimminich states, 'in order to bring about constitutional changes'" he assumes, wrongly, that 'ethnic groups and their members' have 'sovereignty' over the States to which they form a part, and that the States themselves will, somehow, 'stand aside' while an 'internal' or 'external solution' is 'found'. Sadly, State practice does not bear this 'assumption' out.

PEOPLES AND PEOPLE
What are 'peoples'? Are they different from a 'people'? Where does the conception 'peoples' and 'people' leave the right to self-determination? I will endeavour to address the 'problem' stage by stage.
Perhaps one of the first interpretations of the term 'peoples', in the context of international law, was provided by Hans Kelsen, who, in his commentary on the UN Charter, leaned towards the interpretation that 'peoples' simply meant States [34]. Further, Otto Kimminich has argued: 'In legal terms, a people, once it has established itself as a State, does not exist as an entity distinct and separate from that State. The relevant government institutions, created within that State, express nothing other than the will of the people' [35].
According to the UNESCO Experts on the Study of the Concept of the Rights of Peoples, 'inherent in a description (but not a definition) of a 'people'... A group of individual human beings who enjoy some or all of the following common features: a) a common historical tradition; b) racial or ethnic identity; c) cultural homogeneity; d) linguistic unity; e) religious or ideological affinity; f) territorial connection; g) common economic life' [36]. From this it would appear as if the term 'peoples' consists of no more than the individual sum of parts that make up the State, whereas the term 'people' can be equated with the specific, 'individual', ethnic groups within the State. However, Kelsen and Kimminieh's interpretation of 'peoples' is not shared by all. Patrick Thornberry has suggested: 'The description of 'people' need not mimic the 'unity and indivisibility1 of the State. A differentiated meaning of people is not equivalent to attributing the right of self-determination to ethnic components but encourages participation in the self-determination of the whole' [37]. To Allan Rosas, self-determination 'invites visions of popular sovereignty': To say that the right of peoples to self-determination is exercised by the State and its government would seem to be a contradiction in terms' [38].
The meaning attached to 'peoples' has in recent years been displaced, to some extent, by James Crawford, in his conception of 'the rights of peoples' (as opposed to, merely, the 'right of peoples to self-determination'). He has argued: 'If the phrase 'rights of peoples' has any independent meaning, it must confer rights on peoples against their own governments' [39]. In this sense, 'peoples' rights can not only not be equated to the 'rights' of States, but they are at variance with the right of self-determination.
The extent of the confusion between the meaning attached to 'peoples', 'people1 and 'rights of peoples'(?) was compounded in the drafting of Article 20 of the Vienna Declaration (the concluding document of the World Conference on Human Rights, 1993) and the use (either) of the term 'indigenous people' or 'indigenous peoples'. All the indigenous representatives and their supporters preferred the term 'indigenous peoples', but the outcome in the government-adopted Declaration was different, 'indigenous people' was used instead [40]. Underlying this controversy were issues related to the right to self-determination. By using the term 'indigenous peoples' the United Nations would have reinforced the view that the various existing indigenous groups constituted separate peoples, which 'could' provoke them to claim that they each had a right to self-determination under international law. Even though the matter had, previously, been addressed in the 1989 ILO (International Labour Organisation) Convention no. 169 'Concerning Indigenous and Tribal Peoples in Independent Countries', the fears among States were still manifest. Thus, while the Convention uses the term 'indigenous peoples', it states in Article 1(3) that: 'the use of the term 'people' shall not be construed as having any implications as regards the rights which may attach to the term under international law' (note the interchanging use of 'peoples' and 'people') [41].
By way of the meaning of 'peoples'/'people', it would appear, lies the extent and nature of the right to self-determination. To my mind this is rather unfortunate, if, perhaps, unavoidable. I believe that too much emphasis is, presently, placed on the meaning of 'peoples'/'people' rather than the meaning of the right to self-determination. 'Crawford's' construct, 'a right of peoples', is, in my opinion, an unhelpful distraction. The attempt to separate 'peoples' from 'people' has now reached ridiculous proportions. Yet even if, as I suspect, 'peoples' and 'people' can be one 
and the same thing, does this, necessarily, threaten the sovereignty and territorial integrity of the state? 1 don't see why it should. At the very least, to quote Patrick Thornberry again: 'A differentiated meaning of people is not equivalent to attributing the right of self-determination to ethnic components but encourages participation in the self-determination of the whole'. Self-determination (and 'peoples'/'people') has become too much a doctrine of competing claims, working according to different agendas. It is hardly surprising, therefore, that its meaning has become twisted. To my mind any ethnic group can be both a 'peoples' and a 'people' (despite the 'separate' Article 27 in the UN Covenant on Civil and Political Rights [42]); any State will, of course, be made up of the same; the terms should be able to be used interchangeably, but, at the end of the day, it should not be 'peoples'/'people' that determine the essence of the right to self-determination.

INTERNAL/EXTERNAL SELF-DETERMINATION
Self-determination has not proved to be amenable to definition. Agreement' has not been reached as to whether self-determination contains (largely) internal or external elements. Its theory is separated by two schools of thought: the 'democratic' (internal) and the 'nationalist' (external, and sometimes internal, sec Chapter 3). Asserting the 'nationalist' view, D.M. Walker has denned self-determination as, 'the claim of a group of people having some degree of national consciousness to form their own state and govern themselves' [43]. 'Meanwhile', propounding the 'democratic' notion, Cassese, in the context of the UN Covenant on Civil and Political Rights, has associated self-determination in the following way: (self-determination) 'presupposes freedom of opinion and expression (Article 19), the right of peaceful assembly (Article 21), the freedom of association (Article 22), the right to vote (Article 25(b)), and more generally the right to take part in the conduct of public affairs, directly or through freely chosen representatives (Article 25(a)). Whenever these rights are recognised for individuals, the people as a whole enjoy the right of internal (political) self-determination; whenever these rights are trampled upon, the right of the people to self-determination is infringed' [44].
It would be wrong to assume that the 'sole function' of self-determination is to merely provide the basis for a 'right' to secession (even if such existed). Self-determination plays an important part in the process of democratisation (and its continuation) in any given State and can 'provide' certain fundamental entitlements to its population vis-a-vis the authorities. In this sense, therefore, neither internal nor external self-determination need contradict each other. They both, in different ways, serve a useful function as checks on the (ever) potential 'tyranny' of Statehood.
According to Patrick Thornberry: 'The external dimension or aspect defines the status of a people in relation to another people, State or Empire, whereas the democratic or internal dimension should concern the relationship between a people and 'its own' State or government' [45]. According to Pomerance, external self-determination is 'the act by which a people determines its future international status and liberates itself from 'alien' rule', whereas internal self-determination is 'the selection of the desired system of government' [46].
Internal self-determination, itself, contains different emphases. As the process of 'decolonisation' has continued so attention has been shifted towards the relationship between self-determination's internal aspect and autonomy: indeed, there are some who even claim that self-determination is merely exercised through processes of autonomy (see Chapter 3). Such a view, although fashionable, should not negate/deny the more general expression of the 'sovereignty' of the people and their right to 'determine' the political structure and processes of a State. Consider, therefore, E.H. Carr. He wrote: 'Self-determination might be regarded as implicit in the idea of democracy: for every man's right is recognised to be consulted about the affairs of the political unit to which he belongs, he may be assumed to have an equal right to be consulted about the form and extent of the unit' [47]. The people, in this sense, should also have the right to be consulted when important constitutional changes in the State are under consideration, as well as, naturally, the right to vote in/vote out a government. Were internal self-determination to only find its 'expression' in the notion of 'self-government' there is a very real danger that self-determination would become, merely, the 'entitlement' of a (sometimes) self-selected constituency.
Allan Rosas has distinguished between three possible 'layers' of self-determination: '!) The (construed) right of the people to constitute it own political system (pouvoir const i titan t); this right may become 'consumed' when the choice, be it the constitution of a dictatorship, has been made. 2) The right of the people to have a say in amending the constitution, including the right of resistance against tyranny and oppression. 3) The right of the people to govern and to take part in the conduct of public affairs, including participation in elections, referenda, and so on' [48]. I will return to the right to participation in Chapter 3.

EXTERNAL SELF-DETERMINATION
U Thant, in 1970, while UN Secretary-General, stated: 'As far as the question of secession of a particular section of a Member State is concerned, the United Nations attitude is unequivocable. As an international organisation, the United Nations has never accepted and does not accept and T do not believe it will ever accept a principle of secession of a part of a Member State' [49].
Secession when sought for, let alone obtained, invariably brings upheaval with it. Sadly, ('velvet') 'divorces' such as that between the Czech Republic and Slovakia (formerly Czechoslovakia) are very rare. Therefore, if the United Nations is to achieve one of its most fundamental purposes, to maintain international peace and security, it should not promote a concept which all too frequently wrecks it.
Are there any circumstances where a 'people(s)' can claim a right to secession? Or is secession merely a 'consequence'?
Critescu, as rapporteur for the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, commented: 'The principle of equal rights and self-determination ... does not grant an unlimited right of secession to populations living in the territory of an independent sovereign state ... The right of secession unquestionably exists, however, in a special, but very important case: that of peoples, territories and entities subjugated in violation of international law. In such cases, the peoples have the right to regain their freedom and constitute themselves independent sovereign States' [50]. Critescu's dictum raises more questions than it answers. What does he mean by 'subjugated in violation of international law'? What conditions constitute a 'violation of international law' and 'subjugation'? Are there certain conditions where a 'violation of international law' has taken place, but the 'peoples, territories and entities' not been 'subjugated'? Critescu fails to explain what he understands by the word 'subjugation', nor does he indicate what 'violations' give rise to a claim for secession.
Of course, the general tenor of Critescu's dictum is clear, there are certain conditions when a right to secession can be claimed (it is not unlimited), but what are thesel In truth, and in defence of Critescu, it is not easy to give examples of conditions when 'peoples, territories and entities (have been) subjugated in violation of international law'. The conditions themselves will always be imprecise and give rise to further questions. However, I do think Critescu could have assisted the matter by providing a few illustrations, while recognising that such was not an exhaustive list and that it was not intended to be so.
Does a right of secession 'unquestionably' 'exist'? Personally, I do not think so. I am not sure that the concept 'secession' will ever exist in international law or ever can. Critescu is right to raise the 'fear' of the consequences of an 'unlimited right of secession'. If 'secession1 became a right it would undoubtedly threaten not just international peace and security, but the international framework as a whole.
'Secession', like 'revolution', is not a right, but it can be a consequence. It becomes 'inevitable' because of the conditions that have been 'created' in a particular State. If 'secession' were to become a right, scholars would have to consider conditions when the right could be exercised. Yet, the motivations for the break-up (or not) of States cannot always be predicted (let alone delimited). 'Secession1 must, therefore, avoid becoming overly 'check-listed'. It should not become a process of qualification.
Does this not contradict my evaluation of Critescu's dictum? I do not think so. If 'secession' is to become a right, then of course we must have some idea as to what is meant by 'subjugated in violation of international law'. A lack of determinants could have the effect of 'encouraging' unlimited claims to 'self-determination'.
According to J.A. Perkins, full acceptance of a right to self-determination has been impeded by the concern that such a right would imply a right of secession by any part of a nation that wished to secede. Indeed, he added: 'the notion that a right of self-determination may imply a right of secession for any self-defined group is one of the fallacies that created scepticism about the seriousness of international law as a scheme to govern the conduct of nations' [51].
Has 'secession' imprisoned self-determination? While I think it is entirely reasonable to say that it has, it is important to consider why this has occurred. Inevitably, when a 'permission' is 'granted1, or, at least, seen to be being granted, 'people' will endeavour to take advantage of it. For . example, if alcohol consumption is a lawful activity, people will consume alcohol. However, if alcohol consumption is unlawful, but people 'perceive' that its 'illegality' is not being enforced, they will not be 'shy' to drink. The same is true for 'secession' vis-a-vis 'self-determination'. Thus, the principle, self-determination, has not been impeded in its development by its very nature, but by man's interpretation (and sometimes application) of it.
Doerhing has argued that a right of secession exists when an ethnic group is discriminated against because of its characteristics [52]. Christian Tomuschat has spoken of 'specific groups' not being 'obligated to remain loyally under the jurisdiction' of a State if it has failed 'to protect the life and the physical integrity of its citizens' [53].
If Critescu can be 'criticised' for speaking only of principles and not 'conditions', Doerhing and Tomuschat can be 'criticised' for speaking only of conditions and not 'principles'. If we are to accept/assume that a right of secession does exist in international law, I would not 'deny' that the conditions Doerhing and Tomuschat refer to 'might' give rise to a right to secession. However, as I have alluded to before, self-determination should not be a matter of 'qualification' versus 'disqualification'. It is not a matter of acquiring 'so many points before one is entitled to the free gift'. If a right to secession is to have any meaning, it must contain both principles and conditions.
Despite this, Christian Tomuschat has, perceptively, noted that, 'self-determination is becoming a tool for attempts to revise historical developments that have extended not only over decades, but centuries. The big question is whether such processes can be directed and regulated by a principle of international law like self-determination' [54]. According to Asbjorn Eide (Special Rapporteur of the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities), in his second progress report on the protection of minorities, however, 'it would be highly destabilising at the present stage to claim that all the peoples of all territories which some time in history have been incorporated through occupation at present have a right to self-determination' [55].
Benedict Kingsbury has identified 'five' categories where the international community have accepted a right to 'possess1 separate statehood arising out of self-determination: (i) Mandated territories, trust territories and territories treated as non-self governing under Chapter XI of the UN Charter; (ii) Distinct political-geographical entities, such as Bangladesh; (iii) Other territories in respect of which self-determination is applied by the parties, as where a plebiscite is held to determine the fate of a territory; (iv) Highest level constituent units of a federal state which has been (or is in the process of being) dissolved by agreement among all (or, in the case of Yugoslavia, most) of the constituent units; and 'possibly' (v) formerly independent entities reasserting their independence with at least the tacit consent of the established state where incorporation into the other state was illegal or of dubious legality (for example, the Baltic states vis-a-vis the Soviet Union) [56].
I think Benedict Kingsbury has, perhaps unwittingly, touched on an important point here. He speaks of 'five categories' of the right to possess separate statehood. The key words here are 'separate statehood'. Undoubtedly, this 'right' is an example of the exercise of external self-determination, but can one equate separate statehood with secession? I am unhappy with the phrase secession. It carries with it too many emotive images. While I would accept that category (i) provides a good illustration of the means whereby 'territories' may form a separate independent State, I think it is entirely inappropriate to call it 'secession1. The phrase a 'right to possess separate statehood' is far less shocking than its destructive-sounding 'twin', secession. This is not to deny either the existence of secession, nor to separate it, entirely, from the 'right to possess separate statehood'. In any exercise of the latter certain elements of secession may be found.
While I think it is inconceivable that anyone could deny the right of 'mandated territories' (etc.), in category (i), a right to possess separate statehood, I am unhappy with Kingsbury's category (ii). What is a distinct political-geographic entity and is Bangladesh a good example of one? When Kingsbury speaks of political-geographic, are these to be considered conjunctively or disjunctively? Must they be both a 'distinct' political and 'distinct' geographic entity? Sadly, we are not given any clue as to the answer to these questions. In actuality, I think that each contains aspects of the other. If one speaks of a 'distinct' political entity one would consider existing States good examples. Naturally, they possess certain geographic aspects. Perhaps, therefore, the hyphen is a suitable 'knot', in this case, to join the two. While 1 would not suggest that it is only States that can constitute 'distinct political-geographic entities', I do believe that the term's association with non-State entities to be overly subjective. Actually Bangladesh may have been a good example of one, but I am in no way convinced that we will always be so fortunate.
To make better sense of the term 'distinct' political-geographic entity, 1 think we should consider, once again, the UNESCO Experts' conception of a 'people'. Is a 'distinct' political-geographic entity one where the 'pcople(s)' living within it have a common historical tradition, racial or ethnic identity, cultural homogeneity, linguistic unity, religious or ideological affinity, a territorial connection and common economic life? While this is, undoubtedly, more digestible, there is the danger that this interpretation places too much emphasis on the 'characteristics' of the 'people' themselves. I would not discount the possibility that a 'distinct' political-geographic entity will contain 'people(s)' with the above 'common' characteristics, but I would surmise that what would be most in evidence would be a 'common' will/cause. To my mind, there are subtle elements of Rousseau's 'general will' here [57]. The general expressed will of the collectivity, whether uniform or not, gives rise to a determination. This can be applied here to 'people(s)' and a given political-geographic entity.
While 1 am clear as to what Benedict Kingsbury means by category (iii), I am 'unclear' as to what, exactly, these territories are. What is meant by 'other territories'? Who are the parties in this case? Is he referring, here, to territories such as Nagorno-Karabakh, Abkhazia and South Ossetia? Sadly, he doesn't provide us with any elucidation. How, exactly, is the self-determination being effected? Is a 'plebiscite' the only example, and is it, in itself, sufficient? Kingsbury doesn't inform us whether 'such' territories have any 'relationship' with any State. If they are merely territories as per (i), surely this renders category (iii) unnecessary. This, therefore, suggests that he is talking about different types of 'territories'. Is he, therefore, suggesting that 'any' 'territory' (of whatever 'type' or 'description') has a right to possess separate statehood, and where does this leave state sovereignty? In my opinion, category (iii) lets down a highly commendable attempt to clarify a 'right' to external self-determination.

THE RIGHTS OF SUB-REPUBLICS
Although the principle of self-determination would not appear to enshrine a right of secession, it would be wrong to suggest that non-State entities cannot 'secede'. The international community has been willing to recognise the right of the constituent 'republics' to 'secede' from both Yugoslavia and the Soviet Union but, I would surmise, is unclear as to the processes by which such 'secession' was effected. While Slovenia and Tajikistan were, promptly, upon the collapse of their respective federations, recognised, de jure, as independent States, sub-republics such as Kosovo and Crimea (without mentioning the 'three') were not.
I will address the break-up of the USSR and Yugoslavia, and the respective implications for the rights of sub-republics separately.
Article 72 of the USSR Constitution of 1977 (preceded by the earlier constitutions of 1924 and 1936) provided:
'Each Union Republic shall retain the right to freely secede from the USSR'.
It was quite explicit about the rightholders to secession. Article 76 stated:
'A Union Republic is a sovereign Soviet socialist stale that has united with other Soviet Republics in the Union of Soviet Socialist Republics'.
Not only were the autonomous formations (including the 'three') not 'sovereign', in Articles 82/86 they were described as being 'constituent part(s) of a Union Republic' [58]. Although Article 78 of the 1977 Constitution provided, 'The territory of a Union Republic may not be altered without its consent. The boundaries between Union Republics may be altered by mutual agreement of the Republics concerned, subject to ratification by the Union of Soviet Socialist Republics', this 'right' of the union republics was effectively removed with the adoption of the Law on Procedures for Resolving Questions Related to the Secession of Union Republics from the USSR, on 3 April 1990 (an attempt to slow down the momentum, at that time, of the secession of the Baltic States, but later of relevance to all union republics) [59]. It is this Law that has formed the foundation for the 'three's', alleged, right to self-determination (/'secession'). The crucial section of the Law on Secession is Article 3. It states:
'In a Union republic that has within it autonomous republics, autonomous provinces and autonomous regions, the referendum shall be held separately in each autonomous unit. The peoples of autonomous republics and autonomous formations shall retain the right to decide independently the question of staying in the USSR or in the seceding Union republic, as well as to raise the question of their own legal state status'.
'In a Union republic whose territory includes areas with concentrations of national groups thai make up the majority of the population in a given locality, the results of the voting in these localities shall be considered separately during the determination of the referendum result' [60].
There are two crucial phrases contained within Article 3: 'as well as' and 'their own legal state status'. Did the Law on Secession grant the sub-union republic entities (such as the 'three') a right to upgrade their status to the union republic level? It is important, here, to read the relevant sentence very carefully. A union republic wishing to conduct a referendum on its possible secession from the Union was entitled to do this, according to the complicated and lengthy procedures outlined in the Law. However, those union republics containing 'autonomous republics [Abkhazia] and autonomous formations (including Autonomous Oblasts: Nagorno-Karabakh and South Ossetia, et al.)' were obliged to 'subject' this right to the parallel right of these autonomous structures to 'decide independently' their own future. On the matter of 'their own future', Article 3 enshrined the options: 'the question of staying in the USSR or in the seceding Union republic, as well as to raise the question of their own legal state status'. Let us consider the first clause quoted here and imagine that the seceding union republic containing 'autonomous structures' had managed to secede according to the procedures of the law, but that the, relevant, 'autonomy(/ies)' had decided not to leave the Union. It is perfectly possible that Moscow would have upgraded the autonomy to union republic status. In truth, I rather suspect those 'autonomous structures' bordering the RSFSR (Russian Socialist Federative Soviet Republic), Abkhazia and South Ossetia included, would have been incorporated within it (in order to counter 'separatist' pressures -particularly in the north Caucasus). The same could not have been effected, however, for Karabakh, which, not bordering the Armenian SSR, could not have been so 'incorporated'. This, still, does not address the second clause: 'as well as to raise the question of their own legal state status'. I do not believe this clause enshrined a right of sub-union republic entities, also, to secede. The entire raison d'etre of this Law and the Soviet Union, even at this late stage, was centred around the means to maintain, intact, at all costs, the Union. Thus, 1 cannot imagine that the Kremlin, having formulated such a convoluted (to say the least) process of union republic secession, would have, merely and simply, through this phrase, 'permitted' sub-union republic entities to similarly secede 'just like that'. What, I believe, the second clause does concretise, however, is a right of 'autonomous structures' to 'raise'(/alter) their constitutional status even, perhaps, to union republic level.
What are the implications of the above, particularly when no union republic seceded according to the procedure enshrined in the Law on Secession?
The 30 August 1991 'Declaration on Re-establishment of National Independence of the Azerbaijani Republic' [61], by Azerbaijan's Supreme Soviet, very swiftly engendered, on 2 September, the 'Declaration Establishing the Nagornyy Karabakh Republic' - '['confirming'] on the basis of the USSR Constitution and laws which extend to the peoples of autonomous entities and ethnic groups the right to independent decision-making on their state-legal status in the event of a union republic's secession from the USSR'. The Declaration continued: 'Until the approval of the constitution and laws of the Nagornyy Karabakh Republic, the USSR constitution and laws as well as the other existing laws which do not oppose the said declaration's points and principles and the republic's special characteristics will apply in the Nagornyy Karabakh Republic's territory' [62], Abkhazia and South Ossetia did not make similar declarations following their equivalent, the Georgian Declaration of State Independence (following a plebiscite, on 31 March 1991) of 9 April 1991 [63].
Does Stepanakert's declaration, therefore, alone among the 'three', entitle them to claim that they seceded lawfully from Azerbaijan? In truth, no union republic seceded 'lawfully', according to the terms and 'conditions' enshrined in the Law on Secession and although this would not, in itself, negate its effect, I believe the crucial point is that, at the end of the day, no union republic (nor any 'State') has recognised the 'independence' of Nagorno-Karabakh. Thus, although one could, quite legitimately, argue that Karabakh has 'seceded' de facto from Azerbaijan, their lack of international recognition must deprive them of any de jure international status.
The 'three' lost heavily with the break-up of the former Soviet Union. Any opportunity for their status to be 'raised' evaporated with the, unsuccessful, coup of the 19-21 August 1991. The (much) draft(ed) Union Treaty [64] would have, de jure if not de facto, 'granted' all 'autonomous structures' in the Union the right to join the Union of Sovereign Socialist Republics as equal members, alongside (in its absolute sense) the existing union republics. Here, membership was open not to 'sovereign' union republics (Article 76 of the 1977 Constitution) but to 'republics' (in the first two drafts: later transposed to 'states' in the latter two - but the intention was the same). Indeed, all the drafts stipulated that (for example, Third Draft, Article 9), 'The USSR Constitution may not contravene the Union Treaty'.
The Constitution of the Socialist Federal Republic of Yugoslavia of 1974 (as amended in 1987), 'similar' to the USSR Constitution of 1977, granted a right of secession, albeit a far more ambiguous one. Its Preamble (Basic Principles, I) stated:
'The nations of Yugoslavia, proceeding from the right of every nation to self-determination, including the right to secession ... have, together with the nationalities with which they live, united in a federal republic of free and equal nations and nationalities ... the Socialist Federal Republic of Yugoslavia..' [65]
'Once again' (but unlike the USSR Constitution), the Yugoslav Constitution was ambiguous as to the 'rightholders' to secession. It spoke not of the 'sovereignty' of the Socialist Republics (such as Croatia, Macedonia etc.; as opposed to the Autonomous Provinces of Vojvodina and Kosovo, within the 'Socialist Republic of Serbia'), but of them being 'states based on the sovereignty of the people ...' (Article 3). Article 5 provided - 'The territory of the Socialist Federal Republic of Yugoslavia is a single unified whole and consists of the territories of the Socialist Republics'.
On 27 August 1991, with Yugoslavia on the brink of collapse, at a meeting of Foreign Ministers of the European Community in Brussels it was decided (inter alia} that a 5-man Arbitration Commission would be set up, in order to enhance the rule of law in the settlement of differences relating to the Yugoslav crisis. At its first meeting, the five members of the Commission appointed President of the French Conseil Constitutionel, Judge Robert Badinter, as its Chairman.
On 20 November 1991, the Chairman of the Arbitration Commission received a letter from Lord Carrington, Chairman of the Conference on Yugoslavia, requesting the Commission's opinion on the following question put by the 'Republic of Serbia': 'Does the Serbian population in Croatia and Bosnia-Hercegovina, as one of the constituent peoples of Yugoslavia, have the right to self-determination?' The Arbitration Commission's answer to this question was to be contained in their Opinion no.2, delivered on 11 January 1992.
The Arbitration Commission was forced to reach an expeditious decision on the matter, with the adoption, on 16 December 1991; at an extraordinary meeting of the European Political Cooperation Ministerial meeting (of the European Community), in Brussels; of the 'Declaration on Yugoslavia'. Germany had delivered an ultimatum to the other 11 member states that unless it came to a decision on the status of Croatia and Slovenia it would go ahead and recognise them independently. Consequently, the Declaration invited 'all Yugoslav Republics to state by 23rd December whether: - they wish to be recognised as independent States; - they accept the commitments contained in the above-mentioned guidelines ...' ('Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union' [66]). The Declaration continued: The applications of those Republics which reply positively will be submitted through the Chair of the Conference to the Arbitration Commission for advice before the implementation date' ('The Community and its members States agree to recognise the independence of all the Yugoslav Republics fulfilling all the conditions set out below. The implementation of this decision will take place on 15 January 1992').
Four republics applied - Bosnia-Herzegovina, Croatia, Macedonia and Slovenia - and on 11 January 1992 the Arbitration Commission delivered its reports (Opinions 4-7) [67], Due to the nature of these 'requests', the Arbitration Commission was compelled to deliver judgment on two earlier requests, submitted on 20 November 1991 (Opinions 2-3) [68]. In its Opinion no.l, of the 29 November 1991, the Arbitration Commission had concluded (in para. 3):
'that the Socialist Federal Republic of Yugoslavia is in the process of dissolution' [69].
In what was to become Opinion no. 3, the Arbitration Commission had been asked to consider whether the 'internal boundaries between Croatia and Serbia and between Bosnia-Hercegovina and Serbia' could be 'regarded as frontiers in terms of public international law' [70]. In its report the Commission concluded:
'Second - The boundaries between Croatia and Serbia, between Bosnia-Herce-govina and Serbia, and possibly between other adjacent independent States may not be altered except by agreement freely arrived at.
Third - Except where otherwise agreed, the former boundaries become frontiers protected by international law. This conclusion follows from the principle of respect for the territorial status quo and, in particular from the principle of uti possidetis ... The principle applies all the more readily to the Republics since the second and fourth paragraphs of Article 5 of the Constitution of the SFRY stipulated that the Republics' territories and boundaries could not be altered without their consent' [71].
Opinion no. 2, on the right of self-determination for the Serbian population in Croatia and Bosnia-Herzegovina, resolved:
'1. The Commission considers that international law as it currently stands does ,, not spell out all the implications of the right (o self-determination. However, it is well established that, whatever the circumstances, the right to self-determination J must not involve changes to existing frontiers at the time of independence (uti J possidetis juris) except where the States concerned agree otherwise;
"2. Where there are one or more groups within a State constituting one or more ethnic, religious or language communities, they have the right to recognition of their identity under international law. As the Commission emphasised in its Opinion no.l of 29 November 1991, published on 7 December, the - now peremptory - norms of international law requires States to ensure respect for the rights of minorities. This requirement applies to all the Republics vis-a-vis the minorities on their territory. The Serbian population in Bosnia-Hercegovina and Croatia must therefore be afforded every right accorded to minorities under international conventions as well as national and international guarantees consistent with the principles of international law and the provisions of Chapter II of the draft Convention of 4 November 1991, which has been accepted by these Republics ...
'4. The Arbitration Commission is therefore of the opinion: (i) that the Serbian population in Bosnia-Hercegovina and Croatia is entitled to all the rights accorded to minorities and ethnic groups under international law and under the provisions of the draft Convention of the Conference on Yugoslavia of 4 November 1991, to which the Republics of Bosnia-Hercegovina and Croatia have undertaken to give effect; and (ii) that the Republics must afford the members of those minorities and ethnic groups all the human rights and fundamental freedoms recognised in international law, including, where appropriate, the right to choose their nationality' [72].
In my opinion, the findings (Opinions 1-3) of the Arbitration Commission are unsatisfactory for three reasons. First, Opinion no. 3 casually notes Article 5 of the Yugoslav Constitution (concerning the inviolability of the Republics' borders), but fails to consider the nature of the right to self-determination ('including the right to secession') provided in the Preamble. The Constitution unambiguously granted 'nation(s)' the right to self-determination, but what constituted a 'nation'? Article 1 notes, for example: 'The Socialist Federal Republic of Yugoslavia is a federal state having the form of a state community of voluntarily united nations and their Socialist Republics, and of the Socialist Autonomous Provinces of Vojvodina and Kosovo ...' The clue contained in the Preamble, 'The nations of Yugoslavia ... have, together with the nationalities with which they live, united in a federal republic of free and equal nations and nationalities ... the Socialist Federal Republic of Yugoslavia ...', is clarified in Article 1. The combination of 'together' in the Preamble with 'and (their Socialist Republics)' leaves no doubt that the term 'nation' was intended to be equated with the respective 'Socialist Republics'. Yet, the Arbitration Commission failed to draw attention to this. Second, Opinions no. 2 and 3 misapply uti possidetis juris. Opinion no. 3 states: '[regarding the future boundaries of the Republics] Uti possidetis, though initially applied in settling decolonisation issues in America and Africa, is today recognised as a general principle, as stated by the International Court of Justice in its Judgment of 22 December 1986 in the case between Burkina Faso and Mali' [73]. To support its view, the Commission proceeded to quote from paragraph 20 of the Judgment: 'Nevertheless the principle is not a special rule which pertains solely to one specific system of international law. It is a general principle, which is logically connected with the phenomenon of obtaining of independence, wherever it occurs. Its obvious purpose is to prevent the independence and stability of new States being endangered by fratricidal struggles ...' [74] The ellipsis, which forms part of the text of the Opinion, is fundamental here. For the Arbitration Commission failed to complete the sentence contained in the Judgment. It concludes: 'provoked by the challenging of frontiers following the withdrawal of the [wait for it!] administering power [my emphasis]' [75]. A further reading of paragraphs 21-26 (particularly para 23) [76] leave one with no doubt that the International Court of Justice was referring to the application of uti possidetis juris, only, in the context of 'decolonisation' in the Burkina Faso and Mali case. The 'administering power' was, without question, the former colonial power. Uti possidetis juris was, therefore, to be considered as a 'general principle' only in the application/processes of decolonisation. Of course, there would have been nothing wrong with the Arbitration Commission suggesting that uti possidetis juris could be applied 'in the case of a federal-type State' (Opinion no. 1), despite previous application in the post-colonial context, but they didn't.
(Third) While Yugoslavia did not possess its own, equivalent, Law on Secession; effectively 'equating1 sub-republics with population concentrations (in any given Union Republic) of another (non-titular) nationality; the Autonomous Provinces of Vojvodina and Kosovo had, by this time, been abolished [77]. Although not 'asked' to do so, the Arbitration Commission (in its Opinion no. 2) could have 'contrasted' the 'rights' of these, two, former Autonomous Provinces with the rights of the Serbian population in Croatia and Bosnia-Herzegovina. Jurisprudentially, a perfect opportunity manifested itself for the Arbitration Commission to draw attention to the 'rights' of sub-republics, but they failed, for whatever reason, to take it.
As we wait for the next 'opportunity', we must, largely, content ourselves with the dicta of Benedict Kingsbury. He has stated (writing in the context of the Arbitration Commission): 'The Federal Constitution (of Yugoslavia), under which Republics were the federating units and were alone entitled to- secede, was cited as establishing the legal framework in respect of which the principle of uti possidetis juris would apply. While this is readily intelligible as an attempt to prevent virtually unlimited fragmentation (see above), the logic of accepting statehood for Republics while denying any right to statehood to sub-Republic entities which enjoyed a considerable degree of autonomy within the federal state, and the exact status of which depended on particular political configurations and internal legal practices, is not itself compelling' [78]. In truth, perhaps 'autonomy' is not sufficient. Indeed, the Arbitration Commission's 'silence' on the matter may be a testament to this.

THE FUTURE
The break-up of the former Soviet Union and Yugoslavia has given rise to competing claims for the exercise of the right to self-determination. Multiple sovereignties, both official and unofficial, have emerged within a number of the new legal actors. Asbj0rn Eide has identified this as part of the emergence of 'ethno-nationalism' - 'one of the most serious contemporary threats both to a peaceful evolution of the international order and to the advancement of human rights protection' [79].
It is understandable that the international community finds it impossible to conceive a situation which provides an unlimited right of secession. Naturally, there is a fear of the 'Russian-doll' effect - that as each group (or minority) achieves independence, so a 'new' group within the new entity will assert its right to 'self-determination' also. This unhealthy spiral could only lead to ruin for all concerned. As former UN Secretary-General, Boutros Boutros-Ghali recognised, in his report An Agenda for Peace' (1992): 'The United Nations has not closed its door. Yet if every ethnic, religious or linguistic group claimed statehood, there would be no limit to fragmentation, and peace, security and economic well-being for all would become ever more difficult' [80].
If 'separate statehood', therefore, does not present itself, the international community will have to look for 'new' alternatives to satisfy the demands of the 'irredentist'. The many faces of self-determination, still, have much relevance here, the future lying, as it does, in autonomy; and it is this, so far 'forgotten', aspect that I will consider in my next chapter.

NOTES
[I] H. Hannum, Autonomy, Sovereignly and Self-Determination: The Accommodation of Conflicting Rights, Philadelphia, University of Pennsylvania Press, revised edition, 1996, p. 27.
[2] For text see: <http://www.law.emory.edu/FEDERAL/independ/declar.phpl>
[3] 'But where, say some, is the King of America? I'll tell you, friend, he reigns above, and doth not make havoc of mankind like the Royal Brute of Great Britain. Yet that we may not appear to be defective even in earthly honours, let a day be solemnly set apart for proclaiming the Charter; let it be brought forth placed on the Divine Law, the Word of God; let a crown be placed thereon, by which the world may know, that so far as we approve of monarchy, that in America the law is king. For as in absolute governments the King is law, so in free countries the law ought to be king; and there ought to be no other. But lest any ill use should afterwards arise, let the Crown at the conclusion of the ceremony be demolished, and scattered among the people whose right it is'. T. Paine, Common Sense and the American Crisis, New York and London, G.P. Putnam's Sons, undated, p. 99.
[4] A. Rigo Sureda, The Evolution of the Right to Self-Determination: A Study of United Nations Practice. Leiden, Sijthoff, 1973, p. 17.
[5] Quoted by D.E.D. Beales, 'Mazzini and the Revolutionary Nationalism', in D. Thomson (ed.), Political Ideas, Harmondsworth, Penguin, 1969, p. 146.
[6] V.I. Lenin, Collected Works, vol. 22 (December 1915-July 1916) The Socialist Revolution and the Right of Nations to Self-Determination, Theses', Moscow, Progress Publishers, 1964, pp. 143-156.
[7] Ibid, p. 156.
[8] Although the Mensheviks were to proclaim Georgia an independent republic, on 26 May 1918, to be followed, on 28 May, by similar declarations in Armenia and Azerbaijan, by the 25 February 1921 the last'bourgeois'government, in Tbilisi, had been overthrown and all three Transcaucasian 'republics' declared 'Soviet socialist republics'. Azerbaijan had previously been declared such on 5 May 1920, Armenia on 29 November 1920.
[9] For text see: <http://www.fordham.edu/halsall/mod/1918wilson.phpl>
[10] See Points 9, 10, 11, 12 and 13, ibid.
[II] See Point 5: 'A free, open-minded, and absolutely impartial adjustment of colonial claims, based upon a strict observance of the principle that in determining all such questions of sovereignty the interests of the populations concerned must have equal weight with the equitable claims of the Government whose title is to be determined', ibid.
[12] Consider his famous dictum, of 30 December 1918:
'The more I think about the President's declaration as to the right of 'self-determination', the more convinced I am of the danger of putting ideas into the minds of certain races. It is bound lo be the basis of impossible demands on the Peace Congress and create troubles in many lands.
'What effects will it have on the Irish, the Indians, the Egyptians and the nationalists among the Boers? Will it not breed discontent, disorder and rebellion? Will not the Mohammedans of Syria and Palestine and possibly of Morocco and Tripoli rely on il? How can it be harmonised with Zionism, to which the President is practically committed?
The phrase is simply loaded with dynamite. It will raise hopes which can never be realised. It will, I fear, cost thousands of lives. In the end it is bound lo be discredited, to be called the dream of an idealist who failed to realise the danger until too late to check those who attempt to put the principle in force. What a calamity that the phrase was ever uttered! What misery it will cause'. R. Lansing, The Peace Negotiations - A. Personal Narrative, New York and Boston, Houghton MifHinCo., 1921, pp. 97-98.
[13] Quoted in H.M.V. Temperley, A History of the Peace Conference of Paris, vol. IV, London and New York, Oxford University Press, 1969, p. 429.
[14] For extracts of the text see: <http://www.lib.byu.edu/~rdh/wwi/1915/london-treaty.phpl >
[15] For text see: <http://www.fordham.edu/halsall/mod/1918wilson.hlml>
[16J Report of the International Commission 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 Official Journal, special supplement no. 3 (October 1920), p. 5.
[17] For text see: <http://www.yale.edu/lawweb/avalon/wwii/atlantic.php>
It should be noted that paragraph 3 was later 'qualified', in the House of Commons by Winston Churchill when he noted, 'importantly', that the principle of 'self-determination', as enunciated in the Atlantic Charter, did not apply to colonial peoples (viz. the British Empire?) but was only aimed at restoring 'the sovereignty, self-government and national life of the States and nations of Europe under the Nazi yoke'. Parliamentary Debates, Fifth Series, vol. 374, House Of Commons, Official Report, eighth volume of Session 1940-41, pp. 68-69.
[18] 'Dumbarton Oaks Proposals for the Establishment of a General International Organisation', 7 October 1944. For text of the Proposals see: R.B. Russell, A History of the United Nations Charter, Washington DC, The Brookings Institution, 1958. pp. 1019-1028.
[19] Ibid, pp. 810-813.
[20] Note, for example, the remarks of the Belgian representative: 'It would be dangerous to put forth the peoples' right of self-determination as a basis for the friendly relations between the nations. This would open the door to inadmissible interventions if. as seems probable, one wishes to take inspiration from the peoples' right of self-determination in the action of the Organisation and not in the relations between the peoples'. UNCIO, vol. VI, p. 300.
[21] Debates of the First Committee of the First Commission of the San Francisco Conference, 15 May 1945, p. 20.
[22] UNCIO, vol. VI, p. 296.
[23] Ibid, p. 298.
[24] Ibid, p. 704.
[25] UNCIO, vol. VI, p. 455. Note the 'veiled' remarks of the Egyptian representative on this 'matter': the principle lent itself to manipulation. Debates, 14 May 1945, pp. 24ff.
[26] For text of the UN Charter see: <http://www.un.org/Overview/Charter/contents. html>
[27] For text see: <http://www.hri.ca/uninfo/treaties/7.shtml>
The 1960 Declaration was passed by 89 votes to 0, with 9 abstentions: Australia, Belgium, Dominican Republic, France, Portugal, South Africa, Spain, UK and the USA.
[28] For text of the Covenant on Civil and Political Rights see: <http://www.hrwe-b.org/legal/cpr.phpl >
[29] International Legal Materials, 9 (1970) pp. 1292-1297.
[30] It is worth noting that South Africa only raised objections to the reference to apartheid. General Assembly Official Records, 25th Session, Sixth Committee, 1184th meeting, 28 September 1970, p. 42, para. 15.
[31] C. Tomuschat, 'Self-Determination in a Post-Colonial World', in C. Tomuschat (ed.). The Modern Law of Self-Determination, The Hague, Martinus Nijhoff. 1993, pp. 1-20 at 10.
[32] O. Kimminich, A 'Federal' Right of Self-Determination', in C. Tomuschat (ed.), The Modern Law of Self-Determination, The Hague, Martinus Nijhoff, 1993, pp. 83-100 at 92-93.
[33] Consider events in Biafra (Nigeria) and East Pakistan (today, Bangladesh) at this time.
[34] H. Kelsen, Recent Trends in the Law of the United Nations, A Supplement to 'The Law of the United Nations: A Critical Analysis of its Fundamental Problems', London, Slevens and Sons, 1951, pp. 51-53.
[35] O. Kimminich, A 'Federal' Right of Self-Determination', in C. Tomuschat (ed.), The Modern Law of Self-Determination, The Hague, Martinus Nijhoff, 1993. pp. 83-100 at 89, footnote 17.
[36] International Meeting of Experts on Further Study of the Concept of the Rights of Peoples, UNESCO, Paris, 27-30 November 1989, SHS-89/CONF.602/7, para. 23.
[37] P. Thornberry, 'The Democratic or Internal Aspect of Self-Determination with Some Remarks on Federalism1, in C. Tomuschat (ed.), The Modern Law of Self-Determmation,The Hague, Martinus Nijhoff, 1993, pp. 101-138 at 127.
[38] A. Rosas, 'Internal Self-Determination', in C. Tomuschat (ed.), The Modem Law of Self-Determination, The Hague, Martinus Nijhoff, 1993, pp. 225-252 at 229.
[39] J. Crawford, 'The Rights of Peoples: 'Peoples' or 'Governments'?', in J. Crawford (ed.). The Rights of Peoples, Oxford, Clarendon, 1988, p. 56.
[40] Article 20 states: The World Conference on human rights recognises the inherent dignity and the unique contribution of indigenous people to the development and plurality of society and strongly reaffirms the commitment of the international community to their economic, social and cultural well-being and their enjoyment of the fruits of sustainable development. States should ensure the full and free participation of indigenous people in all aspects of society, in particular in matters of concern to them. Considering the importance of the promotion and protection of the rights of indigenous people, and the contribution of such promotion and protection to the political and social stability of the States in which such people live, States should, in accordance with international law, take concerted positive steps to ensure respect for all human rights and fundamental freedoms of indigenous people, on the basis of equality and non-discrimination, and recognise the value and diversity of their distinct identities, cultures and social organisation'. Vienna Declaration and Programme of Action, World Conference on Human Rights, Vienna, 14-25 June 1993, UN Doc. A/CONF.157/24 (Part 1) at 20 (1993). For text see: <http://heiwww.unige.ch/humanrts/instree/llviedec.phpl>
[41] International Labour Organisation (ILO) Convention no.169: 'Convention Concerning Indigenous and Tribal Peoples in Independent Countries', 27 June 1989. For text see: <http://www.unhcr.en/html/menu3/b/62.php>
[42] To suggest that 'peopiesV'people' are entirely separate from minorities, thereby excluding minorities from the right to self-determination, is absurd. Such a notion renders the whole concept of autonomy (see Chapter 3) meaningless.
[43] D.M. Walker (ed.), The Oxford Companion to Law, Oxford, Clarendon, 1980, p. 1128.
[44] Cited by D. McGoldrick, The Human Rights Committee, its Role in the Development of the International Covenant on Civil and Political Rights, Oxford, Clarendon, 1991, p. 263.
[45] P. Thornberry, 'The Democratic or Internal Aspect of Self-Determination with Some Remarks on Federalism', in C. Tomuschat (ed.), The Modern Law of Self-Determinaiion, The Hague, Martinus NijhofT, 1993, pp. 101-138 at 101.
[46] M. Pomerance, Self-Determination in Law and Practice, The Hague and London. Nijhoff, 1982), p. 37.
[47] E.H. Carr, Conditions of Peace., New York, Macmillan, 1942, p. 39.
[48] Allan Rosas, considering the 'enforceability' of the three 'layers', in the contest of the UN Covenants, argues that whereas the first two would be included within its remit, the third one would be included on a minimum level but would not extend as far as Article 25 of the Civil and Political Covenant. A. Rosas, 'Internal Self-Determination', in C. Tomuschat (ed.), The Modern Law of Self-Determination, The Hague, Martinus Nijhoff, 1993, pp. 225-252 at 249-250.
Interestingly, Rosas claims in relation to the second 'layer': 'When we say that the people has 'a say' in the change of constitution we do not necessarily imply that the constitutional amendments must be adopted by popular referendum'. Ibid at 249, footnote 78.
[49] United Nations Monthly Chronicle, no. 2 (1970), p. 36.
[50] A. Critescu, The Right of Self-Determination, Historical and Current Developments on the Basis of United Nations Instruments, UN Doc. E/CN.4/Sub,.2/404/Rev.l, 1981, para. 173.
[51] J.A. Perkins, The Prudent Peace, Law as Foreign Pa/icy, Chicago and London, University of Chicago Press, 1981, p. 75.
[52] K. Doerhing, 'Das Selbstbestimmungsrecht der Volker als Grundsatz des Volk-errechts', Berichte der Deutschen Gese/lschaftfur Volkerrecht, 14 (1974), p. 49.
[53] When, 'a State machinery turns itself into an apparatus of terror which persecutes specific groups of the population'. C. Tomuschat, 'Self-Determination in a Post-Colonial Worid', in C. Tomuschat (ed.), The Modem Law of Self-Determination, The Hague, Martinus Nijhoff, 1993, pp. 1-20 at 9.
[54] Ibid, p. 4.
[55] UN doc. E/CN.4/Sub.2/1992/37, p. 33, para. 163.
[56] B. Kingsbury, 'Claims by Non-State Groups in International Law', Cornell International Law Journal, 25 (1992) pp. 481-513 at 487.
[57] 'If, then, we eliminate from the social pact everything that is not essential to it, we find it comes down to this: 'Each one of us puts into the community his person and all his powers under the supreme direction of the general will; and as a body, we incorporate every member as an indivisible part of the whole". J-J. Rousseau, The Social Contract, London, Penguin Books, 1968, p. 61.
[58] For text of the 1977 Constitution see: <http://www.departments.bucknell.edu/ russian/consl/1977toc.phpl >
1936 Constitution, Article 17: To every Union Republic is reserved the right freely to secede from the USSR'.
For text see: <http://www.departrnents.bucknell.edu/russian/const/ 1936toc.phpl >
1924 Constitution: [Part One: Declaration on the Formation of the Union of Soviet Socialist Republics] 'The will of the peoples of the Soviet republics, unanimously proclaimed at their recent congresses of Soviets in the decision to form the 'Union of Soviet Socialist Republics', is a sure guarantee that this Union is a voluntary association of peoples with equal rights, that each is assured of the right of free secession from the Union, that admission to this Union is open to all socialist Soviet republics, those existing now as well as those arising in the future ...' Article 4: 'Every union republic shall retain the right of free secession from the Union1. For text see: A.L. Unger, Constitutional Development in ihe USSR, London, Methuen, 1981, pp. 58-72 at 60 and 62.
[59] For text see: H. Hannum, Documents on Autonomy and Minority Rights, Dordrecht, Martinus Nijhoff, 1993, pp. 753-760.
[60] Ibid, p. 754.
[61] See (Tass, Moscow, in Russian, 1659 gmt, 30 August 1991) (SU/1165 I, 31 August 1991): 'Azerbaijan declares independence'.
[62] For text see (Armenian Radio, Yerevan, in Armenian, 1730 gmt, 2 Sept 1991) (SU/ 11708/13,6 Sept 1991).
[63] (Moscow Home Service. Moscow, in Russian, 1630 gmt, 5 April 1991) (SU/1042 B/7, 10 April 1991).
[64] For the texts of the four drafts see: 24 November 1990 (Pravda, Moscow, in Russian, first edition, 24 November 1990) (SU70931 C3/1, 26 Nov. 1991); 9 March 1991 (Izvestiya, Moscow, in Russian, union edition, 9 March 1991) (SU/1017 Cl /I, 11 March 1991); 27 June 1991 (Tass, Moscow, in Russian, 1440 gmt, 26 June 1991) (SU/1110 C1 /1, 28 June 1991); 15 August 1991 (Sovetskaya Rossiya, Moscow, in Russian, first edition, 15 August 1991) (SU/1152 Cl/1, 16 August 1991).
[65] For extracts of the text of the Constitution, see: H. Hannum (ed.), Documents on Autonomy and Minority Rights, Dordrecht, Martinus Nijhoff, 1993, pp. 762-768 at 762.
[66] International Legal Materials, 31 (1992) pp. 1486-1487.
[67] Ibid, pp. 1501-1505 and 1507-1517.
[68] Ibid, pp. 1497-1500.
[69] Ibid, pp. 1494-1497 at 1497.
[70] Ibid, pp. 1499-1500 at 1499.
[71] Ibid, p. 1500.
[72] Ibid, pp. 1497-1499 at 1498-1499.
[73] Ibid, pp. 1499-1500 at 1500.
[74] Ibid.
[75] Case Concerning the Frontier Dispute (Burkina Faso/Republic of Mali), Judgment of 22 December 1986, International Court of Justice Reports (1986), pp. 554-663 at 565.
[76] ibid, pp. 565-567.
[77] On 27 March 1989, by constitutional amendment.
[78] B. Kingsbury, 'Claims by Non-State Groups in International Law', Cornell International Law Journal, 25 (1992), pp. 481-513 at 488.
[79] A. Eide, 'In Search of Constructive Alternatives to Secession', in C. Tomuschat (ed.), The Modern Law of Self-Determination, The Hague, Martinus Nijhoff, 1993, pp. 139-176 at 140.
[80] 'An Agenda for Peace, Preventive Diplomacy, Peacemaking and Peacekeeping'. UN doc. A/47/277 (17 June 1992) at para. 17.

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