The life of the State

From its formation (§1) to its dissolution (§2), the law provides a framework for the process
by which a collectivity meets the conditions for constituting and maintaining itself as a State.

§1 Formation of the State

Today, there is no longer any inappropriate land (terra nullius): all of it is the object of a
territorial title, so that a new State can only be constituted as a spatial entity (as a "country")
from the territory of an existing State. We must first consider the different modalities of
emergence of the State collectivity (A) before focusing more precisely on one of them:
secession (B).

A) Modalities of emergence of the State collectivity: substitution and secession

Two modes of state formation are possible, depending on whether the existing state survives
(2) or not the access of a new being to statehood (1).

1. Substitution: disappearance of the predecessor State

This is a situation in which the emergence of the new State or States entails the
disappearance of the old one, the substance of the latter being redistributed to the benefit of
the new State or States. The two most common formulas are merger and demerger.
(i) Amalgamation - In amalgamation, two or more States combine to form a single State,
which replaces its predecessors.
There is no shortage of examples: the constitution of the United States of America in 1787 by
the merger of the 13 states that had become independent a few years earlier; the constitution
of Tanzania in 1974 by the merger of Tanganyka and Zanzibar; the constitution of the United
States of America in 1949 by the merger of the United States of America and the United
States of America; and the constitution of the United States of America in 1949 by the
merger of the United States of America.
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Yemen in 1990 through the merger of the Yemen Arab Republic and the People's
Democratic Republic of Yemen, which were dissolved in favour of the former.
The merger does not always operate on an equal footing between the states concerned. In
fact, one of the states may play a driving, dominant role, to the point of being at the origin of
the merger, which is similar in some respects to an incorporation. Cf. the merger of the
German Democratic Republic and the Federal Republic.
(ii) The split - In the split, a single State breaks up and gives rise to at least two States which
replace the predecessor. This was the case with the break-up of Czechoslovakia in 1993,
which was split into two new states that replaced the former state.
In both cases, mergers as well as splits, the previously existing state - the predecessor state
- disappears so that there is no conceivable continuation of states, but only new states: none
of the newly constituted states can claim to be the continuator of the other (i.e., continue its
personality), which no longer exists. All of them participate in the succession of the
predecessor state as a new state.

2. Secession: survival of the predecessor state

Secession consists in the amputation of the territory of a State for the benefit of a new State
which establishes itself on this portion of the cut-off area. All the cases of independence of
colonies correspond to this pattern: the space occupied by the colony, formerly belonging to
the spatial base of the colonizing State, is then detached from it to constitute the spatial base
of the new State. But the phenomenon is not limited to decolonization, and concerns the
more general phenomenon of emancipation of a given province or community from the state
community as a whole. The international society is thus increased by one unit, or even by
several.
There is no shortage of examples: the emancipation of Belgium from the Netherlands in
1830; the emergence of states in the Balkans at the expense of the Ottoman Empire (end of
the 19th century); the emancipation of Panama from Colombia in 1903; the emergence of
Finland and the Baltic States at the expense of the Russian Empire at the end of the G.I.M.;
the creation of Bangladesh at the expense of Pakistan in 1971.
The State whose spatial base is diminished is not affected in its statehood: the principle of
continuity normally shelters it from mutations that affect its substance, and it is as a
continuator of the predecessor State (which means that its legal personality has remained
unchanged) that it intervenes within the framework of the succession of States that results.
3. Difficulties of qualification: substitution or secession?
Sometimes, certain hypotheses do not fit neatly into these classifications and it is very
difficult to conclude that they are secession or substitution. The question arose in connection
with the dissolution of the USSR and the former Yugoslavia.
In the case of the Soviet Union, all the states that emerged from the break-up, with the
exception of Russia, were considered to be new states (by themselves, by Russia and by
third parties). The situation was thus easily understood as a secession, leaving the Union
that Russia is deemed to continue: the Union does not disappear in law but changes its
name and sees its spatial base amputated to the benefit of new states formed on part of its
former territory. Russia is thus the same state as the Union (predecessor), its continuator,
and it is in this capacity that it intervenes within the framework of the succession of states.
In the case of the former Yugoslavia, the qualification of the situation arose because of the
differences of opinion on the issue. Serbia and Montenegro saw itself as a continuation of
Yugoslavia in a reduced form. In its view, the new states (Slovenia, Croatia, Bosnia-
Herzegovina and Macedonia) were the result of secession. But most third states refused to
see Serbia as a continuation of Yugoslavia.
slavia. The so-called (wrongly) Arbitration Commission of the Conference for Peace in the
Former Yugoslavia was seized with the question of whether the dismemberment of the SFRY
is a secession or a substitution, which implied that the Commission had to decide on the
disintegration of the SFRY. If it is disintegrated, no power could claim to be its continuator; all
succeed it on an equal footing: it is a substitution. If its existence is maintained, if its
statehood is not affected by the independence of some of its elements, then the operation is
akin to secession. The so-called arbitration commission reasoned in terms of a split, bringing
about the disappearance of Yugoslavia, and making Serbia a new state.
The Conference took into account the federal nature of the former Yugoslavia and
considered it to be in a process of dissolution: its political organization has disappeared as
soon as the federated states no longer participate in the exercise of power and are no longer
represented. With this modification, it is no longer the same state that is involved: there is a
substitution.
The distinction is not insignificant. The fact of participating in the succession of the
predecessor state as a continuator state is a privileged status in a succession regime where
the sharing will be unequal in principle. For a State, asserting itself as the continuator State
allows it to benefit from a position of strength in the distribution of the patrimony of a State
deemed to be identical. And the main political issue in both situations was related to the
participation of the successor in the UN, and in particular for Russia as a permanent member
of the Security Council on the seat of the Union.
This distinction also has consequences from the point of view of the rights of communities
claiming to be a state. International law distinguishes between two types of secession.

B) Special case: the different kinds of secession

International law distinguishes between two types of secession: that which should lead to the
formation of a new State from a colonial collectivity, and which should therefore only benefit
colonial or non-self-governing peoples (1); and that which should lead to the formation of a
new State from a non-colonial collectivity, and which should be considered, if not as unlawful,
then at least as not involving any right on the part of the collectivities claiming it (2).

1. The right of secession of non-self-governing (or colonial) peoples: the right of peoples
to self-determination

a. Legal consecration

The right of non-self-governing peoples to self-determination or "the right of peoples to self-

determination" is the legal translation of anti-colonialism, legally enshrined at the time of the
accession to autonomy of the colonies of European States.
As it was initially conceived, the Charter did not really provide for the independence of non-
self-governing peoples. It is true that the principle of the "right of peoples" was affirmed. But it
simultaneously organized the establishment of a system of international administration of
autonomous territories (a system known as "trusteeship" inherited from the "mandate"
system of the League of Nations, entrusting a power with the administration of the territory in
question), a form of institutionalization of colonialism. It is only through the interpretation of
the text of the Charter that the "right of peoples" will take on the meaning we know today.
The first movement in the direction of such a consecration (and of an interpretation of the
Charter in this sense) was resolution 1514 (XV) of 14 December 1960, on the Declaration on
the granting of independence to colonial countries and peoples. This Declaration
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This Declaration describes as contrary to the United Nations Charter "the subjection of
peoples to alien subjugation, domination and exploitation", and proclaims their "right to self-
determination" understood mainly as a right to independence, which must be obtained
without delay within the present spatial framework of the territories concerned. The
Declaration on Principles of International Law (...) [res. 2625(XXV) of 24 October 1970],
adopted by consensus after a major wave of decolonization, subsequently recognized the
status of non-self-governing territories as "separate and distinct from that of the territory of
the State which administers them" and confirmed the duty of every State "to refrain from any
coercive measure which would deprive non-self-governing peoples of their right to self-
determination. Today, the right of peoples to self-determination is generally accepted and is
recognized in several opinions and judgments of the International Court of Justice as being
based on universal custom (opposable erga omnes, even to the persistent objector).
In its opinion of 21 June 1971 on the Legal Consequences for States of the Continued
Presence of South Africa in Namibia, the International Court of Justice considered that the
current development of international law with regard to non-self-governing territories "has
made self-determination a principle applicable to all such territories. The Court adds that
"[b]ecause of this development, there can be little doubt that the 'sacred trust' referred to in
Article 22, paragraph 1, of the Covenant of the League of Nations had as its ultimate
objective the self-determination of the peoples concerned" (see in the same sense, Opinion
of 16 October 1975, Western Sahara). This is an a posteriori interpretation of the Charter, not
with regard to the intention of its drafters, but with regard to the contemporary context and
the will of its current participants. In the judgment of 30 June 1995, East Timor, the Court
even specified that the right of peoples to self-determination is a
In the East Timor judgment of 30 June 1995, the Court even stated that the right of peoples
to self-determination is a "right enforceable erga omnes", meaning firstly that it is based on a
universal custom enforceable against all, even persistent objectors, and secondly that each
State has its own right to see it respected. This evolution is recalled in the opinion delivered
in July 2004 on the Consequences of the Construction of a Wall in Occupied Palestinian
Territory.
See also Article 1 common to the International Covenant on Economic, Social and Cultural
Rights and the International Covenant on Civil and Political Rights, which reaffirms the right
of all peoples to self-determination and obliges States parties to facilitate the realization of
this right and to respect it, in accordance with the provisions of the United Nations Charter.

b. Significance

The substance and scope of the principle must be clarified, as they considerably reduce its
scope.
(i) Consistency - From the point of view of its consistency, the right of peoples does not cover
a right of the people to decide and set up representative, political, economic and social
institutions. It does not in any way enshrine the requirements of pluralist democracy, since
each State (and the community constituting it) remains entirely free to choose the form of its
government without it being imposed on it from outside. The only condition for acquiring
statehood is the effectiveness (and therefore the independence) of the state.
The right to self-determination is more modestly a right recognized to certain collectivities to
freely determine their fate and the related obligation of the state to allow this free
determination. But only self-determination is a requirement: it is a means conferred on
certain collectivities, the exercise of which may or may not result in emancipation. Even if, in
practice, the exercise of self-determination has generally led to

Even if, in practice, the exercise of self-determination has generally led to the constitution of
former colonies into new States, self-determination as conceived by the texts does not
necessarily imply independence as an end in itself, and thus the institution of the community
considered as a State. It is only a right to a free choice between two alternatives: to
constitute itself as a State, or to be incorporated into an existing State, whether or not it is
itself the result of decolonization.
For example, the people of northern Cameroon, who, in a referendum on self-determination,
decided to join a State resulting from decolonization: Nigeria; or Mayotte, which, at the time
of the referendum on self-determination of the Comoros, chose to remain incorporated into
France, the former colonial power.
(ii) Scope - From the point of view of its scope, the holders of such a right are "non-self-
governing peoples" strictly understood as co-legal peoples. It is therefore not a right
recognized for all peoples, even dependent peoples. This right is recognized only for the
benefit of colonial collectivities, defined by resolution 1541(XV) of 15 September 1960 - in
which practice has seen a legal definition - as those having a character "geographically
separate and ethnically or culturally distinct from the country which administers it", this main
criterion being able to be supplemented by secondary criteria drawn from elements "of an
administrative, political, legal, economic or historical nature" which "arbitrarily place (the
territory under consideration) in a position or state of subordination."

➔ On this basis, a colonial collectivity is a collectivity administratively and geo- graphically

detached from the metropolis, which carried certain consequences from the point of view of
proving the existence of the secessionist state and the very formation of states by way of
secession:
1°) From the point of view of the proof of the existence of the secessionist State - The
invocation of a right to self-determination makes it possible to oppose to the colonial State a
right of the rehabilitated community not yet instituted in the State form to a free choice
between two alternatives: to constitute itself as a State or to be incorporated into an existing
State. For this right to free disposition reflexively implies the duty of the colonial State to
abstain from any measure likely to impede the exercise of self-determination. It therefore
implies that the colonial State must renounce its status as master of the secessionist
collectivity, which makes it possible to consider the conditions for the collectivity's accession
to statehood to be established without further verification. Thus, in situations where the
colonial state does not relinquish all control over the separatist collectivity, the law of peoples
has a significant weight: it prohibits it from contesting the fulfilment of the conditions of
accession to statehood by the emerging collectivity, exempting the latter from proving a
disputed independence.
In addition, the erga omnes character of the principle of self-determination gives it a
particularly remarkable scope, conferring on all States a right to see it respected.3 Any
resistance to the secession of the State of origin or to the creation of a new State is a
violation of this principle. Any resistance to secession on the part of the colonial State would
be considered illicit vis-à-vis all members of international society.
The right to self-determination has an additional scope to the right of each State already
formed to have its own State attributes respected, due to the alleviation of the burden of
proof of the conditions for statehood, together with the erga omnes character of the
obligations it entails.

3 East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, p. 102, §29;
Consequences of the Construction of a Wall in Occupied Palestinian Territory, Advisory
Opinion of 9 July 2004, I.C.J. Reports 2004, §88.
4 The latter applies only to bilateral relations between the State authorities concerned,
without third States being able to invoke any subjective right to respect for the status of their
peers.
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2°) From the point of view of the formation of the secessionist State, it is sometimes difficult
to identify a people within a State community. The definition of colonial collectivities allowed
certain collectivities to be clearly identified within the State from which they were seeking to
secede, to give them contours that they might not in fact have. Moreover, since the principle
is that of self-determination within the framework of the non-autonomous territory as it was
drawn up by the colonial power, the collectivity in question is immediately linked to a given
space, thus little- plied; sometimes quite artificially, moreover, without real social
homogeneity.

2. The absence of the right of secession of peoples other than "non-self-named peoples"
(or colonial peoples)

In spite of a systematic reference to the "right of secession" by secessionist movements, the

principle of self-determination in positive international law functions above all as a means of
protecting States against attempts at secession. The concern of the inter-state community is
to limit the possibilities of legally stimulating the dismemberment of states. This is why no
right to secession has been recognized for peoples other than those under colonial
domination. Only to them the UN Charter recognizes a right to self-determination.
A right to secession may have emerged for the benefit of colonized peoples as a result of the
decolonization movement and growing hostility (especially on the part of socialist countries)
to colonial imperialism. But attempts to generalize a right of secession have met with
negative reactions. All states are attached to their territorial integrity, which they seek to
protect against existing or potential internal movements. In addition, many of the new states
(resulting from decolonization) were formed within the contours of artificial communities, the
devastating effects of which have been seen in the recent past. As for the social countries,
the USSR being the first, they were confronted with internal movements that they wished to
stifle, which is still true today. Thus, the supporters of decolonization and the recognition of
the right of colonial peoples to self-determination were and still are fierce opponents of the
recognition of a broadly conceived right to secession.
As a result, the hypotheses of secession outside the situation of decolonization, apart from
being exceptional, have always been carried out for the benefit of a political context, in which
the legal factors have had no weight. If Bangladesh, for example, was able to emancipate
itself from Pakistan, it was thanks to the support of India and not by virtue of any "right" to
secession. Similarly, Eritrea was only able to secede from Ethiopia in 1991, when the latter
was no longer able to prevent it. On the other hand, attempts at emancipation that did not
benefit from such favourable circumstances were not only unsuccessful, but also met with
almost general hostility on the part of third-party states and international organizations,
showing support for states that were facing secessionist claims within their borders. The
absence of support, the disavowal even, of Biafra's struggle for the constitution of a detached
state from Nigeria provides an example of this; or even closer to us, the stifled attempts at
emancipation by Chechnya.
Declaration 2625 (XXV) states that nothing in its provisions "shall be construed as
authorizing or encouraging any action which would dismember or threaten, totally or in part,
the territorial integrity or political unity of any State. Third states even have an obligation not
to encourage such attempts. Support for secessionist organizations would be tantamount to
unlawful interference, possibly coupled with an infringement of the exclusivity of territorial
jurisdiction. The Charter of the Organization of African Unity of 1963 also proclaims among
its objectives and
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The Charter of the Organization of African Unity of 1963 also proclaims among its objectives
and principles the need to respect and defend the territorial integrity of its members and has
generally endeavoured to limit attempts to challenge the consistency of the communities
established as states after decolonization. In its 2007 opinion on the legality of kosovo's
independence, the ICJ merely noted that the declaration of independence did not violate the
Dip. it stressed that it was in no way a precedent on which other independences could be
based. The court took up the position of the United States supporting the solution of a
remedial independence. A fait accompli, recognized by the great international powers (USA,
EU etc ....).
However, it is necessary to measure the scope of this statement. The fact that international
law only allows secession in cases of colonial domination does not imply that any non-
colonial people is prohibited from seceding. In this respect, the multiple secessions that
occurred in the 1990s, following the collapse of the communist bloc, have not changed the
state of the law on this question. They are merely the translation of a factual reality: the
ability of any community to establish itself as a state as soon as it meets the conditions for
doing so. But, in themselves, these secessions did not lead to the emergence of a right of
non-colonial peoples to self-determination and thus did not affect the duty of third parties not
to encourage attempts at secession, which they merely took note of once they had been
made.
Thus, in the case of the Soviet Union, third parties merely took note of the formation of new
States at the end of a secession to which Russia itself had given up opposing. They have
done so very timidly, moreover, when they have not, far from it, given their support to the
secessionist attempts that Russia is facing, with Chechnya in particular; they have only
condemned the methods used by the Russian authorities but not the principle of repression.
It is true that the Arbitration Commission for the Peace Conference in Yugoslavia reaffirmed
that the right to secession is exercised by a dependent community. But it seems that, in
terms of positive law, dependence is still confused with colonization, which is very narrowly
conceived as affecting communities that are geographically and administratively separate
from the metropolis. For the rest, international law is generally indifferent to the processes of
accession to independence apart from decolonization, which it understands as mere facts to
which it confines itself to giving a legal meaning. This is illustrated by the approach adopted
by the International Court of Justice when it found that Bosnia-Herzegovina had achieved
Statehood without regard to "the circumstances in which it achieved independence"
(judgment of 16 July 1996, Application of the Convention on the Prevention and Punishment
of the Crime of Genocide, preliminary objections).