VI.

Effective Entities

Finally, it is necessary to refer briefly to cases where an entity

cannot lay claim to any self-determination status, be it colonial,
constitutional or remedial, but manages nevertheless to exhibit the
criteria necessary for statehood (that is, territory, population and
effective government).
Most cases of successful secession or dissolution have occurred
with the consent of the relevant central authorities (United Arab
Republic, Mali Federation, Malaysia-Singapore, Czechoslovakia,
Yemen, Eritrea) or in the colonial context. There are hardly any
examples of unilateral opposed secession that have remained
effective over the long term. As noted above, the case of
Bangladesh appears to be truly exceptional given the special role
played by India. In that case, elements of state practice did initially
reject the result, as evidenced in the records of the UN General
Assembly, but this position was not maintained over time.
Moving on to contemporary practice, it is difficult to deny that
Somaliland constitutes an effective entity. After well over a decade
and a half of effective independence, it is tempting to argue that
this entity should now enjoy at least pre-state rights. In other words,
it should be protected by the doctrine of territorial integrity from
forcible attempts at re-incorporation. However, that case is as yet
unsettled and its status remains precarious until it is confirmed
through an internationalised agreement or recognition. The
hesitancy with which it has been addressed by the international
community still confirms the cautious approach adopted in favour
of the maintenance of the doctrine of territorial unity.
Nevertheless, there is evidence of a gradual recognition of a
distinct status of the people of Somaliland on the basis of
prolonged separate and independent administration, and the first
recognitions may soon be forthcoming.
Similarly, the outcome of the Kosovo issue is also still open,
although only to a limited extent. As it becomes clear that Kosovo
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cannot be forced back into Serbia, the number of state recognitions
is set to rise further. Moreover, it is necessary to recall that Kosovo
achieved de facto independence, but it did not do so in a strictly
unilateral setting comparable to that of Somaliland. Instead, its
position ripened during international administration under the
‘standards before status’ process. While there was ultimately no
acceptance of the Ahtisaari package by either Belgrade or the
Security Council, independence nevertheless took place under the
constraints imposed by that package, and is now internationally
supported. Kosovo is therefore, on the one hand, an effective entity,
but its situation is unique inasmuch as it was generated through an
internationalised process.
More generally, it is possible to analyse the situation of effective
entities in two ways. The first is simply to point to the objective
criteria of statehood. If an entity manages to exhibit a defined
population and territory that is subjected to an effective
government, and if the entity has also made manifest the will to be
a state, then it is a state. That manifest will, exhibited in a
declaration of independence or an independence constitution will
need to be backed by an assessment of popular support through a
referendum. Moreover, statehood must not be tainted by jus cogens
violations.
Recognition is generally only seen as declaratory, that is to say, it
reflects a status that already exists, rather than creating it. However,
with respect to effective entities, declaratory recognition by other
states is particularly important. For, until an entity has attracted such
recognition, it is difficult to confirm whether it is sufficiently effective
as to merit statehood. Somaliland offers a convenient example.
Until it manages to garner at least some recognitions, it will remain
unable to actualise any of the rights to which it lays claim.
Prolonged effectiveness, even in the absence of recognition,
might also yield status in a second, slightly different category of
cases. These are instances where a population makes manifest its
desire to act together as an organised political community
independent of others on a defined territory, but does not formally
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 Escaping the Self-determination Trap
declare a separate state in relation to that territory. This
manifestation of popular will through prolonged self-
administration, independent of any external power, must
ultimately also be reflected in some form of legal status. For
instance, most governments have recognised the People’s Republic
of China (PRC) and its authority in relation to Taiwan. On the
other hand, Taiwan claims continuity of its prior status, rather than
separate statehood as Taiwan. Hence, in this case, the subjective
criterion of a declared will of statehood has not been fulfilled,
although there are occasional musings about whether a referendum
should be held in anticipation of such an act.
The question arises as to what the legal position of such an entity
would be in the event that it was faced with the prospect of forcible
incorporation. There would certainly be room for the argument
that this would amount to violation of the right to self-
determination of the Taiwanese population, even if the vast
majority of governments accepts the PRC claim that the territory
is de jure part of China. Such an application of the doctrine of self-
determination would reflect the entity’s separate legal identity,
developed in this instance over half a century of self-rule. However,
it has to be admitted that this theory is as yet untested.
A further complicated issue arises in the context of effective
entities of uncertain status. This is the question of the effect of
pronouncements by the UN Security Council. It is clear that the
adoption of an unambiguous Chapter VII declaration, declaring
invalid an entity’s claim to statehood, would determine that entity’s
status in a definite and legally binding way. However, in several
cases, the Council has acted less decisively.
Numerous resolutions have been adopted that have confirmed
the continued territorial integrity of various states under threat of
secession. In fact, different categories of states can be distinguished
here. The first relates to states that might face challenges to their
territorial unity in future. For instance, in December 2007, the
government of Iraq requested that the Security Council adopt a
resolution which affirmed the “unity and territorial integrity of
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Iraq” – a request with which the Council duly complied.84 These
pronouncements are legally significant, as they confirm the
preference of the Council, and the organised international
community, for the doctrine of territorial unity. However, given
their general nature, they would not preclude statehood on the part
of a secessionist entity per se. As secession remains a matter of fact,
the Council would need to take far more specific action to render
such a step internationally unlawful.
A second type of case concerns instances where a secessionist
conflict is ongoing. For instance, when addressing the Darfur
conflict, the Council routinely reaffirms its commitment to the
unity, independence and territorial integrity of Sudan.85 During the
2001 crisis in Macedonia, the Council reaffirmed its commitment
to the sovereignty and territorial integrity of that state and other
states in the region, referring in that context to the Helsinki Final
Act.86 This group of cases also includes Somalia – an instance
where the secessionist entity of Somaliland already mentioned
above has long been stabilised. Nevertheless, to this day, the
Council routinely reaffirms its “respect for the sovereignty,
territorial integrity, political independence and unity of Somalia”,
without reference to the de facto situation that has now long
characterised Somaliland.87 However, it would not be correct to

84
Resolution 1790 (2007), 18 December 2007, containing the letter dated 7 December
2007 as Annex 1. Text available at http://www.iamb.info/pdf/unscr1790.pdf, accessed
3 November 2008.
85
Resolution 1779 (2007), 28 September 2007. In fact, given the Council’s endorsement
of the Comprehensive Peace Agreement of 2005, which provides for self-
determination for Southern Sudan, this provision is particularly interesting. Full text
available at http://daccessdds.un.org/doc/UNDOC/GEN/N07/521/58/PDF/
N0752158.pdf ?OpenElement, accessed 3 November 2008.
86
Resolution 1345 (2001), 21 March 2001. Full text available at http://daccessdds.
un.org/doc/UNDOC/GEN/N01/298/89/PDF/N0129889.pdf ?OpenElement,
accessed 3 November 2008.
87
Resolution 1831 (2008), 19 August 2008, Preamble. Full text available at
http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-
CF6E4FF96FF9%7D/Somalia%20S%20RES%201831.pdf, accessed 3 November
2008.

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 Escaping the Self-determination Trap
assume that such pronouncement would prejudice statehood for
Somaliland de jure.
A few months before Russia’s recognition of Abkhasia and South
Ossetia, the Council:88
Reaffirm[ed] the commitment of all member states to the sovereignty,
independence and territorial integrity of Georgia within its
internationally recognized borders and support[ed] all efforts by the United
Nations and the Group of Friends of the Secretary-General, which are
guided by their determination to promote a settlement of the Georgian-
Abkhaz conflict only by peaceful means and within the framework of the
Security Council Resolutions;

Again, it is not clear that this pronouncement would, in itself,

render Abkhasia a positive non-state, although it may point to
certain factors relevant to its coming into being that may generate
such a result. This also concerns external action in this case. Where
the text addresses relations between states, this will reflect
mandatory international legal requirements, such as the rules of
non-intervention and the non-use of force. However, it does not
appear that Council action of this kind legally addresses the entity
claiming secession within the state.
Council directives aimed at non-state actors are not unknown. For
instance, the Council has addressed itself directly to the UNITA
movement in Angola and even imposed sanctions in relation to it.
No such intent is visible in the instances noted above, although a
very strong policy preference is articulated in favour of territorial
unity. However, as evidenced by the Council’s endorsement of self-
determination settlements that offer the option of independence to
secessionist units, this preference can be overturned.89
Third, there are resolutions that specifically oppose certain types
of conduct. For instance, in relation to Abkhasia, the Council

88
Resolution 1808 (2008), 15 April 2008, substantive paragraph 1. Full text available at
http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-
CF6E4FF96FF9%7D/Georgia%20SRES1808.pdf, accessed 3 November 2008.
89
See sections VIII to XIV below.

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 Effective Entities
expressed at an early stage its concern in relation to reports of
ethnic cleansing and other serious violations of international
humanitarian law, affirming the sovereignty and territorial integrity
of the Republic of Georgia in the process.90 This would lend
credence to the argument that Abkhasia’s actions involved a jus
cogens violation that might have consequences for its status.
The Armenian armed action in Azerbaijan, which resulted in
declared statehood for Nagorno-Karabakh, was expressly
condemned by the Council, although not under the mandatory
terms of Chapter VII of the Charter. In that context, the Council
reaffirmed both the sovereignty and the territorial integrity of
Azerbaijan, but also the inviolability of international borders and
the inadmissibility of the use of force for the acquisition of
territory. Moreover, the Council demanded the “immediate,
complete and unconditional withdrawal of the occupying forces”.91
These findings and demands were relevant to Nagorno-Karabakh’s
campaign for statehood. While the Council did not formally
declare it a ‘non-state’, it confirmed that the entity had come into
being in violation of jus cogens rules. Hence, the inference was that
it could not obtain statehood on that basis.
In a fourth type of pronouncement, the Council might address a
purported change of status directly. After the declaration of a
‘Federated Turkish State’ in Cyprus, the Council called on all states
to respect the territorial integrity of Cyprus. It “regretted” the
unilateral decision relating to status as “tending to compromise”
negotiations on a mutually acceptable solution. It affirmed that the
decision would not “prejudice” the final political settlement.92 This
very cautious action, taken without reference to Chapter VII, was
not in itself sufficient to render the change of status null and void.
Instead, such an effect would be produced by the underlying jus

90
Resolution 876 (1993), 19 October 1993. Full text available at http://www.
unomig.org/data/file/344/19oct93.pdf, accessed 3 November 2008.
91
Resolution 853 (1993), 29 July 1993. Full text available at http://www.un.int/
azerbaijan/documents/scresolutions/853.pdf, accessed 3 November 2008.

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 Escaping the Self-determination Trap
cogens rule on the non-use of force. In fact, in 1983, the Council
addressed the purported declaration a Turkish Republic of
Northern Cyprus. It:93
Deplores the declaration of the Turkish Cypriot authorities of the
purported secession of part of the Republic of Cyprus;
Considers the declaration referred to above as legally invalid and calls for
its withdrawal.
…

This text was addressed directly to the non-state authorities. It also

expressed the Council’s views on the legal relevance of their action.
Given its rather soft formulation, the resolution would probably not
in itself be constitutive of a separate and independent ground for
invalidation of the act. Instead, it can again be best explained as
authoritative confirmation of the existing principles of general
international law, in view of the jus cogens dimension of this case.
Similarly, resolutions 216 (1965) and 217 (1965) of the Council
on Southern Rhodesia were not adopted under Chapter VII of the
Charter. However such an invocation might not be necessarily
expected.94 Even in the post-Cold War environment, where
Chapter VII action became easier to secure, the Council has made
determinations of this kind with the evident intention of creating a
binding effect, but without express reference to Chapter VII.95
In 1965, the Council condemned “the usurpation of power”, by
Southern Rhodesia, regarding its declaration of independence as
legally invalid.96 Moreover, the Council called upon all states not
92
Resolution 367 (1975), 12 March 1975. Full text available at http://www.unomig.
org/data/file/344/19oct93.pdf, accessed 3 November 2008.
93
Resolution 541 (1983), 18 November 1983. Full text available http://www.un.int/
cyprus/scr550.htm, accessed 3 November 2008.
94
See Legal Consequences for States of the Continued Presence of South Africa in Namibia, 1971 ICJ
16.
95
Resolution 662 (1990), 9 August 1990: “Decides that annexation of Kuwait by Iraq
under any form and whatever pretext has no legal validity, and is null and void”. Full
text available at http://daccessdds.un.org/doc/RESOLUTION/GEN/NR0/575/
12/IMG/NR057512.pdf ?OpenElement, 3 November 2008.
96
Resolution 217 (1965), 20 November 1965, para 1. Full text available at http://
daccessdds.un.org/doc/RESOLUTION/GEN/NR0/222/88/IMG/NR022288.pdf ?
OpenElement, accessed 3 November 2008.

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“to recognize this illegal authority and not to entertain any
diplomatic relations with it”. Here, the effect of the Council
pronouncement is constitutive of an obligation not to recognise,
and disrupts any legal effects that might otherwise flow from the
entity’s effective independence.97 In view of the fact that the
doctrine of jus cogens was perhaps not fully formed at the time, this
episode can be seen as having contributed significantly to the
doctrine of ‘non-states’ in the international system, i.e., those
entities that exhibit the objective criteria of statehood, but that
cannot mature into states due to defects at the moment of their
birth.98

97
It might be subject to argument whether at that time, a jus cogens effect would have
existed in general international law in relation to this kind of issue. Instead, this episode
strongly contributed to that very development.
98
Crawford, The Creation of States in International Law, supra n. 12, 107.

77