Self-Determination of Peoples and Plural-Ethnic States in Contemporary International Law : Failed States, Nation-Building and the Alternative, Federal Option [1 ed.] 9789047423478, 9789004158351

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Self-Determination of Peoples and Plural-ethnic States in Contemporary International Law

Self-Determination of Peoples and Plural-ethnic States in Contemporary International Law Failed States, Nation-building and the Alternative, Federal Option

Edward McWhinney, Q.C.

LEIDEN / BOSTON

A C.I.P. record for this book is available from the Library of Congress.

Printed on acid-free paper.

ISBN 978 90 04 15835 1 www.brill.nl © 2007 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Hotei Publishers, IDC, Martinus Nijhoff Publishers and VSP. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher. Authorization to photocopy items for internal or personal use is granted by Brill provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers MA 01923, USA. Fees are subject to change. Printed and bound in The Netherlands.

CONTENTS

Preface: The National and International Faces of Federalism Chapter I: Self-determination of Peoples as United Nations Principle. Historical Roots and Contemporary International Law/Municipal (Constitutional) Law Antinomies A. Historical Origins of the Self-determination Principle B. Self-determination as International Law and Municipal (Constitutional) Law principle Chapter II: Emergence of States in Classical International Law A. The doctrine of Recognition in its Declaratory and Constitutive Variants. Declaratory and Constitutive Theories of Recognition B. British practice: Russian Revolution Cases C. British practice: the Ethiopian War and Spanish Civil War cases D. Post-World War II: Yalta, Potsdam and the Cold War E. Post-decolonization Succession States F. Latin American practice: The Estrada Doctrine G. British practice: The Declaratory Policy of Recognition H. The Balkans. Dilemmas and Contradictions in Contemporary State Policies on Recognition I. European Community Guidelines on Recognition. (1991) J. Opinions of the Badinter Commission (1991-1992) Chapter III: The United Nations Charter and Admission of States, and also their Exclusion A. Admission to functionally-based or regionally-based International Organizations

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1 1 8

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15 17 18 22 23 24 25 27 32 33

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Contents

Chapter IV: The United Nations Charter Principle of Territorial Integrity of States. The Uti Possidetis Doctrine as Element in State Succession A. The uti possidetis doctrine Chapter V: Federalism and Constitutional Pluralism as Self-Determination options for Plural-ethnic States. The Different Faces of Federalism in Comparative Constitutional Law A. Self-determination and Self-government for Indigenous. Aboriginal peoples B. Classical, Anglo-Saxon Federalism and the Deux Nations (Compact) Theory of Federalism C. Dilemmas and Contradictions within Classical. Juridical Federalism D. Federalism and the New Pluralism: Re-defining the Constitutional Game and the Players E. Pragmatic Accommodations: The Trial-and-error of Classical Federalism F. New Thinking on Federalism: New Plural-constitutional Options G. United Nations Initiatives for Federal Solutions for the Former Yugoslavia Chapter VI: Law and Politics and the Dialectical Unfolding of the Self-Determination Principle A. The role of the Legal Advisor B. Résumé: New Thinking on Recognition and State Succession Chapter VII: Excursus. Failed States: The Trial-and-error of Contemporary Exercises in Constitution-making and Nation-building A. Yugoslavia: political implosion of uni-national, multi-cultural state B. Palestine: Self-determination and State Succession dilemmas for the former British Mandated territory C. Iraq: Dance of the Green Table: The legacy of Sykes and Picot D. “Quebecois” as “Nation” within Canada 1. Need for prior representative (multilateral) international consensus 2. Importance of Timing to success or failure

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61 63 66 68 71 74 79 83

87 88 91

95 95 98 104 107 111 112

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3. Local political-legal élite: incorporation into government for defeated countries 4. “Reception” of foreign constitutional-governmental institutions and processes: limits and possibilities 5. Constitution-making and Nation-building: opportunities and pitfalls

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116 118 121

Note on the Author

127

Author’s Publications

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Index

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PREFACE: THE NATIONAL AND INTERNATIONAL FACES OF FEDERALISM

The continuing crises today in multi-national, plural-ethnic states often put together, hurriedly, and with only casual regard for future long-range historical consequences by victors in great wars or similar conflicts, have suggested the re-publication, in expanded and augmented form today, of lectures given in the Annual Session of The Hague Academy of International Law in 2002. [published in Recueil des Cours de l’Académie de la Haye, volume 294 (2002), pp. 167-263]. I am grateful to The Hague Academy and its then Secretary-General, Genevieve Bastid-Burdeau, and its present Secretary-General, Yves Daudet, for the privilege of lecturing to its Annual Session and for the permission to publish the present much revised and expanded text. The most immediate illustration then of the ultimate perils of imposed “Victors’ Peace Treaties” was the final breakdown and dissolution of the Socialist Federal Republic of Yugoslavia (SFRY) after a decade of internecine struggle throughout the 1990s, marked by civil war between its internal regimes (constituent republics) that seemed encouraged, at least in part, by outside, (non-Balkan) players re-living past, pre-1914 Imperial rivalries. The consequences included the forced expulsion, on a massive scale, of civil populations, across pre-existing internal, ethno-culturally-based, regionallystructured territorial boundaries; and also a tragically large loss of innocent, non-combatant civilian lives (sometimes as a result of aerial bombardments by outside (non-Balkan) players. The present author’s interest in federalism and federal institutions and processes as means of harmonizing and reconciling otherwise disparate national, ethnic-culturally-based interests goes back to the early, post-World War II years when the issue was raised by serious political leaders in Continental Western Europe – on the winning and the losing sides in the recent conflict – of whether federalism, viewed as an ongoing constitutional movement or process, could be used to bring together, in common decision-making on matters of high urgency or concern for all states involved, sovereign entities that only a few years earlier had been locked in mortal combat with each other. The present author was invited to join a small Harvard University-based and directed Committee of Experts formed at the opening of the 1950s on the direct initiative of the President

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of then embryonic Mouvement Européen, Belgian statesman Paul-Henri Spaak. The Harvard group was headed jointly by German-born Harvard political scientist, Carl Friedrich, who had been Adviser to the American Military Governor in Germany, General Lucius Clay, and before that member of a wartime planning and organization group set up by the United States Government to prepare the way for eventual U.S. Military Occupation in Germany; and by Harvard law professor, Robert Bowie, who had been Legal Counsel to the U.S. High Commission in Occupied Germany and had been charged in that capacity with U.S. Government overview of the early negotiations by European political leaders for a projected European Coal and Steel Community Treaty, and, as a complementary project to that, a European Defence Community. Paul-Henri Spaak had created a special Task Force – a new Comité pour la Constitution Européenne – to aid the movement for eventual integration of then “core” Western European countries (France, West Germany, Italy, and the three Benelux states). By deliberate choice of Spaak and his colleagues, the achievement of the long-term integration goal should proceed on a highly pragmatic, step-by-step basis, with an initial, functionallybased orientation: hence the choice of Coal and Steel, and acceptance of the need for a common decision-making authority to govern production and distribution of these items, deemed essential to the economic reconstruction of War-torn Europe, in the six “core” countries. It was a dramatic change from the focus of that earlier, pan-European idealism of the between-the-two-World-Wars era whose leaders had always insisted, as starting point, on the elaboration and drafting of an abstract constitutional charter. The Harvard group, under the Bowie-Friedrich direction, did undertake to study existing, “working” federal constitutional systems, such as they were at the time, and to prepare a compendium analysis and critique, in a comparative law perspective, of their main institutions and processes, but with insistence at all times on basing conclusions on the empirical record of operation and practice in concrete cases. This was intended as a guide for any future European Political Union which would, by definition, be a subsequent, final constitutional step, to be approached and taken only after successful achievement of the functionally-based steps, beginning with the Coal and Steel Community which was viewed correctly as vital to the economic revival of post-World War II Europe. At the same time as the research, in depth, of existing “working” federal systems and their practice, the Harvard group also prepared advice and draft action programmes for the European leaders. A collection of the Harvard group’s papers was published in 1954, [as the volume, Studies

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in Federalism (Robert R. Bowie and Carl J. Friedrich (editors) (1954)]. It had earlier appeared in French, in 1953, (in seven volumes); in German in the same year (in two special series of Europa-Archiv, of December, 1953). Professor Friedrich who, independently of his rôle as co-Chair of the Harvard group, had served as special consultant to M. Spaak and the European political movement that Spaak headed, was clearly strongly influential in the operational methodology chosen by the planners for the new Europe: the functionally-based, step-bystep, gradualist progression to the long-range goal of a European federal association of the “core” countries. This essentially dynamic, law-in-the-making, federalism-as-process concept was at the heart of Friedrich’s thinking on federalism. It was, intentionally and by design, in strong contrast to the older “classical”, usually English-language “Anglo-Saxon” studies, devoted too often to the law-in-books and not the law-in-action and, in the result, too often essentially static detailings, a priori, of abstract constitutional charters, divorced from any concrete record of their day-by-day operation as community “living law”. For those interested in follow-up, in depth, on federal institutions and processes as practice in operational constitutional systems, the present author would refer to his earlier published comparative law studies, Comparative Federalism. States’ Rights and National Power (1st ed., 1962; 2nd ed., 1965); and Federal Constitution-Making for a Multi-National World (1966), the latter study commissioned by the American Society of International Law as part of a Federalism project of that time. For discussion of the internal constitutional-institutional checks-andbalances that are vital to the maintenance of a genuinely pluralist federal polity, see also Judicial Review in the English-Speaking World (1st ed., 1956; 4th ed., 1969); Constitutionalism in Germany and the Federal Constitutional Court (1962); and Supreme Courts and Judicial Law Making. Constitutional Tribunals and Constitutional Review (1986). Then Professor Pierre-Elliott Trudeau, in reviewing Comparative Federalism on its first publication in 1962, embraced its central thesis that the life of federalism is pragmatism, involving the continuing adaptation and up-dating of application of antique legal texts contained in constitutional charters from another age, in response to new societal needs and new community expectations of later generations. [Revue du Notariat, 65/9, April, 1963; reprinted in Against the Current. Selected Writings 1939-1996. Pierre Elliott Trudeau (Gérard Pelletier, (editor), (1996), p. 209 et seq.] Trudeau would have the opportunity, on his own direct entry into elected political life some years later, to apply that key concept to his approach, as Prime Minister of Canada, to an historically bi-lingual, “Deux Nations” (French and English) state, but

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in recent years an increasingly multi-national, plural-ethnic society – a community of communities, as it has sometimes been described, with all the challenges and opportunities going with that. I am indebted to my European publishers, Martinus Nijhoff, (a division of Brill Academic Publishers), and in particular to Annebeth Rosenboom, Editor, who has worked with me on a number of my earlier works in International and Comparative Law, for the dedication and care and helpful advice and cooperation, at all times, in bringing the succeeding text to publication in book form. At her suggestion, apart from the up-dating and minor revisions to be expected in the re-publication today of lectures first given some five years ago, I have included a special addendum or excursus – a new Chapter VII – that focuses upon contemporary trial-and-error, essentially ad hoc ventures in constitution-making and nation-building resulting from outside, foreign interventions, (sometimes through recourse to armed force outside the United Nations Charter and International Law in general), in the internal conflicts of extant plural-ethnic or plural-cultural states. Contemporary legal buzz-words for these particular crisis situations that have become an agonising part of international and trans-national relations at the close of the 20th century and in the early years of the 21st century include, variously, “Failed States,” “Nation-building”; plus assorted paradigms of Federal and plural-constitutional solutions in some or all of the above instances. In fact, they reduce very often to pathological demonstrations of the age-old antinomy between Law and Politics – between deference to legal principles and also legal process in concrete problem solving exercises and the invocation of high policy – Staatsraison, Raison d’Etat – as justification for by-passing Classical International Law restraints in the name of the national interest; or, in extreme cases, the survival of the state. This new excursus on the Failed State, Chapter VII, essays the extent to which, in what may be called the post-Cold War era, some form of legal “Rules of the Game” are now emerging or have already emerged, regulating what State actors, (including superpowers) may or may not prudently do in attempting, as they see it, to “correct” past historical errors or misjudgements or leapsof-faith that had unforeseen or unintended consequences, in the creation of multi-national state entities in the aftermath of great military conflicts or as a result of the decisions of big-power conclaves like the celebrated Congress of Berlin of 1878. Edward McWhinney

CHAPTER ONE

SELF-DETERMINATION OF PEOPLES AS U.N. CHARTER PRINCIPLE. HISTORICAL ROOTS, AND CONTEMPORARY INTERNATIONAL LAW/MUNICIPAL (CONSTITUTIONAL) LAW ANTINOMIES A.

Historical Origins of the Self-determination Principle

It is sometimes suggested that self-determination, as an International Law principle, has its origins in U.S. President Woodrow Wilson’s Fourteen Points, addressed to a Joint Session of the U.S. Congress in January, 1918. In fact, the term is nowhere presented in that document. The sources are multiple and go back certainly to the late 18th century Age of Enlightenment.1 An ultimate historical inspiration is clearly traceable to the French Revolution and to the export outside France, by the Revolutionary armies, of concepts of popular sovereignty and the renunciation of wars of conquest. The French Revolutionary inheritance, and its triadic philosophical imperatives of Liberalism, Nationalism and Independence were incarnated in the young Napoleon of the First Consulate period, when the French leader was celebrated, with his victories in the Northern Italian Campaign, as a liberator from foreign rulers and imposed autocratic regimes. In its post-Napoleonic development, throughout the 19th century in Europe, self-determination takes the form of an invoking of the spirit of Nationalism, in order to overthrow and expel reactionary foreign rulers (as with the liberation of Italy from the Spanish Bourbons in Naples and Sicily);

1

The different historical sources and their interaction are sketched out in my preliminary study, “Nationalism and Self-Determination and contemporary Canadian federalism.” Miscellanea W.J. Ganshof van der Meersch, (Universite Libre de Bruxelles, 1972), pp. 219-240.

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or to put together a new, larger, homogeneous political entity, formed out of a number of separate principalities or similar political-territorial units (as with the formation of Imperial Germany and finally a unified Kingdom of Italy). In the key instances cited, self-determination connotes national self-determination and the constitution of ethno-culturally homogeneous nation-states. It is also true that the French Revolution’s triad of principles – Liberalism, Nationalism, and Independence – conjoin and became mutually complementary: in the case of Liberalism, the vindication is seen in the replacement of older, oligarchic, essentially reactionary forces by a much more dynamic and informed and modern-in-outlook, new commercial middle-class élite. The switch from a concept of national self-determination to the somewhat subtler and more nuanced concept of peoples’ self-determination, would come much later – after World War II. The change then was undoubtedly influenced, in considerable part, by the postwar reactions to the pathological excesses committed in the name of Nationalism by authoritarian régimes in Europe in the 1930s and throughout the then recent war. If the change seemed originally directed more to questions of nomenclature than of substance, it soon became accepted as legal term-of-art in United Nations and related international law-making arenas. Self-determination of peoples became the legal rubric in terms of which local, indigenous political movements in European Colonial territories overseas sought to legitimate their claims for breakaway from the parent Imperial country or, less than that, for autonomy and self-governance within those same states. Woodrow Wilson had been re-elected as U.S. President in November 1916, on the claim, in considerable part, that he had kept the U.S. out of the then European war. The President’s Fourteen Points were designed to give intellectual coherence and moral substance to the U.S. latter-day participation in the European conflict. In several subsequent, follow-up statements – notably on 11 February 1918, to Congress, Wilson attacked “balance of power” considerations that had been dominant in classical 19th Century, Metternichean approaches to conflict-settlement within Europe, from the Congress of Vienna in 1815 onwards: Peoples and Provinces are not to be bartered about from sovereignty to sovereignty as if they were chattels or pawns in a game, even that great game, now for ever discredited, of the balance of power.

In a further major address, on 4 July 1918, Wilson also reported that the settlement of every question, whether it be of territory or sovereignty, of economic arrangements, or of political relationship, must be made on the

Self-determination of Peoples as United Nations principle

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basis of the free acceptance of that settlement by the people immediately concerned, and not upon the basis of the material interest or advantage of any other nation or people which may desire a different settlement for the sake of its own exterior influence or mastery.

The judgements of diplomatic history do not always turn on fine points of textual analysis in the quest for ultimate origins. The defeated Central Powers in World War I always considered that they had agreed to the armistice in November, 1918, on condition of acceptance of Wilson’s Fourteen Points, and part of the subsequent charge of betrayal, in Germany, stemmed from the perceived failure of the victors to respect the Fourteen Points. Domestic political critics within the U.S. also concluded that Wilson had sold out at Versailles to his European allies, and his opponents were able to bar U.S. Senate ratification of the Versailles and related treaties. Conversely, among diplomatic historians, Wilson was derided for a too rigid, abstract call for application of the self-determination principle, carried to politically and legal absurd conclusions, with Wilson blamed for the dissolution of the multi-national Austro-Hungarian Empire and the destruction thereby of the balance-of-power system in central Europe, and the creation in its place of a collection of micro-states that lacked both political-economic and military self-sufficiency and that were unable to survive alone when the external political crunch came in the middle and late 1930s. The French Foreign Ministry’s belated recognition, by that time, of the power vacuum that the Versailles settlements had created in central and Eastern Europe and the Balkans brought the attempt to buttress the weak new succession states by an inter-locking system of military alliances – the Little Entente and the Balkan Entente; but it was an example of too little, too late. Self-determination was not recognized, as a general principle, in the Covenant of the League of Nations created (without the participation of the United States) as part of the Versailles settlements. It was, however, clearly influential in the post-Versailles series of treaties on protection of minorities, concluded under the auspices of the League of Nations, and in a number of plebiscites conducted in areas of conflicting national claims so as to determine final disposition of territorial claims and to arrange, where necessary, for peaceful transfer or exchange and resettlement of populations. It was a system that was able to work, well enough, in the 1920’s, before the onset of the world crisis in the 1930s and the challenge by the extreme nationalist forces in the defeated enemy countries of World War I to the fundamentals of the Versailles peace settlements. It does, however, demonstrate what might have been, if a genuine will to apply the self-determination principle, in the full spirit of Wilson’s Fourteen Points, had really been there at Versailles.

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It is sometimes contended that the Great October Revolution of 1917 provides a philosophical starting point for the extension of the self-determination principle from its original 19th century, Eurocentrist emphasis on national unification, as in Italy and Germany, in homogeneous nation-states. The extension on a much more inclusive basis and so as to apply particularly to Colonial peoples under the sovereignty of European Imperial states – the so-called “Saltwater Colonialism” extension – seems more truly a post-World War II development, emerging in the interstices of preparatory acts like the Atlantic Charter of 1941 and the travaux préparatoires for the San Francisco Conference of the Spring of 1945 which gave birth to the United Nations Charter of 1945. Article 1(2) of the United Nations Charter recites as one of the fundamental purposes of the new United Nations, the “principle of equal rights and self-determination of peoples.” It is repeated and concretised in Chapter XII of the Charter, International Trusteeship System, and Article 76 (b) which declares as a basic objective of such Trusteeship to promote the “progressive development (of the inhabitants of the Trust territories] towards selfgovernment or independence as may be appropriate to the . . . freely expressed wishes of the peoples concerned.” The United Nations General Assembly’s striking Resolution 1514 (XV) of 14 December 1960, adopted by a vote of 89 to 0, with 9 abstentions (the abstentions include some then still active European Colonial powers – Belgium, France, Great Britain, Portugal, Spain, as well as the United States, Australia, and the white-minority ruled Union of South Africa) is much more categorical. After expressly reciting in its Preamble the U.N. Charter principle of equal rights and self-determination of all peoples, and then proclaiming the “necessity of bringing to a speedy and unconditional end colonialism in all its forms and manifestations”, it goes on to declare: 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 to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

If it be thought that that is enough to dispose of the matter and to render licit, not merely internal secession movements and so-called Wars of National Liberation, but positive assistance by other, outside states in the furtherance of a U.N. Charter sanctioned right of self-determination of peoples, it should be remembered that the

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General Principles of Law as recognized by Nations, cited in Article 38(1)(c) the Statute of the International Court of Justice and not least United Nations Charter-based International Law, tend to unfold in terms of legal antinomies: each positive principle marches in company with another, potentially contravening principle. Thus, the principle of self-determination of peoples, as affirmed in Article 2 of the U.N. Charter is usually, in concrete problem-situations, to be found in lock step with the legal injunction upon U.N. member-states, contained in Article 2(4) of the Charter, to “refrain . . . from the threat or use of force against the territorial integrity or political independence of any state”; and with the further injunction cast upon the United Nations by Article 2(7) of the Charter not to “intervene in matters which are essentially within the domestic jurisdiction of any state,” (though this latter prohibition is stipulated by the same Article 2(7) as not to prejudice the application of enforcement measures under Chapter VII of the Charter (Action with respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression). The celebrated U.N. General Assembly Resolution 2625 (XXV) of 24 October 1970, Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, is essentially a restatement of the Soviet-sponsored Code of Peaceful Coexistence originally put forward as a rationalisation of the Cold War “rules of the game” of inter-bloc relations on peace and security issues under the Bipolar system of World public order during the Cold War and the later period of Détente.2 It had been adopted by the U.N. General Assembly without dissenting vote, after a marathon series of EastWest diplomatic negotiations, with the decisive inter-bloc consensus

2

The scientific literature on Peaceful Coexistence/Friendly Relations is legion. See, in particular, G.I. Tunkin, “Coexistence and International Law”. Recueil des Cours, vol. 95 (1958), p. 1, p. 59 et seq; Tunkin, “Le droit international de la coexistence pacifique”, Problèmes de droit des gens. Melanges offertes à Henri Rolin (1964); J.N. Hazard, “Coexistence Codification reconsidered”, American Journal of International Law, vol. 57 (1963), p. 88: E. McWhinney, “Le concept soviétique de “coexistence pacifique” et les rapports juridiques entre I’URSS et les Etats occidentaux”, Revue Générale de Droit International Public (1963), p. 545; McWhinney, “Peaceful Coexistence and Soviet-Western International Law”, American Journal of International Law, vol. 56 (1962), p. 951; A. Pelt (ed), The legal principles governing Friendly Relations and Cooperation among States in the spirit of the United Nations Charter (1966); Sir I. Sinclair, “Principles of International Law governing Friendly Relations and Cooperation among States”, Essays on International Law in honour of Krishna Rao (Nawaz, ed) (1975), p. 107; G. Arangio-Ruiz, “The normative role of the General Assembly of the United Nations and the Declaration of Principles of Friendly Relations”, Recueil des Cours, vol. 137 (1972), p. 137.

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emerging under the politically blander Western-favoured euphemism of Friendly Relations rather than the politically more colourable, (for Western powers), original, Peaceful Coexistence title. The Friendly Relations Declaration enshrines as one of seven cardinal principles of Friendly Relations (Coexistence), “the principle of equal rights and self-determination of peoples” as set out in the U.N. Charter. But it also lists, as among the remaining cardinal principles, the duty to “refrain from the threat or use of force against the territorial integrity or political independence of any State”, and the “duty not to intervene in matters within the domestic jurisdiction of any State.” The Friendly Relations Declaration itself does not establish any hierarchical relationship, in order of their deemed importance or their respective claims to legal authority, of the seven principles; nor does it advance any legal criteria for deciding which is to be given priority and to be preferred for application where they arise in conflict in a concrete case. As with the U.N. Charter itself, the imperative principles march, in tandem, as legal antinomies which do not offer a clear, authoritative legal conclusion in case of direct collision. The explanation for this gap is thought to be the reluctance of some key participants in the long drawn-out negotiating process on the Friendly Relations Declaration, – themselves federal or at least plural-national states with potential fissiparous movements, to accept any definitive legal statement that might appear to endorse, in advance, their own eventual dismemberment, if their own internal, Municipal, (Constitutional) Law-based initiatives to advance self-determination for minority groups within their own state should fail. Once again, the mere fact of iteration, or reiteration, of the principle of self-determination amounts to the beginning of a legal problem-solving process rather than its conclusion. Some normally well-placed jurisconsults, pointing, inter-alia, to assorted dicta of the International Court of Justice, have concluded that the principle of self-determination of peoples is now advancing to the realm of a paramount principle of Contemporary International Law – a form of Jus Cogens in relation to other deemed imperative principles set out in the Charter and U.N. General Assembly legislative acts. Too much may be read into the ratio of the 1971 International Court ruling in the Namibia Advisory Opinion,3 rendered as it was by overwhelming majority and as a clear overruling

3

Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971, p. 16.

Self-determination of Peoples as United Nations principle

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of the controversial, single-vote-majority holding in South West Africa. Second Phase,4 given only five years before. This is to underestimate the concerted political-legal action, over the intervening five years, in a number of different United Nations arenas – Security Council, General Assembly and the Court itself – designed to produce a comprehensive, composite legal base for a Court retreat from the politically disastrous earlier holding. Some key members of the Court, both present and subsequent ones, had been key players in the legislative action in the Parliamentary organs of the United Nations; and the actual ratio of the Namibia ruling – leaving aside some of the more inspired dicta, offered in its justification, with the appeal to history in full dialectical development, – is directed to the failure of the original Mandatory power to fulfil the obligations of the special relation created under the League of Nations Charter with the indigenous people the subject of the original relationship of legal trust. One must agree with the further step-by-step advance in the ambit and reach of the self-determination principle, established by the International Court’s Advisory Opinion in Western Sahara in 1975,5 though a large part of the legal progress there is surely provided by the later Judge and Court President, Mohammed Bedjaoui’s innovatory legal argument, as counsel, in that case.6 There are indeed many Roads to Rome in terms of international law-making, and many of the key players may wear different hats at different times and play different roles, – as counsel, jurisconsult, national legislator and judge, in their various contributions to the progressive development of International Law in this way. One has no difficulty, in any case, in concluding with the International Court, in its holding in East Timor. (Portugal v. Australia) in 1995, that principle of selfdetermination is “one of the essential principles of contemporary international law”;7 while recognising at the same time that this is

4

5 6

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South West Africa, Second Phase, ICJ Reports 1966, P.6. The judgement in the case was rendered by an 8 to 7 majority vote only, the majority being created by the Court President’s second, tie-breaking vote. See my own critique on judicial positivism and the limits of legal logic in that judgement: “Judicial settlement of International Disputes, “Recueil des Cours, vol. 221 (1990), p. 9, at p. 36, et. seq. Western Sahara, Advisory Opinion, ICJ Reports 1975, p. 12. Bedjaoui’s legal argumentation, as counsel, is expressly adopted in the Special Opinion filed in Western Sahara by Vice President Ammoun of the Court, ICJ Reports 1975, p. 12, at p. 86. And see also Bedjaoui, Terra nullius, “droits” historiques et autodétermination (1975); Bedjaoui, “Non-alignment et droit international”, Recueil des Cours, vol. 151 (1976), p. 408. East Timor (Portugal v. Australia), ICJ Reports 1995, p. 102, para. 29.

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not enough to conclude the issue when, in a concrete case, it must stand in logical contraposition to other imperative principles of International Law contained in the U.N. Charter. The answer, in such cases, must begin in Classical International Law with an examination of the lex lata, set out in existing legal doctrines and jurisprudence, on how states emerge and how they are created and how they disappear.

B.

Self-determination as International Law and Municipal (Constitutional) Law Principle

The post-War era, beginning with the early, short-lived victors’ consensus at War’s end in 1945, and continuing through the succeeding long period of Coexistence and of interaction and de facto accommodation of interests of the two great rival, political-military blocs of the Cold War period, came to a sudden end at the close of the 1980’s, with the symbolic fall of the Berlin Wall and the collapse of the Soviet empire, in Eastern Europe and in the old Imperial Russian heartland itself. One of the major legacies of the ending of the postWar, Bipolar system of world public order on which international relations had been posited for almost half a century, through the Cold War and then the emerging period of Détente that followed it, has been the re-emergence of ancient historical conflicts, rooted in issues of race and culture and language and religion, which had been artificially cabined and confined in the Big Power consensus on the fundamentals of the World order system, to which Peaceful Coexistence between the two blocs ultimately had to be related. For the highlydeveloped and nuanced tacit mutual understandings and reciprocal give-and-take between the two rival blocs and their bloc leaders – the so-called Cold War “Rules of the Game” or ground rules – recognized the effective political hegemony of the bloc leader in relation to its own bloc and to political conflicts within that bloc, and preached, correlatively, a principle of non-intervention within the internal affairs of that other bloc. With occasional obvious mistakes or missteps, particularly in the earlier post-War years when the two rival blocs were still feeling each other out and trying to consolidate patterns of authority and control within their respective domains – with the obviously reluctant Soviet acceptance of Tito’s “deviationism” as a prime example – these ground rules seem to have been accepted and applied, on both sides of the Bipolar dividing line, as necessary minimum conditions for the maintenance of the international balance-of-power and for the avoidance thereby of an international nuclear conflict.

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It had been widely predicted that the multi-national state of Yugoslavia, cobbled together by the victors of World War I at Versailles in 1919 and concretised in the supporting treaties of Trianon and St. Germain-en-Laye which were part of the overall, imposed Versailles settlement, would not long survive Tito’s own demise. When this in fact occurred, what was apparent and also startling was the absence of any advance thinking or rational game plan on the part of the European concert of powers and its North American extension, on what to do in its place.8 It was, after all, the same European powers who, intervening at the end of the Russo-Turkish War of 1877-8, had established, at the Congress of Berlin in 1878, the elemental patterns and also territorial demarcations of the new political entities in the Balkans that were to emerge and eventually to be consolidated through the two Balkan Wars of 1912-13, as “successor states” in that region of the crumbling Ottoman Empire. At Versailles in 1919, with the U.S. President, Woodrow Wilson, increasingly sidelined by health and also by political events in his home country, the European Big Three of the period, – Clemenceau, Lloyd George, and Orlando – cast lots for the high and the low, with their own national self-interest, narrowly construed, as the seeming dominant motive, and with the high-level philosophical imperatives adumbrated in President Wilson’s famous Fourteen Points accorded a largely verbal, rhetorical deference. Clemenceau’s insistence on a Carthaginian peace, in which the victors would exact maximum punishment from the vanquished, meant for the ultimate political-territorial settlement in central and south-eastern Europe, consciously penalising Austria-Hungary and Bulgaria as members of the defeated Triple Alliance on which all obloquy and blame for the recent conflict was heaped by the victors.9

8 9

Leonard Cohen. Broken Bonds. The Disintegration of Yugoslavia. (1993). The Versailles Treaty, as an “imposed treaty” applied by the military victors in World War I against the defeated enemy states, sought to enshrine, in legal terms, the War guilt issue, as the “responsibility of Germany and her allies” for a “war imposed . . . by the aggression of Germany and her allies.” The same Versailles Treaty also stigmatised, in terms, the German Emperor, Wilhelm II, for “supreme offence, against international morality and the sanctity of treaties”, and provided for the creation of a special tribunal, to be composed of judges chosen by the five principal victor states, to try him for that offence as defined by the Treaty. (Versailles Treaty, 1919, Articles 231, 227). It would be only later that the originally heretical view would begin to achieve credence that the conflict that had begun in 1914 was a form of European Civil War into which all the main political players on each side had staggered and stumbled in more or less equal responsibility or fault.

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There was also an evident, felt need on the part of the European Big Three to compensate the tiny state of Serbia for its wartime sufferings in the ultimate victors’ cause. Among Serbian political leaders, it is clear, not everyone was enthusiastic about the multi-national Kingdom of the Serbs, Croats, and Slovenes that was to emerge. It would pose inevitable problems of reconciling clear differences in religion and also in “received” historical culture. Though the new state would be predominantly Slav, Slovenia and Croatia had had some continuing centuries of governance within the old Habsburg Empire, while Serbia and Montenegro and slavic Macedonia had been under Turkish rule during all that time and much longer. A “Greater Serbia”, though in fact much smaller, territorially, than the new multi-national state that was created, would have the political advantage of a substantial cultural homogeneity that could have been reinforced by peaceful exchange and transfers of population under principles, built into the Versailles Treaties and the annexed League of Nations system, of consultation and popular plebiscites in disputed areas to this end. Other, extrinsic political factors seem to have operated at Versailles to dictate the final Big Power decision as to the composition and boundaries of the new Serbian-led state. These factors included supervening doubts among the victors as to the wisdom of honouring, in the Versailles settlement, promises of territorial spoils on the eastern Adriatic shore that had been made to Italy in 1916 as part of wartime secret agreements to induce it to desert its existing alliance with the ultimately losing Central Powers and to rally to the ultimately victorious Triple Entente. Fears about just such existing secret deals to hand over the Illyrian coast to Italy seem to have been influential in persuading Slovenian and Croatian political leaders eventually to opt for the Kingdom of the Serbs, Croats and Slovenes solution, even though it was clear that Serbia would be the dominant, centripetal political force the new state. Paradoxically, some sober second thought among the Triple Entente leaders as to the effect on future balance of power structures in central Europe and the Balkans of a restored, greatly enlarged Serbia, seem also to have assisted the project for a tri-partite kingdom, on the argument, drawing on the experience of the now-collapsed Austro-Hungarian Empire, that any Serbian aspirations to a larger, regional political hegemony would be effectively constrained by the necessities of maintaining internal peace and harmony in the new, difficult, multi-national kingdom. Decisions such as these, made by the victors at Versailles, in the choice among a number of widely differing options, are of a high political character. They are not legal decisions, stricto sensu, but they

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do have multiple legal consequences, for International Law and also for Municipal (Constitutional) law within the new, or newly-enlarged states created as a result of them. According to Kelsen and the Vienna School, Pure Theory of Law, the authoritative starting point of any legal system – the Basic Norm (Grundnorm) – is an extra-legal ( pre-legal, meta-legal) political fact. It is from this original, political basic premise of a legal system that all subsequent, secondary legal principles and rules are to be derived, logically, in a dynamic process of unfolding of the norm. For the International lawyer, ascertainment of the Basic Norm may sensibly involve recourse to cognate disciplines to Law, – to Diplomatic History in particular. In the case of Yugoslavia, the original, Versailles-based Grundnorm – the tri-partite Kingdom of the Serbs, Croats and Slovenes – was ripe for fundamental re-examination after Tito’s death in 1980; just as Tito himself, during his long regime, had significantly modified it – though in Municipal, internal law terms, only – by Constitutional Law changes to the professedly federal system, designed to help pluralise federal executive decision-making institutions and processes and to devolve far more power on a regional basis. The alternative political options, at the opening of the 1980s, must certainly, in a priori terms, have encompassed the possible dissolution of the multi-national state created at Versailles in 1919; but must also sensibly have included building on and maximizing the constitutional changes already effected by Tito in his successive federal constitutional revision projects over his more than three decades in power. In fact, when renewed, centripetal, centralizing drives of the Belgrade-based political successors to Tito produced an inevitable, centrifugal reaction the other way among powerful, regionally based leaders in Slovenia and Croatia, it was heads of the smaller political units in the Tito-built state – Izetbegovic in Bosnia-Herzegovina and Gligorov in slavic Macedonia – who then made the case, pragmatically, for retention of the federalist framework, at least, of Tito’s Socialist Federal Republic but with significant movement towards a looser, confederal (and if need be, “asymmetrical”) association of the constituent units.10 The argument was advanced, then, in favour of more action on the internal, Constitutional Law front, to accentuate decentralizing and devolutionary trends initiated by Tito, and also for pluralising of federal institutions and processes; rather than far more catastrophic solutions which might lead to disintegration or break-up of the federal state, as increasingly

10 Cohen, op. cit. supra FN 8, p. 199.

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favoured by the larger and wealthier, (and economically far more viable, potentially, as independent states in their own right) constituent republics, Slovenia and Croatia. The legal antinomy, here, involved alternative, competing policy choices between International Law-based solutions, pointing to secession from and eventual dissolution of the old Socialist Federal Republic, and Municipal, Constitutional Law-based remedies involving regional devolution of decisional power and entrenched guarantees to minority, ethno-cultural interests in a new or renewed federal structure. The choice itself, however, in the end is a high political one, made at the highest political levels. The disintegration and eventual dissolution of the Socialist Federal Republic of Yugoslavia represents a significant case study for testing the ambit and extent of the legal principle of self-determination today. It has the singular advantage, as a paradigm or model for other plural-ethnic states under major internal stresses and strains today, over issues of minority claims as to language, religion and culture, of allowing empirically-based study in depth, of whether such interests might better have been exercised in Municipal, internal law terms through recognition, for example, of a special or particular constitutional status within the general system or through constitutionallyentrenched guarantees of individual or collective (group) rights in those areas, with effective constitutional institutions (whether Parliamentary, or judicial or arbitral) able and willing to enforce them in concrete cases. The art of political problem-solving is to make changes when they are timely, and before a situation has become pathological and politically out-of-hand. Such pragmatic skills were clearly lacking in the post-Tito political leadership of the Socialist Federal Republic of Yugoslavia; but also, it may be suggested, on the part of the governments of those outside European states that had so frequently quarrelled among themselves or gone to war over their competing claims to spheres of influence in the Balkans in the past. We are able to look at the ultimate policy dilemmas involved in the quest for a new Grundnorm, or for the imaginative up-date and re-writing of an existing Grundnorm, in order to meet radically new societal conditions, in the World Community or in one’s own national political community, in the historical context of contemporary Yugoslavia; the former British Colonial Empire and its political passage to an un-prefixed Commonwealth of sovereign, independent states; the former Soviet Union and its own sudden sundering into a Commonwealth of Independent States (CIS), with the Alma Ata Declaration; and the special examples of politically “difficult”, pluralethnic societies like Canada, India and Nigeria, and even Belgium,

Self-determination of Peoples as United Nations principle

13

where the attempt has been to resolve nationality and related conflicts through entrenched federal or quasi-federal, Constitutional Law means. Some key national and international players in the playing-out of the self-determination principle in the difficult period of historical transition in the World Community since the fall of the Berlin Wall in 1989, have published their memoirs in recent times, and they go beyond ordinary diplomatic niceties in identifying other main actors in the game and assessing their varying degrees of personal responsibility for the high political choices that were ultimately made in invocation of the self-determination principle. For the most part, and understandably, the personal diaries relate to the main, pathological example of the decade of the 1990s, the agonies of the former Socialist Federal Republic of Yugoslavia. One refers, here, to the memoirs of Boutros Boutros-Ghali, who was Secretary-General of the United Nations for the first half of the 1990s;11 of Hubert Védrine, who was long-time personal advisor to President François Mitterand, and who would go on to become Foreign Minister in the Jospin Socialist government formed in “cohabitation” with Mitterand’s conservative successor, President Jacques Chirac,12 and, finally, (in a collective work dedicated to him) of Hans-Dietrich Genscher who was Foreign Minister in Chancellor Kohl’s long-serving coalition government and who was responsible, more than anyone else perhaps, for the crucial early (“premature”) decisions on recognition of two breakaway constituent republics of the Socialist Federal Republic of Yugoslavia, that certainly hastened its dissolution.13

11 Boutros Boutros-Ghali, Unvanquished. A US-UN Saga. (1999). 12 Hubert Védrine; Les Mondes de François Mitterand. À l’Elysée 1981-1995 (1996). 13 Klaus Kinkel (ed). In der Verantwortung Hans-Dietrich Genscher zum Siebzigsten (1997).

CHAPTER TWO

THE EMERGENCE OF STATES IN CLASSICAL INTERNATIONAL LAW. THE DOCTRINE OF RECOGNITION Classical International Law on the creation or emergence of new states was refined and re-established, in its modern form, by eminent jurists like the Polish-born Cambridge scholar, Hersch Lauterpacht, in the period between the two World Wars. Lauterpacht was reacting, variously, to the legal dilemmas created for the British and other Western European Foreign Ministries by the political events of the early and mid-1930’s, – in Ethiopia, where Mussolini was attempting to carve out a latter-day Italian Empire from the Africa remnants left behind by other, more powerful and more timely European rivals; and then in Spain, where a civil war originating from internal, local political-ideological conflicts had been used by outside states both as a testing ground for new weapons and new military tactics and, later, as a way for staking out strategic bases for the impending World War II conflict.

A.

Declaratory and Constitutive Theories of Recognition

In the immediate pre-World War II period, the International Law doctrines of Recognition were legally controlling in the creation or emergence of new states. Each existing state, as a member of the international special legal community, made the determinative judgement as to whether to accept or to refuse a supplicant, would-be state. The Classical International Law doctrines were divided by the two different schools of thought on Recognition, the Declaratory and the Constitutive. The Declaratory doctrine was rooted essentially in objective, verifiable facts – whether or not a claimed new community exhibited the characteristic external stigmata of a state: a defined territory and population, and a governmental authority exercising effective control over the territory and population concerned. It is not too surprising that

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the Declaratory theory of Recognition had been the one most consistent with the British state practice over the past century and more. The theory eminently suited an Imperial society, like Great Britain of that time, founded on the rise of commerce and international trade as solvents of international relations, with the British Navy and the British Pound Sterling supplying the uniform control measures necessary to maintain the resulting Pax Britannica. Of the Declaratory theory of Recognition, it has been said that its prime criterion was whether a proposed new state could be relied on to pay its debts and honour its international loan obligations. By comparison, the Constitutive theory of Recognition was highly subjective in its doctrinal foundations and reflected neo-Kantian, voluntarist theories of law and law-making, popular in Continental European liberal democratic thinking on law towards the close of the nineteenth century and the opening of the new century. It was especially popular in the United States between the two World Wars where the failed Wilsonian imperatives, as set out in President Woodrow Wilson’s original Fourteen Points code designed to govern the eventual World War I peace treaties, were revived in President Hoover’s Secretary of State, Henry Stimson’s, doctrine of the nonrecognition of situations created by the illegal use of force. This was invoked by Stimson in an attempt to deny legal results to Japan’s invasion and conquest of Manchuria in 1931 in defiance of the League of Nations Covenant. Lauterpacht’s original contribution to the theory of Recognition was to attempt to define and limit, in legal terms, the manner and mode of exercise of a state’s will to recognise or not to recognise a supplicant, would-be new state or government. With Ethiopia, the legal occasion was provided by a series of cases before the British Municipal (national) courts involving the disposition of assets, both local (Ethiopian) and foreign, including bank accounts of the government of Ethiopia and its affiliated institutions. While the military defeat of the Ethiopian Government in 1935 had been swift and complete, its Emperor had taken refuge in Great Britain, and the British Government itself had been under considerable political pressures from its own home population, and also some diplomatic pressures, not to recognise a situation of fact – the Italian conquest – created in clear violation of the League of Nations Covenant and in defiance of resolutions of the League of Nations’ governing Council.

Emergence of States in Classical International Law

B.

17

British Practice: Russian Revolution Cases

British practice between the two World Wars had consolidated in acceptance of the primacy of the executive area of government in determination of the legal status of a foreign state or other political entity in Municipal (internal) law before Municipal courts. Though the practice had been originally refined and tested legally in cases involving claims to sovereign status and sovereign immunities within the then British dependent, Colonial Empire, it was applied equally to the politically far more difficult and diplomatically sensitive cases involving, for example, the new Soviet government formed after the Great October Revolution of 1917. In Luther v. Sagor,1 British courts were called upon to rule on rights to property – originally private property located in Russia and confiscated by decree of the Revolutionary government and then sold by an agency of that government and transported to Britain, where the original owners then sought a Court decree in their favour of their claimed original title rights. The new Soviet government not having, at the time, yet been recognised by the British government, the lower courts in Britain adjudged in favour of the claims of the original owner. In between that judgement and the appeal, the British government had recognized the Soviet government, (as de facto government of Russia, in succession to Kerensky’s Provisional government). The British courts, on appeal, concluded that, with recognition retroactive in its effects to the date of establishment of the foreign regime, the confiscation had become an executive act of a foreign government that could not be questioned in British courts. The decision is important for its indication of the British Courts’ deference to the executive (Foreign Ministry) as to the legal status of a claimed foreign administration; and for the retroactivity accorded to the legal effects of the recognition by the Foreign Ministry; and, finally, for the speed with which the Foreign Ministry had moved to accord its recognition policy with the new political facts-of-life in post-Imperial Russia. (The U.S., by comparison, did not accord recognition to the Soviet government until after President Roosevelt’s inauguration in 1933). The later gloss to the British recognition of the new Soviet government that it was de facto recognition, rather than de jure recognition, was a vestigial survival from early diplomatic practice that sometimes would delay full de jure recognition as a formal mark of disapproval of the

1

Luther v. Sagor, (1921) I K.B. 366.

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way in which a new government had gained power or of its initial record of constitutional government.

C.

British Practice: The Ethiopian War and Spanish Civil War Cases

The distinction between de facto and de jure recognition would only become significant in terms of concrete legal consequences when the Foreign Ministry should choose to maintain a dual recognition policy, with two foreign governments competing simultaneously against each other and with the one recognised de jure by the Foreign office and the other recognised de facto. For reasons of high policy – raison d’etat – or sometimes of political timidity or indecision on the part of the government of the recognising state, we encounter this dual recognition policy in operation in state practice in the 1930’s – a period of shifting political alliances in the run-up to World War II, – in regard to the state and governmental successors to both the ItaloEthiopian conflict of 1935 and also the Spanish Civil War (19361939). The dichotomy in the legal consequences of a dual recognition policy accepted and applied in the political context of a long-time state practice accorded, ultimately, to Realpolitik considerations as seen in several of the British court decisions on Ethiopian cases, rendered at a time when Italian military power had long since established itself in Addis Ababa and when the Emperor Haile Selassie had fled to Great Britain and established residence there. In the one case, in respect to persons and property and other rights located within territory (Ethiopia) under effective occupation by the victor in the recent war, the de facto government, Italy, must prevail.2 In the other case, in respect to persons and property and other rights located outside (in fact, in Great Britain) the de jure government (Ethiopia) is to prevail.3 The legal contradictions should eventually be resolved in political terms by the disappearance of one or other of the two competing governments, de jure and de facto. The indecision of the British government which, according to the tenets of the Declaratory School of Recognition, should normally have withdrawn recognition of the Emperor Haile Selassie’s régime once its political position had become hopeless with the flight of the Emperor into exile in Great Britain,

2 3

Bank of Ethiopia v. Bank of Egypt, (1937) 1 Ch. 513. Haile Selassie v. Cable and Wireless, (1938) 1 Ch. 545; (1938) 1 Ch. 839; (1939) Ch. 182.

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was clearly influenced by British public opinion which was hostile to the Italian invasion and in accord with the League of Nations’ condemnation of that invasion. The British government had also been sorely embarrassed by the failure of the British-French HoareLaval plan which had attempted to appease Italy politically by territorial concessions in the Ethiopian region. In fact, the defeat of the Italian armies in North Africa in the early years of World War II and the British military liberation of Addis Ababa in 1941 enabled the restoration of the Haile Selassie regime six years after the original Italian invasion. Similar doubts and hesitations had attended British government responses to the Spanish Civil War which began in July 1936, with a military coup mounted against the Popular Front republican government which had been elected in February of the same year, in a very close poll. The war was to drag on for three long years, and while it became evident that the Republican government forces would be defeated ultimately, they had strong public support in Great Britain and France, particularly as the military outcome was perceived as being determined by German and Italian military intervention in behalf of the rebel forces of General Franco as a hoped-for ally in any coming, more general European war. The split between public opinion and government attitudes in Western Europe was apparent, however. Those governments clearly preferred more nuanced policies that might retain their future political options in regard to Spain and also Italy. The Council of the League of Nations had adopted, in December 1936, a resolution stating the obligations of states not to intervene in the internal affairs of other states; and it followed this up in May, 1937, with a further resolution urging the withdrawal of all foreign combatants, these including not merely the German and Italian contingents but also volunteers from the Soviet Union. The legal refinement now provided for the Declaratory doctrine of Recognition was to establish legal parameters for its application in concrete cases: that in exercising, according to voluntarist, freewill legal theory, its right to recognise, a state was still under a duty ultimately to bring its law into line with the political facts-of-life of the existence or non-existence of a state or government. Otherwise a political absurdity would surely result, which, by definition, it was the obligation of any mature legal system to avoid. In the case of competing claimants for Recognition, and in particular the case of a breakaway, rebel political movement which might secure control of a limited area or region of an existing state, there was a correlative duty to avoid a “premature” Recognition, before the position of the

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original parent state at which the breakaway movement was directed had become hopeless and beyond political-military redemption. An example of a legally premature, and in these terms legally non-licit, recognition might be the U.S. Government’s recognition, in aid of its own Panama Canal future construction ambitions, of a breakaway movement in the Colombian state of Panama even before the rebellion had broken out. In the Spanish Civil War context, Julius Stone and other Western jurists had criticised the Western European powers (principally Great Britain and France) for their sponsoring of a Non-Intervention Agreement, at the start of rebel military operations in Spain in August, 1936, which had the effect of denying weapons and military aid to both sides in the conflict, – the de jure, democratically elected Republican government, and General Franco’s rebel, breakaway movement. The burthen of the Western jurists’ criticism was that the signing of the Non-Intervention Agreement, during the course of hostilities that were still at that time undetermined in a military sense, had the consequence of denying to the legitimate Spanish Government a legal right (to receive military aid) which it already enjoyed under International Law. In effect, the Non-Intervention Agreement reduced the de jure Government to the same status of legal non-rights as the Franco-led rebels, whom the Western European states concerned had not, up to that time, even bothered to elevate to the status of Belligerent in International Law. In the British courts, the Spanish Civil War rulings reflect the legal ambiguities seen in the Italo-Ethiopian war decisions, and result in measure from the indecisions in British government foreign policy of the time. The leading decision, in the Arantzazu Mendi case,4 iterates the procedures to be applied by the courts when the status and rights of a foreign government are claimed or arise in cases coming before the courts. The courts, in such situations, must refer to the Foreign Ministry, and if the advice from the Foreign Ministry is clear and unambiguous it will be binding. The Foreign Ministry reply in the Mendi case was that the Nationalist (Franco) régime was recognised by the British government as a government exercising effective administrative control over the Basque provinces and that it exercised de facto control over the larger portion of Spain; but that the British government had not accorded any other recognition to the Nationalist government. On the basis of this Foreign Office statement. which is not entirely free from ambiguity, the courts concluded

4

Arantzazu Mendi, (1939) AC 256.

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that the Nationalist government was, for the purposes of the case, a government of a foreign sovereign state and, as such, could not be impleaded in a British court. The Mendi ruling was criticised by Hersch Lauterpacht on the basis that the Foreign Office reply was not clear and unambiguous; that the courts, in that situation, should have therefore interpreted it in such a way as not to violate existing International law. It would clearly, on this reasoning, be counter to International law for a third state, while a civil war is still in progress, to recognise the sovereignty of insurgent forces which had not even been recognised yet as having Belligerent status. The courts, in Lauterpacht’s view, should, consistently with International law, have taken ambiguous Foreign Office advice as indicating that the Franco Nationalist government was not a de facto government recognised by the British government and that it should not therefore be accorded the legal privileges attaching to such a government in British courts. The remaining Spanish civil war cases in British courts reflect legal principles already adequately evidenced in the Ethiopian cases. In respect to persons or property or other rights located within disputed territory (controlled by a de facto government), that the de facto government will prevail.5 For property and other rights located outside disputed territory, then in any suit between de facto and de jure governments, since both are entitled to sovereign immunities, the one showing title or in possession will prevail – as developed primarily in Admiralty (shipping) cases.6 The principle established by the Arantzazu Mendi case, which went eventually to the highest jurisdiction, the House of Lords, seems clear enough in its end result: a de facto government is entitled to sovereign immunities in its own right in the courts.7 When no other government is recognised at the same time as de jure government, the de facto government’s position is the same as that of a de jure government.8 The legal inter-play between the two categories of recognition, de facto and de jure, results from special political conditions present in the period between the two World Wars. De facto recognition emerged, conveniently, as tentative and revocable and operating only for limited purposes, and normally denoting some degree of disapproval or doubt as to a newly emerged régime, as with the Soviet government

5 6 7 8

Banco de Bilbao v. Sancha & Rey. (1938) 2 K.B. 176. Cristina, (1938) AC 485; Abodi Mendi. (1939) P. 178. Arantzazu Mendi, (1939) AC 256. Ibid.

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in the 1920s, and the Italian military conquest imposed régime in Ethiopia in the 1930s, and General Franco’s militarily-imposed government in Spain at the end of the 1930s. As a legal category it seems rooted in that earlier time period. Its main interest today is as an example of how even the purportedly objective, value-neutral Declaratory theory of Recognition, posited upon a law-as-fact approach, can respond, in periods of political transition, to high political considerations in its invocation and concrete application by governments that formally espouse it.

D.

Post-World War II: Yalta, Potsdam and the Cold War

The World War II victors’ decisions on spheres of influence and the partition of existing states or creation of new ones and the territorial dispositions and forced population transfers going with that – expressed in the Summit Meeting at Yalta in February, 1945, and the military cease-fire in Europe of May, 1945, and subsequent Potsdam Agreement – reflecting, as they do, the short-lived Big Power consensus that was to prevail in the immediate post-war months are exercises in power – Raison d’Etat as interpreted by the Big Three (the U.S., Great Britain and the Soviet Union) to their own personal and mutual advantage – rather than law. The de facto division of pre-war Germany into two separate states, West and East, dominated respectively by the U.S.-led and Soviet-led political-military blocs of the Cold War era and soon ratified, in each bloc’s own initiative, by the conferment of constitutional sovereignty, on its new satellite state, was to be accorded eventually a form of de jure international law recognition by the admission of both states, West Germany and East Germany, into the United Nations. This occurred very belatedly, on September 18, 1973, in follow-up to the West German Ostpolitik (tension-reducing) policies towards its Soviet-bloc neighbours and as part of the larger East- West, détente process that had by that time, gradually superseded the Cold War. It is not to be forgotten that the de facto political-territorial changes in Central and Eastern Europe at war’s end in 1945 inflicted a terrible individual toll on the civilian populations concerned in the forcible transfers or flights of people before invading armies. These were, of course, clearly counter to the principles of the wartime Atlantic Charter and other, earlier international proclamations on self-determination of peoples. International law might have moved on, in the meantime, from the post-World War I, Versailles settlement, victors’ rule-ofthumb of punishment of the defeated enemy; but the 1945 political

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settlements have to be viewed, in historical retrospect, as much of the same thing. Other instances of creation of new states, or recognition of partition of existing states, without so much as a prior effective consultation of the populations concerned, would be the division of Korea into separate, North and South, ideologically defined and geographically determined states, after the conclusion of the Korean, Big Power proxy conflict of the early 1950s; and also the similar splitting of former French colonial Indo-China into a Communist North Vietnam and a non-Communist South Vietnam after the French military defeat and withdrawal in 1954. The Cold War political-military balance of power under the Bipolar world order system of the time, rather than any a priori legal categories on recognition or admission of new states, seems to have been the principal determinant in these decisions. The “two Vietnams” situation was later to be “cured”, like the two Germanies, by supervening political events – in the case of the two Vietnams by war and subsequent reunification by force majeure, after the military defeat of the U.S. intervention in behalf of the southern Vietnam state forces.

E.

Post-decolonisation Succession States

The later exercises in self-determination through secession from an existing state – Biafra’s attempted unilateral breakaway from the larger, constitutionally-legally federal Nigeria, and the white-minorityruled colony of Rhodesia’s eventual declaration of independence (UDI) from Imperial Britain, though occurring during the still-continuing Cold War period, did not raise any significant East-West, inter-bloc peace and security issues and were able to be resolved by ordinary International Law rules and principles, without any serious attempts at outside, Big Power rival bloc intervention. International oil interests were certainly present in the Biafra-Nigeria fact complex; but with covert restraining diplomatic and other pressures from the major Western powers only four (African) states decided to recognise Biafra’s sovereignty, and the rebellion was eventually stamped out militarily. It would, according to both the Declaratory and the Constitutive theories of recognition, have been a breach of International Law and a “premature” recognition to have accorded recognition to Biafra while the armed conflict of the breakaway province with the rest of the country was still going on and the military and general position of the federal Nigerian government clearly remaining in the ascendance.

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In the case of white-minority-ruled Rhodesia, the British government’s economic blockade, even though violated by some of the African neighbours with goods obtained from some European states, could reasonably be expected to end the separation venture, and this is what eventually occurred. In both cases International Law conventionally applied, and diplomatic etiquette, and also political common sense and long-range commercial and trade imperatives, coincided to point to the same result. By the end of the Cold War, and with the easing of East-West tensions, and also with the effective ending of Colonialism and its attendant political problems for the leading Western powers, new policy considerations were emerging that helped produce a new look at the Declaratory theory of recognition and the supposedly valueneutral, objective, law-as-fact approach. New moral imperatives in foreign policy, redolent of the Atlantic Charter and the goal values articulated earlier in President Wilson’s Fourteen Points but hardly given more than passing political diplomatic attention at the time of the original formulation, began to appear again.

F.

Latin American Practice: The Estrada Doctrine

Latin American International Law had developed, even before World War II, the so-called Estrada Doctrine which effectively minimized the importance of recognition accorded by foreign (non-Latin American) governments to Latin American governments. The implication contained in the Estrada Doctrine went to the outcome of the foreign action: foreign governments passing on the legitimacy or illegitimacy of the Latin American régime concerned and thereby impliedly interfering in their internal affairs in preference to simply continuing or suspending diplomatic relations when felt proper.9 In formulating the doctrine which came to bear his name, the Mexican Foreign Minister was no doubt responding in part to the frequent changes of government, in neighbouring Central and South American states of the time, changes achieved by violence or at least extra-constitutional means quite often, though without altering the political continuity

9

P.C. Jessup, “The Estrada doctrine”, American Journal of International Law, vol. 25 (1931), p. 719; C.G. Fenwick, “The Recognition of new governments instituted by force”, American Journal of International Law, vol. 38 (1944), p. 448: A. Van Wynen Thomas and A.J. Thomas, Non-Intervention. The Law and its import in the Americas (1956).

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25

or territorial integrity of the state concerned. A distinction between recognition of a government and recognition of a state becomes meaningful and easy to apply in situations such as this, with the rational conclusion that the state itself is permanent and that its recognition qua state should sensibly continue. The distinction between recognition of a government and recognition of a state, and the replacement of the moral judgmental component involved in denial or withdrawal of a recognition of a government by a much simpler decision on whether or not to maintain diplomatic relations, has an obvious pragmatic base. And so the Estrada Doctrine has been linked to contemporary initiatives outside Latin America to de-emphasize or even abolish altogether formal doctrines on recognition, particularly since the between-the-two-wars situation of two competing foreign governments, de facto and de jure with their own special legal categories, seems to have disappeared into history.

G.

British Practice: The Declaratory Policy of Recognition Re-examined

The British government, with its long-standing commitment to the Declaratory Theory of Recognition and its essential value-neutrality and emphasis on effective control over territory and population as the criteria for recognition, and with the implication of a concomitant duty of recognition in such cases, was sometimes sorely tested politically, as we have seen in the pre-War period in relation to governmental succession by force majeure in Ethiopia and in Spain. The resultant Foreign Office shilly-shallying over de facto and de jure recognition, with two competing legal régimes for each state, becomes explicable in this light. The British government appears finally to have been induced by governmental succession in Ghana in 1979, where the transition was achieved by a military coup d’etat followed by summary execution of members of the overthrown government, to make its decision, announced in the House of Commons, that the British government would henceforth re-examine its traditional recognition policy.10 At the same time, the British government was becoming embarrassed by the practical consequences of its recognition policy in the case of Kampuchea (Cambodia), where a post-civil war government recognised by Great Britain had been replaced in 1976 by

10 Nisuke Ando, “The Recognition of Governments reconsidered” Japanese Annual of International Law, vol. 28 (1985), pp. 29-30.

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Chapter Two

the Pol Pot régime which promptly began systematic massacres of its civil population, in the form of summary, massive-scale executions of deemed ideological opponents.11 While stressing its opinion that its own recognition did not amount to approval of a régime’s policies, the British government eventually announced in the House of Commons in 1980 that because of public concern about violation of human rights by new foreign régimes on their achievement of power by unconstitutional means, it no longer sufficed to say that an announcement of recognition of a foreign government was simply a neutral formality. Responding to what it noted to be an increasing practice by states to distinguish between recognition of states and recognition of governments, and not to recognize governments, as such, the British government then stated its present position that there are practical advantages in not according recognition to governments but in simply deciding ad hoc on the nature of future dealings with any foreign government that should come to power unconstitutionally. Such ad hoc decisions would be made, according to the British Government, in the light of the British government’s assessment of whether such foreign governments were able, of themselves, to exercise effective control of the territory of the state concerned and seemed likely to do so in the future. This evolution of British policy and practice on recognition away from the long historical commitment to the Declaratory theory and its purportedly objective, value-neutral criteria, so as now to include some more avowedly subjective, value-oriented tests looking to at least minimum commitment to Rechtsstaat, Rule of Law and Human Rights principles, was undoubtedly assisted by long-range trends within the Commonwealth of Nations (the largely informal and unstructured forum of governments of sovereign, independent states from the former British Empire and its successor British Commonwealth). At its annual heads of-government reunions held since its formation in 1949, the Commonwealth, under the impulse of some of its newly decolonized member-countries, began to take an increasingly critical look at arbitrary, dictatorial régimes within its ranks and at claims as to violation by them of constitutional and other democratic rights. The Commonwealth had, in the early 1960s, on the initiative of the then Conservative Prime Minister of Canada, John Diefenbaker, expelled the then white-minority government of South Africa on the score of its racially discriminatory Apartheid laws. Similar political

11 Ando, id., pp. 30-1.

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pressures, less than expulsion, were later to be exercised against successor régimes coming to power by military coups d’etat in Pakistan and in Nigeria. However, initiatives by the British government and some other “older” Commonwealth states at the Commonwealth reunion in 2002 to expel the Mugabe régime in Zimbabwe because of charges that it was rigging forthcoming national elections and intimidating political opposition forces, fell short because of the argument, made by Canada among other, mainly African states, for “quiet diplomacy” rather than direct action and expulsion.

H.

The Balkans. Dilemmas and Contradictions in Contemporary State Policies on Recognition

The larger mystery remains as to how to unravel apparently dissonant state doctrines and practice on the International Law of recognition, evidenced in reactions of the leading member states of the European Union and also by the United States and by the United Nations, to the delayed ethno-cultural conflicts in the Socialist Federal Republic of Yugoslavia which came to a head a decade after Tito’s death in 1980. The crucial role of Tito’s personality and his singular commitment to maintaining a pluralist federal constitutional system in the multi-national state created by the victors at Versailles in 1919, had been widely understood outside Yugoslavia, and the possible break-up of the federal state after Tito’s passing had been predicted as one of the more pathological eventual outcomes. The fact remains that no one among interested outside political leaders had any semblance of a game plan ready to put into place to facilitate an orderly and peaceful, non-violent transition from the old Titoist order. This was less unusual perhaps in the case of the United Nations and the United States which, in the crucial transition time at the opening of the 1990s, were to experience major changes (in philosophy or ideology, but also in practical experience in foreign policy), at the top leadership level. But it is surprising, to say the least, in relation to the three principal European powers who chose deliberately to involve themselves as major players – Germany, France and Great Britain. Each of them had long-standing national historical interests in the Balkans, going back even before the Congress of Berlin in 1878 and continuing through the two Balkan Wars of 191213, and through the two World Wars. Policies in the Balkans were invariably developed and applied in terms of those European powers’ own long-term regional ambitions, which were not identical and often directly conflicting with each other. The Big Power consensus

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at the Congress in Berlin in 1878 had been a happy exercise in a genuinely “European” approach, before the intra-European politicaleconomic rivalries that produced both World Wars had fully emerged. While the ultimate judgment of history on the break-up of Yugoslavia may have to come from the future opening up of secret state archives and Foreign Ministry documents of the period, the key question must still remain of whether the tragic unfolding of the state succession to the former Socialist Federal Republic of Yugoslavia, with all the loss of innocent civilian lives involved, was not triggered by what is categorized as the “premature” foreign recognition of the sovereignty and independence of two key constituent republics, Slovenia and Croatia, beginning on 23 December 1991. Action by the German Foreign Ministry, unilaterally, on that date to recognise the two breakaway entities presented a fait accompli to the European Union and its other member-states, and this against the opinion to the contrary of Great Britain and of France at that time, and of the United Nations. There is little room for doubt that the German Foreign Ministry’s precipitate action created a “falling dominoes” effect, in which European Union members and others were swept along in a rush to recognition long before, according to classical International Law doctrines, the situation of the original parent state, the Socialist Federal Republic of Yugoslavia, had become hopeless and politically beyond redemption. In both Great Britain and France and also in the United Nations, diplomats were hard at work trying to produce alternative, less pathological solutions than the break-up of the existing Yugoslav state. These solutions would, at the same time, respond to the expressed views of other, smaller constituent units of the existing SFRY state – Bosnia-Herzegovina and slavic Macedonia – for maintenance of some form of federal, multi-ethnic state. Paradigms or compromise models from comparative constitutional law literature (“asymmetric federalism”, “special status”, confederation) were being floated and seriously canvassed by the sponsor countries. In what he identities as “la tragédie yougoslave” – the crucial timepoint in 1991-2 in what was to become a decade long war of the Yugoslav Succession, Hubert Védrine, who was to go on eventually to become French Foreign Minister in the Jospin “cohabitation” government under the Chirac presidency, but who was, at the time, the close collaborator and diplomatic advisor to President Mitterand, outlines what may be accepted as an authoritative statement of the French position as to the wise policy choices to make for the rapidly unfolding events in the then Socialist Federal Republic.12 Védrine 12 Védrine, op. cit., supra FN 12, p. 591 et. seq.

Emergence of States in Classical International Law

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starts with the premise that Marshal Tito, through four fundamental constitutional revisions – in 1946, 1963, 1971 and 1974 – had managed to produce increases in the effective powers of the Constituent Republics and provinces of Yugoslavia, but without completely resolving the problems of co-existence, within the one federal state, of the different “nations” (the six republics, with their rather different historical-cultural experiences, the two “nationalities”, and the twelve “minorities”). Among the contrary external forces, Védrine identifies an “Austro-Hungarian tropism” which, in the result, was pro-Slovene and pro-Croat, and he also records encouragement from the Vatican to Catholic Croatia to the detriment of religious Orthodox Serbs.13 Védrine refers also to an adoption of the cause of the Muslim “Bosniaques” by the French media intellectuals, flowing from this French group’s positions in the Middle-East Arab-Israeli conflict. President Mitterand had made clear at the same time the French government’s wish that Yugoslavia should remain Yugoslavia, and that it was not desirable that existing states, multi-national states, should explode into different pieces. A similar position was attributed by Védrine to the United States in mid-1991, in response to German Chancellor Kohl’s demand of British Prime Minister Major whether he would still hold out for the territorial integrity of Yugoslavia. President Bush and Secretary of State James Baker were quoted to the effect that any secession for Slovenia and Croatia would bring in the remaining Constituent Republics and result in a civil war in Croatia and in Bosnia; and that the U.S. would not recognize any Constituent Republics that might eventually decide to secede. In June 1991, German Foreign Minister Hans-Dietrich Genscher had been alone among European Foreign Ministers in calling for immediate recognition of the independence that Slovenia and Croatia had at that time proclaimed unilaterally. On the proposal of the French Minister, Roland Dumas, and against Genscher, the European Union decided that it would not recognize any claims to sovereignty and statehood from existing Constituent Republics of Yugoslavia “unless these resulted from internal arrangements and not from unilateral declarations of independence”.14 At Bonn in September of the same crucial year, 1991, President Mitterand strongly reproached Chancellor Kohl for conducting his own national politics in the Balkans. When Mitterand spoke in geopolitical terms (no outside recognition of any “succession” state to Yugoslavia before the problems of the frontiers

13 Védrine, id., p. 603. 14 Védrine, id., pp. 605-6.

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and minorities are regulated), Kohl had made no argument at all on the substance of the problem but replied in terms of internal German politics and that Germans didn’t understand why he had not yet recognized Croatia. Mitterand replied by warning Kohl of the danger of having Europe dissolve into tribes.15 When Kohl returned again to the internal German political situation and his “enormous political problem” if he did not proceed to an immediate German recognition of the two breakaway Constituent Republics, Mitterand retorted by saying that he agreed that it was difficult, but that, with any German recognition, another, even graver problem would be created.16 President Mitterand remained bitter, and in February, 1992, in an exchange with Chancellor Kohl, he suggested that while not hegemonial in its policy, Germany had a special benevolence for Croatia.17 While Kohl’s Foreign Minister, Genscher, would continue to insist, in later years, that the recognition of Croatia by Europe, under German pressure, didn’t constitute the political error denounced since that time, it had nevertheless deprived the European Community of a diplomatic weapon that it would better have conserved in its possession until an acceptable solution could be found for the Krajina minority problem – the key unresolved issue in any future Croatia-Serbia relation. It had also deprived the European Union of a good argument for refusing the subsequent recognition of Bosnia – a much more risky problem and one with even more tragic consequences.18 On the question of the U.S. engagement in the Yugoslav succession, and the consequences of the change of administration in Washington in 1993, from the Bush administration to the new Clinton administration, it was noted that during the U.S. election campaign Clinton had characterised President Bush’s Yugoslav policies as “immoral”; and that the Muslim group in Bosnia hoped that the new Clinton administration, which, it was suggested, had “advised them in confidence to show themselves as intransigent”, would range itself on their side.19 The United Nations Secretary-General throughout the most crucial years when the Yugoslav succession was unfolding, Boutros Boutros-Ghali, in his own memoirs notes that his immediate predecessor as U.N. Secretary-General, Perez de Cuéllar, had endeavoured, from

15 16 17 18 19

Védrine, Védrine, Védrine, Védrine, Védrine,

id., p. 613. id., p. 617. id., p. 621. id., p. 621. p. 644.

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the outset, to seek a diplomatic solution and had appointed former U.S. Secretary of State, Cyrus Vance, to work with the European Community’s envoy, Lord Carrington, to this end. As one of his last official acts before he left office at the end of December, 1991, Perez de Cuellar had written in the strongest terms to urge Germany, not to give diplomatic recognition to Croatia, a land with historic ties to Germany. If Croatia’s independence were accepted internationally, other parts of Yugoslavia would declare independence as well, and a drastic struggle for territory could break out.20

As Boutros-Ghali noted, Perez de Cuéllar’s plea was ignored, and on December 16, 1991, the European Community had agreed to recognise Croatia and Slovenia within thirty days; while four days later the Republic of Bosnia and Herzegovina declared its desire for recognition as an independent state. As Boutros-Ghali further noted: The cataclysm that subsequently engulfed Bosnia cannot be attributed solely to foolish acts of diplomatic recognition, but recognition undoubtedly triggered the explosion, and strife erupted between those who wanted independence (the Muslims), those who opposed it (the Serbs), and those who took advantage of the Muslim-Serb fight to consolidate their hold over their own areas (the Croats). Only later, when it became clear that the West and the non-aligned would insist on independence, did the groups start fighting about who would prevail in the new Bosnian State.21

Curiously, in his own personal 70th birthday tribute to German Foreign Minister Genscher, whose role in the German decisions on “premature” recognition of the successor states to the Socialist Federal Republic of Yugoslavia was obviously vital, Boutros-Ghali remained strangely elliptic: there is no mention at all of Yugoslavia in a careful, detailed listing of Genscher’s work at the United Nations.22 It remains clear, however, that high political factors – Raison d’Etat and national interest, narrowly construed in internal political terms – dominated the original decisions on recognition in the Yugoslav succession, to the exclusion of classical International Law doctrines (whether of the Declaratory or Constitutive schools); and that the office of the professional legal advisor in the national Foreign

20 Boutros-Ghali, id., p. 37. 21 Boutros-Ghali, id., p. 37. 22 Boutros-Ghali, “Hans-Dietrich Genscher und Deutschlands Rolle in den Vereinten Nationen”, – Kinkel, (ed.). In der Verantwortung, Hans-Dietrich Genscher zum Siebzigsten. (1997), p. 645 et. seq.

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Ministries was subordinate in the final decision-making, if indeed actively consulted. After the event, perhaps partly as an ex post facto gesture to the legal niceties involved, but also certainly in the attempt to postulate some sort of objective, politically un-coloured criteria to guide recognition practice in future difficult problem-situations, the European Union made significant approaches to elaborating a new intraEuropean diplomatic practice. In the result, there is a certain fettering of the hitherto uncontrolled discretion inherent in the Constitutive approach to recognition and a bridge is made to the rival Declaratory approach. We may be moving closer, thereby, to acceptance of a legal duty to recognize, if the postulated objective criteria on recognition should patently be met, although one does not think this was necessarily the intention of the European Union authors of the plan. Whatever the legal merits of the contested German unilateral decision on recognition of Slovenia and Croatia, on 23 December, 1991 and the influences of long-range historical factors linked to the intra-European rivalries and power struggles going back through World War II and World War I to the two Balkan Wars of 191213, the fact remains that it was soon followed by other main European Community states. Such European general, collective action was immediately preceded by some “European” regional international law acts that may be seen as essays in the definition of a contemporary, post-Cold War code of legal principles on accession to sovereignty and statehood and on admission to the United Nations and other key international arenas.

I.

European Community Guidelines on Recognition. (1991)

Foremost among these European legal acts was the one adopted at an Extraordinary EPC Ministerial Meeting at Brussels on 16 December 1991 – the Declaration on Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union.23 As adopted by the European Community Foreign Ministers, the Declaration was designed to serve as the European Community common position on the process of recognition of the new states emerging from the collapse of the erstwhile Soviet Union and the related Cold War-based public order system in Eastern Europe. In international legal terms,

23 Published in International Legal Materials, vol. 31, no. 6 (November, 1992), pp. 1485-7.

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the most interesting innovation is the doctrinal-legal bridge, consciously made, between the essentially objective, law-as-fact criteria to which the Declaratory Theory on Recognition responded, and the far more subjective, value-oriented tests put forward under the Constitutive theory, at least in its Stimson doctrine variant. The Preamble to the Guidelines affirms the European Community states’ attachment to the principle of self-determination and those European states’ readiness to recognize the new states – “subject to the normal standards of international practice, and the political realities in each case”. It is followed by a detailed enunciation of normative standards of conduct to be required of any new state entities as pre-conditions of any recognition by European Community states: (i)

(ii)

(iii) (iv)

(v)

respect for the United Nations Charter and for the Helsinki Final Act of 1975, especially with regard to the rule of law, democracy and human rights; guarantees for the rights of ethnic and national groups and minorities in accord with the framework of the CSCE (Conference on Security and Cooperation in Europe); respect for the indivisibility of all frontiers which can only be changed by legal means and by common agreement; acceptance of all relevant commitments with regard to disarmament and nuclear non-proliferation, as well as to security and regional stability; commitment to settle by agreement, including where appropriate by recourse to arbitration, all questions concerning state succession and regional disputes.

The Guidelines concluded with the statement that the European Community and its member-states “will not recognize entities which are the result of aggression”; and that the E.C. and its MemberStates will “take account of the effects of recognition on neighbouring states”.

X.

Opinions of the Badinter Commission. (1991-2)

The European Community had already on 27 August 1991, some months before adoption of the Guidelines of Recognition, convened a peace conference on Yugoslavia, composed of representatives of the European Community and its member-states as well as representatives of the Presidency and the Government of the then extant Socialist Federal Republic of Yugoslavia (SFRY) plus the Presidents

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of the six internal, Constituent Republics within the Socialist Federal Republic of Yugoslavia. As an integral part of that peace conference, the European Community, on the same date, created a special Arbitration Commission of five members, chosen from the Presidents of Constitutional Courts in European Community member-states, to which differences among the contending parties could be submitted.24 The conclusions and recommendations of the Commission straddle the two fields of Municipal (Constitutional) law and International law, though the main concentration is on International law. While the special competence of the Commission members and their claims to expertise in Constitutional law derive from their professional status as elected members of national Constitutional Courts, this is not so obvious in regard to International law. On International law, the opinions that they offer seem often to go well beyond existing doctrines or jurisprudence constante and are open to legal contest on that ground. We shall examine this point in more detail later, in the section on territorial frontiers and other attributes to sovereignty. The Arbitration Commission became known as the Badinter Commission after its first (French) President. It began to issue a number of Opinions which served to flesh out the meaning and application of the high-level general propositions of the European Community Guidelines, in the concrete fact-situations of the various state Successions to the Socialist Federal Republic of Yugoslavia. In its Opinion No. 1 issued on 29 November 1991, the Badinter Commission took note of desires for independence expressed by four of the six Constituent Republics of the Socialist Federal Republic of Yugoslavia (Slovenia, Croatia, Macedonia, Bosnia and Herzegovina). The Commission concluded that the various federal organs of the Socialist Federal Republic of Yugoslavia “no longer meet the criteria of participation and representativeness inherent in a federal State”; and that, in consequence, the Socialist Federal Republic of Yugoslavia was “in the process of dissolution”.25 Germany, as noted, had on 23 December 1991 recognized the independence and sovereignty of Slovenia and Croatia, to be effective from 15 January 1992. On 15 February 1992, the European Community announced that the Community itself and its member-states had decided to proceed with the recognition of Slovenia and Croatia, .

24 The Opinions of the Arbitration Commission (Badinter Commission), – Opinions 1-7 (11 January 1992), and Opinions 8-10 (4 July 1992), are summarized in International Legal Materials, ibid., pp. 1490-3. 25 Ibid., pp. 1494-7 (text of Commission Opinion 1).

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with the formal acts of recognition by the Community and by the member-states soon following. The European Community issued a further announcement, on 7 April, 1992, that the Community had decided to recognise Bosnia and Herzegovina as a sovereign state. The United States recognized Bosnia and Herzegovina on the same date. As a special gloss on European Community recognition policy, though the Badinter Commission had concluded that the Constituent Republic of Macedonia fulfilled the criteria and standards, in International Law and Community law, requisite for recognition, the European Community chose to delay action because of objections by a Community member-state, Greece, to what it saw as Irridentist claims to Greek territory advanced by the administration of that Constituent Republic in connection with its request for recognition: choice, for its national flag, of symbols directly associated with classical Greece and the ancient kingdom of Philip of Macedon; and the choice of the name, Macedonia itself, which was identical with that of present-day Greece’s north-eastern province and derived, ultimately, from the ancient state of Philip and his son Alexander the Great. These objections were ultimately resolved, diplomatically, under an interim agreement that saw Greece, in September, 1995, accord recognition to the breakaway Constituent Republic under the euphemism, Former Yugoslav Republic of Macedonia (FYROM). While most other European Community states had, in the meantime, conceded their own delayed recognition to the new entity by the end of 1993, some other members of the international community, France and Canada among these, accepted the Greek objections and delayed their own recognition until after Greece itself had decided to act in September, 1995.

CHAPTER THREE

THE UNITED NATIONS CHARTER AND ADMISSION OF STATES, AND ALSO THEIR EXCLUSION The establishment of the United Nations organisation in 1945, on a basis. originally, of the victorious World War II military alliance against the Axis powers but with a progression, after the difficult early years of Cold War vetos and counter-vetos by the two rival superpowers, to near universality of membership, created a new, parallel route to admission to the World Community. It also meant the paradox, particularly strong in the first decade of the United Nations, and the Cold War, that states that clearly qualified, by all objective criteria, for admission, and that had in fact already been recognised by most other states in their Municipal (national) law were repeatedly barred in their applications for membership in the United Nations for purely subjective political reasons on the part of existing U.N. member-states that took advantage of the especially difficult constitutional requirements as to admission to the United Nations, set out in the United Nations Charter. Article 3 of the Charter created two categories of membership: original members, meaning those present at the U.N.’s creation in 1945 and thus limited to states whose governments had joined the ultimately victorious World War II military alliance: and “others”. These others were characterised by Article 4(1) of the Charter as “peace-loving states which accept the obligations contained in the . . . Charter and . . . are able and willing to carry out these obligations.” Article 4(2) of the Charter, however, went on to impose special constitutional machinery requirements as a legal pre-condition to admission: a decision of the General Assembly, upon the recommendation of the Security Council (to which latter, as a deemed “important” (non-procedural) matter, the Veto of the Permanent Members of the Security Council would apply). In 1945, there were 51 “original” member states of the United Nations. Over the next five years, 9 other states were admitted under the Charter Article 4 machinery. All these 9 cases were politically non-controversial, in East-West terms, with the case of lsrael being

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noteworthy, at the time of its admission in 1949, because of the fact of joint U.S. and Soviet sponsorship, in a rare display of Cold War consensus between the two superpowers. From 1950, when U.N. membership had reached 60 states, until 1955, however, no new states were admitted. The Korean War had broken out, and the Cold War political-military tensions were at their greatest. The two superpowers had their own favoured client-states for presentation; but each superpower, in turn, voted in the Security Council to veto the other’s list of sponsored candidates. The back-up as to membership of the U.N. had become considerable by the end of its first decade, to the point of jeopardizing the U.N.’s claim to representativeness. In the end, someone (as it turned out, the then Canadian Foreign Minister, Paul Martin, Sr.), had the wit and common-sense to suggest and then to negotiate a political compromise: a brokered “package” deal that would present a common list made up of the candidates presented by each of the two rival, political-military blocs. In the result, 16 states (some Western-leaning, some Soviet blocfavoured, some genuinely neutral in Cold War terms) were admitted in one blow in the Autumn of 1955; and after that, the membership increased in leaps and bounds – to 100, by 1960, with the first big wave of Decolonisation in Africa; and up to 180 plus, by the early 1990’s with the break-up of the multi-national Communist states of Eastern Europe – the former Soviet Union and Yugoslavia in particular. In the enforced vacuum as to politically controversial or contested admissions, between 1945 and 1955, there were some imaginative attempts to break the political stalemate by resort to other United Nations arenas for arbitrament, and specifically to the International Court of Justice. The Court rendered two important Advisory Opinions, in 19481 and in 19502 upon the request of the General Assembly in terms of Article 96 of the Charter. The object of the recourse of the Court was what the distinguished Danish jurist, Alf Ross, called legal “casuistry”3 – a legal gloss on the text of the U.N. Charter whereby the General Assembly might be empowered to act alone and thereby circumvent the Permanent Members’ veto in the Security Council. It was pointed out that Article 4(2) speaks only of a “recommendation” of the Security Council as a legal condition precedent to a General Assembly

1 2 3

Conditions of Admission of a State to Membership in the United Nations, Advisory Opinion of May 28, 1948. ICJ Reports 1948, p. 57. Competence of the General Assembly for the Admission of a State to the United Nations. Advisory Opinion of March 3, 1950, ICJ Reports 1950, p. 4. Alf Ross, The United Nations, Peace and Progress. (1966), p. 93.

The United Nations Charter and Admission

39

“decision” on admission to membership. Should this not, on a broad, “policy” construction, be interpreted as including even an unfavourable recommendation by the Security Council, if the effect, otherwise, would be to lead to a perverse result that would frustrate the larger, inclusive intent of the Founding Fathers of the U.N. Charter in 1945? The old Common Law legal maxim of interpretation comes readily to mind: Verba intelligenda sunt ut res magis valeat quam pereat. The U.N. General Assembly, in late 1950, during the Korean crisis, would apply just such a creative, “policy” interpretation to its own powers, with its famous Uniting for Peace Resolution, designed to assert plenary powers to fill any constitutional gap resulting from the Soviet veto or threat of veto in the Security Council to U.N.sponsored collective security action in Korea.4 The particular legal argument failed, however, in the International Court, with the Court’s ruling in March, 1950, by a vote of 12 to 2, on the General Assembly’s role as to Admission of States. The Court ruling in 1950 was rendered, over a very strong Dissenting Opinion by the great Chilean jurist, Judge Alvarez, who appealed prophetically to the “new international law, which is now emerging”.5 The 16-state East-West compromise “package” deal of 1955 had originally extended to 18 states. Japan and Mongolia were, however, dropped from the list, Japan being admitted the next year and

4

5

The 1948 Reference to the International Court for an Advisory Opinion had been prompted by a single Veto in the Security Council which had negatived any recommendation to the General Assembly on the admission of six states, (including Portugal and Eire), to the U.N. In the International Court, the then Soviet member, Judge Krylov, an erudite jurist known for his occasional ironic wit, had suggested, in a Dissenting Opinion, that Portugal and Eire did not qualify as “peace-loving states” in terms of Article 4(1) of the U.N. Charter (Membership) because they had been neutral in World War II, the criteria of “peace-loving” having, as the judge suggested, an “active sense”. Conditions of Admission of a State to Membership in the United Nations. Advisory Opinion. ICJ Reports 1948, p. 57. Judge Alvarez, who dissented, together with Judge Azevedo, to the 1950 majority ruling, suggested that the right of Veto by a Permanent Member of the Security Council is not an unqualified one, but must be interpreted and applied within “proper limits”, and that the right of Veto may be abused. Judge Alvarez concluded that it is open to the General Assembly to determine whether the Veto right has been abused and, if the answer is in the affirmative, for the General Assembly itself to proceed with the admission to U.N. Membership without any prior recommendation by the Security council. Competence of the General Assembly for the Admission of a State to the United Nations, ICJ Reports 1950, p. 4. For further elaboration of the views of Judge Alvarez, who emerges as one of the intellectually most creative members of the International Court in the early post-World War II period, see Alvarez, Le droit international nouveau dans ses rapports avec la vie actuelle des peuples (1959).

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Mongolia in 1961. There was a continuing political dilemma with the divided state of the two Germanies; and it became impossible to overlook this because of the two Germanies’ (West and East) political and economic dominance in their respective halves of middle Europe. The problem was ultimately resolved in 1973 with the pragmatic solution of admitting the Federal Republic of Germany and the German Democratic Republic, separately, to membership in their own right. A similar dilemma with divided Korea was resolved in similar fashion in 1991 by admitting the two Koreas to separate membership in their own right. The much larger, “China” problem was complicated, legally, by the fact that China, then governed by the Nationalist régime, had become an “original” member of the United Nations in 1945. The political complications created by the military collapse of the Nationalist forces on the Chinese mainland in 1948 and their escape to Taiwan, facing the new mainland Communist régime across the straits, were veiled, within the United Nations, for almost a quarter of a century, by the maintenance of the legal fiction of continuity of the Chinese state and its government in its original, Nationalist personality. The Nationalist Government thus continued to retain the Chinese seats in the Security Council and in the General Assembly and to exercise the legal powers (including the right of veto in the Security Council). Whether or not the Nationalist Government should be replaced by the Communist Government was always treated as a Credentials issue, separate and distinct from any issue of Chinese State membership in the United Nations, and the vote in the General Assembly was always treated as an “important question” requiring a two-thirds majority vote in terms of Article 18 of the Charter. This formidable constitutional obstacle was not finally overcome until October, 1971, when the General Assembly adopted a Resolution by a vote of 76 to 35, with 15 abstentions, to declare the delegation from the People’s Republic of China as the “only lawful representatives of China to the United Nations.” The long, almost quarter century delay in the United Nations response to the Communist forces’ takeover in mainland China, which paralleled, over the same time period, the major Western states’ non-recognition of the People’s Republic of China, obscured and eventually disposed of earlier, seemingly rational compromise solutions that had been floated in some political circles, involving acceptance of a de facto situation of two Chinas – mainland China and Taiwan – with separate representations being allowed for each of them, as member states, in the General Assembly; and with the Permanent Member’s seat in the Security Council being accorded to mainland China.

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With the fall of the Berlin Wall and the breakaway of peripheral states of the old Soviet Union, the three Baltic Republics of Estonia, Latvia and Lithuania, were admitted to the United Nations in 1991, followed by nine other former Soviet constituent republics in 1992. In the same year, 1992, the General Assembly, upon the recommendation of the Security Council under Article 4(2) of the Charter, became involved with the issue of State succession to the former Communist federal state of Yugoslavia. The United Nations voted, then, to admit the two former constituent republics of Yugoslavia – Croatia and Slovenia – to United Nations membership, as well as “Bosnia and Herzegovina”. The following year, 1993, the United Nations voted in accord with the Article 4(2) procedures to admit to membership “the former Yugoslav Republic of Macedonia” (FYROM), and under that rubric, according to the United Nations’ notation, pending settlement of the difference over its name. We will examine some of the political-legal consequences of those successive U.N. decisions, involving State succession to the former Communist federal state of Yugoslavia. While admission of states to the United Nations and their continued membership therein had always been legally separate and distinct from their recognition as sovereign persons in general international law, the practice of the European Community states in regard to the new states emerging from the break-up of the SFRY has been to merge and consolidate the two processes, in a larger vindication of the Declaratory theory practiced in the U.N. since the Soviet Western package deal of 1955. Thus Slovenia, Croatia, and Bosnia and Herzegovina were admitted to the United Nations in 1992 in lock-step with their recognition, as sovereign independent states, by the European Community concert of states. Slovenia and Croatia had applied for admission to membership in the United Nations in February, 1992, and their membership was then approved by the U.N. General Assembly in Resolutions of 22 May 1992. Bosnia and Herzegovina was admitted on the same date, 22 May 1992. In the case of the former Yugoslav Constituent Republic of Macedonia, the political-legal objections raised by Greece on the score of claimed Irridentist pretensions, under the name of Macedonia, to integral Greek territory, were attempted to be met by a U.N.-imposed choice of special nomenclature in the language actually employed for the admission to U.N. membership. Former Yugoslav Republic of Macedonia with the acronym FYROM, was the U.N.-devised special legal euphemism, and the admission to the U.N. membership was made on 8 April 1993 under that rubric. (This formula would

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later be employed by Greece in its own subsequent recognition, in Greek Municipal (national) law, more than two years later, of the new succession state, as well as by some other states that had accepted Greece’s legal position on the issue, Canada in particular). One major exception to all this must remain the special case of the rump Socialist Federal Republic of Yugoslavia (SFRY) and its two remaining Constituent Republics, Serbia and Montenegro, and their claim to be able, legally, to continue in the membership in the United Nations conferred upon Yugoslavia, as a member of the victorious Wartime Alliance against Fascism, in the status of an “original” member present at the founding of the United Nations in San Francisco in the Spring of 1945. By May, 1992, three of the Constituent Republics of the SFRY had been admitted to membership in the United Nations in their own right, and the fourth, FYROM, had followed in its admission to the U.N. in April of 1993. Both the Badinter Commission in its Legal Opinion no. 1 of 29 November 1991, that the SFRY no longer met the criteria of a “state” under international law; and also the U.N. Security Council in its Resolution 757 of 20 May 1992 (adopted by 13 to 0, with 2 abstentions, including China), and its Resolution 777 of 19 September 1992 (adopted 12 to 0, with 3 abstentions, including China and India) denying the claim of the rump SFRY to continue automatically the Yugoslav membership in the United Nations and declaring that it should not participate in the work of the U.N. General Assembly, would appear highly contestable in legal terms. The Badinter Commission, the professional expertise of its members deriving from their status as national Constitutional Court judges, may have needed, when it ventured into categorical conclusions in International law, some more substantial doctrinal and jurisprudential argumentation in support of its legal reasoning. For its part, the Security Council, in the Resolution of May 1992, denying continuity of U.N. Membership to the SFRY, seems to have passed over, too easily, the continuing U.N. practice going back to the founding of the U.N. organization at San Francisco in the Spring of 1945. India had become an “original member” of the U.N., present at the creation in its capacity as part of the victorious wartime alliance. But it was the undivided India of the British Raj that had participated in World War II on the victors’ side, and when decolonisation and independence from Great Britain were achieved in 1947, it was on a basis of a fission of the Indian sub-continent into two sovereign, independent states, India and Pakistan. In the first United Nations precedent on U.N. membership and State succession, continuity of legal personality of the newly independent Republic of

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India with the “original member” of the United Nations from 1945, was accepted without question: whereas the other newly independent, successor state to the British Raj, Pakistan, was viewed as a new state and required to apply for U.N. membership, which was in fact promptly granted under the procedures in Article 4(2) of the U.N. Charter. A little down the road, when Bangladesh had succeeded, by force majeure, in seceding from Pakistan, there was never any legal issue of the continuity of Pakistan’s U.N. membership from 1947; but Bangladesh, as the seceding state, was required to submit to the Article 4(2) procedures and was admitted to the U.N. under these rules, in 1974. The case of the break-up of the short-lived United Arab Republic is anomalous. Its two components, Egypt and Syria, had both become “original members” of the United Nations in 1945; and, on the dissolution of the UAR, Egypt was presumed to continue in its membership, while Syria was allowed to resume its original membership without being required to submit any formal application for a new membership. More striking is the disparity of treatment, in the Security Council, of the issue of the effects on continuity of U.N. membership of secession and State succession, in the two cases of the former Union of Soviet Socialist Republics (USSR) and the SFRY. The USSR had been constitutionally dissolved in the tripartite declaration of the three key Slavic constituent republics, the Russian Federation (RSFSR), the Ukraine and Belorussia – at Minsk on 8 December 1991, with the signature of the Agreement on the Establishment of the Community of Independent States (CIS).6 The preamble of the Agreement recited that “the USSR as a subject of international law and a geopolitical reality is terminating its existence”. The tripartite Minsk Agreement was, almost immediately, given a still further legitimacy, in Municipal (constitutional) law terms, by being ratified by the heads of eleven constituent republics in the so-called Alma-Ata Protocol, signed on 21 December 1991. In a rapid succession of diplomatic events, the President of the Russian Federation wrote to the U.N. SecretaryGeneral on 24 December 1991, in follow-up to the Alma-Ata agreement, advancing the Russian Federation’s claim to succession to the USSR’s “original state” membership dating back to 1945. Any other

6

T. Schweisfurth, Ausgewählte Fragen der Staatensukzession im Kontext der Auflösung der UdSSR, Archiv des Völkerrechts. vol. 32. (1994), p. 99; R. Miullerson, The Continuity and Succession of States by reference to the former USSR and Yugoslavia, International and Comparative Law Quarterly, vol. 42 (1993) p. 473.

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formula might in theory have presented political and legal questions as to claims by the Russian Federation to Permanent Member status in the Security Council. As it was, there was no contest, and no legal objection seems to have been advanced at any stage; with the result that legal continuity of membership was effectively acquiesced in, including the legal status of Permanent Member of the Security Council. In the case of the SFRY, there was an observable progression of the Badinter Commission, from its Opinion No. 1 of 29 November 1991, that the SFRY was “in the process of dissolution”, to its Opinion no. 8, 4 July 1992, that the SFRY “no longer exists”, and Opinion no. 9, 4 July, 1992, that new states had been created on the territory of the SFRY and that all were successor states; and that the SFRY’s membership in international organizations must therefore be terminated according to their statutes and that none of the successor states could claim for itself alone the membership right previously enjoyed by the SFRY. Finally, in the Opinion no. 10, 4 July 1992, the Commission concluded that the rump SFRY state (the FRY – Serbia and Montenegro) did not ipso facto enjoy the recognition that the SFRY had had; though other states could, where they thought it appropriate, recognise the FRY, but as a new state. These Commission conclusions, as of July, 1992 – may be arguable in terms of the Municipal (constitutional) law of the SFRY, but they seem certainly highly contestable in terms of application of the classical International Law tests on recognition. Although two of the six constituent republics had effectively broken away from the SFRY, the situation in two others was still, at the very least, uncertain in political or political-military terms; and of course the two core units, Serbia and Montenegro, remained solid at the time. Any recognition of a disappearance of these two core units would, according to classical International Law norms, be “premature”. While the Badinter Commission opinions were immediately accepted and applied in the European Community and among EC member-states as offering a sufficient legal base for action, hitherto deemed lacking in the case of the “premature” German recognition of December, 1991, of Slovenia and Croatia, the United Nations reactions were somewhat more measured. Certainly, the Security Council Resolution 757 of 20 May 1992 had declared that the claim of the FRY (Serbia and Montenegro) to continue automatically the membership of the SFRY in the UN had “not been generally accepted”. The Security Council, in Resolution 777, adopted unanimously on 19 September 1992, decided that Serbia and Montenegro could not continue in the SFRY’s membership, and recommended

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to the General Assembly that it decide that the FRY (Serbia and Montenegro) should “apply for membership in the United Nations and that it shall not participate in the work of the General Assembly”. There was some difference of opinion, within the U.N., as to the effect of the Security Council Resolutions and their legal impact. It has been suggested that France differed from other European Community states and considered non-participation of the FRY at the United Nations as “simply a decision on sanction provisionally taken against a member-state, by reason of its politics”.7 The then U.N. Secretary-General, Boutros Boutros-Ghali, has himself suggested that the Security Council directive that the new FRY régime in Belgrade would have to apply afresh for membership in the U.N. was political, rather than legal, in its motivation. In BoutrosGhali’s own words: This was important leverage. The Charter required that new states had to be “peace-loving”; hence the Federal Republic of Yugoslavia would have to stop supporting the war in Bosnia if it ever wanted to be a full U.N. member state. As time passed, however, international willingness to use pressure evaporated, and the Belgrade government’s U.N. membership ceased to raise questions.8

The General Assembly itself, in its Resolution 47/1 of 22 September 1992 which recited, in terms, the Security Council Resolution 777 of 19 September 1992, declared that the FRY could not “continue automatically the membership” of the former SFRY, and that the FRY (Serbia and Montenegro) “should apply for membership in the United Nations and that it shall not participate in the work of the General Assembly”. The General Assembly may have appeared clear enough as to the consequences flowing from its Resolution of 22 September 1992, but some equivocations or qualifications emerged almost immediately in a letter addressed by the U.N.’s Under-Secretary-General and Legal Counsel, on 29 September 1992, to the Permanent Representatives to the United Nations of Bosnia-Herzegovina and Croatia in which the U.N.’s Legal Counsel stated what he characterised as the “considered view of the United Nations Secretariat

7

8

Brigitte Stern, “Les questions de succession d’Etats dans l’affaire relative à l’application de la Convention pour la prévention et la répression de crime de génocide devant la Cour internationale de Justice”, in N. Ando, E. McWhinney, R. Wolfrum (eds.), Liber Amicorum Judge Shigeru Oda, vol. 1 (2002), p. 285, at p. 289. Boutros-Ghali, p. 49.

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regarding the practical consequences of the adoption by the General Assembly of [General Assembly] resolution 47/1”: While the General Assembly has stated unequivocally that the Federal Republic of Yugoslavia (Serbia and Montenegro) cannot automatically continue the membership of the former Socialist Federal Republic of Yugoslavia in the United Nations and that the Federal Republic of Yugoslavia (Serbia and Montenegro) should apply for membership in the United Nations, the only practical consequence that the resolution draws is that the Federal Republic of Yugoslavia (Serbia and Montenegro) shall not participate in the work of the General Assembly. On the other hand, the resolution neither terminates nor suspends Yugoslavia’s membership in the Organization. Consequently, the seat and nameplate remain as before, but in Assembly bodies representatives of the Federal Republic of Yugoslavia (Serbia and Montenegro) cannot sit behind the sign “Yugoslavia”. Yugoslav members at United Nations Headquarters and officials may continue to function and may receive and circulate documents. At Headquarters, the Secretariat will continue to fly the flag of the old Yugoslavia as it is the last flag of Yugoslavia used by the Secretariat. The resolution does not take away the right of Yugoslavia to participate in the work of organs other than Assembly bodies. The admission to the United Nations of a new Yugoslavia under Article 4 of the Charter will terminate the situation created by resolution 47/1.9

No wonder that the International Court of Justice, in having to consider together Security Council Resolution 777 of 19 September 1992, General Assembly Resolution 47/1 of 22 September 1992, and the U.N. Under-Secretary-General and Legal Counsel’s letter of 29 September 1992 purporting to identify the “practical consequences” of the General Assembly Resolution, ventured its own opinion, in a classic example of judicial understatement, that “the solution adopted is not free from legal difficulties”.10 The International Court was

9 Cited in the ruling of the International Court of Justice in Application of the Convention on the Prevention and Punishment of the Crime of Genocide. Provisional Measures. Order of 8 April 1993, (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)) ICJ Reports 1993, p. 3, at pp. 13-14. 10 Ibid., at p. 14. The Court was unanimous in its rulings on Provisional Measures, except that Judge Tarassov (Russia) felt that the Court’s order to the FRY (Serbia and Montenegro) to take all measures under the Genocide Convention of 1948 to prevent commission of the crime of genocide should also have been addressed to the government of the Republic of Bosnia and Herzegovina; and Judge Tarassov also considered that the Court’s further instructions to the government of the FRY (Serbia and Montenegro) to ensure that any military, paramilitary or irregular armed units directed or supported by it, as well as any organizations and persons subject to its control, did not commit any acts of genocide against the Muslim population of Bosnia and Herzegovina or against

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able, however, for purposes of the legal issues actually before it, to conclude that the “question whether or not Yugoslavia is a Member of the United Nations and as such a party to the Statute of the Court is one which the Court does not need to determine definitively at the present stage of the proceedings”.11 The apparently calculated ambiguities in the three separate responses as to the exact legal status of Serbia and Montenegro (the FRY) suggest either legal confusion or, more probably, some differences of legal opinion between the U.N.’s professional Secretariat and the U.N.’s political organs as to the correct legal application of the U.N. Charter-based rules as to Membership, including the obvious distinction between continuity of an Original Membership and new Membership. In political terms at least, the issue had perhaps been resolved, twelve months later, by the General Assembly’s further Resolution, A/48/88, in response to European Community and other political pressures, urging U.N. member-states and the U.N. Secretariat to – “end the de facto working status of Serbia and Montenegro”.12

any other national ethnic, racial or religious group, were – “very close to a pre-judgement of the merits, despite the Court’s recognition that, in an Order indicating provisional measures, it is not entitled to reach determinations of fact or law”. Judge Tarassov criticized these parts of the Court ruling as “impos[ing] practically unlimited, ill-defined and vague requirements for the exercise of responsibility on the Respondent” (the FRY), and left the FRY “open to unjustifiable blame for failing to comply”. Judge Tarassov also criticized these Court holdings for “lack of balance” in singling out one element of the population of Bosnia and Herzegovina, and suggested that “these objectionable provisions [in the Court ruling] . . . lack not only balance but practicality”. As to these latter points, Judge Tarassov indicated he dissented from the Court ruling. ICJ Reports 1993, p. 3; pp. 24-5 (Order of the Court): pp. 26-7 (Declaration of Judge Tarassov). 11 Ibid., p. 14. 12 Under the terms of a loose constitutional Union established between Serbia and Montenegro in 2003, in replacement of the rump legal provisions surviving from the old Socialist Federal Republic of Yugoslavia, either of the two constituent units (Serbia or Montenegro) of the new Union could elect to leave after three years, if it could attain a special, 55 per cent majority of its citizens voting in a special referendum held for that purpose. The 55 per cent special majority had been established by the European Union, as had the rules for the conduct of the referendum. The constitution of the Serbia-Montenegro Union had also envisaged that whichever one of the two should leave the Union would leave the remaining member as the successor to the international status of the then-to-be-dissolved Union, including its seat in the United Nations and representation in international political and financial institutions. Montenegro, having attained, barely, the 55 per cent voting mark set for a legal majority in the May 2006 referendum, and proceeding on then to sovereignty and independence, would have to apply now in its own right for admission to the United Nations and international organisations generally. Serbia would continue, (as State Successor to the Serbia-Montenegro Union), automatically to all these attributes of the original sovereignty. Recognition of Montenegro by other States followed quickly, as well as admission to the United Nations as a new state.

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A consideration clearly in the mind of the Badinter Commission when it was reaching its ten assorted legal Opinions on 11 January and 4 July 1992 was the disposition of the state assets and other property rights of the Socialist Federal Republic (SFRY) among its constituent units. Clearly, if the FRY (Serbia and Montenegro) was legally in continuity with the SFRY, then the rules from the Ethiopian and Spanish civil war cases on these very material financial and property rights would apply. As Chairman of the Conference for Peace in Yugoslavia, Lord Carrington sent a letter on 18 May 1992 to the Badinter Commission, directed to this issue. In its Opinion No. 9 of 4 July 1992,13 the Badinter Commission, on the crucial question of SFRY property located in third countries, declared that it must be “divided equitably between the successor states” (rather than attaching to the FRY alone as it presumably would if legal continuity between the FRY and the old SFRY existed). The Badinter Commission also declared that the SFRY’s assets and debts must likewise be “shared equitably between the successor states”. In some respects, it seems that the issue of legal continuity or non-continuity of the FRY and the SFRY was decided by legal indirection, in the interstices of a conclusion on the best disposition, politically, of the State assets and property of the SFRY. In the case of the former USSR though, as we have seen, the legal continuity of the USSR and the new state of Russia was accepted promptly, without political contest or argument. The issue of disposition of the State property and assets of the old USSR was deliberately separated, politically, from the recognition question. It was done by way of a special legal agreement among the succession states on disposal of state assets of the USSR, made in the aftermath of the Minsk Declaration and the Alma-Ata Protocol of 1991. A principal conclusion has to remain that the European Community collective, regional action, and also the two Security Council Resolutions of 1992, involved the conscious insertion into the decision-making on recognition and admission, of subjective political criteria of the same generic character as those standards of political “good behaviour” advanced in the European Community Guidelines on Recognition of New States of 16 December 1991. In the case of the United

Some potentially disputatious issues as to the allocation and divisions between the two states of the fiscal debt of the former Union, and as to federally-owned property might still remain, that would have to be settled by diplomatic negotiation between them or by third party arbitration. 13 Arbitration Commission, Opinion no. 9, 4 July 1992. International Legal Materials, vol. 31, no. 6 (November, 1992), pp. 1523-5.

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Nations, it would present, as a special case, a reversion to the original practice (prior to the Soviet-Western “package deal” on new members of 1955), of applying substantive political-ideological criteria (under the legal rubric of the “peace-loving state” formulation in Article 4(1) of the U.N. Charter), as the determinant of eligibility for U.N. membership. For general international law, it would signal an important new trend and direction towards an ever-widening embrace of minimum standards of state conduct as conditions for entry into or continued participation in the World Community decision-making. The same trend can be observed in the developing practice of the European Union in the new conditions as to political as well as economic performance that it now applies to future state candidates for admission to the European Union, that are reflected in its priority listing and ranking of such state candidates for admission to the Union. The signal omission of Turkey from the several, hierarchically ranked in point of time, short lists for future admission to the European Union, released in 1999, was understood to be less a ruling on the “economic” readiness of Turkey for entry into the European economic system than a value judgement on Turkey’s deemed noncompliance with U.N. Resolutions on the reunification of Cyprus and on its standards of performance on civil rights within its own territory and towards its own minorities and its citizens generally.

A.

Admission to Functionally-based or Regionally-based International Organizations

Some long-range trends and conditions, for the World Community in general, in regard to recognition and state succession, have been confirmed or accentuated by developments over the decade and a half of the post-Cold War era from the fall of the Berlin Wall onwards. First is the trend to Continentalism and to supranational political and economic integration across conventional national frontiers of states, which progressively whittles away many of the traditional legal attributes of state sovereignty and renders the concept of sovereignty increasingly anachronistic and out of date in contemporary conditions of interdependence in the World Community. The second is the well evidenced trend for governments and their executive and legislative branches and even their judiciary not to stand too much on issues of legal status in the abstract, but, instead, to try to “do what comes naturally”, with pragmatic executive and administrative accommodations being made in trans-border cooperation in concrete

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problem-solving exercises. It is left to the lawyers to rationalise in legal terms any resulting jurisdictional issues after the conceived politically necessary and useful government decisions have been made. Admission to regional or trans-national associations of states that do not involve any onerous financial or other obligations increasingly comes as a matter of course, since these particular organisations normally thrive on enlarged membership. There may, as in the case of the Commonwealth (formerly British Commonwealth) now be a supplemental constitutional testing of membership in terms of conformity to contemporary international standards of “good behaviour” of states. This criterion was first applied to exclude from the Commonwealth the former white minority-governed Republic of South Africa, and then more recently applied to compel Nigeria to conform to internationally accepted standards of political and civil rights within Nigeria. At the reunion of Commonwealth heads of government held in early 2002, a strong effort was made by several traditional leaders within Commonwealth ranks – most notably Great Britain, through Prime Minister Tony Blair, – to expel or otherwise severely sanction Zimbabwe for alleged perverting of the electoral processes and intimidation of political opponents. It was not successful, but the intellectual carry-over from the European Community established, new standards of political “good behaviour” as a condition of membership seems clear enough. In the case of other international organizations and the U.N. specialized agencies with substantive law-making agendas and competence, such as UNESCO and the new World Trade Organization, the functional base and responsibilities, and ultimately the efficacy, of such bodies are directly linked to their representativeness, overriding conventional credentials tests of membership based on conformity or non-conformity to classical criteria of state recognition. It is hardly surprising, in this regard, granted the financial and economic weight of each entity, that both the People’s Republic of China and also the Republic of China (Taiwan) should logically be included in the World Trade Organization, even though, since its de-recognition at the opening of the 1970s, the Republic of China (Taiwan) has ceased, legally, to be a sovereign state according to the Foreign Ministries of most of the leading states of the World Community. That has not, however, prevented those same states from opening well-staffed shadow diplomatic missions in Taiwan and, reciprocally, from receiving similar missions from Taiwan; nor has it prevented the according to such Taiwan representatives (styled Trade Commissioners) the privileges and immunities of diplomatic personnel under international Customary and Treaty law. In the Maersk Dubai

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case,14 the Supreme Court of Nova Scotia in 1996 in effect accorded sovereign immunity in respect to a state-owned commercial vessel registered to the Republic of China (Taiwan), even through the Republic of China (Taiwan) was not officially recognized by the Government of Canada. Members of the ship’s crew, in consequence of the court decision, were released to Taiwanese government officials in Canada for purposes of investigation and trial before the regular Taiwanese Courts, under Taiwanese criminal law.15 Already observable trends of a decade ago, under the CanadaU.S. Free Trade Agreement, to allow free movement of people and of commerce across the long, Canada-U.S. common frontiers, had been accentuated, with a de facto liberal, facultative administration of the customs and immigration laws of both countries, particularly on the U.S. side, in contrast to the more draconian U.S. application of such laws at Mexican and some other U.S. international ports of entry. The common-sense and business efficacy of such bilateral, administrative cooperation between Canada and the U.S. are obvious enough, granted the enormous daily flow of people and goods, back and forth across the common Canada-U.S. border. Such transborder cooperation is likely to survive and to continue to be augmented long-range, notwithstanding the heightened security impulse from the international terrorist atrocities of 11 September 2001, which brought urgent suggestions from the then U.S. Ambassador to Canada and assorted U.S. Senators and Congress members, for harmonization of Canadian and U.S. laws on security controls on visitors and immigrants and alleged refugee claimants arriving in the two countries.

14 Re Republic of China and Romania et al., 109 C.C.C. (3rd) 348 (1996). 15 The Maersk Dubai case is discussed in Hungdah Chin, Su Yun Chang, and Chih-Yu Wu, “Transfer to the Republic of China of the Detainees involved in the Maersk Dubai case in Canada”, Chinese Yearbook of International Law and Affairs, vol. 15 (1996-7), p. 103; Chin, Chang and Wu, “The synopsis by the Prosecutor in the Maersk Dubai case at the Kaohsiung, District Court of Taiwan, the Republic of China”, ibid., vol. 17 (1998-9), p. 102.

CHAPTER FOUR

THE U.N. CHARTER PRINCIPLE OF TERRITORIAL INTEGRITY OF STATES. THE UTI POSSIDETIS DOCTRINE AS ELEMENT IN STATE SUCCESSION In its Opinion no. 2, issued on 11 January 1992, the Badinter Commission, while conceding that “international law as it currently stands does not spell out all the implications of the right to self-determination”, nevertheless concluded: It is well established that, whatever the circumstances, the right to self determination must not involve changes to existing frontiers at the time of the independence (uti possidetis juris) except where the States concerned agree otherwise.1

In its Opinion no. 3, again published on 11 January 1992, the Badinter Commission addressed the question whether the purely internal, regional boundaries established for the Constituent Republics of the Socialist Federal Republic of Yugoslavia under the SFRY Constitution, could be regarded as frontiers in terms of public international law.2 The first part of the Commission’s response was uncontroversial: that all external frontiers must be respected, in line with the principle that the Commission found to be established in the United Nations Charter; the U.N. General Assembly Declaration of Principles of Friendly Relations (UNGA Res. 2625 (XXV) of 1970); the Helsinki Final Act, and the Vienna Convention of 1978 on the Succession of States in respect of Treaties. In its second response in Opinion no. 3, the Commission ruled that the internal, regional boundaries of the constituent republics under the SFRY Constitution might “not be altered except by agreement freely arrived at.” 1 2

Arbitration Commission, Opinion No. 2, 11 January 1992, International Legal Materials, vol. 31, no. 6, (November, 1992). pp. 1497-9. Arbitration Commission, Opinion No. 3, 11 January 1992, Ibid., pp. 1499-1500.

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It is in the third part of the Commission’s response to the question that an inductive leap into new international law, not covered by pre-existing doctrines or jurisprudence, may be thought to have occurred: Except when 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 fourth part of the Commission’s response is a reiteration of the first part of the response, with the addition of the principle of the NonUse-of-Force. It relies on the same general legal authority (the U.N. Charter; the U.N. General Assembly’s Friendly Relations Declaration of 1970; the Helsinki Final Act), namely that – “the alteration of existing frontiers or boundaries by force is not capable of producing any legal effect.” The Badinter Commission’s overall reasoning is elliptical. Its first response speaks of “external frontiers”, where its fourth response moves on to apply the principles of its first response to simple, unprefixed “existing frontiers or boundaries”. The extension might well be warranted, de lege ferenda, but it really would have benefited from some supporting argumentation and justification in positive law terms if presented as part of the process of progressive development of international law in accordance with the U.N. Charter. Part of the problem inherent in the jump from purely internal, regional boundaries within a federal or plural-constitutional state that are sanctioned, as such, under the Municipal, constitutional law of the state concerned, to external frontiers of a state sanctioned, as such, under Public International Law, may perhaps be found in the special nature and composition of the Badinter Commission with its five members’ special legal expertise in Municipal, national constitutional law, without obvious claims also to authority in international law.

A.

The Uti Possidetis Doctrine

There is a simple ellipsis in the Badinter Commission’s findings as to the range and reach of the uti possidetis doctrine. In classical International Law it is regarded as a special, regional Latin American International Law doctrine, with its historical roots formed over the more than three centuries of administrative governance under the Spanish and Portuguese Colonial empires in the Americas.

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The Badinter Commission’s assertion, in the third part of its response in Opinion no. 3 that “uti possidetis, though initially applied in settling decolonisation issues in America and Africa, is today recognized as a general principle”, may be too broadly stated. Outside Latin America, the reference to Africa may rest on a confusion of the political practice of the relevant regional organisation, the Organisation of African Unity, in regard to territorial boundaries inherited in the decolonisation process from European Imperial powers, with a lex lata judicial category. The Badinter Commission’s citation, here, of a dictum from Frontier Dispute (Burkina Faso v. Mali),3 identifies the policy considerations guiding Organisation of African Unity practice in the early decolonisation years of the 1960s and the 1970s: It (uti possidetis) is a general principle, which is logically connected with the phenomenon of the obtaining of independence, wherever it occurs. Its obvious purpose is to prevent the independence and stability of new States being endangered by fractional struggles . . .

This is true enough as a description of the high pragmatism of OAU leaders of that particular time, like Boutros Boutros-Ghali in the earlier, national, (Egyptian) phase of his career in public life. There was political consensus that it would be wise to postpone rectification of the arbitrary territorial frontiers, too often dividing members of the same African peoples, imposed by the European Imperial powers at the Congress of Berlin in 1885 and later. The political consensus then was, instead, on forging common, pan-African positions in the U.N. and other main international arenas. The OAU, in 1964, had approved a Resolution declaring that the borders of African States, on the day of their independence, constituted a “tangible reality”, and that all OAU member-states should “pledge themselves to respect the borders existing on their achievement of independence”, this in spite of the widespread feeling, expressed by the All African Peoples Congress in Accra, Ghana, in 1958, in the earliest de-Colonisation period, that these were: artificial frontiers drawn by imperialist powers to divide the peoples of Africa, particularly those which cut ethnic groups and divide people of the same stock.4

3 4

ICJ Reports, 1986, p. 554, at p. 565. (G.K.A. Ofosu-Amaah, “Regional Enforcement of International Obligations:

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What is clear in the African historical experience, since de-Colonisation was so generally achieved in the late 1950s and in the 1960s, is that the principle of the integrity of national borders acquired by the new, post-Colonial Succession states as a legacy from past European Imperial masters was, in its origins, a political and not a legal principle. It was a rule of stratecraft, developed by the first wave of highly pragmatic, post-Colonial, indigenous African political leaders, who had acquired their independence by negotiation rather than force majeure and armed struggle, in response to special conditions existing in Africa in the immediate aftermath of de-Colonisation. There were no evident borrowings from the Latin American uti possidetis doctrine, and no reference in fact to it. Linking of the African political rule of reason with the Latin American legal doctrine would come a quarter century later, and then by way of a reference in the judgment of a five member, Special Chamber of the International Court of Justice, headed by Judge Bedjaoui (Algeria), in Frontier Dispute (Burkina Faso v. Mali) in 1986. The Special Chamber in Frontier Dispute, in ruling on a border dispute between two former French African states that had achieved their independence in 1960 before the formation of the OAU and the adoption of its Resolution on respect for borders existing on deColonisation, seemed to equate the OAU principle with what it referred to as “Spanish American” doctrines, and therefore as not being merely a special rule pertaining to one specific system of regional international law, but as a “general principle, which is logically connected with the phenomenon of the obtaining of independence, whenever it occurs”. The Special Chamber in Frontier Dispute did note in passing that respect for pre-Colonial frontiers might conflict with the principle of self-determination. But it did not elaborate on this point which is clearly a ground for differentiation and possible distinction in the case of the frequently multi-ethnic Succession states that inherited European colonial boundaries in Africa, as opposed to the much more markedly, homogeneous Succession states in Latin America.5

5

Africa”, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht. vol. 47 (1987), p. 80; B. Boutros-Ghali, “The Arab League 1945-1970”, Revue Egyptienne de Droit International, vol. 25 (1969), p. 67). Frontier Disputed (Burkina Faso v. Mali, ICJ Reports, 1986, p. 554, pp. 565-7; and see especially Luchaire J., Separate Opinion, at pp. 652-3. See also R. Higgins, “The International Court of Justice and Africa”, in Liber Amicorum Judge Mohammed Bedjaoui, E. Yakpo and T. Boumedra, (eds.) (1999), p. 343, at pp. 368-9).

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Within Latin America itself, there is some tendency today to restrict the application of the uti possidetis doctrine to its special historical fact-context in Latin America at the moment of independence from the European Imperial power (Spain or Portugal, as the case might be). Thus it is pointed out that Brazilian state practice limited application of the uti possidetis doctrine to invocation against HispanicAmerican countries; and, in particular, that it was never mentioned in Brazilian controversies with third states (France, Great Britain). And it is further argued that, in controversies with Hispanic-American states, Brazil uses uti possidetis as a synonym for possession – effective possession, only. Treaties in such cases are given primacy over possession, with uti possidetis (possession) being invoked as a supplementary title in the absence of treaties in force.6 In the particular context of the Badinter Commission’s Opinion no. 3 of 11 January 1992, the Commission’s declaration that the purely internal, regional boundaries of the various Constituent Republics of the old SFRY (Yugoslavia) had become jelled as the external boundaries of any new Succession states to the SFRY, and had been guaranteed, as such, under International Law, seems wrong in its postulation that this is so “except when otherwise agreed” by the political players concerned (the rump SFRY and the breakaway Constituent Republics). The further Commission statement that this conclusion “follows from the principle of respect for the territorial status quo”, may be trite and self-evident enough as a political principle, but it can be of no normative-legal quality in itself. The further Commission suggestion that that conclusion flows from the principle of uti possidetis is, as already noted, unaccompanied by any material demonstration by that Commission, in its argumentation, of the nature and quality of uti possidetis in Latin American regional International law, and of its relevance for purposes of present reception into what might be called European regional and also general International law where it would, of course, have to be balanced against the U.N. Charter-based principle of self-determination of peoples as proclaimed in Article I (2). Contemporary criticisms of the embrace by governments of the principle of uti possidetis as being now a general rule of international law to govern the breakup of states, focus on the fact that political leaders are thereby able to

6

La conception brésiliene de l’uti possidetis “J.A. Barberis,” in Liber Amicorum Judge Mohammed Bediaoui, E. Yakpo and T. Boumedra (eds.) (1999). p. 49. And see also I. Seidl-Hohenveldern. Landkarten im Völkerrecht (Herbert-Miehsler-Gedächtnisvorlesung an der Universität Salzburg) (1989), p. 1, p. 6 et seq.

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avoid engaging the issue of territorial adjustments, even minor ones, central to the process of self-determination.7 Former British Foreign Secretary, Lord Owen who was a member, successively, of the United Nations-appointed Vance-Owen and then Owen-Stoltenberg special negotiating teams on Yugoslavia which came up with a sophisticated compromise, “federal” solution for the Bosnia Herzegovina entity, commented, in diplomatic understatement, that the refusal to make Yugoslavia’s internal borders negotiable greatly hampered the European Community’s attempts at crisis management and subsequently put all peacemaking efforts “within a straightjacket that greatly inhibited compromises”.8 A partial explanation for the Badinter Commission’s seeming rush to judgment as to the legal disappearance of the old SFRY rather than its legal continuity in the person of the rump state still constituted by its core Constituent Republics, Serbia and Montenegro, and for the Badinter Commission’s definitive ruling as to the carry-over of the SFRY’s internal, administrative boundaries as the frontiers of new Succession states, may, as already suggested, perhaps be found in issues of the incidents and attributes of State Succession, in case of break-up of an existing state, in terms of disposition of property and other assets and also obligations, including public debts. The customary and treaty rules of International Law as to all this were, of course, well known. The Badinter Commission, in one of its most unexceptionable rulings, Opinion no. 9 of 4 July 1992, quite correctly made reference to the 1978 Vienna Convention on State Succession in respect of Treaties, and to the 1983 Vienna Convention on State Succession in respect of State Property Archives and Debts. In its Opinion no. 14 of 13 August 1993, the Badinter Commission went on to declare that public property should pass to the successor state in whose territory it was situated, and that the origin or initial financing of the property and any loans or contributions made in respect to it should have no bearing on the matter; while other State property, debts and archives should be distributed among the successor states according to agreed quotas that reflected the basic

7

8

David Owen, Balkan Odyssey (1995) pp. 33-4; S.R. Ratner, “Drawing a better line: uti possidetis and the Borders of New States”, American Journal of International Law, vol. 90 (1996), p. 590, at p. 591. Even more directly, it is contended that in the case of Yugoslavia” – although uti possidetis hardly caused the eruption of the armed conflict, the assumption by states of its applicability from the outset prevented any debate over the adjustment of boundaries and limited the universe of possible borders to one – leaving these people on the “wrong” side of the border ripe for “ethnic cleansing.” Ratner, op. cit. Owen, op. cit.

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principles of equity. These declarations by the Badinter Commission in its assorted Opinions in 1992-3 had responded to objections from breakaway Constituent Republics of the SFRY at what they considered to be an inadequate share, for themselves, of SFRY public property, accompanied by an excessive allocation to them of their share in the SFRY’s public debts. These highly contentious questions of State succession as to public property and debts were eventually resolved in a final agreement, reached with the help of the European Community special negotiator, Sir Arthur Watts, in June, 20019 – in fact, only after a political-military conclusion had been brought to the decade-long War of the Yugoslav Succession. The Institut de Droit International, in a Report of one of its special Commissions on the subject, State Succession in Matters of Property and Obligations, which was debated in depth and then adopted by the Institut in plenary session in August 2001, provides a comprehensive, and for most purposes definitive, statement of contemporary International Law on this question.10

9 Agreement on Succession issues between five Successor States of the Former State of Yugoslavia, 29 June 2001; International Legal Materials, vol. 41 ( January, 2002), p. 3. Introductory note by Sir Arthur Watts, ibid., p. 1 10 Annuaire de l’Institut de Droit International. Session de Vancouver. 2001, vol. 68 (Report of Seventh Commission, Georg Ress, rapporteur). For further discussion of the legal conflicts, within the former SFRY, over disposition of SFRY state property and other assets, and also disposition of SFRY public debts and related obligations, see V.D. Degan, “Création et disparition de l’Etat (à la lumière du démembrement de trois fédérations multiethniques en Europe)”, Recueil des Cours, vol. 279 (1999), p. 195, p. 308 et seq. (especially at pp. 315-9).

CHAPTER FIVE

FEDERALISM AND CONSTITUTIONAL PLURALISM AS SELF-DETERMINATION OPTIONS FOR PLURAL-ETHNIC STATES. THE DIFFERENT FACES OF FEDERALISM IN COMPARATIVE CONSTITUTIONAL LAW Our focus to date has been upon the International Law consequences and incidents of a break-up of an existing plural-ethnic society in the situations when national political leaders are unable or unwilling to continue to work together. The starting-point – Grundnorm – of any organized political society is, as Kelsen noted, a pre-legal, metalegal, political fact. In our case study of the former Socialist Federal Republic of Yugoslavia, the ultimate solution was a pathological one of dissolution of an existing, postulated federal, society through force majeure and civil war, with outside powers sometimes seeming tempted to vindicate their own long-term historical interests past and also present through proxy payers within the original, now severely threatened state. Would Municipal law, constitutional law changes within the old SFRY, involving far more substantial devolving and decentralizing of decision-making power on a regional basis and also pluralising of central executive institutions so as to represent more fully the different ethno-cultural communities, along lines already substantially reflected in Tito’s last, 1974 constitution, have been a viable alternative option without, certainly, the sheer number of civilian casualties and the destruction of the economic base that flowed from the final dissolution option with the accompanying long civil war? It is well known that key leaders in two of the six constituent republics involved in the final decisions to break-up the old SFRY-Izetbegovic in Bosnia Herzegovina and Gligorov in Macedonia – had looked initially to compromise constitutional solutions involving restructuring of the existing, still highly centralised federal system. But the rapid passage of events and the strong pressures from outside powerful political players seem to have swept away these intermediate,

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more moderate options still within the domain of Municipal law. Would alternative models or paradigms, allowing for even more flexibility and pragmatism in federal policies than allowed under the successive Tito constitutional models, have been more persuasive at the crucial time period? The favoured federal paradigms from comparative constitutional law, in the period after World War II, when newly decolonised, independent states emerging in the withdrawal or collapse of the European empires overseas were starting off with new constitutional systems, and also when defeated or otherwise war-devastated countries were trying to start afresh, were derived from the so-called AngloSaxon systems. The ideal-type, perhaps, because of the political-military prestige and the sheer economic power of the United States in the immediate post-war years, was the Constitution of the United States, adopted towards the close of the 18th century after the successful war of independence from imperial Britain, and with strong philosophical influences from the 17th century constitutional struggles in England that culminated in the Puritan revolution and the Cromwellian Commonwealth of the decade of the 1650s. The U.S. influences were particularly strong in the formation of the Bonn Constitution of 1949 and the West German state established out of the three Western powers’ zones of military occupation in Germany. Some key U.S. constitutional institutions – the celebrated Supreme Court of the United States in particular, became master instruments for “new wave” constitution makers around the world, having been successfully “received” in the Bonn Constitution of 1949 in the form of the Federal Constitutional Court (Bundesverfassungsgericht ); and then, by its evident success in contributing to an equilibrium of forces within the new Bonn federal system, being “received” again, in its European (Bonn) model throughout much of Western Europe, and still later, after the fall of the Berlin Wall, in former Soviet and Eastern European, post-Communist, succession constitutions. In quantitative terms, however, simply because of the range and the then length of the historical, political-legal ties in the old British Colonial empire, the most frequently utilized paradigm of AngloSaxon federalism has been the made-in-London model, first devised in the late 19th century by the British imperial government in London as a legal base for devolving powers of internal self-govern-ment to older, mainly English-speaking colonies with a majority of the population stemming from immigration from Great Britain itself and the British Isles generally. After World War II, in the successive waves of (usually consensual, peaceful) decolonisation, the newly independent Succession States of the old British Empire, where they were

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plural-ethnic in composition, were often endowed with new federal constitutions, drawing heavily on the late 19th century models and frequently having been drafted with the actual assistance of the British Foreign and Commonwealth Office as a pre-condition to the accession to sovereignty. In a few cases, like India, a highly educated local, succession political élite often formed in the Inns of Court and the ancient Universities of England, operated through a locally-chosen (constituent) assembly and studied not merely British Empire and Commonwealth-based federal models, but also drew on U.S. and other constitutional models (including Irish post-independence experience) and produced an interesting and in some ways remarkably innovatory constitutional charter. The key distinction between the two basic Anglo-Saxon federal models is that, unlike under the U.S. system, there is no constitutional separation-of-powers (executive, legislative, judicial) under the British-derived system, which operates with combined Parliamentary Executive as in England, and (at least until very recent years) without a formal constitutional Bill of Rights and without any system of court-based control of constitutionality (judicial review of the constitution). For present purposes, one might take the oldest of the British-derived federal constitutional systems, that of Canada, as a more detailed case study of the potentialities of the “classical”, Anglo-Saxon federal system as a paradigm or model for plural-ethnic societies elsewhere. This involves examining some of the evident limitations of the “classical” model and the resulting proposals for fundamental constitutional changes, that have emerged from an often ad hoc, largely trial-and-error approach to dealing with contemporary tension-issues. Not least of these issues have been the demands for self-determination, along cultural-linguistic lines, advanced by the francophone majority within the Province of Quebec since Quebec’s own “Quiet Revolution” in Quebec from the opening of the 1960s onwards; and also, in most recent times, by the different indigenous, aboriginal peoples scattered in often very small communities throughout the whole country.

A.

Self-determination and Self-government for Indigenous. Aboriginal peoples

This latter development – the constitutionalising of claims to political, social and economic self-determination on the part of the Aboriginal peoples of Canada – emerged first in the anterooms of the federalProvincial inter-governmental negotiations over Prime Minister Trudeau’s constitutional “patriation” project, 1980-2, launched in

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the aftermath of the federal government clear electoral victory in the Province of Quebec’s “Sovereignty-Association” referendum of May, 1980. As advanced, initially, by younger leaders of the Cree Nations in the western Province of Alberta, these claims spoke of an “inherent right of self-government”. In its origins, it was more of a philosophic expression drawing on Rousseau-style principles from the 18th century Age of Enlightenment, without any direct, concrete constitutional demands: that the claim to self-government is a natural right stemming from one’s capacity as a human being and is not to be reduced simply to a gift from existing non-Aboriginal government in Canada, federal or provincial. In part because they had had to move quickly in 1980 and had not up to that time built up very effective and coherent and widespread coalition of disparate political forces within the larger Aboriginal community, the Native leaders move to constitutionalise recognition of Aboriginal rights within the Trudeau-sponsored renewed federal constitution, failed.1 The Trudeau amending Constitution Act of 1982 does contain provisions saving “existing aboriginal rights and freedoms”; but these are not otherwise defined or spelled out. These “saving” clauses – sections 25 and 35 of the Constitution Act of 1982 – were, in fact, inserted even before the opening of the inter-governmental negotiations over the Constitutional “Patriation” package and at the insistence of people outside the federal government who communicated directly with Prime Minister Trudeau and persuaded him to include the provisions as a gesture of goodwill and good faith to the Aboriginal

1

The political spearhead of this bold constitution initiative had been provided by the Cree Nations-Treaty Nations 6, 7, 8 and 9 – territorially located within the oil-rich, western Province of Alberta, with support from another Cree Nation, Treaty Nation 10, location in northern Ontario. The young Grand Chief of the Cree Nations, Joe Dion, met directly with Prime Minister Trudeau and Governor General Schreyer to make the case for inclusion of the Indian Nations in the new constitutional reform package promised by Trudeau after the defeat of Quebec’s first Sovereignty-Association referendum in May 1980. Although Trudeau had seemed positively impressed by the Cree Nations’ proposal for a new, special constitutional status for Indian Nations in the projected new constitution for Canada, last-minute compromises that Trudeau had felt it necessary to make with hitherto intransigent Provincial Premiers to secure their support for his constitutional reform package led to dropping of these proposals from what became the Constitution Act of 1982. What remained on Aboriginal (Native) rights were only several sections (sections 25 and 35 of the Act of 1982) “saving” existing rights, such as they were, without defining them in any way. Grand Chief Dion and his later successor in that post, Eugene Steinauer, had impressed by their pragmatism and diplomacy in the constitutional negotiations, but they could not prevail against the closed ranks of the Provincial Premiers when finally admitted to the constitution-making process.

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peoples. Since that time, the progress to general community recognition of Aboriginal claims has been a slow, step-by-step process, with the main emphasis on negotiation of land claims agreements, with the economic development going with that; although a distinct federal territory in the Arctic, very sparsely populated by Inuit Aboriginal people though potentially rich in economic development and resources terms, has been accorded a limited self-government within the larger federal government framework. The key agreements on land claims are being pursued by special, individual, tripartite (federal government/Provincial government/Aboriginal people) contracts, generically described as “treaties” though they have never been recognized by the federal government as having any International Law status as such. Arrangements on self-government for the particular Aboriginal people concerned in any Aboriginal treaty, are in something of a legally undefined, limbo category as yet: the self-government conceded by the tripartite agreement having never been recognised by the federal government as having International Law status; and the Provincial government concerned in negotiation of the largest number of treaties still to be concluded – British Columbia, with only one such treaty (the Treaty with the Nisga’a people so far concluded) – having usually considered the status as analogous to that of local, Municipal government under the Provincial Constitution.2 There is a lack of any obvious, agreed overall philosophy and design, constitutionally, for the whole process; though no doubt when some more treaties should finally be concluded from the lengthy process,

2

The difficulties inherent in a protracted Treaty negotiation on Aboriginal claims that includes changes of government from time to time among all the players (federal government, Provincial governments, Chiefs and Band Councils of Indian Nations), were illustrated in the political doldrums of the so-called Kelowna Accord, concluded in late 2005 by the federal Liberal government under Prime Minister Paul Martin on a tripartite, give-and-take political basis with Provincial Premiers and Indian Chiefs. Prime Minister Martin, as head of an unstable, minority government was defeated in a House vote and defeated, then, in the resulting federal general elections. The successor Conservative government, under Prime Minster Stephen Harper, viewing the Accord as a political window-dressing operation by a soon-to-be defeated government, indicated (not unreasonably, perhaps, in constitutional terms) that it would want to reexamine the substance of the Accord before committing the new federal government. A Bill introduced in his last year in office and when facing a Party caucus recall, by Martin’s predecessor as Liberal Party leader and Prime Minister, Jean Chrétien, had had a similar fate. Martin, as successor Party leader and Prime Minister to Chrétien, essentially allowed the Chrétien Bill to lapse in the face of strong objections from entrenched Native leaders who had objected to its introduction of draconian measures on financial accountability and fiscal responsibility in the spending of federal grant monies, and on rigorous scrutiny of the fairness of Native Council elections and respect for Women’s rights.

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such a grand design may be induced from the empirical record of the transactions made. A nationally-based educational foundation, promoted by a (nonAboriginal) philosopher and writer, John Ralston Saul, in a series of national conferences, the La Fontaine-Baldwin symposia, held over the last few years, has advanced the idea of the Aboriginal peoples as a third founding nation, linked, as such, to the two conceived original, historical Founding Nations from the 17th and 18th century European settlements, the French and the English. This is the stuff of the poetry of a Constitution – the high-level legal folklore – and we have seen in the case of Quebec and francophone Canada that it can both inspire and also give constitutional expression, in concrete institutional terms, to the principle of self-determination of a people.

B.

Classical, Anglo-Saxon Federalism and the Deux Nations (Compact) Theory of Federalism

Imperial Britain in the late 19th century and thereafter in successive, step-by-step concessions, had devolved, somewhat tardily, Constitutional self-government to Canada as a political and legal unit within the British Colonial Empire overseas. The particular form of Constitutional devolution, chosen and expressed in the original Canadian Constitution of 1867, was federalism. But it was a federalism redolent of what Max Weber, in another context, had described as logicalformal-rationality. In the law-in-books as written in the first Canada-wide Constitution of 1867, the emphasis is on the geographical distribution and allocation of power. It was complicated by the dead-hand control of original boundaries established by the accidents of first colonial settlements in different, disparate regions of Canada;, or in the case of French Quebec, by the historical chance of a military conquest, effected in 1759, in a battle fought by a few thousand soldiers on each side, as part of the European Seven Years War in a distant colonial theatre far from the main European battlegrounds. It was a battle then confirmed by the Treaty of Paris in 1763 which officially terminated the Seven Years War. The Canadian Constitution of 1867, adopted a century later after a period, essentially, of British imperial rule from London, with limited local self-government having emerged only in the later years, was an exercise in the legal definition of decision-making powers. It proceeded from the political facts of existing territorial units, both as a more effective instrument of British imperial administration and

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devolution and also as a means of more easily resisting the pressures of Continentalism and absorption by an all-powerful United States to the south. Save for some small provisions as to the use of the French and English languages in the federal Parliament and in the federal courts and as to the maintenance of existing confessional (Roman Catholic) religious schools, there is nothing expressed in the Act of 1867 as to the historical compromises between the French and English colonial communities in North America. These were recognized and imposed by the embryonic International Law of the mid-18th century governing state succession in the case of acquisition of territory by military conquest; but they were also induced by pragmatic reason and ordinary governmental common-sense in their maintenance and respect with the unfolding of political events over the century between the Seven Years War and the Constitution Act of 1867. Some of the deficiencies or legal lacunae in the Constitution Act of 1867 were clearly due to particularistic elements of style and drafting flowing from the political-legal fact that the Canadian Constitution of 1867 was itself a statute of the sovereign, Imperial, British Parliament in London. In strictly juridical terms, the British Parliament was devolving self-government – limited self-government – at the time, without implications of international sovereignty – to North American units of the colonial Empire now being grouped together in the one state. Great Britain didn’t itself – then or now – have its own constitutional Bill of Rights or definition of the rights and duties of citizens or of ethnic-cultural or religious minorities. Its own constitutional-legal documents, as developed in the mid- and late 19th century Victorian era, were rather prosaic, dull documents, heavy on the minutiae and detail of institutions and processes but totally lacking in those poetic affirmations or sounding declarations of abstract general principles common to Continental European constitutional charters of the same general period. The constitutional debate within Canada as to whether the Constitution Act of 1867 represented a “compact” or treaty between French and English; or in other terms, whether the basic premise of the new federal state of Canada, which should govern all interpretation and applications of the constitution, was “Deux Nations” (two Founding Nations, French and English, existing on a basis of full legal equality), was totally extrinsic to the Constitution Act itself. It emerged historically only as a latter-day constitutional gloss sought to be applied to the Constitution by French-Canadian intellectuals and jurists marshalling their political arguments, variously, in favour either of more effective power for French Quebec within the Canadian

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federal system, or else, alternatively, and for the most part as latterday claim, of a Constitutional or International Law-based right to leave the federal system altogether if the postulated original, Deux Nations compact were to be considered breached or nullified. In strictly Kelsenian-juridical terms, the Grundnorm or basic premise of the Act of 1867 was Imperial British, in the fact of its legal enactment by the Imperial, British Parliament as one of its own statutes. In socio-legal terms, however, the argument was otherwise, and it significantly divided English Common Law-trained constitutional jurists in Canada from the Quebec-based French Civil Law-trained constitutional jurists, in the great debate over the constitution throughout the 20th century which came to a political head with Quebec’s intellectual “Quiet Revolution” from the opening of the 1960’s onwards.

C.

Dilemmas and Contradictions within Classical. Juridical Federalism

Lord Bryce, a distinguished legal scholar and imperial pro-consul who served for some years as British Ambassador to Washington, remarked, of his American experience and observation, that federalism was simply a transitory step on the way to Unity. For most of the old British Empire of the 19th and early 20th centuries, the dominant thinking on federalism was established by Albert Venn Dicey, the great Oxford constitutionalist who offered the triadic criticism that federalism meant weak Government, conservatism, and legalism.3 It may be argued that the British themselves never really understood federalism as going beyond a set of a priori legal rules and categories and as amounting to a dynamic system of reconciliation and compromise between distinct and different, and sometimes directly competing, ethnic-cultural or linguistic or religious or other social groupings within the one state. At the time Dicey was first formulating his famous critique of federalism, in 1885, the government of integral Great Britain itself – the British Isles, – was highly centralised in London and experiencing great difficulty in politically accommodating, or even comprehending, the strongly centrifugal political forces operating, for example, within its Irish dominion. Dicey himself, together with another eminent British jurist of the day, Sir

3

A.V. Dicey, Introduction to the Study of the Law of the Constitution (1st ed., 1885; 9th ed. (E.C.S. Wade, ed.) (1939), pp. 171-2.

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William Anson, was so upset by the Asquith Liberal Government’s measure just before the outbreak of the World War I in 1914, to legislate to devolve constitutional power, in the form of a limited “Home Rule”, for Ireland, that he was moved to suggest implicit constitutional limitations to the application of that constitutional principle or dogma for which he had himself become best known, the absolute and unqualified Sovereignty of Parliament – the British Parliament – to enact any law that it wished. In fact, only the outbreak of the war with Germany in 1914 may have spared Dicey and other eminent British constitutionalists from the (legally) embarrassing dilemma of contemplating a legal right of resistance by Irish Protestant imperial loyalists to a transfer by the British Government of a right self-government to the Catholic-majority population of Ireland. Within the limited, rigorously juridical universe of discourse that Dicey and other Imperial British scholars established for federalism and federal constitutional law, Dicey’s main hypotheses seemed amply confirmed by operational experience – the law-in-action. From Canada to Australia and throughout the English Common Law Constitutional World, where Dicey’s works were read and applied even more literally and enthusiastically perhaps than in Great Britain itself, federalism, in its dialectical unfolding, began to be characterised by interminable and extremely expensive battles before the law courts. This was, indeed, at the level of law-in-action, federalism as legalism. These legal battles before the courts usually occurred because, with the decline of laissez-faire and the challenges to the Free-MarketEconomy with the onset of the Great Depression of the late 1920s and the 1930s, governments in most industrial societies felt called upon to apply Keynesian economic interventionist policies, and to launch their own governmental-based massive public works projects, and also to bring in government support to sustain threatened community social programmes. In the case of federal states, federal government interventionism in the economy inevitably involved direct power clashes with governments of the constituent units (memberstates or Provinces) of the federal system. Sometimes, of course, it was simply a case of large private enterprises or corporations claiming the shield of “states’ (Provincial) rights” as a legal device for resisting government regulations in expression of the larger community interests. (The states [Provinces], as the smaller units, proved much more open, usually, to control by economic interests, than the larger central, federal authority). In most cases, these federal-Provincial conflicts ended up before the courts which, after some delays caused by the lingering on, beyond their time, of political conservatives

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within the ranks of the higher judiciary, generally gave way and judicially licensed the extension of central, federal governmental constitutional-legal powers. By the end of the 1930’s, Bryce’s law that federalism was simply a step on the way to unity, seemed amply confirmed, if we interpret unity as meaning, here, an ever-increasing centralisation of governmental decision-making power. The unnecessary constitutional correlative of policies of Keynesian economics, as seen by the courts, thus became a Keynesian-style, highly centralised federal constitution – Keynesian constitutionalism! But, as a debate over federalism and its progressive unfolding for the future, the preoccupation with reducing high political problems to legal problems, strictly defined, appeared at the expense of fundamental re-examination and re-thinking of the basic premises of federalism so as to accommodate the law-in-books as originally written by Imperial constitutional drafters, to new societal facts in the rapidly changing communities to which these earlier constitutional drafts had been first directed. The gap between the old positive law as first written and the new political situations – between Law and Society – simply became too great. Highly centralised juridical institutions like the highest Imperial appellate tribunal, the Privy Council sitting in London, could hardly be expected to resolve these contradictions indefinitely. It is not surprising that the Imperial appellate jurisdiction in relation to Canada and other “old” Dominions had essentially disappeared shortly after World War II. On the other hand, local appellate tribunals in the former British colonial countries that were now fully self-governing and legally sovereign countries in their own right were seen too often to be captives of traditional, “classical” British legal thought-ways and to lack the intellectual flexibility and imagination and, if you wish, the political pragmatism, to make the necessary constitutional innovations to resolve new, often crisis conflicts. By the same token, as the British Government progressively de-colonised in Asia and Africa and the Caribbean in the post-World War II period, the new British (Westminster-style) constitutional charters that the British Government itself, and sometimes, local post-colonial constituent assemblies, had drafted for the newly emerging, post-colonial states, were too often politically doomed from the outset by an excessive preoccupation with juridical formalism, at the expense of trying, first of all, to bridge the key ethno-cultural divisions and conflicts on which the new states had been founded. The charters thus ended up as professorial constitutions, – lessons in logic and not in life, and of limited practical utility in resolving contemporary problemsituations.

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D.

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Federalism and the New Pluralism: Re-defining the Constitutional Game and the Players

Westminster-style federalism, as taught by its main British practitioners, academic and bureaucratic, who had never themselves lived under it, preached the legal equality of the constituent units of a federal system, irrespective of the political-social reality of the extreme disparities in population and territory and also natural resources of these different units whose claims to constitutional recognition were founded, always, on the historical accidents of their original colonisation and settlement at different historical time periods. In the case of Canada, the notion of a strict legal equality, in terms of constitutional powers and law-making competences, of ten such constituent units or Provinces, involved a direct confrontation with the Quebecbased Civil Law constitutional law thesis of the federal system as an historical compact between only two legal, constituent units – Deux Nations, – French-speaking Quebec on the one hand, and all the remaining, English-speaking provinces which were to be considered for these purposes as one nation or unit. It was on this basis that French-speaking spokesmen for Quebec opposed the strongly centralising constitutional jurisprudence developed, from the 1930’s onwards under influence of Keynesian economic theories, by the Imperial Privy Council in its capacity as final appellate tribunal, until 1949, for Canadian cases; and thereafter, with the abolition of the appeal to London from Canadian Courts, by the Supreme Court of Canada in its own right. By tipping the existing balance in the federal system and federal constitutional charter firmly in favour of the federal Government and its centralising imperative, after an initial favouring of Provincial jurisdiction in the period from the 1890s to the opening of the 1930s by the liberal pluralist jurists, Lord Watson and Lord Haldane, on the Privy Council, the courts effectively rejected two of the main tenets of the Deux Nations thesis – the equality of the two Founding Nations, and the correlative claimed right of constitutional Veto for Quebec of any changes, whether by constitutional amendment or executive action or judicial interpretation, to federal institutions and processes and, to the respective law-making powers of the central, federal Government and the constituent Provinces. Since the Privy Council, in its historical jurisdiction that was by now ended, was an Imperial British institution composed almost always of English Common Lawyers, and since the Supreme Court of Canada’s judges were all appointed by the federal Government and were, by statute, limited to one third as to Quebec members, the judicial arm of government as a federal

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constitutional check-and-balance, was widely perceived in Quebec as politically loaded against Quebec. Although this perceived image of the courts may have been somewhat exaggerated in the light of the actual past record of constitutional decisions, there was enough historical truth in it both to inspire a Quebec-based political movement for secession from the Canadian federal system and also to inspire three different federal Governments to try to make their own Constitutional responses over a little more than a decade from the beginning of the 1980’s onwards. The first such federal government response was Liberal Prime Minister Trudeau’s constitutional “Patriation” project, launched in 1980 in response to the first of Quebec Government-sponsored Province-wide referenda on the approach to an eventual Quebec secession from Canada. This was the Quebec “Sovereignty-Association” referendum, which was held in May, 1980, and in which Quebec voters defeated the Quebec Government proposal by a margin of 60.5 per cent to 39.5 per cent. Prime Minister Trudeau’s project to “renew” Canadian federalism ended up modestly enough because of the political difficulties in building a sufficient consensus for widespread constitutional change among the Premiers of the nine Provinces other than Quebec. The Trudeau project removed the few remaining, essentially ceremonial Imperial, British legal ties from the federal system and also introduced a new, all-Canadian constitutional amending machinery which, as it turned out, has hardly been able to operate because of in-built difficulties in its internal Canadian processes. The Trudeau constitutional renewal project finally established for the first time a constitutionally entrenched Charter of Rights, defining the constitutional rights of citizens vis-à-vis their governments, federal and Provincial. Though the new Charter of Rights has indeed changed relations of citizens and the state by spawning an unprecedented number of individual constitutional challenges, U.S. style, it is true to say that it has had little or no impact upon the rising tide of political separatism within Quebec. Any federal government remedies, in default of formal constitutional amendments to that end, have had to come by way of federal executive action and inter-governmental executive diplomacy – Cooperative Federalism. This means incremental change to the federal system through intergovernmental practice, in place of the confrontational constitutional battles of the past between the two different levels of Government, federal and Provincial. It was a perceived lack of any rapid progress through such policies of Federal Comity – Bundestreue, in the Continental European styling, in language employed frequently to describe federal-Länder

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relations under the Bonn (West German) Constitution of 1949 – that led Trudeau’s successor as head of the federal Government, Conservative Prime Minister Mulroney, elected in 1984, to venture upon two rather more ambitious constitutional projects aimed at redressing the inter-governmental balance in the existing federal system. The first such project, the so-called Meech Lake Accord (19871990), originally secured the unanimous support of all ten Provincial Premiers, including Quebec. But the unanimous Provincial Government support began to slip away as public criticism throughout Canada of the Meech Lake deal mounted. The federal Government’s constitutional proposals were viewed, by now, as conferring a constitutionally privileged position upon Quebec – legal recognition as a “distinct society” within the Constitution – that was not conceived as available to any or all of the other Provinces. It was contended that this would amount to a violation of that principle of the constitutional equality of all the constituent units which was a central theme of Westminster-style classical federalism. In the result, it became impossible for the federal Government politically to hold all the Provinces in line. That solid front of Provincial Government support that would be necessary to secure a valid constitutional amendment under Prime Minister Trudeau’s new constitutional amending formulae of 1982, was simply not there, and so the Meech Lake project failed. A very similar, subsequent constitutional amending project – the so-called Charlottetown Accord – sponsored by the Mulroney Conservative Government in 1992 as a device for securing to Quebec the institutional and other attributes of a “distinct society” within the federal system, also went down to defeat. This time the defeat was more absolute in so far as the federal Government, to strengthen its hand politically with the Provincial Premiers, organised a nation wide referendum in support of its new proposals. This latest federal Government project guaranteed to Quebec, for all time, one quarter of the seats in the federal House of Commons, irrespective of any changes in the future in Quebec’s population balance with the rest of the country. (Quebec’s population, at the time of the federal referendum, was about 25 percent of the total Canadian population). The federal Government also reproduced in the Charlottetown Accord a Quebec unilateral right to constitutional veto on all future constitutional change, without conceding a similar constitutional right to other Provinces. In the result, the federal Government’s Charlottetown project was rejected in the public referendum and it became politically impossible to attempt to present it as a constitutional amendment. Once again, Deux Nations, the special French-English constitutional

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compact conception of Canadian federalism, had failed to overcome residual classical federalism’s insistence on the constitutional equality of all the constituent units of the federal system.

E.

Pragmatic Accommodations: The Trial-and-Error of Classical Federalism

Outside the area of formal constitutional amendments to the federal system – extraordinarily difficult to attain since the Trudeau Constitution Act of 1982, which, without any apparent intent or design to do so, had produced an essentially rigid constitution – pragmatic leaders at both the federal and Provincial level continued to attempt to effect change through political accommodations of an informal character. These, if they can demonstrate their utility in action, tend to endure as glosses on the constitution as written, – what Dicey called Conventions of the Constitution. A Royal Commission of enquiry, appointed by the federal government to explore new frontiers in federalism, the so-called Task Force on National Unity (the Pepin-Robarts Commission)4 had in 1979 suggested ways of overcoming the English Common Law Provinces’ intransigent opposition to any “special constitutional status” for Quebec, and those same Provinces’ accompanying dogmatic insistence on juridical equality for all the Provinces, Quebec and each of the nine English Common Law Provinces on the same plane. The Pepin-Robarts Commission floated a new concept with a new name – asymmetrical federalism. In philosophical terms, the argument was advanced that while equal things should be treated equally, where there are special facts peculiar to one or more regions (as with the French culture and French language, in Quebec), differentiation of constitutional treatment could be made without running counter to

4

Task Force on National Unity (Pepin-Robarts Commission (1979). The choice of the two co-chairs for the federal-government appointed commission represented a deliberate federal government attempt to establish a firm bi-partisan political base for any proposals ultimately to be made by the Commission: Jean-Luc Pepin, a University professor and later federal Liberal MP and Cabinet Minister under Prime Minister Trudeau; and John Robarts, Conservative Premier of the key anglophone Province of Ontario and known for his endeavours, throughout the 1960’s, to build an entente cordiale with Quebec Premiers of different political parties on the politic of decentralization and pluralising of the Canadian federal system in favour of all the Provinces more or less equally. For Robarts’ institutionally-based pluralistic federalism, see The Confederation Challenge. Ontario Advisory Committee on Confederation. Background Papers and Reports. (H. Ian Macdonald, ed.) vol. 1 (1967); vol. 2 (1970).

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the principle of equality of the Provinces. While the implications for representation, regionally, in national, federal institutions were not fully spelled out, one quite sensible seeming suggestion was that any new federal legislative measures touching the status of the French language in Quebec might be required to have, for their adoption, double majorities in the federal upper house – a majority of the upper house as a whole but also a majority of the francophone members within the overall majority. It is a notion of “concurrent majorities” with some antecedents in U.S. constitutional thinking of an earlier period-Calhoun’s phrase. (A basic political flaw in the proposal in a Canadian context would be that, if oriented to the existing federal upper house [Senate], it would be dealing with a purely appointive, non-elected body, lacking political credibility or “authority” and respect, in contemporary democratic constitutional terms). The Pepin-Robarts Commission report was buried in the federalProvincial political give-and-take surrounding the Trudeau patriation package of Constitutional changes adopted in 1982 in a delayed reaction to the Quebec Sovereignty-Association referendum vote of 1980. But a special sensitiveness to issues of the French language and culture in Quebec and their survival in overwhelmingly anglophone North America, was perhaps assisted by the debate that followed. Prime Minister Trudeau, as one of his first major legislative initiatives after his election in 1968, had introduced a federal Official Languages Act making both French and English the official languages of Canada for all federal purposes, and this (necessarily) within the reach of federal constitutional power. Quebec had countered with its own special Commission of enquiry on the status of the French language in Quebec, the Gendron Commission. The Commission, in a three volume report tabled in December, 1972,5 recommended that the Quebec legislature move to establish French as the Official Language, Language of Work and Language of Education in Quebec, with corresponding constitutional guarantees of minority English language rights in Quebec. These recommendations became the basis of two successive laws enacted by the Quebec legislature, establishing French as the Official Language and

5

La situation de la langue française au Québec (Rapport de la commission d’enquête sur la situation de la langue française et sur les droits linguistiques au Québec) (Commission Gendron) (vol. 1, December, 1972: La langue de travail: vol. 2, December 1972: Les droits linguistiques; vol. 3, December 1972, les groupes ethniques). For a review of the Gendron Commission’s internal workings, by a former Member of the Commission, see Aimé Gagné, Le Français au-delà des mots, Un cheminement linguistique (1998).

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Language of Work and Language of Education in Quebec, and this (necessarily) within Quebec constitutional jurisdiction – the Bourassa government’s Bill 22 of 1974, and the successor Levesque government’s rather more draconian Bill 101 of 1978. While there were some constitutional doubts as to whether either Bill – the earlier one of a federalist-leaning Provincial Liberal government, and the later one of an avowedly separatist government – would survive a constitutional challenge before the federal Supreme Court in view of the obvious opportunities for confrontation and conflict with federal government policies,6 the Trudeau government, in a conscious and long-maintained policy of legal self-restraint, refrained from recourse to the impressive armoury of federal constitutional weapons (constitutional disallowance (in effect, federal executive veto); judicial challenge) to defeat the Quebec Bills or even simply to try to frustrate their application by a guerrilla war of litigation before the courts. In the result, not merely was Quebec’s power to legislate to establish the primacy of the French language and culture, within Quebec and Quebec jurisdiction, established through federal government acquiescence and acceptance, but a practical accommodation was reached between the two different language policies – the personality principle, whereby francophones and anglophones have the right to speak and work in their maternal language throughout the country; and the territoriality principle whereby a Province, in response to its own special linguistic and cultural facts, may declare a language (here, in the case of Quebec, French) as entitled to special protection and legal entrenchment, as Official language, within the Province. Even at the height of political tensions between the federal government and the Quebec government, surrounding the two Quebec Sovereignty-Association referenda of 1980 and 1995,7 the funda-

6

7

International and Municipal (Constitutional) law issues involved in the Quebec government’s legislating to make French the Official Language of Quebec are canvassed in volume 2 (les droits linguistiques) of the Gendron Commission Report, with the legal conclusion that any such Quebec legislation would be valid if limited in its reach and application to Quebec. Ibid., vol. 2, p. 14 et seq. Volume 2 includes, as appendices, specialist legal opinions by non-Canadian experts: Carl Friedrich, Harvard University and University of Heidelberg; Harold Lasswell, Yale University; Gerhard Leibholz, Judge of the West German Bundesverfassungsgericht and Professor of the University of Göttingen, and W.J. Ganshof van der Meersch (Université Libre de Bruxelles). Ibid., vol. 2, p. 87 et seq. The Quebec government under Premier Robert Bourassa, a federalist-leaning Provincial Liberal, commissioned, at the opening of the decade of the 1990’s, a collection of scientific papers, to be prepared by independent scholars and researchers, Quebec and non-Quebec, on political, economic and constitutional aspects of Quebec claims to “sovereignty”. Commission d’étude des questions afférentes à l’accession du Québec à la souveraineté. Exposés et études” Guy Bélanger. (Président

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mental understandings as to the coexistence of the two language policies, federal and Quebec, were maintained and respected, and the personal relations between francophone federal leaders (Trudeau, then Chrétien) and francophone Quebec leaders (Levesque, then Bouchard) remained diplomatically correct and polite, even if not always necessarily cordial. As in Europe, as successive acts of trans-national integration transform internal, intra-regional conflicts within existing states, so the new Continentalism within North America that is recognised, and implemented concretely, in the bilateral (Canada-U.S.) Free Trade Agreement, and the later trilateral (Canada-U.S.-Mexico) Free Trade Agreement with its possibilities for future openings to other Latin American states meeting the threshold political-economic criteria for admission, so in Canada old internal quarrels become transformed by the new North American political-economic realities, with the pressures not merely to remove barriers to the free flow of goods and services and ideas across the established international frontiers but even to sweep aside those frontiers altogether. While the September 11, 2001 terrorist attacks in the U.S. have brought a certain tightening of border controls, the long-range reality for Quebecers and other Canadians, is that national sovereignty becomes seen by many as an abstract, 19th Century concept that is increasingly out-of-date in a new era of Continental inter-dependence.8 In Quebec terms, it

8

of the Commission) vol. 1, Les attributs d’un Québec souverain (September, 1992); vol. 2, les implications de la mise en oeuvre de la souveraineté: les aspects juridiques. les services gouvernementaux (1992); vols. 3 and 4, les implications de la mise en oeuvre de la souveraineté: les aspects économiques et les finances publiques (1992). The second Quebec Provincial “Sovereignty-Association” referendum of October, 1995 was launched by a successor government to Premier Bourassa’s Provincial Liberals, – the separatist-leaning Parti québécois government. After the narrow defeat (by a margin of less than 1 per cent) of the proposal, the Quebec government commissioned an up-dating and re-examination of the studies published by the Bourassa Liberal government in. 1992, in the light of supervening developments over the past decade (including, necessarily, the defeat of the “Sovereignty-Association” proposal in the second Quebec referendum in 1995). The revised Report, in four volumes, was published in 2002. La mise à jour des études originalement préparées pour la Commission sur l’avenir politique et constitutionel du Québec (1990-1991) et pour la Commission parlementaire d’étude des questions afférentes à l’accession du Quebec à la souveraineté (1991-1992). ( Jean-Pierre Charbonneau, (Minister for Canadian Inter-governmental Affairs and responsible for Relations with the francophone and Acadian Communities). (2002). Piérre-Elliott Trudeau, who was a federal Liberal M.P. from Quebec and federal Prime Minister (1968-1979; 1980-4), had articulated a federalist constitutional position for francophone Quebecers, which he endeavoured to implement during his long period of power in Ottawa and which he successfully defended in campaigning directly in Quebec, in the first Quebec Provincial “SovereigntyAssociation” referendum in 1980, against that proposal. In marked contrast to

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has the two seemingly antithetical tendencies: the justification of the determined efforts, seen in Quebec’s Bill 22 and Bill 101, to safeguard an endangered French language and culture; but also the impulse to liberate oneself from conventional nationalism.9 This means

9

the second Quebec Provincial referendum vote in 1995 which the “SovereigntyAssociation” forces lost only by a hairline margin, in the 1980 referendum campaign, with Prime Minister Trudeau’s personal intervention, the “Sovereignty” forces lost by a margin of more than 20 per cent (60.5 per cent to 39.5 per cent). Trudeau’s constitutional thinking, as expressed in assorted papers, is collected in Against the Current: Selected Writings 1939-1996. Pierre Elliott Trudeau. (Gérard Pelletier (ed.), 1996), espec. at pp. 207-289. Somewhat anachronistically, after the October, 1995 second Quebec “SovereigntyAssociation” referendum, when the near-miss victory of the federalist forces was already several years behind it, the federal government sought Advisory Opinion from the federal Supreme Court on whether Quebec could constitutionally secede from Canada; and, if not, and if there were a conflict between Canadian constitutional law and Public International Law as to whether a legal right to secession existed, which law (Canadian constitutional law or International law) would prevail. Not surprisingly, in consideration of the Canadian constitution, the court found no unilateral right of secession, and it also concluded that Canadian law would prevail over International Law in the event of any conflict between the two. Some doubts, both political and legal, go to the Court’s answer to a third question – whether there was a right to self-determination under Public International Law that would allow Quebec unilaterally to secede. The federal Supreme Court is not a specialised Constitutional Court, contemporary Continental European-style and its last previous rulings on a substantive International Law issue had been half a century earlier, in 1944. The Court, in a ruling that may have surprised and also perhaps embarrassed the federal government, now chose to move in where angels might prudently have chosen not to tread, and said that – “in the event of a clear repudiation by the people of Quebec of the existing constitutional order”, the federal government would have a duty to negotiate with the government of Quebec. The Court offered no clear constitutional-legal base for this statement, however, and if the issue should arise again in the future, the federal government of the day might well choose to conclude within its own Prerogative powers that the ruling was rendered per incuriam and beyond the Court’s special legal competence as a purported ruling on the constitutional discretionary powers of a coordinate arm of government to the Court. Reference re Secession of Quebec, Advisory Opinion, [1998] 2 S.C.R. 217. For a critique of the Court’s legal reasoning and of the claimed sources that it relied upon in its ruling, and for the overall conclusion that the Court was “[led] into legal error and political conjecture”, see the study by a francophone Quebec scholar (at the time, also a Bloc québécois M.P. in Ottawa), Daniel Turp, “International Recognition in the Supreme Court of Canada’s Quebec Reference”, Canadian Yearbook of International Law (1998), p. 335, espec. at pp. 335-9. In 2000, in another delayed reaction to its political near-miss in the 1995 Quebec referendum vote, the federal Liberal government enacted a so-called Clarity Bill, designed to ensure that only an “honest” (clear and unambiguous) question would be submitted to Quebec voters in any future Quebec Provincial referendum on secession, in whatever terms, from Canada. In fact, a then Opposition M.P., Stephen Harper, had twice raised in the House of Commons – in 1994, before the Second Quebec Referendum on SovereigntyAssociation; and in 1996 just after it – just such a legal option for the federal government. On each occasion, Liberal government ministers, in apparent embarrassment, had given non-responsive or evasive answers to Harper’s ques-

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entering vigorously into the new North American marketplace, as the new generation of francophone entrepreneurs and MBA-graduates, developed since French was first legislated, symbolically, in 1974 as Language of Work in Quebec, have begun to do in moving into command positions in commerce and industry10 in Quebec.

F.

New Thinking on Federalism: New Plural-Constitutional Options

Recent developments in some multi-national, plural-ethnic states noted for internal violence and conflict and terrorist outrages point to a positive influence of new, pan-European sentiments flowing from the establishment, step-by-step, of the European Union.

tions. When the Liberal government several years later belatedly enacted that federal option, it was without any public acknowledgment that the initiative had come, originally, from the Opposition and from Harper, now in temporary retirement from Parliament but soon to come back as Opposition Leader and then Prime Minister in a Conservative Government. The Liberal Government’s belated enactment of the Clarity Bill, after the second Quebec Referendum had been held and lost by the Quebec separatist forces, albeit by a voting margin of less than one per cent, raised the inevitable question: why close the barnyard door after the horse has already bolted? Other later governments, federal and Provincial, would be free to make their own informed judgments, in due time if yet another Quebec Sovereignty-Association Referendum should be proposed in the future, as to their own proper course of action, including the degree of executive deference that they should accord to the Supreme Court Advisory Opinion of 1998 and the legislative fiat of the Clarity Bill [For further discussion on this issue, see Chrétien and Canadian Federalism. Politics and the Constitution, 1996-2003 (2003), pp. 119-122]. Granted that “Sovereignty Association” remained a cloud-concept in many respects, in the absence of concrete definition of its consequences by Quebec separatist leaders in the 1980 and 1995 referendum campaigns, the fact remained that Prime Minister Trudeau had put aside options of trying to defeat “Sovereignty Association” legally, in the Courts, and instead to accept the political challenge in 1980 to enter the campaign on it. He had won triumphantly with his 21 per cent majority for the federal cause in the vote of the Quebec population against “Sovereignty Association”. The federal government would, in any case, at all times retain the constitutional-legal right to challenge any future Quebec referendum proposal before the Courts on the score of their trenching on undoubted federal powers, or of their failing because of unconstitutional “vagueness”. Prime Minister Trudeau had known of these particular legal options for the federal government, but he had chosen, instead, to fight and to win politically. 10 The Quebec Provincial Liberal party, then the Official Opposition in the Quebec National Assembly and headed by a former federal Conservative M.P. and federal Deputy Prime Minister, Jean Charest, published a new set of proposals on Quebec’s rôle in a reformed federal system. A project for Quebec. Affirmation. Autonomy and Leadership. Final Report. Benoît Pelletier, MNA, (director) (October, 2001). In the succeeding Quebec Provincial elections, Charest’s party gained a majority and formed the new government with himself as Premier and Pelletier as Minister for Inter-Governmental Affairs.

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In Spain, a new Socialist Prime Minister, José Luis Rodriguez Zapatero, who came to office in elections held in the aftermath of bloody attacks by terrorists on the Madrid commuter rail service and in an electors’ backlash against the predecessor government judged to have committed itself too readily to the U.S.-British invasion of Iraq, moved boldly to revive ideas of provincial autonomy and of decentralisation and devolution of decision-making on a regional basis, in discard since the Spanish Civil War of the late 1930s. Putting aside reliance by the predecessor government on military-police and security power as the principal control on political direct action and internal terrorism, Zapatero signalled his new policy approach with a promise of direct talks by his government with the Basque armed separatist group, ETA, after ETA leaders had themselves announced, in March 2006, a permanent cease-fire in their armed action against the state authority, ending their decades-long campaign of civic violence within Spain.11 Long known as a supporter of Home Rule autonomy for Spain’s historical “regions”, especially Catalonia, Galicia, Andalusia, and the Basque territories, Zapatero proceeded to negotiate on Catalonia, the economic-industrial powerhouse of Spain, achieving a major political breakthrough in successfully persuading the Spanish Parliament to approve a new Constitutional Charter for Catalonia. This Charter recognised Catalonia, in terms, as a “Nation”, fully compatibly with the existing Spanish Constitution of 1978; interpreting Spain in that context as a Nation of Nations, a plural-National state. Against a background of understanding that Nation and Nationality are concepts not always identified with the idea of a State, and that in Civil Law discourse in particular they may have a normative-legal ambiguity encompassing also cultural or sociological elements in addition to or instead of law, the new Charter for Catalonia also stepped down from the high-level and abstract and, if you wish, “poetic” level in constitution-making exercises to encompass, now, the concrete and immediate and practical with the guarantee of new financial benefits for Catalonia, stated to be up to 50 per cent of Income Tax

11 A bomb explosion at a parking lot of the Madrid International Airport on December 30, 2006, which killed two non-Spanish workers was widely attributed to ETA Basque Terrorist elements. Prime Minister Zapatero announced a suspension of the Spanish Government’s dialogue with ETA. It would not, of course, affect or interrupt the continuing momentum of the Home Rule autonomy programme of the Zapatero Government for Catalonia and the other [non-Basque] “historic” regions – Galicia and Andalusia. EL PAIS [Madrid], January 14, 2007 [“ETA solo tiene un destino: el fin. Entre-vista con el president del Gobierno, Jose Luis Rodriguez Zapatero”].

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and Value Added Tax revenues collected in the region, as key legal undertakings in the devolution thus resulting in the Spanish central government’s decision making powers. In Canada, Quebec’s “Quiet Revolution” that began at the opening of the 1960s as a movement for revival and renewal in a contemporary context of the French language and culture, soon brought proposals for change and modernisation of the Canadian federal system and the Canadian constitution as a whole with particular regard to Quebec’s role. There was no similar or parallel cultural drive within the other, English-speaking Provinces and so, in consequence, no constructive joinder of issue or debate at the national level in the early years of the “Quiet Revolution”. The response, rather, from the other Provinces had been the puzzled question: What does Quebec want? Constitutional dialogue proved difficult in any case because of the legal-cultural divide between the Civil Law and the Common Law, a replication in juridical terms of the basic linguistic-cultural antinomy expressed in terms of “les deux solitudes”. The constitutional change proposals advanced by French-Canadian political leaders and their legal advisers were always formulated at a very high level of generality and abstraction: a “special” constitutional status for Quebec within the Canadian federal system, later diplomatically moderated, so as to remove any suggestion of constitutional opportunities for Quebec that would not be available equally to other Provinces at their option, to a “particular” constitutional status only. The semantic-legal concession voluntarily offered suggested that the matter was fully open to public political debate and give-and-take. The major difficulty still remained that “particular” status itself was not accompanied, beyond its poetic, primary principle, by detailed, secondary principles spelling out the changes in the institutions and processes of the existing federal system thought to be needed to accommodate any new, Quebec-oriented gloss on the Canadian Constitution as written in 1867. Would the sort of accommodation that a latter-day political leader like Prime Minister Zapatero felt able to make in Spain in 2006 of accepting Catalonia as a “Nation” within a plural-National state, have been timely enough to produce a constructive dialogue and positive engagement in a constitutional modernisation and renewal process? The art of problem-solving is to make changes when they are still timely and before a political situation becomes pathological and out-of-hand. The fact remains that the process of substantive constitutional reform was not seriously begun at the federal government level until the mid-1970s, after the election of the separatist Parti québécois government in Quebec. Quebec jurists used to complain, correctly, that people outside Quebec were a decade or more late in responding to Quebec constitutional

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change proposals; although at the provincial level Premier Robarts of Ontario succeeded in establishing common ground on many issues with successive Quebec Premiers of different parties; while at the federal level, Leader of the Opposition Robert Stanfield seemed to accept “particular” constitutional status for Quebec and promptly went down to defeat in the 1968 federal elections, partly at least because of this. One may also suggest that Quebec Premiers before Premier Levesque and the Parti québécois government election did not address themselves sufficiently to educating the rest of Canada to the merits of their case for federal constitutional reform going beyond the abstract generalities of “particular” status. While the road to separation, the politically pathological option, was now accepted as a viable policy for Quebec Premiers to ask their electors to vote upon in public referendum called specially for that purpose as a consequence perhaps of the “hastening slowly” on constitutional change by other governments, the alternative, federalist option still remained open, politically and legally. The first Quebec Government referendum held in May, 1980, had submitted to Quebec voters a deliberately soft, ambiguous question “sovereignty-association”, on the basis that it would be the more palatable to marginal, “swing” voters than an outright question on separation. A politically confident and eloquent federal Prime Minister, Pierre-Elliott Trudeau, passing over suggestions that he should try to block the Quebec referendum in the Courts, had entered the Quebec campaign directly and won a remarkable 21 per cent clear majority for the federal forces, with Quebec voters’ defeat of the Sovereignty-Association proposal. However Prime Minister Trudeau’s plans, after his referendum victory to move boldly with his own new federal constitutional proposals, were only partially realised because, in part, of entrenched opposition from Premiers of other Provinces. With the constitutionally limited progress thus reached by Trudeau’s Constitution Act of 1982, a later Parti québécois government in Quebec had held a second Sovereignty-Association referendum, in October, 1995. This time, the Separation proposal had failed to win by a margin of less than 1 per cent of the Quebec voters. It was apparent that a part at least of the near-disaster for the federalist forces was the result of an absence of any “New Thinking” at the federal constitutional level and of new proposals for reform by the federal government, since the failure of two well-meaning, Quebec-oriented constitutional packages put forward by the Mulroney Conservative government – the socalled Meech Lake Accord (1987-1990) and the Charlottetown Accord (1992). The successor Liberal government, concluding that the general public was tired of constitutional debate, had simply closed the constitutional dossiers and there had been no serious thought to reopening

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them at the federal government level since then, under two different Liberal Prime Ministers and a new Conservative Prime Minister. In the resulting vacuum of constitutional debate at the federal level, a new federalist (Liberal) Premier of Quebec, Jean Charest, following three Parti Québécois Premiers, took initiatives to make common cause with other Provincial Premiers to obtain what was called a “redress” of the federal balance, in favour of all Provinces, in regard to federal-Provincial tax-sharing – as to Income Tax in particular and similar fiscal issues. It was a new approach for Quebec Premiers to try to build bridges to the other Provincial Premiers, many of whom of course had similar concerns and complaints as to a dysfunctional federal system too heavily weighted, because of federal control of the financial levers, in favour of a centralising federal government according to critics. An institutionally-based federal reform project wholly within Provincial constitutional powers to adopt was sponsored by Charest, and was quickly put in place by the Provinces. The new Council of the Federation originally suggested a quarter century earlier by prominent Quebec journalist and political thinker, Claude Ryan, prominent a regular constitutional forum for meetings by the Provincial Premiers without the presence of the federal Prime Minister, and also a permanent secretariat to develop and present common Provincial positions on modernisation of the federal system and, in particular, on meeting the enormously increased financial burdens of the provinces as regional governments. The breakthrough in constitutional terms is that, instead of a “Deux Nations” thesis of federalism, one now has a pluralist conception, with all the Provinces acting in concert in pursuit of common programmes. The federal government which, in earlier periods, might have tried to combat or ignore the new institution of the Council of the Federation, seems sensibly to have acquiesced and, at least in the case of the new Conservative government at the federal level, even welcomed it as a positive contribution to a new functional efficacy in federal policy-making and to a revived spirit of “Cooperative Federalism” going back to the 1960s “working federalism.”

G.

United Nations Initiatives for Federal Solutions for the Former Yugoslavia

The tantalising question remains as to whether “federal” solutions could not have been more actively pursued for the former SFRY in the apparent window of political opportunity in 1990-1 for internal, constitutional law solutions, before the German government’s decision

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to go ahead with unilateral acts of recognition of breakaway constituent republics had effectively foreclosed that option and opened the way for International Law-based decisions on recognition and on secession and break-up of the SFRY. An interesting feature of the discussions within the SFRY itself and also at the United Nations was the familiarity with the new, more flexible and pragmatic concepts of federalism and the pluralising of constitutional institutions and decision making processes generally. One finds frequent citation of such concepts as asymmetrical federalism and special constitutional status, current in the comparative constitutional law literature of the period and seemingly derived directly from new Canadian thinking on federalism. Certainly, United Nations long-time thinking, as reflected in the marathon negotiations leading up to the U.N. General Assembly Declaration of October 1970 on Friendly Relations and Cooperation among States, seems strongly in favour of continuity of states and against unilateral declarations of independence, and looks, therefore, as first priority, to first trying and exhausting internal, Municipal law before going outside. Lord Carrington who, while a member of the British Cabinet, had brilliantly handled the difficult files on state succession from Rhodesia to Zimbabwe following the white-minority government’s Unilateral Declaration of Independence from the British Empire of which it was still then a part, had become the European Community’s first envoy on the problems of transition in the SFRY and had advanced the idea of moving from a federal to a confederal system as a practical option that would allow retaining the integrity of the existing state of Yugoslavia.12 The United Nations’ interest in federal solutions also continued after the collapse of the original ideas for a new configuration of the SFRY constitutional structure on confederal or at least decentralised, pluralistic lines. The most imaginative of all the proposals concerning the emerging new succession state of Bosnia-Herzegovina was the Vance-Owen plan, unveiled in late 1992, when the breakaway from the SFRY was already a political and legal fait accompli but at a heavy human price. Both Cyrus Vance and Lord Owen had impressive credentials, Vance as a U.S. elder statesman and former Secretary of State and a distinguished international negotiator, and Lord Owen as a physician who had entered politics and become Foreign Secretary

12 Milan Sahoviç, “Le droit international et la crise en ex-Yugoslavie”, Cursos Euromediterráneos, Bancaja de Derecho Internacional, vol. 3 (1999). p. 363, at p. 377; and see also Boutros-Ghali, Unvanquished. A U.S. – U.N. Saga (1999) p. 41 et seq.

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in a Labour government in Great Britain at the end of the 1970’s. The Vance-Owen Plan was nothing less than a highly decentralised federal state for a proposed new Bosnia-Herzegovina entity, resting on three constituent peoples based on three different, largely autonomous provinces each of which would be identified with one of the three different ethno-cultural groups – Bosnian-Muslim, Croat-Catholic, and Serb-Orthodox; and with the capital, Sarajevo, functioning as an ethno-culturally mixed unit. Since the three constituent peoples were also scattered in pockets or enclaves throughout BosniaHerzegovina, the Vance-Owen Plan endeavoured further to assure their cultural self-determination by dividing the three designated provinces again into three further sub-units or cantons. The overall effect was designed to be a constitutional “cantonisation” (somewhat Swiss-style) of the Bosnia-Herzegovina ethno-cultural mix. It was a brave, perhaps overly idealistic projection; but, then, other large ideas were singularly lacking at the time among the other main, nonBalkan players. It ended up, unfortunately but predictably enough, by May 1995, when Owen left, as another exercise in the law-inbooks and not law-in-action. As to responsibility for the failure, it has to be shared among a number of people – undoubtedly the Bosnian Serbs who would have had most to lose under the plan; but also, it is strongly suggested, the Clinton administration in the United States. The U.S. signally failed to lend its support when it was most needed and would have been most helpful, apparently in part because of some casual animus on the part of some key U.S. players to the Plan’s co-chair Lord Owen.13

13 Boutros-Ghali, Unvanquished. A U.S. – U.N. Saga (1999), p. 49 et seq, especially at pp. 84-5. A final phase in the long drawn-out War of the Yugoslav Succession and completion of the dismemberment of the territorially inflated tri-national Kingdom created by the World War I Victors at Versailles in 1919, was presaged by the Report of the UN Special Envoy for Kosovo, former Finnish President Ahtisaari, on February 2, 2007. Kosovo, an Autonomous Province under Tito’s last, 1974 federal Constitution for Yugoslavia, had been under a form of international protectorate operated by NATO-led peacekeepers since NATO states, operating outside the United Nations and the UN Charter, had completed their successful three-month long campaign of air strikes against Serbia-Montenegro of March–June, 1999. The Ahtisaari Plan would concede the present ethnic-Albanian dominated region the right to adopt its own national constitution and also is own national anthem and national flag, with the right to apply for admission as a member-state in its own right to the United Nations and other international organisations. To objections advanced by Serbian President Tadic and Serbian Prime Minister Kostunica that this would be tantamount to Independence for Kosovo, the counter-argument was offered that the Plan at the same time provided for recognition of special cultural and religious sites that were historically important to the Serbian Orthodox Church and also creation of six municipalities in districts having ethnic-Serbian majorities that would be allowed to administer local schools and health systems. The

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CHAPTER SIX

LAW AND POLITICS AND THE DIALECTICAL UNFOLDING OF THE SELF-DETERMINATION PRINCIPLE The detailed definition of the mandate of the U.N. General Assembly in Chapter IV of the U.N. Charter includes the specific injunction to initiate studies and make recommendations for the purpose of encouraging the progressive development of international law and its codification.1 It is a reminder of the great debate, in the very early years of the United Nations, over whether the Charter was, since simply a treaty between states, to be construed strictly (and by implication, restrictively) according to the ordinary rules of statutory construction; or whether it was, rather, a constitution and, in the spirit of the great national constitutional charters of today, to be interpreted creatively – as a “living tree”, capable of infinite adaptation to the changing societal interests and expectations of a World Community in historical transition. As the accepted verities and policy imperatives of the old, bipolar model of World public order of the Cold War era, now past, recede into history, it is not surprising that there should be demands for a critical re-examination of the rationale of the classical International Law doctrines on recognition and admission to international organisations, and on the incidents and attributes of state succession. The United Nations has been undertaking its Charter charge of codification of international law with the accepted premise that it will not be limited to any mere mechanical restatement of existing law. But the main arenas for change in the area of recognition and admission of states and state succession, since the final ending of the Cold War with the symbolic fall of the Berlin Wall in 1989, have not been diplomatic-legal but political, and then on an often purely ad hoc basis – unilateral state action, without much apparent prior consultation with allies or associates or prior discussion

1

U.N. Charter, Art. 15.1.a.

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with one’s legal advisors, and hence essentially trial-and-error in character. It is another reminder of the dictum of the Protestant theologian, Reinhold Niebuhr, that truth sometimes marches into history on the back of an error. Unilateral state action, acquiesced in or tolerated by other states in the World Community for reasons of its deemed utility or common-sense when applied to contemporary problem situations, or sometimes simply yielded to out of deference to the predominant power, political or economic as the case may be, of the main state protagonist concerned, may today generate, ex post facto, new norms of international law by the very fact that it was not effectively challenged or legally corrected at the time. While this was certainly one of the ways in which new international law was made, historically, before the development of international organizations endowed with plenary law-making authority and competences in their own right, it may be questioned whether it is not a retrograde step, historically, since the adoption of the United Nations Charter and the establishment of the United Nations Security Council and General Assembly.

A.

The Role of the Legal Advisor

One of the more interesting questions2 in international and assorted national responses to the unfolding Balkan crisis over the decade of the 1990’s and to the wars over the Yugoslavian succession has been the evident non-presence of the Legal Advisors, or certainly the absence of effective participation on their part in the key decisions that were being made – both in the preparation and also in the actual, crucial policy choice. We know, from the published papers and records of the peaceful resolution of the Cuban Missile Crisis of October, 1962, that brought us all to the brink of a full-scale nuclear war, that President Kennedy’s Legal Advisor, Abe Chayes, was involved, from the beginning, in the National Security Council policy planning and in the discussions with the President on the alternative options; and that the Legal Advisor’s opinion was crucial

2

The distinct and separate rôles of the professional legal honoratiores, as Max Weber called them – professional jurisconsults, Foreign Ministry legal advisors and diplomatic negotiators, and judges, are touched upon in the recent Festschrift for Judge Shigeru Oda who, at various states in his career, filled all of them with distinction. We would have to add the crucial role of the actual political decision-maker, Foreign Minister or other, who may not be trained in International Law. Liber Amicorum Judge Shigeru Oda (Nisuke Ando, Edward McWhinney, Rüdiger Wolfrum (eds.) vols. 1 & 2 (2002); vol. 1, espec. at p. 41.

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in President Kennedy’s final choice of the alternative, more moderate controls, not involving escalation to armed force and direct action, of the limited “Quarantine” action. This was, of course, also crucial in allowing the Soviet Union to retreat gracefully without intolerable political loss of face.3 Reciprocally to Abe Chayes’ role, as Legal Advisor, in relation to President Kennedy’s decision, Gregory Tunkin, an equally wise and pragmatic professional jurist, as legal advisor on the Soviet side counselled acceptance by Secretary Khrushchev. Would a more affirmative role and presence for the Legal Advisor have avoided the legal questions involved in the “premature” recognition of the two breakaway constituent republics of the SFRY at the opening of the 1990’s, and helped at least to mitigate some of the more disastrous human consequences by compelling the main political players to look to correction of existing territorial boundaries and, if necessary, peaceful transfer and relocation of populations, as a prior condition of any general recognition? Later on, when the special case of the new Bosnia-Herzegovina entity was on everyone’s mind as the key to peaceful resolution of the continuing crisis of the Yugoslav succession, would not more sober and systematic legal study and consideration of the VanceOwen “cantonisation” plan have been a better approach than the rather casual and cursory political dismissal accorded to it by one, at least, key player, according to the subsequent published memoirs? The most surprising situation in which the Legal Advisor’s presence was certainly needed but not evident, was in the decision taken for armed intervention, in 1998-9, (with supporting high-level aerial bombardment and predictable impact on civilian populations and civil property) taken by member-states of the Western Military Alliance, NATO, without any prior legal authority from the U.N. Security Council or legal dispensation from the Non-Use-of-Force stipulation in Article 2(4) of the U.N. Charter. No affirmative international legal base for the collective action was established. References in passing to a claimed right of Humanitarian Intervention suffered from the fact that the variously cited precedents from the past were rooted in the historical practice of Imperial, Colonial powers intervening in protection of their special economic and other interests in Latin America and elsewhere. These were bad precedents, as the historical record of the debates at San Francisco in 1945 makes clear, and

3

Abe Chayes, “Law and the Quarantine of Cuba”. Foreign Affairs, vol. 41 (1963), p. 550; Chayes, “A Common Lawyer looks at International Law”, Harvard Law Review, vol. 78 (1965), p. 1396.

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ones that the U.N. Charter was deliberately designed to overcome and to prohibit in the future. Even more baffling, since the failure to resort to the U.N. Security Council for a necessary prior legal authority and dispensation from Article 2(4) was blamed on the fear of a Veto in the Security Council by one or more of the Permanent Members, was the signal failure to approach the General Assembly to fill the legal gap, on the precedent of the famous Uniting-forPeace Resolution adopted by the General Assembly in November, 1950, in the Korean crisis, in just a situation of claimed impasse in the Security Council. Resolution 377 A(V), the Uniting-for-Peace Resolution, was sponsored by President Truman and U.S. Secretary of State Dean Acheson and successfully enacted by the General Assembly by overwhelming majority of 52 to 5, with 2 abstentions, and may be said to have entered immediately into U.N. legal folklore.4 That it was not used by the key Western players as an alternative, readily available source for the legal authority they sought for the collective NATO action, suggests either a deliberate design, for political reasons, to by-pass the United Nations at that particular stage in 1998, or else that the key players had forgotten about it and proceeded per incuriam. A respected authority on the Law of War has suggested that perhaps the key players feared they could not obtain the two-thirds majority vote in the General Assembly legally necessary to adopt a Resolution authorising the NATO alliance to go ahead with the armed intervention in 1998.5 That the lesson from the legal doubts expressed as to the NATO armed intervention in Yugoslavia in 1998 had been at least partly learnt and profited from, is to be seen in the legal modus operandi for the initial collective international armed response to the international terrorist attacks of September 11, 2001, on U.S. territory. With a

4

5

See, for example, Kosovo: House of Commons (U.K.) Foreign Affairs Committee 4th Report. June 2000 (including, in particular, the deposition of Professor Ian Brownlie, made at the invitation of the Foreign Affairs Committee), re-published in International and Comparative Law Quarterly, vol. 49 (2000), p. 876, pp. 878–905; pp. 905–910. And see Report of the Standing Senate Committee on Foreign Affairs. Senate of Canada (Peter Stollery, Chairman), Ottawa, April 2000: “The new NATO and the evolution of Peacekeeping: implications for Canada”, especially at pp. 31–35. And see also Myron H. Nordquist, “A review of the debate in the United States Senate over the deployment of Ground Troops in Kosovo”; Liber Amicorum Judge Shigeru Oda (Ando, McWhinney, Wolfrum, eds.) vol. 2, 2002, p. 1555. L.C. Green, “The Rule of Law and Human Rights in the Balkans”, Canadian Yearbook of International Law, vol. 37, 1999, p. 223, especially at p. 244: “Dare one suggest that the reason no recourse was made to the General Assembly was because of fear that the proposed aerial campaign would not secure a twothirds majority of the members present and voting.” ibid.

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change of presidency in the U.S. in January, 2001, and the replacement of the Clinton administration, the new Bush administration moved then to establish an unimpeachable legal base for the collective international response, invoking first of all the inherent right of self-defense under Article 51 of the Charter and proceeding thereafter in full liaison and consultation with the United Nations SecretaryGeneral and in the Security Council.6 That that lesson, once applied, may not have been properly understood or profited from, is to be seen in the subsequent legal missteps or errors, and the resultant political agonies of the recourse to armed force, outside the United Nations Charter and without any prior Security Council dispensation from the Charter prohibition on the Use-of-Force, of the U.S.British invasion of Iraq in early 2003. The subsequent Military Occupation of Iraq and the failure of the two occupying powers to have a clear and coherent advance plan for the restoration of peace and security, and civil government, in the occupied territories, meant effectively that the artificial multi-national, plural-culture state, put together out of the British and French division of the spoils of the Ottoman Empire and sanctioned in the military victors’ settlements at Versailles in 1919, would not be questioned at this time as to its basic premises.

B.

Résumé: New Thinking on Recognition and State Succession

1. While the trial and error testing of international and state legal action in the Yugoslav succession crisis of the 1990’s has brought certain changes in the international law-in-action on Recognition and State succession, it continues to be accepted that legal Recognition by existing states of a claimed new international entity is a political act, to be determined by the executive arm of government. The new, working doctrine as to Recognition represents a melding of the old Declaratory and Constitutive theories of Recognition, accompanied by new criteria whose application will be determined increasingly on a collective, regional basis by “likeminded” states.

6

See my own recent comments “International Law-based responses to the September 11 international terrorist attacks”, Chinese Journal of International Law, vol. 1, no. 1, (2002); id., The United Nations and a New World Order for a new Millennium. Self-determination, State Succession and Humanitarian Intervention (2000).

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2. With the trend to supra-national political and economic integration and trans-national association on a regional basis continuing and being accentuated, individual states’ actions on recognition will tend to be made in coordination with such regional associations and their members, as to the decision itself and its timing, (whether in a political-military or a political economic regional body or sometimes in a combination of both). 3. Such coordinated, collective acts of Recognition may be predicated upon the acceptance by any claimed new international entity of certain Imperative legal principles and international acts which now have a jus cogens quality; among these, the United Nations Charter; the U.N. General Assembly Declaration of 1970 on Friendly Relations and Cooperation among States; the Helsinki Final Act of 1975; and the renunciation of the Use-of-Force as a solvent for international disputes, particularly disputes over the settlement of international frontiers. 4. Where such standards of “good behaviour” are demonstrably met, a duty of recognition may become logically necessary and inevitable on the part of existing states in regard to a claimed new entity, with the latter able to assert a right to be accorded such recognition, subject to the rules against “premature” Recognition being satisfied. 5. By the same token, failure of an already existing, plural-national or plural-cultural state to conform to the Imperative Principles of international law and the international acts ( jus cogens), already cited, may become a basis for withdrawal of Recognition of such already existing state, and for supporting its expulsion or exclusion from the United Nations and other cognate international arenas. 6. For purposes of coordinated, collective decisions on Recognition by member-states of international regional associations, there is a clear trend to assimilate the act of Recognition to support, at the same time, for admission to the United Nations and to membership in those regional associations themselves, with the same substantive criteria of demonstrated compliance with Imperative Principles of contemporary international law being used as legal tests for qualification for such Recognition or Admission. 7. The new legal “gloss” in European state practice apparently put upon the doctrine of uti possidetis, going beyond its original, historical Latin American connotation, means that for European practice at least as to State Succession in territorial issues, the sanctity and inviolability of territorial frontiers existing at the time a new international entity should come into being (here, internal, administrative frontiers within a parent state from which the new entity may have broken away) will be accepted as a key legal element

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in Recognition of a new state and its admission to the United Nations and other international legal arenas; with such pre-existing territorial frontiers only becoming capable of legal change by subsequent agreement between all parties. 8. Concurrently with the main international legal trends and conditions already cited, the worldwide movement to supra-national integration and to trans-national association on a political or economic or other basis has brought a new pragmatic realism and an emphasis on functional efficacy that worries less about a priori definitions of sovereignty, and concentrates much more upon “doing what comes naturally” in international relations. The new emphasis is upon the practical incidents and attributes of membership and participation in an increasingly interdependent international community, rather than on the elaboration of abstract theoretical constructs of state sovereignty. Juridical nonpersons (in the sense of their not being formally recognized by other states), may thus find themselves accorded the privileges and immunities of a state in their direct, bilateral dealings with existing states and even welcomed into functionally-based international agencies and arenas, first perhaps as Observers and then later as members in their own right. Reciprocal self-interest and mutual advantage reinforce classical considerations of international Comity in the new, inclusive World Community of today. State sovereignty, as an abstract theoretical concept, is demonstrably of declining relevance and importance today. 9. Concurrently with the new pragmatic realism in international relations, there is a certain de-emphasis of the act of Recognition itself in State practice, with the distinction in classical International Law between Recognition of a State and Recognition of a Government being blurred in the doctrine of continuity of a State and therefore of continued Recognition of that State, even when actions of its government are strongly disapproved of. Disapproval of a foreign government and its public actions may increasingly be expressed by withdrawal of one’s Ambassador or breaking off of diplomatic relations, rather than by the erstwhile major legal step of ceasing or withholding Recognition. 10. While the emphasis is clear, in the United Nations Charter itself and also in great U.N. Constitutional Acts like the U.N. General Assembly Declaration on Friendly Relations and Cooperation among States in accordance with the United Nations Charter, of October, 1970, on maintaining the territorial integrity and political independence of existing states, the correlative burden on plural-ethnic states of exhausting all possible federal, plural constitutional options for accommodating cultural diversity within

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the state, remains a heavy one, granted the limitations of classical federal experience as law-in-action in existing multi-national states. At the same time, the declining relevance of State sovereignty in an inter-dependent World Community means that transnational political and economic aspirations may increasingly be accommodated without the pathological solution of secession and breakaway. 11. The Institut de Droit International, at its 70th biennial reunion in Vancouver in August 2001, adopted a new and fully comprehensive Restatement of the international law of State Succession in Matters of Property Obligations, amounting to a contemporary Code of the relevant legal principles and rules to be applied in the event of the dissolution of an existing state or the secession of one of its constituent parts. (An earlier projected Code, the United Nations Convention on Succession of States in respect of State Property, Archives and Debts, was adopted at Vienna in 1983 but has signally failed, over the intervening years, to secure the necessary minimum number of 15 state ratifications to bring it into legal effect. At the Vienna Conference which had adopted the text of that convention by a majority vote, all of the Western states represented had either voted against the Convention text, or abstained, apparently on the score that the Convention’s provisions were too partial to the special legal interests of the then newly independent ex-Colonial states.) The Institut de Droit International’s restatement, in contrast, was adopted without any dissenting vote. In its Preamble, the Institut Resolution notes that it is addressed to new international political facts presented by the disintegration of the Soviet Union, the Socialist Federal Republic of Yugoslavia, and the Socialist Federal Republic of Czechoslovakia, as well as by the unification of Germany.7

7

Annuaire de l’Institut de Droit International. (Session de Vancouver), 2001, Seventh Commission, “La succession d’Etats en matière de biens et d’obligations”, Georg Ress, rapporteur, vol. 69.

CHAPTER SEVEN

EXCURSUS. FAILED STATES. THE TRIALAND-ERROR OF CONTEMPORARY EXERCISES IN CONSTITUTION-MAKING AND NATION-BUILDING The “worst case” scenarios presented by some recent examples of sustained failures in the attempts at nation-building and special-constitutional accommodations, within the one state, for ethno-culturally, plural communities have directed attention to the question of why such projects fail, and why, in the much less frequent instances, they manage to survive and even to flourish. The starting point of any state, – in its basic premise or Grundnorm, – is, following Kelsen’s thesis, a pre-legal, meta-legal question, an issue of political fact and not of law from which all subsequent legal rules are to be derived, deductively, in the dynamic unfolding of the norm. In the “worst case” examples referred to, the acts of creation or attempted creation of new, plural states were high political decisions by political decisionmakers, with an extra legitimation in legal terms necessarily having to be related back to the acts of international peace conferences and peace treaties ending great international armed conflicts; or, more doubtfully perhaps, to a prior or subsequent legal authority sought to be implied from various other types of international authority, – resolutions of the U.N. Security Council or the U.N. General Assembly sometimes of ex post facto character and lending themselves to varying interpretations.

A.

Yugoslavia: Political Implosion of Uni-National, Multi-Cultural State

The disintegration – literally, political-military implosion, of the Socialist Federal Republic of Yugoslavia that occurred in the 1990s had been widely predicted as likely to occur after the eventual passing of its long-time leader, ex-World War II Communist Partisan

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chief, Marshal Tito. The fault-lines in the republic that Tito took over towards the end of the War – in spite of frequent constitutional restructuring, including changes in the internal provincial territorial boundaries, that Tito made in the interests of decentralising power and pluralizing the decision-making processes within the different provinces as well as in Belgrade – went right back to the Treaty of Versailles of 1919 and its ancillary treaties (including the Treaty of Saint Germain-en-Laye applying especially to the new state). The territorially inflated new Kingdom of the Serbs, Croats and Slovenes, as it was first called, before it was later renamed as Yugoslavia, came into being as part of the overall political settlements imposed by the victors in the recent War against then defeated enemies. It included the dissolution of the erstwhile multi-national Austro-Hungarian Empire, facilitating the creation of the new Yugoslavia by permitting the joining of its core units, Serbia and the tiny state of Montenegro, with the former Habsburg Empire’s own Slavic provinces of Croatia, Slovenia, and Bosnia-Herzegovina. This had not been the original objective and goal of the Serbian delegation at the Versailles peace conference. Its leader, Serbian Prime Minister Nicola Pasic, had planned to ask, as Serbia’s reward and trade-off for the extreme losses in military personnel and civil population and financial and economic resources that it had undergone as an original member of the Western European alliance, for a territorially more constrained and limited but ethno-culturally far more homogeneous entity, a “Greater Serbia” centred in Belgrade and based on an incorporation into Serbia of other provinces inhabited predominantly by ethnic Serbs. It was not Pasic’s strategy to work for a much greater territorial aggrandisement involved in any combining of Serbia with the former Habsburg Slavic territories. The forced abdication of the last Tsar of Russia in March, 1917, removed Pasic’s main supporter and compelled him to negotiate on equal terms with other groups and in particular with a pan-Slavic Yugoslav committee which, in a Corfu Declaration of July, 1917, had laid down the framework of what would become, at Versailles, the future, unified Yugoslavia. In his reluctant acceptance of its Resolution for a territorially vastly enlarged, though culturally far more diverse, south Slavic state, Pasic was joined, equally reluctantly perhaps, by Croatian Peasant Party leader Stepjan Radic, an AustroHungarian legitimist during the recent War but one who had converted, on the sudden collapse of the Habsburg Empire at the War’s end, to self-determination for Croatia as part of a federation, on a basis of equal rights, with Serbia and Montenegro. The strong addi-

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tional incentive for the Serbian and the Croatian leaders was undoubtedly the sudden revival and publicising of rival Italian territorial ambitions on the Adriatic littoral and in Dalmatia and the Western Balkans region generally, in reliance upon a Secret Treaty of 1916 under which the key Western European allies had promised Italy just such territorial rewards for Italy’s deserting the German-AustroHungarian Triple Alliance and rallying instead to the ultimately victorious Western powers’ Triple Entente. The political menace of having those territorial spoils snatched away was enough to bring Serbia and Croatia together in accepting the new plural-cultural entity, whose main design and inspiration for purposes of the Versailles Treaty settlements seems, however, to have come from Clemenceau who was preoccupied above all with the political-military maintenance and stabilisation of the new central and south-east European order system imposed on the defeated Central powers. A key element in that French plan for the post-War was the forming of interlocking defensive military alliance systems – the so-called Little Entente and the Balkan Entente. The elevation of a new Serbian-led, panSlavic state to the status of regional bloc leader was a necessary part of that, at the same time as lip-service deference was being paid to U.S. President Woodrow Wilson’s Fourteen Points and the principle of national self-determination. Once all the political players at Versailles had returned home, however, the cracks in the new pluralcultural Yugoslavia became apparent. Radic and his Croatian cohorts soon became disillusioned by Pasic’s concentration of decision-making power in Belgrade in a highly centralised state authority and dropped out. The internal contradictions between two different political cultures – one Roman Catholic and conditioned by a number of continuing centuries of Habsburg administration and looking out to central and Western Europe; and the other Eastern Orthodox and marked by even more centuries of subordination within the Ottoman Empire – simply became too great and produced Croatian dissidence and separation culminating in the assassination of the Serbian King Alexander in 1934 and, during World War II, active collaboration by Croatian anti-Serbian activists in the German military occupation and government. Tito’s continuing, evidently bona fide decentralisation attempts at constitutional decentralisation and at pluralising the representation in the main federal and provincial (Constituent Republic) decision-making institutions and processes could not long survive his own death, granted the ineptness of his political heirs in Belgrade and in the governments of the Constituent

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Republics. The ultimate “correction” of the political-territorial depositions of the Versailles and related peace treaties of 1919 was, in these terms, no doubt inevitable. The criticisms advanced in preceding chapters as to the gratuitous intrusion of outside states – evidently principally for their own internal, national political reasons, in the last death agonies of the Socialist Federal Republic of Yugoslavia are no doubt valid in so far as they are addressed to the “premature” recognitions extended to breakaway constituent units contrary to general International Law and at a time when such recognition could have been predicated, politically and legally, on full bona fide cooperation on the part of the breakaway constituent units in the peaceful transfers and exchanges of population (the cultural minorities within all the constituent units of the erstwhile federal state) and in the peaceful arbitrament of the divisions of state property and assets and rectification of territorial frontiers. After the die had been cast politically, without the occasion perhaps for full consideration of alternative constitutional solution within a necessarily federal structure, European leaders moved in 1991 to establish their own European Community Guidelines on Recognition and the principles and processes under which it should occur, with the extra legal refinements offered by the Badinter Commission, 1991-2. Key European leaders in this were from states that had themselves led in the “premature” recognition of the breakaway succession states in 1991 and early 1992.

B.

Palestine: Self-Determination and State Succession: Dilemmas for the Former British Mandated Territory

The long-continuing crisis of self-determination and state succession for the League of Nations British-Mandated territory of Palestine became pathological with the abrupt decision of the Attlee government, in early 1947, to quit Palestine altogether and to pass over the problem, instead, to the new United Nations. The British government action, after a quarter century of British direct rule, seemed induced by a British conclusion as to the impossibility of maintaining any balance between the contending internal Jewish and Arab communities. The action was undoubtedly accelerated by Great Britain’s international public relations difficulties, especially with its U.S. ally, in restraining large-scale Jewish refugee immigration to Palestine which was upsetting the crucial population balance between the two communities in Palestine; Arab and Jewish. There was also the extremely hostile reaction by the British public to deaths and

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casualties generally among British occupation soldiers and officials as a result of terrorist attacks by local extremist groups aimed at forcing the British government’s hand. The ultimate root of the Palestine crisis went back even before the inception of the British Mandate in 1923. From the opening of the 20th century international Zionist leaders – Herzl and Weizmann in particular – had been convinced that Britain would be the most likely power to take over the Palestine territory from the Ottoman Empire after its eventual demise. This would be confirmed during the course of World War I with the secret agreement between the British and French governments, with the assent of the then Tsarist government of Imperial Russia – the so-called Sykes-Picot Agreement of 1916. In 1915-1916, the British High Commissioner for Egypt, Sir Henry MacMahon, had exchanged letters with Sherif Hussein of Mecca undertaking that, in return for an Arab rebellion against the Turkish forces, Britain would promote national independence of the Arab provinces and their breakaway from the Ottoman Empire, though without specifying the precise borders of the new Arab political entities. In November, 1917, the British Foreign Secretary in Lloyd George’s wartime coalition Cabinet, Arthur Balfour, a former Conservative Prime Minister, had issued, on behalf of the British government, what became known as the Balfour Declaration, with its key formulation: His Majesty’s Government views with favour the establishment in Palestine of a national home for the Jewish people and will use their best endeavours to facilitate the achievement of this object.

The language of the Declaration, formulated with no doubt deliberate elements of vagueness and equivocation, was viewed in some circles as intended to rally support of the U.S. public – the U.S. having just become a member of the Western Europe-based wartime alliance, – to post-war British war aims, and was directed in particular to New York City with its concentration of Jewish voters. Balfour had, at the time, just completed an official visit to the U.S. on behalf of his government. The Balfour Declaration was immediately invoked in the most affirmative sense by the international Zionist movement as amounting to British government recognition and endorsement of their claims to Palestine as National Home. Great Britain was awarded the Palestine Mandate by the new League of Nations in 1920, with the terms of reference, as ratified by the League two years later, specifically including the text of the Balfour Declaration. While neither the Balfour Declaration itself, nor the fact of its documentary annexing to the establishing of the League Mandate

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could be said to amount to a formal recognition in International Law terms of any such Jewish Homeland state, they were considered as significant early political steps directed towards an eventual legitimation of that claim. The history of the British Mandate over Palestine between the two World Wars was marked by a succession of no doubt well-intentioned British White Papers, Commissions of Enquiry, Reports, and Conferences, created very often by some very distinguished public and judicial figures, Winston Churchill as Colonial Secretary in 1922 among them, attempting to resolve the inherent contradictions involved, in due time, in honouring the Balfour Declaration and its wartime British commitments to the Jewish cause, and in also delivering on the wartime promises to the Arabs and reassuring the rulers of the new Arab succession states whose support was considered vital to the British oil interests and also in any future war with Germany. The constant destabilising pressures for the British rulers of the Palestine Mandate were always the issue of Jewish immigration and its capacity to change the demographic character of Palestine and the related issue of Jewish land purchase which was resulting in a growing population of landless and disaffected Arabs. The HopeSimpson Report in 1930 recommended on this account a restriction on Jewish immigration and land purchase, and this was adopted by the Passfield White Paper in 1930 but then promptly disavowed by then British Prime Minister, Ramsay MacDonald, in 1931, in response to a spirited campaign by British Zionist leader Chaim Weizmann. By the late 1930s a British Royal Commission, to resolve the political problem proposed partition of Palestine into a Jewish state and an Arab state, with population transfer between the two as a way of dealing with the population balance. A White Paper issued by then Colonial Secretary Malcolm MacDonald on the eve of World War II in 1939, proposed the creation within ten years of a unitary Palestine State, with limited only Jewish immigration (75,000) over the new five years and very severe restrictions on land sales or transfers from Arabs to Jews. The White Paper was viewed as an act of surrender by the Jewish movement, and with the outbreak of the War in Europe was effectively placed on ice, though remaining official British policy in 1947 and being referred to in 1947 when the new Attlee government announced its intention to quit Palestine. At War’s end in 1945, a joint U.S.-British committee of enquiry, appointed to respond to the Jewish refugee crisis in Europe and to find a resolution within the Palestine context, called for immediate acceptance of 100,000 Jewish immigrants to Palestine and also a repeal of the Palestine legislation banning land transfers to Jews, all

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this to be in the context of a U.N. Trusteeship over the whole territory of Palestine, with a limited autonomy for both communities, Jewish and Arab. The U.S. government refused to share the resulting military and financial responsibilities, however, and British public opinion, reacting against anti-British terrorist activities in Palestine, rejected the proposals. The last main British proposal for solution of the Palestine problem, the Morrison-Grady Plan, sponsored by the then Deputy Prime Minister in the Attlee government, Herbert Morrison, and U.S. Ambassador Henry Grady, advanced a constitutional solution of a hitherto unique character for Palestine, federalisation of the whole territory but with local government organised on a regional, district, cantonal basis. The plan died almost immediately, with the British governance decision to give up and transfer the whole Palestine file in 1947 to the United Nations. We would find echoes of the same inclination to try plural-constitutional (federal-cantonal) remedies within the one state when all other, political solutions had obviously been tried and found wanting, in advanced British thinking, years later, that was contributed to solution of the Yugoslav succession impasse in the input by former British Foreign Secretary, Lord Owen, to the Vance-Owen Plan. The United Nations’ reaction to the sudden British announcement in 1947 of British intention to abandon the League of Nations Mandate over Palestine and turn it over to the U.N. was to have the U.N. General Assembly create a Special Committee on Palestine (UNSCOP) to investigate the causes of the conflict in Palestine and to try to devise a solution. An 11-member Commission of enquiry, broadly representive of U.S. state membership of the time but, deliberately, without Great Britain or other Permanent Members of the Security Council – chose to conduct its work outside New York and the political pressures going with that with an ambitious 2½ month timetable for completion of its mandate, involving field visits to Palestine itself, Transjordan (Amman), and also visits to Displaced Persons Camps in Germany and Austria, and public hearings involving representatives of 6 Arab states and 17 Jewish organisations. In the course of these hearings, UNSCOP members actively followed the unravelling in Haifa of the saga of the Jewish Refugee ship Exodus. Some UNSCOP committee members were present when the Jewish refugee immigrants were forcibly removed from the ship by the Mandatory authority and deported to Cyprus, and these members later testified that this episode had greatly influenced them in finding an urgent solution. The UNSCOP commission recognised that the crux of the problem of Palestine at the time was in the fact of an Arab population of 1,200,000, and a Jewish population of

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600,000, but with both communities diffused throughout the whole land territory of Palestine, and with new, urgent pressures for Jewish refugee immigration from Europe in response to the wartime displacement of populations. UNSCOP had little difficulty in rejecting the extreme solution of a single, unitary state of Palestine under either Arab of Jewish domination; but it also rejected an intermediate compromise solution, somewhat along Morrison-Grady plan lines, of a bi-national state with a local regional, cantonal base for political representation. Where UNSCOP split significantly was on a majority preference for partition of Palestine, with two separate states, Jewish and Arab, qualified if practicable by some form of economic union; and with a minority within the commission favouring a federal state plan. This minority group on the federal solution, originally composed of four out of the eleven commission members, produced a plan eventually endorsed by three commission members (from India, Iran, and Yugoslavia. The detailed recommendations of this minority working group on a federal state solution are contained in Chapters VI and VII of the UNSCOP Report. The Minority Report rejected as “impracticable, unworkable” what it characterised as a “Union under artificial arrangements designed to achieve economic and social unity after first creating political and geographical disunity by partition.” The Minority Report also recommended a federal state as “most in harmony with the basic principles of the Charter of the United Nations”, as the “most democratic solution”, and one that “avoids the creation of national minority groups” and that would also “avoid laying the foundations of a dangerous irridentism there . . . the inevitable consequences of partition in whatever form.” The concrete proposal of a constitutional nature that the Minority Report then advanced, for carefully weighted legislative and executive and judicial institutions designed to achieve representation on a bi-national, bi-community basis using proportional and alternating representation whenever possible, and with explicit constitutional guarantees against discriminatory legislation and guaranteeing equal rights and privileges for all minorities irrespective of race or religion, were models of contemporary liberal-pluralist democratic constitutional drafting. Unfortunately in the political context of 1948 when the key decisions would be made, at the United Nations and also, inevitably, outside through direct action resulting from a quarter century of inter-communal strife and conflicts, it would be too late and destined to be consigned to law-in-books and not lawin-action. The necessary minimum element of inter-communal coexistence and cooperation to make it operational as community “living law” in the whole Palestine territory simply was not there.

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The UN General Assembly, on November 29, 1947, voted by 33 to 13, with 10 abstentions, in favour of the UNSCOP Majority recommendation for Partition of the Palestine territory into separate Jewish and Arab states, with Jerusalem to be placed under international administration. The UN General Assembly was no doubt partly influenced by the urgent compelling factor of 250,000 displaced persons in their current European refugee assembling countries. In the UN General Assembly vote, among those 33 states supporting the UN acceptance of the partition plan was, in a very rare display of early Cold War, inter-bloc solidarity, the Soviet Union of the Stalin era. Among the 13 negative votes were India and Iran (two of the UNSCOP dissenting members), plus 9 Arab or Islamic states. Among the abstentions, Yugoslavia (the third of the UNSCOP dissenting members plus 6 Latin American states and the original Palestine Mandatory power, Great Britain. Meeting in Cairo at the end of 1947, the Arab League adopted a series of resolutions aimed at a military solution to the conflict. Under the UN-approved plan, the Jewish state would stand to receive 55 percent of Mandatory Palestine. The Jewish population of Palestine was at the time 608,000 (33%); the Arab population 1,237,000 (67%) with a large number of them to be contained within the new Jewish state. The plan was generally accepted by Jewish groups with notable exceptions – Menachem Begin’s Irgun Tsvai Leumi and Yitzhak Shamir’s so-called Stern Gang which had been actively fighting the British occupation forces. The British government refused to implement the plan on the ground that it was not acceptable to both sides, and it refused to share the administration of Palestine with the UN Palestine Commission during the transitional period leading up to the official termination of the Mandate on May 15, 1948. With Arab riots in Jerusalem beginning in late 1947, the way was opened to direct action and to military solutions, in a bitter conflict continuing from time to time to the present day. When did Palestine become a failed state? The simple answer would be that it never became a state. With the diplomatically vague promise of the Balfour Declaration of November, 1917, of something that it was not within the British government’s legal right to offer nor its effective power (at the height of World War I) yet to deliver, the stage was set for failure of the subsequent British Mandatory to complete any bi-national, bi-cultural state with its two different religious communities peacefully coexisting and cooperating within the one entity. The various ventures in constitutionmaking and nation-building by the occupying power thereafter could be of only marginal influence or authority in the subsequent historical unfolding. The international, UN-based intervention in 1947,

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with the partition and the two-state formula of governance came far too late historically. One might add that the actual partition of Palestine that the U.N. proposed amounted to a professional constitution-maker’s nightmare with geographically dispersed and separated territorial entities with only the most fragile of direct land connections between them, a situation that was also to prove a fatal contributory flaw to the British Raj-succession state Pakistan and to accelerate its eventual fission into two separate states.

C.

Iraq: Dance of the Green Table – The Legacy of Sykes and Picot

Kurt Joess’s Ballet, The Green Table, set in the coolly cynical international negotiations of the between-the-two-Wars period when the rival players cast lots for the high and the low (often without consulting the victims or beneficiaries) depicts the professional diplomats of the era, in their black frock-coats, engaged in a children’s game of musical chairs around the traditional baize-covered table. It might well describe the two otherwise obscure British and French diplomats who, in May, 1916, less than half way through the First World War, concluded the secret agreement that partitioned the Ottoman Empire among the later-to-be-victorious Allied powers. Imperial Russia, at the time actively engaged as ally in the combat, was a party to the exchanges and apparently agreed to the secret terms, as did Italy when it later rallied to the Allied powers. With the Russian Revolution of 1917 and the subsequent withdrawal from the Allied cause with the post-Revolution Russian government’s signature of the separate Treaty of Brest-Litovsk with Imperial Germany, whatever concessions had been made to Russian post-war territorial demands lapsed, and the Sykes-Picot agreement became reduced to a bilateral, British-French division of the territorial spoils of the Turkish Asian domains; but one that became the eventual core of Versailles and its subsidiary treaties’ territorial dispositions in the Middle East and western Asia. Sykes appears to have been fluent in French, which may have accounted for his being seconded to a task whose political imperative, for the British Foreign Office, may have been to counter or contain the French Foreign Office clear designs for a post-War enlarged, French-protected Syria. Sykes had also, while in his very early 20s, travelled, on his own private initiative, in Syria and Mesopotamia and the southern Kurdistan before entering the British Government foreign service. He was, however, still a junior diplomat and only 36 years old when he concluded the

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secret agreement that has caused his name to be historically linked with his French collaborator, Picot. It is no necessary denigration of Sykes and Picot’s efforts, in the particular historical context in which they operated to suggest that they had relatively limited knowledge of the complexities – religious and cultural – of the peoples and communities of the vast territorial domains soon to be liberated from Turkish rule, whose longrange fates they were cynically determining. The same would certainly be true of that other, brilliantly gifted amateur, even younger (only 27, at the time of Sykes-Picot), retained by the British government to help guide its wartime policies and operations in the Mesopotamian campaign. T.E. Lawrence, as the legendary leader of the Arab Revolt against the Turks glorified by the U.S. publicist, Lowell Thomas, would prove to be a British Foreign Office public relations star asset when it came the time to ratify, in legal terms, Sykes-Picot’s partition of the Ottoman Empire territories, in the detailed arrangements in the Versailles and related treaties covering the Middle East and western Asia. Lawrence’s close friendship with the Amir Faisal and, through him, with his brother Abdullah, seems to have been critical in the subsequent British government decision as to creation of smaller political territorial domains within the larger British sphere of influence allocated to them under Sykes-Picot, and as to their entrustment to deemed reliable clients or dependents among the competing Arab groups. Lawrence’s rôle was apparently the key to the decision by Winston Churchill, in his then capacity as Colonial Secretary in the British Coalition government in 1921, to install Faisal as King of the new state of Iraq that was created by cobbling together, within the one unit, three former, separate and distinct administrative regimes or Provinces of the now collapsed Ottoman Empire. The origins of the problems of Iraq today in the first decade of the present millennium, go back to those high political decisions, – reached by a necessarily rather hurried and albeit only partially informed consensus by the minor diplomatic agents of Great Britain and France in May, 1916, and then ratified and concretised, equally hurriedly, at Versailles in 1919 and in the Colonial administration following, and executed immediately thereafter. The incorporation, by force majeure if you wish and certainly without any prior popular consultation (even if some effective forum for this had been available at the time), of northern Kurds, an ethno-culturally distinct and different people from the middle and southern regions’ Arab peoples, foreshadowed politically a strong central government authority for the new state of Iraq that would maximize military-police power as means of maintaining national unity. In the very early years, the

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Imperial, Colonial power would be ready to assist in that task and to send in the Air Force if need be to control any dissidents. Very soon, however, with changes in public sentiment and government, and awareness of the need to tread more carefully and discreetly in order to retain economic and especially oil interests in the Arab world, the Imperial power would become much more reluctant to interfere overtly. The internal Iraq problem – the integrity of a plural-ethnic state – became compounded by other factors within its constituent, former Ottoman Empire regions or provinces, and especially the religious-cultural divide. The middle Arab regime with its Sunni majority, had to be balanced against the southern Arab regime, with its Shiite majority. The mutual incompatibilities in a religiouscultural sense and the capacity for conflict had no doubt been underestimated or not comprehended by the Imperial Colonial power when it first began drawing lines in the sand and postulating the territorial reach and limits of the new state. In difficult political times and with enemies outside as well as inside the new state, Iraq’s survival was the justification invoked for installing and forcibly maintaining a highly centralised dictatorship in Baghdad, first under the Imperial authority’s imposed Royalist dynasty, and then, after a bloody coup d’état overthrew the King’s young successor, under military dictatorship as precursor to Saddam Hussein. One cannot heap all responsibility for the failure of the Iraqi state today on the Belligerent Occupying powers, the U.S. and Great Britain, after their invasion in 2003 outside the aegis of the United Nations and general International Law. The fatal flaws were already there, dating from the post-World War I victors’ peace settlements, and were hardly able to be seriously ameliorated or corrected in the intervening years. The US-British invasion in 2003 and the failure of the invaders to have any immediately effective and operational plan for the Belligerent Occupation period and for the restoration of civil authority and law and order and basic amenities after the successful conclusion of the invasion phase simply exacerbated the original problem and rendered it pathological in contemporary terms. The subsequent post-invasion objective advanced by the two Occupation powers – nation-building – within the one state with three provinces – might, in the abstract, have had a certain appeal on economic grounds at least, granted the unequal distribution as between three former Ottoman Empire provinces that have been the constituent units of Iraq, of the vital Iraq oil resources and their revenues. Newer constitutional concepts of federalism and regionalism look to a certain minimum acceptance of the obligation to

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share the benefits of economic resources that are located unevenly in territorial terms, for the common benefit and common welfare. The roots of this are in notions of Equity and sharing and mutual cooperation, going beyond the reality of an enforced Coexistence through decades of military dictatorship under the original Royalist régime and then its successors. A triadic-region Iraq retained today in a postSaddam Hussein order that conceded very full, even quasi separatist autonomy to the oil-rich northern (Kurdish) province and southern (Shiite) province, and nothing at all to the central, Sunni province would seem doomed to an explosive future at best. The alternative solution of a three-way implosion, logical enough now on ethno-cultural and religious grounds and because of past history, looks constrained at the moment by outside (Middle East and western Asia) fears of major international conflict if the substantial autonomy now effectively conceded to the northern and to the southern regions should be allowed to proceed further and to risk destabilising neighbouring plural-ethnic cultural states which have their own significant ethniccultural minorities with ties of cultural consanguinity to either north or south province of Iraq. What the major powers first put together so casually or absent-mindedly in the victors’ peace settlements of 1919 they may now have to accept a major political-military responsibility for maintaining, in the larger interest of international and regional peace and security, and this at considerably augmented cost.

D.

“Quebecois” as “Nation” within Canada

Some comic relief from the growing self-doubts today of those who, it may be suggested, had too light-heartedly ventured into the Iraq invasion in early 2003, may have been provided in late 2006, by yet another initiative by English-speaking Canadian protagonists to respond belatedly to Quebec’s Quiet Revolution of the 1960s by offering yet another definition of Quebec’s constitutional status in relation to Canada as a whole. A candidate for election to the leadership of the federal Liberal Party, a post vacant since then Prime Minister Paul Martin resigned on the evening of his government’s defeat in the federal general elections of January 2006, had suddenly reintroduced into that Party leadership contest a draft resolution affirming that the federal Liberal Party “recognises the Quebec nation within Canada”. The motivation for this last-minute intrusion in an otherwise rather dull internal Party election was not clear. Some suggested, uncharitably, that it was done by the candidate concerned

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to try to revive a campaign that might have run out of steam; others suggested, more cruelly, that it simply demonstrated that the candidate, absent from Canada for most of the last thirty years, was simply out of touch with contemporary Canadian political common ground with all the blood shed, during that time, over trying vainly to come to grips, in English-Canada, with “special” or “particular” constitutional status for Quebec and similar abstract notions. It might all well have faded quickly except that the politically astute federal Parliamentary leader of the separatist Bloc québécois, Gilles Duceppe, seeing an opportunity to embarrass the (Conservative) Prime Minister, Stephen Harper, pre-empted the issue by announcing he would introduce in the House of Commons his own Bloc Resolution declaring Quebec, in terms, to be a “nation”. Prime Minister Harper had, only a short time before, publicly rejected any notion of constitutional recognition for Quebec as a “nation”: by now forcing a vote in the House of Commons on the issue, M. Duceppe would be able to demonstrate to Quebec voters in any new federal general elections (expected in the spring of 2007 since Prime Minister Harper had only a Minority government), that the Prime Minister and his Conservatives were against accepting Quebec’s claims. M. Duceppe had, however, underestimated the Prime Minister’s own political astuteness. Prime Minister Harper’s riposte was to introduce his own Government Resolution calling for the House of Commons to vote to declare that “the Québécois form a nation within a united Canada.” No definition, here, of what a “nation” is or may be; no spelling out of concrete governmental-institutional consequences of the declaration; but, most importantly, the conjoining in the Resolution of “nation” with the Conservative Government’s federalist imperative “within a united Canada”. There was also the additional subtle semantic switch from identifying “Quebec” as the “nation” (the geographical region, the Province of Quebec) – to “Québécois” (presumably, the French-Canadian people, the overwhelming majority of the population of the Province of Quebec but not the entirety, and in any case with significant numerical representation in other Provinces – principally Ontario and New Brunswick, but also Manitoba and even British Columbia. That particular choice of words by the Prime Minister corresponded presumably by happy accident and not advance political design, with the earlier historical switch in United Nations and general International Law nomenclature from “national self-determination” to “self-determination of peoples”. In another curious twist that surely could not have been unintended, the Prime Minister chose to retain the French-lan-

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guage word “Québécois”, rather than its normal English-language translation “Quebecers”, for the English-language version of the obligatory bilingual (French and English) text of his Resolution to be presented to the House of Commons (adding thereby to the semantic puzzle). Conceivably the Supreme Court of Canada could even eventually be asked by the federal Government to re-examine its obiter dicta in its 1998 opinion on Quebec secession (supra), in which, going beyond the technical-legal questions presented to it for Advisory Opinion ruling, the Court had sought to reach Prerogative discretionary powers of the Executive and to rule as to what a future Government should and should not do in the event of a “Yes” majority to yet another Quebec Government-sponsored Referendum on Quebec “sovereignty-association” (secession). Prime Minister Harper did not need to go further and state the obvious in legal terms, that a simple Resolution of the House of Commons has no constitutional-legal effect per se. A similar attempt at a political affirmation by House of Commons Resolution, rather than formal Amendment of the Constitution, had occurred a decade earlier with then Prime Minister, Jean Chrétien’s House Resolution to declare Quebec as a “distinct society.” This Prime Minister Chrétien had done immediately after the near defeat for the then federal Liberal Government cause in the October, 1995, “SovereigntyAssociation” referendum vote, and some decades after the “distinct society” concept had been first canvassed by Quebec nationalists at the outset of Quebec’s “Quiet Revolution.” It had then seemed an example of “too little, too late”, and trying to close the barnyard door after the horse had already bolted. The Chrétien Resolution soon disappeared from public discourse, and it may be remembered now mainly for the fact that the then tiny caucus of federal Liberal MPs from British Columbia, had been able to induce Prime Minister Chrétien to include in his Resolution the affirmation that British Columbia constitutes a “fifth region” within Canada. This was a symbolic gesture to B.C.’s usual somewhat exaggerated political claims to parity, in its own right, with Ontario and Quebec and the Atlantic and mid-Western groups of Provinces within the federal system. In the immediate political context of late November, 2006, Conservative Prime Minister Harper had succeeded in turning the tables on M. Duceppe and the Bloc québécois by putting them in the practical dilemma of either themselves voting against the Government Resolution that “Québécois” form a “nation” (albeit “within a united Canada”); or else accepting, with as much outward grace as possible, whatever advantage, political or political-legal, it might offer in itself.

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This is in fact what M. Duceppe, after some reflection, opted to do, indicating that he would vote for the Harper Resolution in the House. The Official Opposition in the House, the federal Liberals, having enough intra-Party conflict among their own rival candidates for the federal Liberal leadership, had already indicated, through their Acting Leader, Bill Graham, that they would support the Government Resolution, as did also the small left-of-centre New Democratic Party through its leader, Jack Layton. With such announced all-Party support assured, the Government Resolution was adopted in the House of Commons on November 27, 2006, by a vote of 266 to 16. What had threatened to unleash another stormy national debate had become reduced, through the Prime Minister’s tactical political adroitness, to a passing tempest in a teapot, though some deeply-felt unhappiness was still evident among individual English-speaking MPs within the Opposition federal Liberals in particular but also in Conservative ranks in spite of the near unanimity in the actual House vote on the Resolution. Canadians looking at the political torments in other, more “difficult” plural-ethnic, plural-cultural societies of today, can no doubt take comfort from the fact that this latest “crisis”-situation could be reduced to an essentially semantic conclusion, whose inherent normative ambiguity, no doubt well thought out in advance, could allow all principal political players to withdraw from direct conflict without too much intolerable political loss-of-face. (Is it a “legal” definition of “nation” that is being offered; or is it rather a “sociological” definition; or is it something else again? And does it really matter?) Classical International Diplomacy had always included, as a prime element, the art of constructive ambiguity – tolerated ambiguity; and it is not unknown to political statecraft. The principal political players in this latest Canadian exercise would all be free to get back again in the future to the quiet accommodations and brokered deals and pragmatic give-and-take that, rather than the abstract legal texts of the Constitution Act of 1867, have been the life-blood of Canadian federalism and that have permitted it to continue on over the years as one state for purposes of International Law. It may be another vindication of the truth embraced by Prime Minister Trudeau that, in the ultimate, federalism must reduce to pragmatism, and that whatever constitutional ideal-types or paradigm-models are sought to be induced from other, viable plural-constitutional systems, and then “received” and imposed from above in another system, they cannot be expected, by themselves, to save any sick society or to operate as law-in-action under corrupt or incompetent political régimes. Not having this sort of problem, Quebec Premiers of the future, whether

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federalist or separatist by preferred affiliation, can be expected to continue to seek to make common cause with Premiers of other Provinces – in the new (Provinces-only) Council of the Federation or other fora, – in the interest of achieving a united Provincial front on prosaic, down-to-earth subjects like redressing the financial and taxation revenues imbalance between federal government and Provincial governments and securing what Provincial governments have always asserted to be more equitable federal financial resources allocation for areas like public education, public health, and the support of municipal and local authorities that are all within Provincial constitutional authority under the original Constitution Act of 1867. 1.

The need for prior representative (multilateral) international consensus

The “Failed State” problems canvassed almost invariably result from major international conflicts – armed conflicts – and imposed (“victors”) peace settlements either achieved as secondary, subordinate decisions subsequent to the main, deemed priority decisions, and then often hurriedly and without adequate intelligence information or research and reflection as to possible long-range political consequences; or else achieved without any broad, multi-national, multistate consensus because other key political players were overlooked deliberately, or else having been invited chose not to take part. The paradigm example of successful international problem-solving for experiments in new nation-building must remain the Congress of Berlin in 1878, the product of a veritable Concert of Europe in which all the main powers were invited and present and actively represented by their leaders. Reflecting the long-standing European balance-of-power of the time, and the equilibrium of forces within clearly defined and well accepted territorial boundaries going with that, the Congress of Berlin produced a brokered solution to the “Balkans problem” – the decay of the Ottoman Empire, and the surging movement for self-determination and independence among its captive Slavic provinces – that produced new states and the demarcation of their territorial frontiers going with that that have in considerable degree survived the two Balkan Wars of 1912-1913, and the two World Wars in a difficult region where language and religion and ethnic-culture and “received” culture have produced continuing cross-currents that transcend new state frontiers however painstakingly studied and defined. If we accept World War I as a European civil war into which all the main players in the two great opposing military alliances had staggered and stumbled, the prime

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moment – perhaps the only moment – for replicating the panEuropean consensus of the Congress of Berlin of 1878, would have been at the end of 1916 when the main protagonists had physically exhausted themselves after the Battle of Verdun and where no clear victory was in sight for either side. But then it would have required a brokered, compromise peace settlement negotiated on equal terms by both sides and with no material gains or penalties for either side. By the close of 1918 and the final military cease-fire it was too late for that and any spirit of compromise. Instead it had to be an imposed “victors’ peace”, containing within itself the ultimate seeds of the next great international armed conflict. Woodrow Wilson’s Fourteen Points and its cardinal principle of national self-determination which required, of necessity, international goodwill and acceptance in a spirit of mutual cooperation of those existing plural-states whose frontiers would have to be re-made to accommodate its implementation, coexisted uneasily with the revenge motivation of the key European victor states. Possibilities for mutual accommodations, including making an ally of time and proceeding on a gradualist, step-by-step basis – federalism as process in aide of devolution and decentralisation – were lost to more naked political manoeuvre after the U.S. President’s practical withdrawal through ill-health and then the U.S. decision not to participate in the new League of Nations and the new post-War order system flowing from this. 2.

Importance of timing to success or failure

If it was too late in 1919 to succeed in creating a genuinely pluralistic, European order system that might lead to a century of peaceful coexistence and also cooperation on the model of the Congress of Vienna of 1815, there have been other periods in diplomatic history when imaginative, forward-looking political leaders may even have acted prematurely, in terms of the underlying societal conditions pre-requisite to a stable, long-term solution. After their surprise electoral victory in mid-1945, in between the end of the war in Europe in May and the defeat and surrender of Japan in August of that year, the new Attlee government in Great Britain moved quickly and decisively to grant sovereignty to the Imperial British Raj on the Indian sub-continent. The last of the British Imperial Viceroys, Lord Mountbatten, had clear instructions from Whitehall to wind up negotiations with local, indigenous political leaders, within a precise time limit. In the locally elected All-India Constituent Assembly established

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in 1946 to receive and implement the mandate for self-determination thus opened up, and to draft the constitutional charters and documents necessary for that, it soon became apparent that their was a major gap between delegates from the majority Hindu groups and those from the predominantly Muslim areas over the nature and character of the new sovereign and independent Indian state to be created, including the crucial decision whether it should be a secular state without any state-sanctioned official religion; or whether it could accept a more pluralist public order system in which an official religion might be constitutionally recognised for some special region or special groups, but not for others without affecting the constitutionally-sanctioned secular, no-official-religion status of the rest of the country. As is well-known, the divisions within the All-India Constituent Assembly on the state-religion issue soon lead to the spectacular walk-out of the Muslim representatives, resulting in two separate Constituent Assemblies proceeding independently of each other and on separate tracks towards the two distinct and separate new states, – a Hindu majority, deliberately secular, federal Republic of India, and an Islamic Republic of Pakistan. There was the extra, difficult complication in the latter state that it was to be composed of two separate entities widely separated by geography and without any land-corridor connection, a north-western province and an eastern province, East Bengal. The antithesis between the political-cultural formation of these two provinces, their different economic resources and needs, and the effective balance between civil and military elements in the population in each case, ultimately proved fatal and ended, perhaps inevitably, with the breakaway of East Bengal and its emergence as a new, sovereign state in its own right, Bangladesh, some years later, following on armed hostilities between Pakistan and India. The divide and partition of the British Raj, so soon after being granted independence, has been blamed variously on intransigent ambitions of the Muslim leader, Mohammed Jinnah and his personal rivalry with Pandit Nehru, the Indian leader and first Prime Minister of the new Republic of India. But the ultimate patterns of political division were to be seen already, perhaps encouraged by the cultural pluralism policies consciously applied by late Victorian, British Colonial administrators and judges, and not least by the British judges in the highest Imperial legal tribunal, the Judicial Committee of the Privy Council, in London, which had final jurisdiction over appeals from Colonial tribunals including those in India. This judiciary-based constitutional pluralism and tolerance of cultural diversity highlighted latter-day Imperial approaches to the Overseas Empire as a whole in the late 19th and early 20th cen-

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turies, in cases arising from the British Raj but also from other selfgoverning colonies of that era including Canada. It has been argued that the Attlee government’s extremely limited time frame set for the achievement of self-government and deColonisation for the former British Raj may have exacerbated the cultural tension and fissures already there since impairing consideration of possible alterative options for a more decentralised, plural-cultural (Hindu-secular, and Muslim religious) state within a specially conceived and drafted federal constitution to that end. That would have required the Imperial authority to maintain British sovereignty over the Indian sub-continent for a little longer and perhaps also to predicate its own eventual departure on the achievement of a plural-constitutional charter to that effect. There is no doubt that the ending of British Imperial authority after the collapse of the All-India Constituent Assembly with the walk-out of the Muslim delegates meant that there was no really effective cooperation between the two rival groups – the “Rump” constituent Assembly led by Jawaharlal Nehru and Jinnah’s Muslim League – to facilitate peaceful constitutional transition to the two states, and, in particular, peaceful transfers of population between the two states in the case of persons or groups that found themselves suddenly to be in minority status in either one of them. The widespread communally-based rioting and pillaging and bloodshed that occurred in the difficult transition to the two new states, particularly on the not immediately clearly defined frontiers between them, excited cries of outrage internationally, but would probably have been beyond the capacity of any authority, – Imperial, United Nations, or the embryonic governments of the two new states, about to come into being – fully to control. With no political certainty on the part of the Attlee government of its ability to survive beyond its five year electoral mandate (1945-50), – in fact it was re-elected in 1950 with only a hairline majority of a handful of seats, and it lasted only one year more before losing power, – the determination to press ahead with British Labour’s Decolonisation imperative with all deliberate speed in case any future change of government should mean its indefinite political delay, is understandable in spite of the terrible human and material costs in India whose gravity was clearly not fully anticipated or prepared for. The timing factor was always apparent in decisions, nationally and also internationally, on the reunification of the two Germanies, which had been separated politically and also territorially for all effective purposes by decisions of the Big Three in 1945 at Yalta and then confirmed at Potsdam after Germany’s unconditional sur-

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render in May, 1945. With the ontset of the Cold War, the Western powers’ three separate Western zones of military occupation (U.S., British, French) were consolidated into a new combined, Westernsupported and Western-legally-recognised Federal Republic of Germany in 1949, with parallel action by the Soviet Military Occupation régime in its eastern zone of military occupation of Germany to hand over sovereignty to a Soviet-supported German Democratic Republic (DDR). The existence of these two parallel, separate German states, Western and Eastern (Communist), was one of the political facts-oflife accepted, de facto, for most purposes by the two great politicalmilitary blocs, Western and Soviet, as a necessary condition for the maintenance of a Bipolar system of World public order and political-military equilibrium between the two blocs during the Cold War era. With the fall of the Berlin Wall in 1989 and the approaching collapse of the East German régime which Soviet President Gorbachev deliberately decided not to intervene to prevent, the challenge was therefore opened to the West German government whether to act positively and to try to re-unite the two Germanies into one state after forty four years of political and legal separation. The question produced strong argument and debate among West German leaders of the time. The two industrial economies (liberal capitalist and Communist) organised along dramatically different lines would be difficult and enormously expensive to combine. The financial burden on West German taxpayers would be enormous in the short run because of the resulting obligation to support the much weaker East German economy; and the crippling effects of taking over outmoded state-owned and directed factories and integrating them with the West German market economy would likely be of long duration. There was also the challenge of absorbing a forty year old, single-party, Communist Party-based state into the multi-party West German liberal democratic polity and constitution and the consequences for the existing West German balance of political forces and the social consensus on which that rested. In the end and in spite of the anticipated serious political and economic and also constitutional-legal problems, the vital decision was made in Bonn to go ahead positively to reunification and to begin negotiation accordingly with the four erstwhile Military Occupation powers from 1945 (the US, Britain, France, and the Soviet Union) to that end. Once again, Soviet President Gorbachev responded quickly and generously, and the so-called Two-plus-Four Treaty, bringing together government representatives from the four Occupation powers and also the two German governments, was signed without delay and equally speedily implemented. As anticipated, the financial and economic

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burden resulting for West German taxpayers was immediate and heavy, as also was the blending of the two industrial systems. On the other hand, the all-German political transition took place without too many of the predicted problems in maintaining and extending a liberal democratic polity based upon a free market economy. The window of political opportunity for reunification arising so suddenly after forty-four years was used to the full, with no looking back and no significant regrets in public. 3.

Local political-legal elite: incorporation into government of defeated countries

Contrasting sharply with the essentially unforeseen difficulties for the two Occupation powers from the 2003 US-British invasion of Iraq in delivering concretely on their rhetorically-proclaimed goals of replacing the Saddam Hussein, Sunni-based dictatorship quickly with a representative, democratically elected constitutional system is the historically well-established and well-recognised success, with the same announced objectives, of the Military Occupation powers at War’s end in 1945, in the case of the two defeated nations, Germany and Japan, (leaving out for the moment, in the German example the special case of East Germany, administered from the beginning of 1945 as a separate and distinct Soviet Occupation zone). The wartime Allied propaganda which joined the ordinary civilian populations of both countries in an all-embracing concept of collective War guilt and therefore collective responsibility long-range, had to yield, soon enough, to the post-War realities of an emerging split in the socalled Wartime Alliance against Fascism between its main Western protagonists and the Soviet Union and to the perceived necessity to build up a new defensive Western-based alliance, post-War, that would have to include former enemy states if an effective politicalmilitary balance was to be maintained with the Soviet Union and with those Soviet bloc countries ceded to the Soviet sphere of influence under the Yalta and Potsdam wartime inter-allied accords. But even before the acceptance, justified on military strategic grounds alone if need be, that the new, immediate post-War World order system with its rival blocs dominated by the two nuclear powers, the U.S. and the Soviet Union, would compel new alliance systems and new allies from among old wartime enemies, the Allied Military Governments in their zones of occupation had soon concluded that the acceptance that every national of a defeated state must continue to be treated as a present enemy and barred on that account from taking part in the public services of the occupied states and in the

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post-war reconstruction and road back to self-governance was not only an inequitable blanket disqualification but a clear impediment to the rapid winding down of the occupation and to the restoration of constitutional government. In the case of defeated Germany, the Allied Military Government, aided by early wartime preparations for an eventual military government, had begun very early to distinguish between career members of the Nazi Party who had become dedicated executants of its policies and those very many other public officials and civil servants and private citizens whose associations with the defeated regime had been legally required or mandated by the fact of their professional status or training without involvement in its policy-making or in violations of the rule of law. The incorporation or reincorporation of a very large segment of the civilian professional cadre, in this way, into the political-governmental processes was one of the more imaginative decisions of the Western Occupation powers. It meant that the road back to self-government and decision-making autonomy could be completed so quickly, by 1949 with the adoption of the new Basic Law (Bonn Constitution) and the return of sovereignty to the three Western Military Occupation zones reunited for the purpose as the Federal Republic of Germany. The approach to re-incorporation of the civil service cadre and academic-professional élite into the governmental processes in Occupied Japan was in certain respects achieved even sooner with the rejection by General Douglas MacArthur, as Supreme Allied Commander of the Occupation Forces in Japan, of original wartime demands that the Emperor by put on trial as a War Criminal and the office of Emperor itself barred from any new post-War constitution. It would be somewhat ironic that, with the new, so-called “MacArthur Constitution” of Japan, introduced very early in the Occupation period and its celebrated “No War” clause (Article 9 of the new Constitution) designed to prevent Japan’s ever again becoming a military power, there could be political pressures from outside Japan, not very long after MacArthur’s return to the U.S. in 1951, to abolish Article 9 so as to permit Japan’s integration into a defensive Western military alliance against the Soviet Union’s perceived threat to peace and security in East Asia. The successful, rapid re-integration of recently defeated Germany and defeated Japan into the Western-based world order system may properly be considered a consequence, in measure, of the timely abandonment of the old wartime Manichean approach by the Allied powers to both states and their populations. But it is a lesson from still recent history that was evidently not studied and applied by the Western invaders of Iraq in 2003, in follow-up to their own light-

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ning military victory. They entered on the Occupation phase without any evident well worked out plan for transitional administration and the early return of self-government and civil law and order to the occupied people. The immediate disbanding of the Iraqi Army meant not merely that the International Law obligations of the Occupying forces to restore public health and other essential services and to maintain police security for civilian life and property had to be performed by the Occupation forces essentially by themselves, but it also meant a large and swelling number of ex-soldiers and other military personnel who were unemployed and without income for themselves and their families and with nothing to do other perhaps than to engage in civil direct action or guerrilla activity against the Occupation forces. The attempts, of a highly tentative nature at first, that the Occupation authorities then made to re-introduce some form of home rule in Baghdad under their own aegis, relied too heavily on well-to-do émigrés who had lived for too long in London and other foreign cities and who had made their wealth there, sometimes under circumstances involving pursuit as to their financial ventures before foreign judicial fora. This was an error that the Allied Military Governments in Germany and Japan after 1945 did not make. Any régime installed, and recognised as installed, by an Occupying power must, in order to achieve credibility and ultimately recognition of its own claims to legitimacy, be firmly based also in local people who have lived through, in person, the hardships and sufferings and incidental terrors imposed by the old régime so recently displaced by the war and invasion by the Occupying powers. 4.

“Reception” of Foreign Constitutional-Governmental Institutions and Processes: Limits and Possibilities

The rapid success of the Allied Military Governments after 1945 in restoring self-government to recently defeated Germany and Japan, was due in considerable measure to the sustained advance preparations, by way of military government schools set up in the early stages of the war for training and preparing of army Occupation specialists and civil administration officials, who would inevitably, on conclusion of hostilities, have to begin their work immediately in the field without loss of valuable time. This advance preparation in depth for intensive outside military governance of the defeated countries and then for the early transfer back of the self government to the local populations was immensely facilitated in the case of Germany and Japan by prior long histori-

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cal experience, in both cases, in the “reception” of foreign law and legal systems and processes as a means of modernising and rationalising their own internal national legal systems. Germany had experienced a great national legal debate, over most of the 19th century, on proposals to codify the German civil law, the debate dividing the German professional-legal and academic-legal leaders between the Natural Law school, led by Thibaut, who called at the opening of that century for a single great act of legal codification, based on “reception”, in grand design and outline and also in the processes for its adoption, of the then recently enacted Code Napoléon, and the Historical school, led by von Savigny who argued for delay and more comparative study before any action. In the result, after major academic researches and elaborate drafting exercises and professional debate, the great German Civil Code (BGB) was finally completed in its drafting in 1896 and brought into force in 1900. It was soon, in a remarkable act of legal “reception” from Continental Europe to Asia, taken up by Japanese legal reformers of the Meiji era seeking to rationalise and modernise the Japanese legal system to facilitate Japanese entry into the World market and trading economy, and it became the model for the new Japanese Civil Code. What should not be forgotten also in the case of Germany is the prior considerable internal experience with federal constitutionalism in its various modalities: the idealistic federalism projected in the Frankfurt Assembly in response to the Europe-wide political revolution of 1848: the highly centralised Prussia-weighted system of the Imperial era (1870-1918); and the experiment of the ill-fated Weimar Republic (1919-1933) which, in spite of the detemined erudition in the pursuit of constitutional checks and balances in aid of a democratic polity, was never able to reconcile the inherent contradictions involved in having, in the one constitutional document, a very strong popularly elected Presidential executive at the same time as an electoral system that facilitated formation of multiple small, interest-groupbased political parties that proved incapable, in the recurring periods of political and economic crisis of the difficult 1920s and 1930s, of combining or working together to fend off common enemies to the free democratic constitutional order system that Preuss and his collaborators had tried to create in drawing their own lessons from the centralised Imperial federal system. The commitment of German constitutional leaders and scholars to liberal democratic norms in the process of re-establishment of sovereignty and self-government in the three Western zones of Military Occupation in Germany involved also active participation in what became a form of German constituent assembly charged with preparation and adoption of the Basic

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Law of 1949. With the approval of the Allied Occupation authorities, the Basic Law entered into force, elections were held, and the Adenauer government installed in 1949. It was and remains a richly eclectic exercise, drawing freely on U.S. constitutional law and practice but trying to rationalise and improve the American experience by borrowing also from contemporary advanced constitutional law doctrines and jurisprudence of other countries too. And of course the Basic Law drew fully on Germany’s own constitutional experience and its trial-and-error testing under the earlier German historical experiments with federalism and federal forms. The creative synthesis thus achieved of the old and the new elements, and the foreign and the German, is perhaps best demonstrated directly in the new constitutional rules as to political parties and their processes and operations, and also in the constitutional machinery (employed to great effect in subsequent Court-developed jurisprudence) as to supervision and control of executive acts and decrees and legislation to ensure their conformity to constitutional norms and also to ensure ready access by citizens and public interest groups to the courts for purposes of enforcing this basic principle. As the present author has noted elsewhere, the institution, established under the Basic Law of 1949, of a Special Constitutional Court, draws on both U.S. sources and also German sources including the remarkable constitutional confrontation between the then Reich President and the Constitutional Court (Staatsgerichtshof ) of 1932, in the so-called Preussenschlag, in which the Court, though effectively yielding to an executive, Chancellorinspired, Presidential coup against the Prussian (provincial) government within the then federal republic, was able to mount the civil courage, nevertheless, to declare the executive (Presidential) decree involved as partially unconstitutional. It was a politically dangerous time in Germany, in the last days of the Weimar Republic just before the Nazi Party’s imminent accession to power. The display of judicial independence, albeit a politically very limited one under the circumstances, was noted and influential with the German constitution-makers of 1948-9 in their objective to establish a robust constitutional judiciary that would draw on the best U.S. constitutional lessons and supply a strength not really accomplished within the Weimar Republic. The Japanese experience, post-1945, involved, by comparison, a much more pro-active rôle for the officials of the Supreme Allied Commander in the elaboration and drafting of the new post-War Japanese Constitution and also, by deliberate design, establishing a much shorter time frame for completion of the task. The rich eclecticism of the constitution-making exercise involved in the Bonn (Basic

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Law) of 1949 is not quite so apparent in the Japanese achievement; but the deliberate policy choice of the Allied Supreme Command to retain the Emperor as titular head-of-state in the new post-War Japanese constitutional system also signalled, symbolically at least, the intention to retain those parts of the old public order system – the “received” Western legal elements, the German Civil Code and the special Civil Law processes of reasoning and the administrative and judicial organisational infrastructure going with that – that had been embraced in their subsequent practice by the Japanese themselves after their first adoption in the Meiji era. They were to prove of major importance in providing continuity from the old to the new and in helping consolidate the new constitutional system to which sovereignty and self-government would be returned. 5.

Constitution-making and Nation-building: opportunities and pitfalls

The two most recent examples of Failed States situations – Afghanistan and more importantly Iraq – offer some similarities and some significant differences to the situations of Germany in May, 1945, and Japan in August, 1945 at the close of World War II. They were of course all collapsed states whose total breakdown had occurred through force majeure and armed force applied by outside powers, in the case of Germany and Japan arising from a State of War under International Law, with the subsequent Belligerent Occupation and the legal obligation and duties of the Occupying authorities flowing from that. In anticipation of their subsequent victory, the Occupying authorities for Germany and Japan, as already noted, had prepared detailed long-range plans including training of specially qualified officials and personnel to administer the Occupation and to proceed on to an eventual return of sovereignty and full powers of self-government to the defeated populations. With Afghanistan, while there was no State of War situation under classical International Law, there was a full and sufficient legal base for outside intervention under the aegis of the United Nations by multi-national forces spearheaded initially by the United States under the authority of a number of U.N. Security Council and General Assembly Resolutions, and for the removal of the Taliban government of Afghanistan deemed responsible for the September 11, 2001, international terrorist attacks against the United States. With Iraq the legal situation was more difficult and the source of legal authority for the U.S.-British joint invasion not clearly established. The U.S. and British governments had attempted to secure U.N. Security Council authority for armed action against the Saddam

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Hussein régime; but a draft Resolution introduced by those two govenments in the U.N. Security Council had significantly failed to rally any support beyond the U.S. and Great Britain and the then government of Spain, and it eventually was allowed to lapse in the 15member Security Council. Claimed legal support for the subsequent U.S.-British invasion in terms of the body of U.N. Resolutions voted in 1990-1 in support of the then international action in the Gulf War against Iraq following on its invasion of Kuwait, was demonstrably too remote and unrelated to current facts; and the further invocation of the right of the self-defence made under Article 51 of the U.N. Charter, sought to be linked to the supposed possession of Weapons of Mass Destruction by the Iraqi government, was not legally persuasive in the absence of any confirmation by the U.N.’s own standing expert committee (UNMOVIC) that had been specially created for just such a purpose. Ultimately these claimed grounds were recognised to be without a factual base. The absence of any international consensus in support of the claimed legal foundations of the U.S.-British armed intervention in Iraq made it politically difficult to rally support from states other than the two invading powers for the subsequent prolonged military occupation and administration. As the years dragged on after the rapid termination of the strictly military phase of the U.S.-British armed action in April, 2003, it had been transformed into a continuing costly and bloody engagement against indigenous partisan guerrilla forces, complicated by the threat of internal civil war on the part of the disparate ethno-cultural and religious communities that had been joined together from the three distinct and separate Turkish provinces when Sykes and Picot first drew their lines in the sand in 1916 on behalf of their respective British and French governments, in dividing up the spoils of their World War I enemy, the Ottoman Empire. It was not a very auspicious time in April, 2003, to begin planning for the eventual end of the U.S.-British Belligerent Occupation and the restoration of self-government to the Iraqi people. In contrast to the situations with Germany and Japan in 1945, the two invading powers had no detailed plans ready and available for that contingency, on the ending of armed hostilities, and no body of specialist administrators and expert advisers on government and administration at hand for taking over in fulfilment of the announced war aim of bringing democracy to a complex, plural multi-national state that, unlike Germany and Japan in 1945, had no prior constitutional experience other than under a highly-centralised and authoritarian military dictatorship. The obstacles to any eventual transition to self-rule on Western paradigm models of liberal democratic states operating within a free-

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market economy were thus enormous. Meeting the challenge was not helped by the fact that the so-called “coalition of the willing” that had been attempted to be put together in support of the announced war aims proved singularly reluctant – perhaps because of the doubts already referred to as to the legitimacy of the armed intervention in Iraq in the first place. Within that context, one should not perhaps be too critical of the frequent seeming hesitations and tergiversations in the U.S. and British Occupation authorities’ long-range policies on the future of Iraq, after they should eventually decide to leave. In the light of public opinion pressures in both countries this might be sooner rather than later, replicating in a far more pathological way the unintended and certainly unanticipated consequences, already discussed, from the timing of the Attlee government’s decision to quit India and to hand over sovereignty and self-government before the All-India Constituent Assembly had really had time to examine in depth and to try to resolve those communal contradictions and conflicts that came into the open with the “premature” partition of the British Raj and the resultant bloody transition to sovereignty and independence for two separate but fundamentally different political entitites. That obvious ready-made and immediate political solution for post-U.S.-British Occupation Iraq of putting asunder what Sykes and Picot had so coolly put together in 1916 and which the victors at Versailles in 1919, with a matching political cynicism, had duly ratified in legal terms, would mean disregarding more than eight decades of shared history and of living together as different cultural communities, (albeit under a centalised dictatorship first of the imposed Royal dynasty and then of the military) and also disregarding the patterns of economic interrelation and dependency developed over that same time period. It would also run counter to international thinking, developed over the same period of time, as to the obligations of mutual access to and sharing of scarce economic resources – in Iraq’s case, the oil reserves located, by the accidents of geology, in the northern and southern sections of the country, leaving the central section – the Sunni-dominated region – with the capital Baghdad and little more than the desert to support it. There would also, of course, be serious international ramifications to any decision on a tri-partite partition of the current Iraq state into a Kurdish northern state, a Sunni central state, and a Shiite southern state. The currently British occupied southern, oil rich Shiite region would inevitably, on separation and independence, come within Iran’s political sphere of influence. The quasi-autonomous, northern, equally oil rich Kurdish region would, on separation and independence in its own right,

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immediately, by its very fact of coming into existence, de-stabilise neighbouring states – Turkey in particular, but also Iran and Syria, with their own strong Kurdish minorities and lead to Irridentist pressures in all of them. A newly poor central, Sunni state, unable to draw on oil revenues and similar bounties from the northern and southern regions, would inevitably become a source of internal conflict and outside disturbance and provide, in that frustration, a new export industry in terrorism against those authorities and governments considered responsible for that fate. The Bush Administration in the U.S., for reasons that seem directed to the internal cohesion of the occupied territory of Iraq, may have even tried to exercise a moderating pressure and to deter, in particular, the Kurdish community in the north from attempting to profit too much from the present political chaos and thus to destroy whatever equilibrium of forces and administrative cohesion now exists in the framework of the occupied territories. Transformation of the old, pre-invasion Iraq into a three-region based federal system might seem overly optimistic, but it would at least require, as a minimum, the giving up of the current Kurdish pretensions to Kirkuk which, situated amid the rich northern oil fields, would seem to base valid Sunni territorial claims and would be clearly indispensable to the Sunni region’s hopes for political viability and economic sustainability in a federal structure that, because of political separatist strains in both the northern and southern regions, may prove too weak to be able to survive without continuing outside support, whether from the two present Occupying powers or, ideally, from the United Nations or other international authority. The federal constitutional governmental system that has so far emerged has appeared open to continuing manipulation and distortion by the two provinces, north and south, that were consciously excluded from effective power under all the years of centralised dictatorship from Baghdad. They now seem determined to profit from an opportunity to take some revenge, with their regional leaders emboldened by a prospect of having their oil revenues all to themselves and not having to be shared with a Sunni-controlled government at the centre in Baghdad. It is not a favourable omen for a genuinely plural-ethnic Iraqi state and plural Iraqi community of the future, or for peace and security in the Middle East and west Asia as a whole. One must have similar reservations as to the attempts, sponsored by the Occupying powers, at constitution-making for a postulated liberal democratic state of Iraq to which full sovereignty and selfrule would be returned. There have been none of the independent expert advisers from the professional and academic world who were

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so predominant, and so successful, in the sustained strategy of sixty years ago to restore full governmental powers to the German and Japanese people! There was, too evidently, an ad hoc, amateurish quality to such efforts as were made in this direction with Iraq, with neither the Army Department nor the State Department clearly charged with the professional responsibility. One has an impression of too many politicians on one day, overnight inspection, ready to offer their opinions and then disappear! Any transition to a local, civil, representative, elected authority in Iraq would be far more difficult, of course, in comparison to Germany and Japan after 1945. The “received” and also indigenous constitutional-legal experience in a liberal democratic polity simply was not there in Iraq in the same historical depth and degree! But there was, nevertheless, still a certain small, very small, group of well-educated and well-trained diplomatic personnel and professional administrators and University teachers from the past, available at home in Iraq and enough to begin with in serious attempts at their recruitment and incorporation – into foreign-led policy-making teams if need be. In Afghanistan, the relics of the old feudal society still dominated by local warlords at the time of Soviet (Russian) entry and active involvement in development aid and support, remained; and the re-emergence of these feudal elements may, paradoxically, have been immediately facilitated in the political vacuum created by the United Nations-authorised ouster of the religious fundamentalist Taliban régime. Without any obvious local élite, professional cadre to whom any early transfer could now be conceived and effected, one would have to look either to a prolonged international transitional administration by present, U.N.-authorised Occupying forces, or else to direct administration under some form of U.N. Trusteeship according to U.N. Charter development principles. What seems clear however is that the rather simplistic remedy of adopting a classical, “Anglo-Saxon” federal constitutional charter – U.S., Canadian, Australian – will not work now as stereotype for a post-Occupation democratic régime in Iraq or even more for Afghanistan. One should consider, instead, in the search for one’s constitutional-governmental models, experience of the rather more “difficult”, plural ethnic-cultural societies, some of them failed experiments in themselves, but failures because of inherent political difficulties in the societies involved and not because of their less rigid and less abstract constitutional-instutional arrangements and processes. The Ausgleich compromise of 1867, with its highly functional and negotiable political and economic governmental formulae for Austria-Hungary worked well enough for those two separate “nations” joined together in the Dual Monarchy. It

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might have worked even better for any Triple Monarchy compromise incorporating also the Slavic regions of the Habsburg complex state; but then, though seriously canvassed in progressive intellectual circles, it was not invoked and applied in timely fashion before the political situation had become out-of-hand with the final collapse of the Austro-Hungarian Empire in 1918 in the military disasters of World War I. One final sobering thought for high political decision-makers venturing on new foreign policy engagements involving Constitutionmaking and Nation-building for complex multi-ethnic, multi-cultural societies: the rules of prudence and forethought for such political activist adventures are not different from those for the military: one should first ascertain and define the problem and establish its necessary bounds and limits in the light of resources (political, economic, and military) that are available for its execution; and one should, thereafter, apply a prudent economy in the use of power, no more and no less than required to achieve the pre-defined objective; and, finally, one should have and maintain at all times a viable exit strategy that will enable one to withdraw at a time of one’s own convenience and choosing, without intolerable loss of political face in the process. Some of these rules of political prudence, – one might say also of ordinary political common-sense, – seem to have been lost by key political players in recent major international problem-situations, with too much subsequent burden for salvation thrown, in consequence, on their professional diplomats and professional legal advisers whose counsel may not have sought in the first place or, if sought, not listened to in the end.

NOTE ON THE AUTHOR Edward McWhinney, Q.C.

Edward Watson McWhinney is a graduate of Yale University, and took his doctorate from Yale University (in Constitutional and International Law). He went on to do post-doctoral research work in The Hague, Berlin, Pisa and Geneva. He was a Lecturer and Assistant Professor at Yale University (in Law and Political Science) for four years, and afterwards held full Chairs at the University of Toronto’s Law School and the Centre for Russian Studies; at McGill University (where he was also Director of the Air-Law Institute); Indiana University (where he was Director of International and Comparative Law); and most recently, Simon Fraser University in Vancouver. He was named (by decree of the French Cabinet) Professeur-associé teaching at the University of Paris (Sorbonne) in 1968, and came back to teach again at the new Paris I in 1982 and 1985. He has been a Visiting Professor teaching at the University of Heidelberg and the Max-Planck-Institut in 1960–61 and 1990, the Meiji University in Tokyo, and The Hague Academy of International Law in 1973, 1990 and 2002. He has also given special courses of lectures at the Collège de France; the University of Madrid; the National Autonomous University of Mexico; the Aristotle University of Thessaloniki; the Institut Universitaire of Luxembourg; the Institute of Contemporary International Relations in Beijing; and other World centres. Dr. McWhinney was elected to the Institut de Droit International (Geneva), in 1967, the first member from Canada to the century and a quarter-old academy. He was elected President of the Institut for the two-year term 1999-2001, only the third jurist from outside Europe to be elected to that office. He is a titular Member of the Académie Internationale de Droit Comparé (Paris), to which he was first elected in 1985. He was also a Member and Special Advisor of the Canadian delegation to the United Nations General Assembly for three years in the early 1980’s. In professional-legal life, he has been a Crown Prosecutor; Royal Commissioner of Enquiry; Consultant to the Secretary-General of

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the United Nations; Constitutional and International Law Advisor to several Quebec Premiers, to the Premier of Ontario, to the federal Government of Canada and to a number of foreign Governments. He was a Member of the Permanent Court of Arbitration, The Hague (1985–1991). In public life, he was elected as Member of Parliament in the Canadian federal Parliament in Ottawa, and then successfully reelected to a second term, and during that time was, successively, Parliamentary Secretary (Fisheries) and Parliamentary Secretary (Foreign Affairs). He chose not to stand for a third term and returned, instead, to his professional advising and consulting and teaching rôle. Dr. McWhinney is the author of 30 books (two in French and one in German), and of 14 co-authored books, as well as some 500 scientific articles, published or translated in nine different languages. He is contributor to the Encyclopaedia Britannica and past Member of its International Editorial Advisory Committee. Interrupting his early studies, he had won his Commission as Pilot-Officer in the Air Force, as a 19-year old. Dr. McWhinney was awarded the Aristotle Medal by the Greek Government in 1997, with the citation “for his contribution to the progress of science, free thought and intellectual development – values inextricably linked with Greek civilization throughout the years”.

PUBLICATIONS BY EDWARD MCWHINNEY

Books

(A.) International Law; United Nations 1. 2. 3. 4.

“Peaceful Coexistence” and Soviet-Western International Law, (1964). International Law and World Revolution, (1967). Conflit idéologique et Ordre public mondial, (1970). The Illegal Diversion of Aircraft and International Law, (1975), (The Hague Academy Lectures, 1973). 5. The International Law of Détente. Arms Control, European Security, and East-West Cooperation, (1978). 6. The World Court and the Contemporary International Law-Making Process, (1979). 7. Conflict and Compromise. International Law and World Order in a Revolutionary Age, (1981). 8. (a) United Nations Law-Making. Cultural and Ideological Relativism and International Law Making for an Era of Transition, (1984). (b) French Language Edition: Les Nations Unies et la Formation du Droit, (1986). 9. Aerial Piracy and International Law, (1987). 10. The International Court of Justice and Western Tradition of International Law (The Paul Martin Lectures), (1987). 11. Nuclear Weapons and Contemporary International Law, (1988) (with President Nagendra Singh). 12. Judicial Settlement of International Disputes. Jurisdiction, Justiciability and Judicial-Law Making on the Contemporary International Court, (1991) (The Hague Academy Lectures, 1990). 13. Judge Shigeru Oda and the Progressive Development of International Law: Opinions on the International Court of Justice, 1976-1992, (1993). 14. Judge Manfred Lachs and Judicial Law Making: Opinions on the International Court of Justice, 1967-1993, (1995). 15. The United Nations and a New World Order for a New Millennium. Self-determination, State Succession, and Humanitarian Intervention, (2000). 16. The September 11 Terrorist Attacks and the Invasion of Iraq in Contemporary International Law (2004).

130

Publications by Edward McWhinney

17. Judge Shigeru Oda and the Path to Judicial Wisdom (2005) (with Mariko Kawano). 18. Self-determination of Peoples and Plural-Ethnic States in contemporary International Law. Failed States, Nation-building and the alternative, Federal option, (2007) (The Hague Academy Lectures, 2002). (B.) Constitutional Law; Federalism

1. Judicial Review in the English-speaking World (1st ed., 1956; 2nd ed., 1960; 3rd ed., 1965; 4th ed., 1969). 2. Föderalismus and Bundesverfassungsrecht, (1962). 3. Constitutionalism in Germany and the Federal Constitutional Court, (1962). 4. Comparative Federalism. States’ Rights and National Power, (1st ed., 1962; 2nd ed., 1965). 5. Federal Constitution-Making for a multi-National World, (1966). 6. Parliamentary Privilege and the Publication of Parliamentary Debates, (1974). 7. Quebec and the Constitution, 1960-1978, (1979). 8. Constitution-Making. Principles, Process, Practice, (1981). 9. Canada and the Constitution, 1979-1982. Patriation and the Charter of Rights, (1982). 10. Supreme Courts and Judicial Law Making. Constitutional Tribunals and Constitutional Review, (1986). 11. Chrétien and Canadian Federalism. Politics and the Constitution 19932003, (2003). 12. The Governor General and the Prime Ministers. The Making and Unmaking of Governments, (2005). • For a complete list of the Author’s publications (Books, Symposium Volumes, Articles, Public Reports, Reviews), see the comprehensive Bibliographies compiled by the Library of Parliament, Ottawa, in a new series of Reference and Source collections on Canadian Parliamentarians as Authors, undertaken on the initiatives of then Parliamentary Librarian Richard Paré as to the first two works cited, and of Associate Parliamentary Librarian Hugh Finsten as to the third work: (i) Edward McWhinney, Publications (Ian McDonald (Compiler)), (Library of Parliament, Ottawa) (1995); (ii) Edward McWhinney, Publications, Update (Alain Lavoix (Compiler)), (Library of Parliament, Ottawa) (2000); (iii) Edward Watson (Ted) McWhinney, Selected Written Works, (Daniel Ledoux and Kathleen Chance (Compilers)) (Library of Parliament, Ottawa) (2006).

INDEX Aboriginal Rights 64 Admission, United Nations 32, 37, 39 n. 5, 41–42, 47 n. 12, 92–93 Alvarez, J. (ICJ) 39, 39 n. 5 Ammoun, J. (ICJ) 7 n. 6 Ando, Nisuke 25 n. 10, 45 n. 45, 88 n. 2 Arab state, Palestine 100 Attlee Government (UK) 98, 100–101, 109–111, 119 Austro-Hungarian Empire 3, 10, 96, 122

Cold War 5, 8, 22–24, 37–38, 87, 103, 115 Congress Party (India) 000 Constituent Assembly, All-India 112–114, 119, 123 Constitutional Court (Germany) 42, 78 n. 9, 116, 130 Cree Nations (Canada) 64, 64 n. 1 Crime of Genocide (ICJ) 45 n. 7, 46 n. 10 Croatia 10–12, 28–32, 34, 41, 44–45, 96–97

Badinter Commission 33–34, 34 n. 24, 35, 42, 44, 48, 53–55, 57–59, 98 Balance-of-Power 3, 8, 108 Balfour Declaration, 1917 103 Balkans 3, 9–10, 12, 27, 29, 90 n. 5, 97, 108 Basque Provinces (Spain) 20, 80 Bedjaoui, J. (ICJ) 7 n. 6, 56 Berlin, Congress, 1878 9, 27–28, 55, 108 Bonn Constitution, 1949 62, 73, 113, 117 Bourassa, Robert, (Premier, Quebec) 76 n. 7 Boutros-Ghali, Boutros 13, 13 n. 11, 30–31, 31 nn. 20–22, 45, 45 n. 8, 55, 56 n. 4, 84 n. 11, 85 n. 12 Bowie, Robert R. x British Raj (India) 42–43, 104, 112–114, 123

Defence Community, European 30–35, 50, 59, 98 “Deux Nations” (Canada) 66–68, 71, 73, 83 Dicey, A.V. 68, 68 n. 3, 69, 74

Canada, Constitution 66–67, 130 Carrington, Lord (Foreign Minister, UK) 31, 48, 84 Charest, Jean, (Premier, Quebec) 79 n. 10, 83 China (Taiwan) 50–51 Chrétien, Jean (Prime Minister, Canada) 65 n. 2, 79 n. 10, 77, 109 Churchill, Winston (UK) 100, 105 Clemenceau, Georges (Prime Minister, France) 9 Coal and Steel Community, European x Coexistence, Peaceful 5, 5 n. 2, 5 n. 2, 6, 8, 129

East Timor (ICJ) 7, 7 n. 7 Elite, local, incorporation of 116-117, 125 Estrada Doctrine 24, 24 n. 9, 24 Ethiopian War, 1935 16, 18, 20 Ethno-Culturalism 2, 12, 27, 61, 70, 85, 95–96, 105, 107, 122 European Union 27–30, 32, 47 n. 12, 49, 79 “Exodus” Refugee Ship 101 “Failed States” 95, 121, 130 Faisal, King (Iraq) 105 Federalism, general 71, 79, 120, 130 Federalism, Germany 40, 119–120, 130 Federalism, India 63, 109 Federalism, Pakistan 104, 109 Fourteen Points (Woodrow Wilson) 3, 9, 16, 24, 97, 112 French Language (Quebec) 74–76, 78, 81, 124 French Revolution, 1789 1–2 Friedrich, Carl J. 76 Friendly Relations Declaration (U.N.) 6, 54 FYROM (Macedonia) 35, 41 Gendron Commission (Quebec) 75, 75 n. 5, 76 n. 6

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Index

German Civil Code (BGB) 119, 121 Germany, Allied Military Government 113–115 Germany, East (DDR) 22, 115 Germany, West 22, 62 Gorbachev, M. 115 “Greater Serbia” 10, 96 Grundnorm, concept 11–12, 61, 68, 95 Habsburg Empire 10, 96 Harper, Stephen (Prime Minister, Canada) 65 n. 2, 78 n. 9, 108–110 Harvard Group (Federalism) 76 n. 6 Hazard, John N. 5 n. 2 Herzl, T. 99 India, Partition 103 India, Republic 113 Institut de Droit International 59, 59 n. 10, 94, 94 n. 7, 127 International Court of Justice (ICJ) 5–7, 38, 46, 46 n. 9, 56, 56 n. 5, 129 International Law Association 1, 8, 11, 15, 20, 23, 27–28, 31, 35, 44, 58–59, 61, 65, 67–68, 78 n. 9, 88 n. 2, 98, 100, 106, 108, 110, 118, 121, 130 International Law (“Latin American”) 24, 54, 57 Iraq 80, 91, 104–107, 116–118, 121–125, 129 Israel, State 29 Italy, claims in Balkans 1–2, 4, 10, 18–19, 97, 104 Japan, Allied Military Government 114 Japan, Constitution 114, 117 Jessup, J. 24 Jewish National Homeland 100 Jinnah, Mohammed Ali 110 Judicial Activism 000 Judicial Law-making 129–130 Judicial Review of Constitution 130 Kelsen, Hans 11, 61, 95 Keynesian Economics 69–70, 71 Kosovo (Yugoslavia) 90 n. 40 Krylov, J. (ICJ) 39 n. 4 Kurdish community (Iraq) 107, 124 Language Rights (Quebec) 74 Latin America 25, 55–57, 89 Law/Politics Antinomy 12, 80 Lawrence, T.E. 105 League of Nations 3, 7, 10, 16, 19, 98–99, 101, 112

Levesque, René (Premier, Quebec) 76–77, 81 “Living Law” (Ehrlich) 102 MacArthur, Douglas 117 MacMahon, Sir H. 99 Macedonia (FYROM) 35, 41–42 Mandate, League of Nations 98–99, 101 Maersk Dubai case (Taiwan) 50, 51 n. 15 Meiji Era ( Japan), reforms 119, 121, 127 Membership, United Nations 37–38, 39 nn. 4–5; 40–47, 49–50, 92–93, 101 Military Occupation 62, 91, 97, 115–117, 119, 122 Mitterand, François (President, France) 13, 28–30 Montenegro 10, 42, 44–46, 46 n. 10, 47, 47 n. 12, 48, 58, 96 Morrison-Grady Plan (Palestine) 101–102 Mountbatten, Louis 112 Mouvement Européen ix Multiculturalism 81, 95, 126 Multinational States 9–11, 27, 29, 94, 122 Muslim League 110 Namibia (South West Africa) (ICJ) 6, 6 n. 3, 7, 7 n. 4 “Nation”, Concept 2, 64 n. 1, 71, 73, 80, 109, 116 Nehru, Jawaharlal (India) 110 Oda, J. (ICJ) 88 n. 2, 129–130 Ontario Committee, Confederation 74 n. 4 Ottoman Empire 9, 91, 97, 99, 104–106, 111, 122 Owen, David (Foreign Minister, U.K.) 58 nn. 7–8 Pakistan, Islamic Republic 113 Palestine, British Mandate 98–101, 103 Parti québécois 77 n. 7, 81–82 Pasic, N. (Serbia) 96 Peaceful Coexistence 5, 5 n. 2, 68, 112, 129 Pelletier, Benoît (Minister, Quebec) 79 n. 10 Pepin-Robarts Commission (Canada) 74, 74 n. 4, 75 Plural Constitutionalism 54, 79, 93, 101, 110, 114

Index Political Union, European, Project x Potsdam Declaration, 1945 22, 114 “Premature” Recognition 19, 23, 31, 89, 92, 98 Preuss, Hugo 119 Preussenschlag, judgment (Germany) 120 Quebec Language Laws 75 Quebec, Separatism 72 “Quiet Revolution” (Quebec) 63, 68, 107, 109 Radic, Stepjan (Croatia) 96–97 “Reception”, legal (Germany, Japan) 115 Recognition, Constitutive Theory 15–16, 23, 33, 91 Recognition, Declaratory Theory 16, 22, 24–26, 33, 41 Recognition, European Union Declaration 27–30, 32, 47 n. 12, 49, 79 Ross, Alf 38, 38 n. 3 Russia, Imperial 17, 99, 104 Russian Revolution, 1917 17, 104 Saint Germain-en-Laye, Treaty, 1919 96 Secret Treaties (World War I) 97 Self-Determination, UN General Assembly Declaration 53, 84, 92–93 Separatism (Quebec) 72 Serbia-Montenegro Union 47 n. 12 Serbs, Croats and Slovenes, Kingdom, 1919 10–11, 96 Shiite community (Iraq) 105–106, 123 Sinclair, Ian 5 n. 2 Slovenia 10–12, 28–29, 31–32, 34, 41, 44, 96 Sovereignty-Association (Quebec) 64, 64 n. 1, 72, 75, 76, 77 nn. 7–8, 78 nn. 8–9, 79 n. 9, 109 Soviet Union, Recognition 12, 19, 22, 32, 38, 41, 89, 94, 103, 115–116 Spaak, Paul-Henri (Belgium) ix–x Spain, Basque Provinces 20, 80 Spain, Catalonia, Constitutional Charter 80 Spain, Civil War, 1936–9 15, 18–21, 48, 80 Spain, “Nation” Concept 80–81 Succession, State 3, 25, 28–29, 33–34, 41–43, 48–49, 53, 56–59, 62, 67, 84, 87, 91–92, 94, 98, 129

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Sunni community (Iraq) 106–107, 112, 120 Sykes-Picot Agreement, 1916 99, 104–105, 122 Tarassov, J. (ICJ) 46 n. 10 The Hague Academy 127, 129–130 Timing, importance 92, 112, 114, 123 Tito, Marshal 29, 96 Triple Alliance (World War I) 9, 97 Triple Entente (World War I) 10, 97 Trudeau, Pierre Elliott (Prime Minister, Canada) 63–64, 64 n. 1, 72–74, 74 n. 4, 75–77, 77 n. 8, 79 n. 9, 82, 126 Turp, Daniel (Assemblée Nationale, Quebec) 78 n. 9 United Nations, Membership 37–38, 39 nn. 4–5, 40–43, 45–46, 49, 92 United Nations Charter 4–5, 33, 37, 52, 88, 91–93 UNSCOP (UN Commission, Palestine) 101–103 Uti possidetis, International Law doctrine 15, 28, 31, 53–57, 58 n. 7, 87, 92 Vance, Cyrus (U.S. Envoy) 31, 84 Vance-Owen Plan (Yugoslavia) 58, 84–85, 89, 101 Védrine, Hubert 13, 13 n. 12, 28, 28 n. 12, 29, 29 nn. 13–14, 30 nn. 15–19 Versailles Treaty, 1919 3, 9, 9 n. 9, 11, 27, 91, 96, 98, 105, 123 Vienna, Congress of 2, 112 Weber, Max 66, 88 n. 2 Weimar Republic 119–120 Weizmann, Chaim 99–100 Western Sahara (ICJ) 7, 7 nn. 5–6 Wilson, Woodrow (President, USA) 1–3, 9, 16, 24, 97, 108 Yalta Agreement, 1945 22, 114, 116 Yugoslavia, Creation of 96 Yugoslavia, Dissolution 12–13, 34, 61, 96 Zapatero, José Luis Rodriguez (Prime Minister, Spain) 80–81