Legal basis for self-determination vs. territorial integrity

Question

There are many examples where self-determination means secession of a territory from a state, typically opposed by the latter. The most obvious recent example are the eastern regions of the Ukraine, but one could cite many other examples:

• In the cases of South Ossetia and Abkhazia, Turkish and Iraqi Kurds, and Catalonia the secession is opposed (or, at least, not encouraged) by most western powers.
• The most recent case of widely recognized independence is that of South Sudan, but also that of Israel or the Palestinian people (the latter is not a de facto independence, but widely supported throughout the world). The breakup of Yugoslavia provides an extreme example, where several parts of this country seceded from it one after another, with different degree of western support.
• There are also ambiguous cases of de facto independence, not acknowledged for political reasons, e.g., Taiwan, Hong Kong, or the cases where the international community is ambivalent - e.g., independence of Scotland before and after the Brexit vote.

Wikipedia article on self-independence contains a list of other notable cases.

Obviously, whether a nation is recognized independent or not is eventually determined by whether this independence is acknowledge by most of the international community or, at leats, by its more influential members. The question is therefore somewhat abstract:

Is there a clear legal basis (in international law) for distinguishing the cases of legitimate quest for self-independence vs. the illegal violations of territoral integrity or is upholding one or the other merely a matter of political expediency?

A related question: United Nations : Right to Self Determination and Secession working groups?

Answer 1

I think looking for a legal basis is asking the wrong question. There is no equivalent to an international legislature. There are mostly a collection of bilateral and sometimes multilateral treaties that are enforced on the members, by the members (usually through some threat of force). In theory, you can think of these treaties contracts, but contracts are enforced through a higher power (local law) and since nations are sovereign, there isn't a higher enforcement mechanism. That is not to say that there isn't a such thing as international law, but the enforcement is pretty much voluntary which mostly means it's ignored in a lot of cases where the violators are members of committee responsible (e.g. USA, China, and Russia not in any particular order) and in cases where the members are not willing to actually enforce the measures out of fear of retaliation (e.g. DPRK).

The idea of an international body is mostly a 20th century invention. Prior to then, diplomacy was the usually method of enforcement (war being on of the methods of diplomacy). As an example, the British Empire composed of the various colonial holding in North America. A subsection of these (the 13 colonies) decided unilaterally that they have a right to self determination. Obviously, the British did not agree with such an idea, but others who where not friendly with the British (such as the [French2) decided to side against the British and went to full out war with them (which wasn't uncommon between them). Fast forward 80 or so years, ironically in the United States, a group of states decided that they no longer wished to be part of the United States and a similar scenario played out. Only this time, the international parties treated this as a civil war instead of picking sides and in the history books, that's what it was decided as (an insurrection that was put down). After all, war requires the recognition of both parties, something that the Europeans did not want to weigh in on.

In the next century, similar things occur with geographical areas that used to be part of some colonial empire. A common example is post WWII Korea, which was a colonial holding of Japan for about half a century. Historically (which is a very bad term since historically the entire near East was called "Greece"), the region was unified under a common people in a kingdom called Joseon. Prior to the Treaty of Shimonoseki, whatever ruling dynasty in China claimed that Joseon was a vassal state of China. For non-altruistic reasons, Japan ended this relationship and later became the suzerain of Joseon and finally fully annexed the region prior to the start of the first world war. So after the disintegration of the empire post WWII, what does Korea become? The United States likely had some idea that Korea was going to be absorbed by its other neighbors (USSR or post civil war China). Which means it conveniently has a reason to recognize its independence (so long as it does not politically align with it's enemies). So the Korean civil war became a proxy war for greater powers. A similar situation occurs in China and later Vietnam. When the problem came with China however, the United States was not willing to engage in a hot war so it decided to only recognized the more powerful entity (PRoC) with the One China Policy.

In other words, each situation was cherry picked based on political will to pursue the case? After all, the United States (e.g.) seems to support creating these substates of ethnic minorities in Syria, but not Israel. Since creation of states based on "historical boundaries" is obviously ridiculous (as it would place Turkey and Egypt under Greece, and simultaneously under Italy, via Rome) there isn't really a framework for what is reasonable or not to interfere with as each country has a right to simply ignore the issue.

Answer 2

I think international law doesn't have a lot say about this. In the Kosovo case, which is probably the one that got the most "lawyered" in recent memory, the conclusion of the ICJ was that under some circumstances international law doesn't make it illegal, i.e. it's what one might call a "political question" (in some legal systems). To quote myself from a what I said to a related Q:

It's also (perhaps) worth noting in this regard that even more ambiguous statements ... of ambiguity such as the famous UNSC resolution 1244, which guaranteed the territorial integrity of the Federal Republic of Yugoslavia (FRY) but without explicitly committing to whether Kosovo was or wasn't part of that guarantee, while speaking of a need for a "final settlement" for the latter territory have led to Kosovo's independence being fairly broadly recognized. (Kosovo is recognized as independent by about half the UN countries, mostly Western ones, but not by China and Russia, and probably most developing countries fall in the latter category [of non-recognition] as well.) In their advisory opinion, the majority of the ICJ judges have explicitly relied on the ambiguity of UNSCR 1244 as not precluding Kosovo's independence, in conjunction with the fact that FRY had not exercised "continuing sovereignty" over Kosovo (in Kosovo's case that was due to UN temporary administration being imposed over the territory following human rights violations by FRY forces.)

So the the lack of "continuing sovereignty" of the PRC over Taiwan (as in never exercised) can indeed be argued as highly relevant, although I'm not sure if the US (through its official representatives) has elaborated on this point in re Taiwan, especially in recent times.

The ICJ's own press release/summary:

The Court first sought to determine whether the declaration of independence was in accordance with general international law. It noted that State practice during the eighteenth, nineteenth and early twentieth centuries “points clearly to the conclusion that international law contained no prohibition of declarations of independence”. In particular, the Court concluded that “the scope of the principle of territorial integrity is confined to the sphere of relations between States”. It also determined that no general prohibition of declarations of independence could be deduced from Security Council resolutions condemning other declarations of independence, because those declarations of independence had been made in the context of an unlawful use of force or a violation of a jus cogens norm. The Court thus concluded that the declaration of independence in respect of Kosovo had not violated general international law.

[...] resolution 1244 was silent on the final status of Kosovo, whereas the declaration of independence was an attempt to finally determine that status.

The ICJ opinion essentially does state that the UNSC has the power to declare some such declarations illegal

[112. ...] if the Security Council had wanted to preclude a declaration of independence, it would have done so in clear and unequivocal terms in the text of the resolution, as it did in resolution 787 (1992) concerning the Republika Srpska. [...]

[114. ...] For example, although the factual circumstances differed from the situation in Kosovo, only 19 days after the adoption of resolution 1244 (1999), the Security Council, in its resolution 1251 of 29 June 1999, reaffirmed its position that a “Cyprus settlement must be based on a State of Cyprus with a single sovereignty and international personality and a single citizenship, with its independence and territorial integrity safeguarded” (para. 11). The Security Council thus set out the specific conditions relating to the permanent status of Cyprus.

By contrast, under the terms of resolution 1244 (1999) the Security Council did not reserve for itself the final determination of the situation in Kosovo and remained silent on the conditions for the final status of Kosovo.

So yeah, it's more or less at the whim of the UNSC to declare declarations of independence illegal, if they can get a consensus for that, and that lays down the [international] law in specific cases, in the negative sense, as a prohibition in specific cases, as far as the ICJ was concerned.

The issue of "continuing sovereignty" isn't argued anywhere at the same length in the ICJ opinion (it's mentioned in the preamble and at para 98) but I think one could argue that a distinguishing factor was that the interruption of Serbia's continuing sovereignty over some parts of its territory was itself a UNSC decision, whereas e.g. in Cyprus or Republika Srpska case, the UNSC didn't even agree to that much, i.e. to suspend Bosnia or Cyprus' sovereignty over parts of its territory.

Answer 3

Is there a clear legal basis (in international law) for distinguishing the cases of legitimate quest for self-independence vs. the illegal violations of territoral integrity or is upholding one or the other merely a matter of political expediency?

No. There is nothing the least bit clear regarding how to resolve this inherent tension between two principles of international law.

I can't think of a single instance in which these issues both presented themselves in which there was a consensus resolution.

Territorial integrity is only clear when it is not in conflict with the principle of self-determination, e.g., when a stranger country conquers a country without invoking the self-determination rights of its residents, and really, even then it isn't clear, because there can be other justifications in international law for impairing a country's territorial integrity (e.g. the country allows people to attack the invading country with impunity from its territory).

Self-determination, even in isolation, is almost never clear either.