Nationalism, Referendums and Democracy: Voting on Ethnic Issues and Independence [2 ed.] 0367228823, 9780367228828

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NATIONALISM, REFERENDUMS AND DEMOCRACY

This  revised and expanded edition analyses the factors conducive to holding independence and secession referendums, to winning these votes and to their status in domestic and international law. Taking into account the votes in Catalonia and Scotland, the book shows that votes on secession and independence are not a passing phenomenon but an important part of international politics. The book includes an overview of the history of referendums on independence and a summary of the legal issues involved in doing so, as well as a chapter on referendums in unrecognised states and case-study chapters exploring referendums in Kosovo, Cyprus, Kurdistan and Somaliland amongst others. By considering the ethical arguments for secession and recognition, the legal norms governing the process, and the positive and political science theory of when would-be states succeed in becoming recognised by the international community, it shows the role of referendums in the process of establishing new states, and, as a corollary, their role (if any) in winning international recognition for these states. This book will be of interest to all scholars and students of political science, law and even philosophy. Matt Qvortrup, DPhil (Oxon), is professor of political science at Coventry University, UK.

DEMOCRATIZATION STUDIES (Formerly Democratization Studies, Frank Cass)

Democratization Studies combines theoretical and comparative studies with detailed analyses of issues central to the democratic progress and its performance all over the world. The  books in this series aim to encourage debate on the many aspects of democratization that are of interest to policy-makers, administrators and journalists, aid and development personnel, as well as to all those involved in education. Democracy Assistance Bypassing Governments in Recipient Countries Supporting the “Next Generation” Paulina Pospieszna Transatlantic Democracy Assistance Promoting Different Models of Democracy Jan Hornat Innovations, Reinvented Politics and Representative Democracy Edited by Agnès Alexandre-Collier, Alexandra Goujon and Guillaume Gourgues Nationalism, Referendums and Democracy Voting on Ethnic Issues and Independence 2nd edition Edited by Matt Qvortrup

For more information about this series, please visit: www.routledge.com/ Democratization-Studies/book-series/DS

NATIONALISM, REFERENDUMS AND DEMOCRACY Voting on Ethnic Issues and Independence Second Edition Edited by Matt Qvortrup

Second edition published 2020 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN and by Routledge 52 Vanderbilt Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2020 selection and editorial matter, Matt Qvortrup; individual chapters, the contributors The right of the Matt Qvortrup to be identified as the author of the editorial material, and of the authors for their individual chapters, has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. First edition published by Routledge 2013 British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data Names: Qvortrup, Matt, editor. Title: Nationalism, referendums and democracy : voting on ethnic issues and independence / edited by Matt Qvortrup. Description: 2nd edition. | Abingdon, Oxon ; New York, NY : Routledge, 2020. | Series: Democratization studies | Includes bibliographical references and index. Identifiers: LCCN 2019053056 | ISBN 9780367228828 (hardback) | ISBN 9780367228835 (paperback) | ISBN 9780429277382 (ebook) Subjects: LCSH: Nationalism. | Nationalism--Case studies. | Self determination, National. | Self determination, National--Case studies. | Referendum. | Referendum--Case studies. | Secession. | Secession--Case studies. Classification: LCC JC311 .N3265 2020 | DDC 328.2/3--dc23 LC record available at https://lccn.loc.gov/2019053056 ISBN: 978-0-367-22882-8 (hbk) ISBN: 978-0-367-22883-5 (pbk) ISBN: 978-0-429-27738-2 (ebk) Typeset in Bembo by Datamatics Limited

This book is dedicated to the memory of Jean Laponce. He was a great man – and a good man!

CONTENTS

List of illustrations Contributors

ix x

PART I

The history of referendums 1 Introduction: Nationalism, referendums and democracy – Independence, recognition and voting Matt Qvortrup 2 The history of ethno-national referendums 1791–2019 Matt Qvortrup

1 3 9

PART II

A theory of self-determination 3 Secessionist referendums in international and domestic law Peter Radan 4 Theory of state recognition: A contemporary assessment Mikulas Fabry

31 33 47

viii Contents

PART III

Case studies

73

5 Phantom referendums in phantom states: Meaningless farce or a bridge to reality? Dahlia Scheindlin

75

6 Legacies of a failed referendum: Negotiations to ratify a peace treaty in Cyprus Erol Kaymak

96

7 Self-determination or the will of the people? Declarations of independence and the paradox of ‘alien-determined self-determination’ Aleksandar Pavkovic´ Index

120

141

LIST OF ILLUSTRATIONS

Figure 1.1

Referendums on Independence 1860–2017

6

Tables 2.1 2.2 2.3 2.4 2.5 2.6 2.7 2.8

Typology of ethno-national referendums Difference-eliminating referendums in France 1800–1852 Referendums in Australia 1898 Referendums in Australia 1899 Ethno-national referendums from the French Revolution to the First World War Ethnic and national referendums 1918–1945 Referendums in the decolonising period Ethno-national referendums 1989–2019

11 14 18 18 19 22 23 26

CONTRIBUTORS

Mikulas Fabry, is assistant professor in the Sam Nunn School of International Affairs at the Georgia Institute of Technology, Atlanta, Georgia. Erol Kaymak, is a professor at the Department of International Relations at the Eastern Mediterranean University, Cyprus. Aleksandar Pavković is an associate professor in the Department of Modern History, Politics and International Relations at Macquarie University, Australia. Matt Qvortrup, DPhil (Oxon), is professor of political science at Coventry University, UK. His books include A Comparative Study of Referendums (2005), Government by Referendum (2018) and The  Referendum and Other Essays on Constitutional Politics (2019). He  is also an occasional film critic for Philosophy Now and presenter of the BBC programme Analysis. Peter Radan, a fellow of the Australian Academy of Law, and a professor of law at Macquarie University, Australia. Dahlia Scheindlin, is a policy fellow at Mitvim Institute: The Israeli Institute for Regional Foreign Policies, researching comparative conflict dynamics. She is also an adjunct lecturer at Tel Aviv University, Israel.

Part I

The history of referendums

1 INTRODUCTION: NATIONALISM, REFERENDUMS AND DEMOCRACY Independence, recognition and voting Matt Qvortrup

This book is an updated – and slightly changed – version of the book Nationalism, Referendums and Democracy (Qvortrup 2014), which, in turn, grew out of a special issue of the journal Nationalism and Ethnic Politics (Vol. 18, No. 1, March 2012). A lot of water has passed under the proverbial bridges of independence referendums since then (just think of the votes in Scotland in 2014). Equally, there has been renewed debate about issues pertaining to independence and recognition. These developments made a new edition necessary. Hence, in the present volume, some of the original chapters have merely been substantially updated. This is true for the chapters by Matt Qvortrup, Peter Radan, Dahlia Scheindlin and Erol Kaymak. However, the sad death of our dear colleague Jean Laponce meant that we needed another chapter. Moreover, other contributors to the previous volume elected not to take part of the present volume. In the light of political developments, it was deemed necessary, not only to focus on more recent referendums, but also to consider the effects of these on policy matters. For this reason, we invited, Mikulas Fabry and Aleksandar Pavković to write about, respectively, recognition and declarations of independence. The structure of the book is as follows. In the first section, Qvortrup, Radan, Kaymak and Scheindlin discuss different aspects of the use of referendums on independence. Qvortrup presents a historic overview, and Radan considers when these are (and are not) legal. Scheindlin analyses a special subset, namely referendums in phantom-states, whereas Kaymak presents a case study of the developments in Cyprus following the failed referendum on the Annan Peace Plan. In  the second part of the book, Fabry and Pavković analyse and present overviews of the mechanisms by which states have declared their intentions to become independent, and how recognition is (sometimes) achieved. Before proceeding to the chapters, it is useful to sketch out the context and to outline – albeit briefly – why these issues are more pertinent than ever.

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Democracy and nationalism have a difficult relationship. Modern democracy essentially emerged at the same time as nationalism. In the years immediately after the French Revolution, new and old states based themselves on national identities. Democracy – the rule of the people – was always the rule of a particular people: the French in France, the Irish in Ireland and so on. This nationalist tendency was underlined by the fact that the representative assemblies, rather than having the generic name ‘parliament’, always had a name in the local vernacular. Thus, the Danish Parliament was called Folketinget and its Norwegian equivalent Stortinget  – in both cases using the word ‘ting’, the old Viking name for assembly. Likewise, in Ireland the Oireachtas derives from the Gaelic word oireacht, roughly translated ‘deliberative assembly of freemen’. In almost all cases, such as those of the Finnish eduskunta or the Greek Voulí ton Ellínon (literally ‘the Will of the Hellenes’), the newly established democratic bodies’ names made reference to the local people. Implicit in all these cases was the assumption that the demos was identical with the ethnos. The citizens were not merely individuals who resided in the territory of the county in question; they were also individuals who were part of an imagined community formed by people who shared (or believed to share) a common ancestry, culture and language. From the 1830s and onwards, appeals to national ‘belonging’ became a rallying cry for groups who sought their own states. In Italy, for example, the quest for national self-determination (as it would later be called) was associated with espousal of democratic legitimacy. During the Risorigimento, the unification of the previously independent states of the Italian peninsula were justified by plebiscites – though sometimes these were of dubious legality and fairness. Thus, Giuseppe di Lampedusa’s account of the Italian plebiscites in The  Leopard was probably accurate. In an exchange about the vote between the protagonist Don Fabrizio and one of his servants, Don Ciccio, Lampedusa wrote: You know that everyone in Donnafugata voted ‘yes’ [said Don Ciccio]. Don Fabrizio did know this; and that was why his reply merely changed a small enigma into an enigma of history. Before voting many had come to him for advice; all of them had been exhorted sincerely to vote ‘yes’. Don Fabrizio, in fact, could not see what else to do; whether treating it as a fait accompli or as an act merely theatrical and banal, whether taking it as a historical necessity or considering the trouble these humble folks might get into if their negative attitude were known (di Lampedusa 1960, 105). But it soon became clear that these notions were overly simplified – and even dangerous. Things were comparatively easy in Italy where  – notwithstanding different dialects – the demos were essentially of the same ethnic stock. Matters were much more complicated in states that were ethnically diverse, such as Norwegians under the rule of the Swedes, and Germans living in SchleswigHolstein, under the rule of the Danish king.

Nationalism, referendums and democracy

5

In both these and other cases, referendums were used to resolve the problem of national belonging. In both cases, the votes were held after negotiations – and, in the Swedish/Norwegian case – after a good deal of forbearance on the part of the erstwhile parent country. But in other cases, referendums on independence – or, more broadly, national issues  – was less successful. In  the 1970s, for example, the so-called ‘Border Poll’ – in Northern Ireland – was boycotted by the nationalist community, as the result was seen as a foregone conclusion. How, it was asked, could a referendum be fair, if it was only held in the part of Ireland that was under British rule? Why not include all of the island of Ireland? Some of these issues defy empirical political science and require recourse to theoretical political philosophy. But even the issues of political theory touch upon practical issues. The  focus on the chapters dealing with referendums below are all based around practical politics. They show, as in the chapters by Scheindlin and Kaymark, that the ideals established in the wake of the French Revolution still have persuasive force in practical politics. And, indeed, as the chapter by the editor also shows, this appeal has only grown in recent years. There are now more referendums than a century ago, and many more than a generation ago. The referendum on independence – and related polls on national and ethnic issues (e.g. on further autonomy or the drawing of borders) – have become rather less common after the fall of the Berlin Wall. Many of these referendums have been held to legitimise the rule of sometimes absurdly small enclaves (as Dahlia Scheindlin shows in her chapter). But these referendums have also been held in larger entities, such as in Ukraine (peacefully) and in the former Yugoslavia (not peacefully). Again, a bit of historical context is useful. Establishing a new state is a major political, legal and economic undertaking. Before considering the practicalities of such an endeavour, and the likely economic implications of it, it is necessary to outline some of the other examples for countries that gained their independence/seceded from other countries. In the twentieth century, a large number for former colonies gained independence, and a good number of countries that hitherto were part of larger states seceded. While there were examples of this before the Second World War, for example, when the Philippines became independent in 1935, most new states were established after the Second World War. In  this period, most of the new states were former colonies, for example, the former British Colonies, India, Kenya and the former French colonies Senegal, Togo and Cameroon. By contrast, after the Cold War, most newly established countries were not former colonies but were areas which hitherto had been part of larger entities, for example, Croatia and Bosnia-Herzegovina in Former Yugoslavia, and Ukraine and Belarus, to name but two, which were previously part of the Soviet Union (Figure 1.1).

6

Matt Qvortrup 30 25 20 15 10 5

18 60 18 70 18 80 18 90 19 00 19 10 19 20 19 30 19 40 19 50 19 60 19 70 19 80 19 90 20 00 20 10

0 Number of referendums

Referendums on Independence 1860–2017. Note: This  figure  does not include the four multioption referendums in Puerto Rico (1968, 1993, 1998 and 2012), which formally included ‘independence’ as one of the options. However, the table includes the two-round multioption referendum in Newfoundland in 1948, as independence was one of the choices in the run-off. The independence options lost to ‘statehood’ and the former British territory became a Canadian Province

FIGURE  1.1

The problem with these referendums is not only that they have occasionally – though not generally – resulted in war. The problem is also that many would-be states claim to have a right to self-determination, that they consider it legally right – and not just morally just – that they have a right to declare independence after a referendum. As the examples of Catalonia in 2017 and Kurdistan in the same year show, this belief is widespread, but it is based on legally dubious grounds. This duality is the subject of Peter Radan’s chapter. Surveying the legal practice from the American Civil War (which was predated by referendums on independence in several confederate states in the South), the author looks at the emerging legal doctrine surrounding independence referendums. While he acknowledges that a decisive vote may have moral force, his admirably dispassionate analysis is equally clear that there is no right to hold an independence referendum. Such votes, he shows, can only be held where there are constitutional provisions that allow them, following a peace deal or in cases where the territory in question is a former colony. As a general rule, unilateral referendums on independence are only legally permissible in cases where the people in question have no other recourse through democratic means. Thus, the referendum in Kurdistan could conceivably be regarded as legally permissible, as Iraq is not  a democratic state (as defined by Freedom House). Conversely, the Catalan referendum (notwithstanding unnecessary show of force by the Spanish Police) was not justified, as Spain is a democratic state.

Nationalism, referendums and democracy

7

It was one of the more spectacular moments in recent history, when President Carles Puigdemont issued his Declaració d’independència de Catalunya – the declaration of independence of Catalonia. It happened on the 1 October 2017, a couple of weeks after a majority of over 90% of the voters – on a less than 50% turnout – had voted for independence. The declaration came to naught. Puigdemont’s political comrades were jailed, and he escaped to Belgium. The  Spanish government dealt resolutely (some would say harshly) with, what they considered to be, an insurrection. But the Catalan crisis was not common. Indeed, the fact that it was peaceful makes it stand out. As Aleksandar Pavković writes, most declarations of independence in recent decades were made prior to military interventions by outside states which led to the eventual independence of these states. And all of these declarations, except the first three declarations in Kosovo, were made during or following the violent conflict on the territory whose independence is being proclaimed. The fact that the Catalan Declaració failed might be explained by the fact that the territory was not supported by a strong, foreign, military power. Contrast this with declarations of independence in states with more dubious claims, such as South Ossetia and Abkhazia, and it is clear that power politics plays a stronger role than reference to ideals in international affairs. It is one thing to declare independence, but it is quite another to be recognised. This  is what Mikulas Fabry deals with in his chapter ‘Theory of State Recognition: A Contemporary Assessment’. Again, a bit of background may be warranted. Fabry’s paper deals with the contemporary practice, the philosophical and theoretical background and the academic literature. But it might be useful to point out that recognition is now part of a legal process. In  summary, this goes as follows: First, the state submits an application to the United Nations Secretary-General and a letter formally stating that it accepts the obligations under the UN Charter. Secondly, the Security Council considers the application. Any recommendation for admission must receive the affirmative votes of 9 of the 15 members of the Council, provided that none of its five permanent members – China, France, the Russian Federation, the United Kingdom of Great Britain and Northern Ireland and the United States of America – have voted against the application. Thirdly, if the Security Council recommends admission, the recommendation is presented to the General Assembly for consideration. And, finally, if membership is supported by a two-thirds majority in the General Assembly, the state in question is granted immediate membership. In short, creating a new state is no easy task. Holding a referendum (sometimes of dubious legality), winning a majority in favour of independence, declaring independence and getting recognition, all of these steps require almost superhuman efforts. The benefits seem meagre. And yet, history has shown that the quest for national self-determination is one of the strongest urges in international politics. This book shows how much has changed but also how much has remained the same.

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In politics, said British Prime Minister Benjamin Disraeli, there is ‘no “finally and forever”, only policies which would satisfy this and perhaps the succeeding generation’ (House of Commons Debates 31 March 1859, Col. 1236). The same, we believe, is true for discussions about democracy, secession and recognition. We hope and believe this book will ‘satisfy this generation’. But we are under no illusions that these debates will be revised by the ‘succeeding generation’.

Reference di Lampedusa, Giuseppe Tomasi (1960) The Leopard, New York: Random House.

2 THE HISTORY OF ETHNO-NATIONAL REFERENDUMS 1791–2019 Matt Qvortrup

The birth of democratic politics in the modern sense of the word coincided with the emergence of the ideology of nationalism. It is not surprising, therefore, that referendums aimed at resolving ethnic tensions have a long history. Some of the first exercises of democratic involvement were referendums on self-determination held in the aftermath of the French Revolution. The chapter presents a history from the Napoleonic referendums at the beginning of the nineteenth century, through the plebiscites that legitimised the Italian Risorgimento in the 1860s and the referendums on national self-determination in the wake of the First World War. It then continues on to the more recent referendums on self-determination, power sharing and regional autonomy held since 1980. ‘Nationalism’, wrote Elie Kedouri, ‘is a doctrine invented in Europe at the beginning of the nineteenth century’ (Kedouri 1960: 1). It  is not  surprising, therefore, that national and ethnic issues were submitted to the voters in the 200-plus years thereafter. While matters pertaining to sovereignty were decided by wars and occasionally marriages, the people (or a majority of them) were now called upon to decide on these matters. This tendency to allow the voters to decide has accelerated in recent years. Several countries have held votes on the transfer of power to subunits (e.g. in Bangsamoro in the Philippines and in Sidama (in Ethiopia) both in 2019), but above all, in the period after the fall of communism, several states in the then Soviet Union and Yugoslavia voted to secede in referendums. While the number declined in the following decade, the number of independence referendums have once again picked up with votes held in Scotland (2014), Catalonia and Kurdistan (both 2017), New Caledonia (2018) and Bougainville in 2019. This  chapter surveys these historical developments from the turn of the nineteenth century to the present day. As alluded to, ethno-national referendums are not a uniform category. The referendum on devolution in Wales in March 2011 was vastly different from the

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referendum held on independence in South Sudan a few months before. Similarly, the referendum held in the Soviet Union in March 1991 was vastly different from the vote held in Saarland between Germany and France in 1955. In other words, the category ‘ethno-national referendums’ is so broad that it might be meaningless. To paraphrase Aaron Wildavsky, ‘if ethno-national referendums are everything then maybe they are nothing’ (Wildavsky 1973). What we need is a set of more precise definitions, which can subsequently form part of testable hypotheses. Social science is – or ought to be – a cumulative endeavour. The research developed by scholars provides the basis for the research undertaken by a subsequent generation. Further, research in a subdiscipline is often based on a larger framework developed for more general problems. This model is generally inspired by and based upon the taxonomy developed by Brendan O’Leary and John McGarry, who distinguish between, respectively, ‘difference managing policies’ and ‘difference eliminating’ policies (McGarry and O’ Leary 1993). Using O’Leary and McGarry’s definition, we can thus have referendums on: 1. Difference Elimination, i.e. referendums which aim at legitimising a homogenisation policy, such as the Anschluss-referendum in Austria in 1938, and; 2. Difference Managing, i.e. referendums aimed at managing ethnic or national differences, such as the referendums on devolution in Scotland, Wales and Northern Ireland in 1997–1998. Yet, in order to be more specific this model is expanded by two categories. In addition to O’Leary and McGarry’s taxonomy, we thus expand our model to include: 3. Secession Referendums, i.e. plebiscites to endorse (or otherwise) a territory’s secession from a larger entity (e.g. the referendum in Jamaica in 1963 or the referendum in Eritrea in 1991), and; 4. Right-Sizing Referendums, i.e. votes dealing with the drawing of disputed borders between countries, such as the border between Croatia and Slovenia, which was the subject of a referendum in 2010. This  model can also be stated in a more logical way, namely by developing a typology of different types of ethno-national referendums. Broadly speaking, we can distinguish between referendums, which are initiated by politicians who take diversity as an accepted fact and want to manage these differences, and on the other hand, referendums held by politicians who do not accept diversity. The former may be categorised as ‘homogenising’ referendums. The latter may be categorised as ‘heterogenising’. Homogenising referendums can be divided into ‘international’ and ‘national’, and the same is true for ‘heterogenising’ referendums. Doing this, we get a two-by-two model of four logically possible types of ethno-national referendums (See Table 2.1).

Ethno-national referendums 1791–2019

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TABLE 2.1 Typology of ethno-national referendums

International/homogenising: Secession referendums Example: Scotland 2014

International heterogenising: Right-sizing referendums Example: Schleswig Referendum 1920 National homogenising: National heterogenising: Difference-eliminating referendums Difference-managing referendums Example: Egypt and Syria 1958 Example: Wales 2011

For example, heterogenic referendums can be either right-sizing referendums (international and heterogenising), for example the Saar–Plebiscite in 1955, or they can be internal, that is held within a single state, for example the referendum on the future of Greenland in 2009 and the referendum in Wales in 2011. Homogenising referendums can similarly be divided into internally held plebiscites (such as the poll in the Soviet Union in 1990 on maintaining Moscow control), or they can be international homogenising votes that create a new homogeneous entity, for example a new mono-ethnic state, as was the case in Norway in 1905. Of course, there may be referendums that do not fit into this neat categorisation. We should always be mindful of social anthropologist Gregory Bateson’s observation in Steps to an Ecology of Mind, that there is a difference between the ‘maps’ and the ‘landscape’, that is that the theories are the maps and not the landscape (Bateson 1962: 459). Categorisations are preludes to theories but are only social constructs which serve as heuristic tools that enable us to get a better overview of the empirical world. ‘It  is in general a necessary condition of institutions that the boundaries of governments should coincide with those of nationalities’, John Stuart Mill once observed (Mill 1890: 234). It did not appear that the otherwise thoughtful English philosopher had pondered this question deeply. He considered it a rather trivial fact. And, so it was at the time. The birth of democratic politics in the modern sense of the word coincided with the emergence of the ideology of nationalism. Hence, referendums aimed at resolving ethnic tensions have a long history. Some of the first exercises of democratic involvement were referendums on self-determination held in the aftermath of the French Revolution. Since then, literally hundreds of ethno-national referendums have taken place (see below). Chroniclers are always faced with the fundamental problem of where to begin. It is possible to trace the ethno-national referendum back to ancient times – such as ancient Greece and the German tribes, but these votes were not like presentday referendums on sovereignty. The  earliest plebiscites  – defined as polls in which all (or almost all) adults are asked to vote for or against a proposition pertaining to ethno-national issues  – were arguably the referendums held in Lyonnais in the thirteenth century.

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Lyonnais, then part of the Holy Roman Empire, wanted to escape the domination of the Church, and hence its ‘citizens claimed themselves subjects of the King of France and asked him to take them under his special care’ (Solière 1901: 10). This was by no means the only referendum held on sovereignty in those early years of democracy. In 1420, the citizens of Geneva were offered the choice of joining Savoy and with a ‘unanimous voice’ they rejected the proposal (Solière 1901: 15). And, a little more than half a century later, the French annexation of Metz, Toul and Verdum were given the same opportunity. In the words of Eugène Solière: When in the year of 1552 King Henri annexed Metz, Toul and Verdun, Bishop de Lénoncourt said to the inhabitants of Verdun, ‘that the King of France had come as a liberator and that far from using rigorous measures, he appealed to the free vote of the people’ (Solière 1901: 26). The result – according to Solière’s somewhat uncritical recounting – was that ‘by universal suffrage the new French citizens were untied from the old yoke’ (Solière 1901: 26). That such votes were far from uncommon has been further documented in the more critical work of Johannes Mattern. In  his doctoral dissertation The Employment of the Plebiscite in the Determination of Sovereignty, Mattern concluded that, We find in France in the sixteenth century a policy of opportunism which recognised, or even insisted upon, the principle of popular selfdetermination in the transfer of cities and territories if such self-assertion was favourable or could be forced into an expression favourable to France, but which refused to acknowledge any voice or opinion to those who wanted to conquer against their will, or to any section of the Kingdom which for some reason or other might wish to sever its former or forced connection to France (Mattern 1921: 53). While in some sense, the French rulers employed what might be termed as a precursor of modern-day difference eliminating referendums (see the next section), it is questionable if we can, in fairness, categorise these plebiscites as ethno-national referendums. In fact, given the current consensus in nationalist theories, it appears a bit anachronistic to call referendums before the French Revolution ethnonational. To be sure, nationalist ideologies might have ethnic origins. Yet they were only used politically after the French Revolution (See Gellner 1983: 97).

The history of ethno-national referendums since 1791 Since 1791, when Avignon voted to change its sovereignty and join France (after what we call a right-sizing referendum), literally hundreds of referendums have taken place. Sometimes the plebiscites have concerned the drawing of borders,

Ethno-national referendums 1791–2019

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at other times the ethnic composition in the state, and at yet other times the division of powers between different ethnic groups living in the territory. What distinguishes these referendums from the previous polls, for example the plebiscites in Metz and Verdun in the sixteenth century, was that the referendums held in the wake of the French Revolution were consciously based on the notion of popular sovereignty. Whereas previously, the referendums were not grounded in a particular ideology, the language and the thinking behind the plebiscites in the soon-to-be French cities was based on the view that support of the people had become the gold standard of legitimacy, indeed, the only standard. This was clearly expressed by the French National Assembly when this body passed a resolution regarding the recently held vote in Avignon: Considering that the majority of the communes and citizens have expressed freely and solemnly their wish for a union with Avignon and France…the National Assembly declares that in conformity with the freely expressed wish of the majority…of these two countries to be incorporated into France (cited in Martens 1801: 400–401). The referendum was not held under optimal circumstances (many people had been displaced). Yet, the fact that dissent was recorded, and the fact that the result was not  the customary 99.9% known from the twentieth-century totalitarian states perhaps suggests that the results were broadly fair. In total, 101,004 out of an estimated 152,912 estimated voters voted yes (Laponce 2010: 21). The expression by the people – or a majority of them – did not impress the titular ruler of Avignon, namely the Pope. The Pontiff complained – through a cardinal – that the consequences of the vote would be that ‘henceforth everybody [would be able] to choose a new master in accordance with one’s pleasure’ (Quoted in Freudenthal 1891: 3–4). A view that the Holy Father steeped in the doctrine of rex dei gratia found plainly ‘absurd’ (Ibid). But the ‘absurdity’ was quickly gaining ground. That the peoples – or the nations – were ultimately to decide their own fates. Napoleon, was one of the enthusiasts for referendums (See Table 2.2). As Johannes Mattern concluded about a century later in a passage, which deserves to be quoted verbatim. The  French Revolution proclaimed the dogma that we now  term selfdetermination … The mental and logical process was simple. The people are the state and the nation; the people are sovereign. As such, they have the right to decide, as the ultima ratio, by popular vote and simple majority, all matters affecting the state and the nation. A people held by force and against their own will within the boundaries and under the sovereignty of any state are not in reality part of that state. They have, consequently, the right to declare their separation from the dominant state and proclaim their independence (Mattern 1921: 77).

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Matt Qvortrup TABLE 2.2 Difference-eliminating referendums in France 1800–1852

Year

Issue

Yes (%)

Turnout (%)

1800 1802 1804 1815 1851 1852

Napoleon as Consul and new Constitution Napoleon as Consul for Life Heredity rule for Bonaparte Family Restore imperial constitution Powers to Napoleon III Louis Napoleon as Emperor

99.9 99.7 99.9 99.7 92.1 96.7

43.1 51.2 43.3 18.8 79.9 79.9

Source: Morel, L.,Towards a less controversial use of the Referendum, in Europe’ in Michael Gallagher and PierVincenzo Uleri (Editors), The Referendum Experience in Europe, Macmillan, London, 66–85, 1996.

Though, it should be noted that this paradigmatic shift towards a doctrine based on sovereignty had its limits. While Napoleon readily submitted La Benjamine, the constitution drawn up by the philosopher Benjamin Constant, to the voters in 1815, the restoration of the monarchy after Waterloo was not legitimised through a plebiscite.

High tides and low ebbs ethno-national referendum use in the nineteenth century The use of ethno-national referendums in the nineteenth century seems to cluster around periods of high and low use. In the period after the French Revolution – possibly under the influence of such theorists as Rousseau, Herder and Fichte – issues pertaining to national issues were submitted to votes in areas such as, among others, Savoy, Nice and Geneva. Most of these were right-sizing referendums, though the referendum in 1802 on the independence of the Helvetic Republic (Switzerland) is a partial exception to the rule. After the defeat of Napoleon and the French (the ideologists of national selfdetermination), the referendum somewhat lost its appeal, though the restored monarchy of France – as we saw – did not dare not to put the Bourbon rule to a vote. The  1820s and the 1830s were periods of drought in terms of referendum submitting issues to a vote among the people. This, perhaps not  surprisingly, changed after the 1848 revolutions. The  upheavals in several countries in the revolutionary year was attributed to nationalist sentiments by writers as different and unsympathetic to nationalism as Karl Marx and Heinrich Heine. The latter spoke of ‘the emancipation of the whole world, especially in Europe, where people have reached maturity’ (Heine quoted in Gell 1998: 13). In the wake of reawakened nationalism, a number of irredentist groups began movements that led to a reuse of the idea of referendums as a mechanism to resolve ethno-national conflict.

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The  trigger to this use of the referendum was not  – at least not  initially  – high-minded principles a la Rousseau, but the practical use of the referendum as a means of generating support of legitimacy, which had helped Louis Napoleon (Napoleon III) to win power in 1851. While not an ethno-national referendum – ethnic differences were not the main issue in France in the early 1850s – Napoleon III inspired other would-be leaders to use the referendum to resolve conflict. This  was especially true in Italy. The  fragmented Italian states had long wanted unity and unification. Indeed, no less a writer than Nicoló Machiavelli was largely motivated to write The Prince with the aim of ‘seizing Italy and free her from the barbarians’ (Machiavelli 2002: 95). The Italians had been briefly unified under Napoleon, but the French emperor had treated Italy as a vassal state. Indeed, he made his sister Elisa Baciochi ruler of Naples, and his son was crowned king of Rome (Davies 1997: 181). In the wake of the 1848 and reflected geopolitical changes, the Italian political elites saw an opportunity to make the century-old dream into reality. Motivated by power-political and realpolitik considerations, Napoleon found it opportune to support the various Italian states and advocated the use of plebiscites to settle the issue. From the point of view of enthusiasts of national self-determination, this realpolitik aspect was overshadowed by the apparent success of the (largely) peaceful referendums. Philip Goodhart writes: It was in Italy that self-determination referendums had their finest hour. In 1848, 551.000 of the 661.000 qualified voters in Lombardy voted for immediate union with the Kingdom of Sardinia; in 1870, 68.466 Romans voted for inclusion in modern Italy. Between these two polls, referendums were held in Tuscany, Emilia, Sicily, Naples, Umbria and Venetia. It is fair to say that the modern Italian state was built by a series of referendums in which overwhelming majorities turned out to vote for the unification of their country. The process was directed by the Italian Statesman the Conti di Cavour, who claimed that the ‘Dukes, the Archdukes and the Grand Dukes have been buried under the pile of ballots deposited in the electoral urns of Tuscany and Emilia’ (Goodhart 1981:139) The situation in the United States was less glamorous. The referendum has been deep seated in American political culture since the War of Independence. The referendum had been used early on in the life of American Republic to resolve issues pertaining to sovereignty. The first example was in 1788 in Massachusetts. By the mid-1850s, it had become commonplace to consult the citizens in major issues of constitutional importance (Lee 1981: 46). It was not surprising, therefore, that Texas, Virginia and Tennessee submitted the decision to secede from the Union to the voters. What is perhaps interesting is that the support for secession was not unanimous. In Tennessee, for example, 104,019 (68%) voted for secession while 47,238 (42%) voted against, and in Texas

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the figures were 34,794 (74%) for and 11,235 (26%) against. Not endorsements of epic proportions – and perhaps this should have caused the Confederate leaders to think again. However, the proverbial die was already cast, and the referendums could change little nor influence one way or the other the outbreak of the Civil War (Mattern 1921:119). Following the referendums in Italy and the USA in the middle of the nineteenth century, the use of the referendum died down once again. A referendum was proposed on the issue of Schleswig–Holstein, a predominately Germanspeaking part of the Kingdom of Denmark, but the idea was rejected apart from a plebiscite in tiny St Bartholomew. The use of the referendum in other parts of the world, namely under the rule and dominance of English-speaking peoples, was somewhat different. Under the influence of the British, several referendums were held, but not with the aim of homogenising or right-sizing. The referendums held in British territories were predominately to do with difference managing (e.g. the several votes in Australia and the vote in Canada). To be sure, the British were not adverse to using the referendum as a tactical means of international politics (e.g. in the case of the referendum in Moldova in 1857 – where the referendum was a convenient excuse to curb the influence of the Russian Empire after the Crimean War). Here, at the request of the British, a poll was held to unify the two territories, Moldavia and Walachia, previously an area that had been under Turkish Suzerainty, though often dominated by Russia (Laponce 2010: 71) under the name Romania. However, it should be noted that the referendum was anything but free and fair; ‘Intimidations and arrests were not infrequent’ and up to ‘nine-tenth of the population were denied the right to vote’ (Mattern 1921: 104), and that the vote only was held after some ‘bizarres manoevres diplomatiques’ (Laponce 2010: 71). But in the other cases where no great issues of power-politics was at stake, the use of the referendum by the British was run in an amicable and principled way, for example the secession of the Ionian Islands to Greece followed a pattern that seemed to be closer to the ideals of John Locke than to that espoused by Fichte. Locke had written ‘The legislative cannot transfer the power of making laws to any other hands. For it being but a delegated power from the people, they who have it cannot pass it to others’ (Locke 1988: 363). While it seems unlikely  – even (or especially!) in Whitehall  – that foreign policy is based on philosophical principle, these ideals seem, in part, to have influenced the position to submit the issue to the people. But this was the exception. The British – unlike the French – were not enamoured by the idea of referendums to resolve issues of sovereignty. Whereas the French readily submitted the question of the transfer of sovereignty of St Bartholomew from Sweden to France to a plebiscite (Mattern 1921: 116), the British were generally opposed to this course of action. In the case of the transfer of sovereignty of Helgoland (an island close to Germany), the government rejected a referendum. Lord Salisbury, the foreign secretary, rejected a

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proposal by Lord Rosebury (the later prime minister) for a plebiscite stating that, ‘My answer must be negative. The plebiscite is not among the traditions of this country. We have not taken a plebiscite; and I can see no necessity of doing so’ (Salisbury 1890). The same view was taken by Prime Minister William Gladstone, who told Parliament that he was similarly opposed to a referendum. The  proposal for a referendum was rejected in the House of Commons by 172–76 (Mattern 1921: 112). This does not mean that the referendum was not used at all by the British, or rather of people of British extraction. Referendums were held in Canada (Nova Scotia), South Africa (Natal) and in Australia. The British were keen to grant autonomy to certain areas – those with a sizable white population – such as the present-day Canada and Australia. The same was true as far as South Africa was concerned. After the enmities of the Boer War had died down, a conference was held among the South African colonies with a view to establishing an autonomous union within the British Empire. Based on the recommendations of the conference, the UK Parliament passed the South Africa Act 1909, which was subsequently to be ratified by the South African colonies. However, in Natal, the smallest of the hitherto existing states, there was some concern that a unitary state would be detrimental to the interests of the province. While the South Africa Act was passed in its entirety in Transvaal and the Orange River, Parliament’s opposition in Natal was so strong that the local administration decided to call a referendum. That settled the issue. Support for Union was strong – perhaps because there was little alternative. The South Africa Act was passed by 11,121 votes to 3,701 (Kahn 1960: 1). The establishment of Canada in 1867 had not involved any official referendums. The poll held in Nova Scotia in 1867 – on leaving the newly established federation  – was an unofficial one and was ignored by the authorities, despite 65% voting for separation (Laponce 2010: 50). The situation was different in Australia, not because of British pressure, but because the political class in Australia – under the influence of radical populist ideas from America – felt compelled to win support from the constituents before going ahead with the process of federation. That the Australians ratified the unification of their country through a series of plebiscites was not due to their British legal and constitutional heritage, but rather a result of the more progressive ideas they had received from another settler society, namely the United States (Williams and Hume 2010: 7). The 1891 Australian Constitutional Convention agreed that before proceeding with federation, the constitution for governing the new nation should be approved by the people. Colonial parliaments failed to approve the first draft of the constitution, and the decision to hold a referendum was only reached after the members of a constitutional convention had been elected (MacIntyre 2004: 136). The  intention was affirmed at the Corowa People’s Convention in 1893. To  implement this, legislation was passed in each colony. In  1898, referendums on the Commonwealth Constitution Bill were held in New South Wales,

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South Australia, Tasmania and Victoria. A majority of ‘yes’ votes was recorded in each colony, but in New South Wales the enabling legislation required a quota of 80,000. This  was not  achieved. In  1899, as a result of amendments to the Constitution recommended by New South Wales, the colonies organised a second round of referendums. This time, New South Wales required only a simple majority of ‘yes’ votes. Queensland also joined the process. Majorities were achieved in all colonies, albeit with different levels of enthusiasm (See Table 2.3). One of the interesting things about the referendums and the federalising process was the explicit ‘Difference Eliminating’ rhetoric adopted by the ‘founding fathers’. Alfred Deakin, the prime minister of new federation, explicitly stressed that ‘the unity of Australia is nothing if that does not imply a united mixed race. A  united mixed race means not  only that its members can intermix, intermarry and associate without degradation on either side, but implies one inspired by the same ideas; an aspiration towards the same ideals’ (Deakin 1901) (See Table 2.4). Not all future states rushed to federation. Mineral-rich Western Australia was especially hesitant. By 1900, the colony had still not taken steps to hold a referendum. In  protest, residents of the Eastern Goldfields took steps to form a separate colony. This set the ball rolling. Finally, on 31 July 1900, when the Commonwealth Constitution Bill had already been enacted by the British Parliament, a referendum was held in which a large majority voted in favour TABLE 2.3 Referendums in Australia 1898

1898

Yes

No

New South Wales South Australia Tasmania Victoria

71,595 (52%) 35,800 (69%) 11,797 (80%) 100,520 (82%)

66,228 (48%) 17,320 (31%) 2,716 (20%) 22,090 (18%)

TABLE 2.4 Referendums in Australia 1899

1899

Yes

No

New South Wales Queensland South Australia Tasmania Victoria Western Australia

107,420 (56%) 38,488 (55%) 65,990 (80%) 13,437 (94%) 152,653 (93%) 44,800 (69%)

82,741 (44%) 30,996 (45%) 17,053 (20%) 791 (6%) 9,805 (7%) 19,691 (31%)

Source: Australian Electoral Commission (AEC), Federal Election Fact Sheet 1 – The Referendums 1898–1900, AEC, Canberra, 2011.

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of federation. Yet, as one observer has noted, ‘unlike the Italians, it [Australia] experienced no Risorgimento. The turnout in federal referenda was lower than for parliamentary elections’ (MacIntyre 2004: 138). The most celebrated referendum to be held before the First World War was perhaps the 1905 poll in Norway. When Norway’s Parliament, Stortinget, in 1905 sent notification to Sweden that Norway had seceded from the Union established in 1814, the response was initially negative. The Swedish Riksdag responded that the union was two-sided, and that in strict legal terms, the union cannot be dissolved without the consent of the King and the Riksdag. Yet the Swedes conceded that the request would be accepted if it was preceded by plebiscite. The  Swedes had not  expected that Norwegian Prime Minister Christian Michelsen would take up the challenge and organise the referendum. Michelsen, according to a recent study ‘had, what in Norwegian is called “teft”,  – ‘this strange and almost animalistic ability to sense, feel and gauge things as opposed to the ability to analyse, calculate and rationally assess. The ability to use this talent in action, even while in the middle of the maelstrom’ (Forr et al. 2010: 97). Using more familiar political phraseology, it is perhaps equally accurate to say that Michelsen – a lawyer and merchant from Bergen in Western Norway – had to use Machiavellian Virtù. And when more than 99% in an apparently fairly conducted plebiscite voted to sever the ties between the two countries, Sweden almost immediately entered practical negotiations in the border town of Karlstad and divided the spoils in an amicable way. That this was possible had, perhaps, just as much to do with the fact that the Swedes were not an aspiring power, and that the relationship with Norway was not economically or politically beneficial to Stockholm (See Table 2.5). TABLE 2.5 Ethno-national referendums from the French Revolution to the First

World War Country

Area

Year

France France France Belgium France France France France France Italy Italy Turkey

Avignon Savoy Nice Wallonia Moselle Mulhouse Geneva Switz. France Lombard Regio Romania

1791 1792 1792 1793 1793 1798 1798 1802 1816 1848 1848 1857

Difference Difference Secession Right-sizing eliminating managing referendums referendums 1 1 1 1 1 1 1 1 1 1 1 1 (Continued)

20 Matt Qvortrup TABLE 2.5 (Continued)

Country

Area

Year

Italy Italy Italy Italy Italy Italy France USA USA USA Britain Italy Canada Denmark Italy Sweden Australia Australia Australia Australia Australia Australia Australia Australia Australia Australia Australia Sweden UK Russia Denmark Finland

Parma Sicily Tuscany Naples Marches Ombrie Savoy Texas Virginia Tennessee Ionian Islands Venice Nova Scotia Virgin Islands Rome St Bart Tasmania NSW Victoria South Australia Western Australia Queensland South Australia Tasmania Victoria NSW WA Norway Natal Finland Iceland Aaland

1860 1860 1860 1860 1860 1860 1860 1861 1861 1861 1863 1866 1867 1868 1870 1877 1898 1898 1898 1898 1898 1899 1899 1899 1899 1899 1899 1905 1909 1918 1918 1918

Difference Difference Secession Right-sizing eliminating managing referendums referendums 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

Of the 43 ethno-national referendums held from the French Revolution to the end of the First World War, a majority were in the category of rightsizing referendums, 23 in all. The  remaining referendums were, respectively, 13 difference-managing referendums and 7 secession referendums. Interestingly, none of the referendums held in the first century or so of the ethno-national referendum were difference-eliminating referendums  – perhaps an indication that this type of referendum belongs to the age of the totalitarian government (see further below).

Ethno-national referendums 1791–2019

21

But this aggregate statistic only tells part of the story. Eleven of the differencemanaging referendums took place in Australia where the six former commonwealth states sought to manage their differences and establish a relationship, which could lead to a firmer relationship.

Referendums after the First World War In  the wake of the First World War  – at the behest of American President Woodrow Wilson, eight referendums were held to right-size the borders between the previously warring states. It can always be discussed if these referendums resolved the issues of irredentism that so preoccupied the Versailles Conference. Further, the fact that referendums were held in territories that were claimed by Germany – or in which there was a German majority (e.g. Tyrol and Alsace-Lorraine) – suggests that the referendums were not as neutral and idealistic as Woodrow Wilson had wanted. Wilson did not – as commonly assumed – mention referendums in his famous Fourteen Points speech to Congress on 8 January 1918, but it was clear from the context that the 28th president wanted the decisions regarding the borders to be taken by the peoples concerned. As he said in another speech at the time: Peoples may now be dominated and governed only by their own consent. Self-determination is not  a mere phrase. It  is an imperative principle of action, which statesmen will henceforth ignore at their peril. The settlement of every question, whether of territory, of sovereignty, of economic arrangement, or of political relationship [must be] upon the 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 which may desire a different settlement for the sake of its own exterior influence or mastery (Wilson quoted Farley 1986: 3). But Wilson was not  always true to his word. Indeed, a referendum organised by the council in Tyrol was ignored despite the fact that more than 90% voted for union with Germany. Given the subsequent historical development, it is tempting to suggest that some of these votes fanned the flames of discontent. This is an issue we shall return to below. But it is worth noting, as Bogdanor did in an essay in 1981 that ‘it was precisely in those areas where plebiscites were refused (with the exception of Alsace–Lorraine) – Danzig, the Polish corridor and the Sudetenland – that were the subject of revisionist claims by the Nazis in the 1930s’ (Bogdanor 1981: 145). Similarly, it is interesting that similar revisionist claims were not  made in areas that were ceded after a referendum, such as Nord Schleswig in Denmark/ Germany in which there was a large German-speaking minority. This is possibly because ‘frontiers that were fixed by plebiscite could not easily be undermined’ (Bogdanor 1981) (See Table 2.6).

22 Matt Qvortrup TABLE 2.6 Ethnic and national referendums 1918–1945

Country

Area

Year

Russia Denmark Finland Turkey Austria Germany Germany Germany Belgium Germany Austria Germany Austria Austria Austria UK Australia Germany Germany Germany/France Germany/France USA Germany/Austria

Finland Iceland Aaland Kars Vorarlberg Schleswig I Schleswig II Allenstein Eupen Marienwerder Klagenfurt Upper Silesia Tyrol Salzburg Sophron Rhodesia Western Australia Germany Germany Saar Germany Philippines Germany/Austria

1918 1918 1918 1918 1918 1920 1920 1920 1920 1920 1920 1921 1921 1921 1921 1922 1933 1933 1934 1935 1936 1935 1938

Difference Difference Secession eliminating managing

Right-sizing

1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

After the First World War, the number of ethno-national referendums taking place died down. The votes held between the two world wars outside Germany were largely inconsequential, and in some cases almost political curiosities, such as the antipodean referendum in 1933 in Western Australia. On 8 April 1933, the premier and nationalist Sir James Mitchell’s government organised a plebiscite on secession alongside the state parliamentary election. Mitchell campaigned in favour of secession while the Labour Party had campaigned against breaking from the federation. Thus, 68% of the 237,198 voters voted in favour of secession, but at the same time the Nationalists were voted out of office. Only the mining areas, populated by keen Federalists, voted against the move. The state sent a half-hearted petition to the British Parliament requesting independence. It got nowhere after the petition was ruled out of order because convention dictated that it be made by the Commonwealth [of Australia] and not by the individual state (Williams and Hume 2010: 8). The fact that Mitchell had lost the election effectively killed the proposal. The proposal was still born and died away. The same cannot be said of the votes held in Germany, where Hitler (ab)used the referendum to eliminate differences and

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to create unity in the Reich. What is perhaps interesting (and disturbing) is that most of these votes – at least according to contemporary observers – were relatively fair in the purely procedural sense.Writing about the withdrawal from the League of Nations referendum, an American observer concluded: As a contemporary American observer noted: ‘Even after discounting intangible official pressure, of which there undoubtedly was a great deal, and downright coercion and intimidation at the poll of which there was probably very little, the electoral record remains an amazing one’ (Zurcher 1935: 95).

Ethno-national referendums and decolonisation In the immediate aftermath of the Second World War, relatively few referendums on national and ethnic issues were held. Iceland voted to sever its ties with Denmark. Iceland had been part of a confederation with Denmark since the First World War. This decision to sever its ties with Copenhagen prompted the local government of the small Danish dependency Faroe Islands to hold a referendum in 1946. While a small majority voted for independence, the Danish government refused to recognise the result, and as the subsequent general election gave a majority to Sambandspartiet (the Unionist Party). The Danish government subsequently granted Home Rule to the Islands – though with a considerable economic subsidy from Copenhagen (Goodlad 1987). In other places too, referendums were held on independence (See Table 2.7). Thus, Mongolia broke with China, after Stalin had insisted on the Republic of China’s recognition of Outer Mongolia’s independence – something that it already enjoyed de facto even as it remained a part of China de jure. Chiang Kai-shek resisted the idea but eventually gave in. However, Chiang extracted a promise TABLE 2.7 Referendums in the decolonising period

Country

Area

Year

Yes vote (%)

Turnout (%)

Denmark China France Denmark India/Pakistan Italy/France UK India France Belgium USA India USA International France UK

Iceland Mongolia Brigand Faroe Islands Border Brigue Newfoundland Junadagh Chandernagor Belgium Puerto Rico Nagaland Virgin Islands Saar Cambodia Malta

1944 1945 1945 1946 1947 1947 1948 1948 1949 1950 1951 1951 1954 1955 1955 1956

99.5 98 90 50.1 57 92 52 99 98 57.6 67 – 50 32 100 75

98 64 – 64 51 99 88 100 61 92.4 58 – 50 96 – 59 (Continued)

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TABLE 2.7 (Continued)

Country

Area

Year

Yes vote (%)

Turnout (%)

Ghana France Egypt/Syria France France France France France France France France France France France France France France France France France France Egypt/Syria/Libya France/Algeria France/Algeria New Zealand Cameroon West Indian Federation Algeria/France Malaysia Congo B France Ghana UK

Togoland Togo Egypt/Syria French Somalia New Caledonia Saint Pierre and Miquelon Polynesia Guinea Oubangui Niger Chad Congo Upper Volta Dahomey Soudan Gabon Senegal Ivory Coast Madagascar Algeria Mauritania Egypt/Syria/Libya

1956 1956 1958 1958 1958 1958 1958 1958 1958 1958 1958 1958 1958 1958 1958 1958 1958 1958 1958 1958 1958 1958 1961

98 93 99 75 98 98 79.2 97 99 78 99 99 89 98 98 92 97 99.9 78 96 94 99.9 86

84 77 – 72 76 85 84.9 85 79 36 66 79 79 55 45 77 81 97 82 79 84 – 84

Western Samoa Jamaica

1961 1961 1961

86 65 46

77 89 60

Algeria/France Singapore Congo B Equatorial Guinea Ghana Malta

1962 1962 1963 1963 1964 1964

99.7 71 86.1 62 99.9 50.7

75.6 90 91.7 92 96.5 80

from Stalin not to support the Chinese Communist Party, in return for China giving up its claim over Outer Mongolia (Ballis 1951). While the referendum was controlled by the Communist Party, it is noteworthy that the turnout only was 64%, though the outcome was 98% in favour of independence (Nohlen et al. 2001: 490). But, as shown in Table 2.5, most of the ethno-national referendums in the post-Second World War Era were held to legitimise the process of decolonisation, and the majority of these referendums were held in former French colonies. The referendum on the 28 September 1958 was a consequence of prolonged ethno-national conflict in Algeria. As a result of the impasse there, Charles de

Ethno-national referendums 1791–2019

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Gaulle had been persuaded to return from his self-imposed internal exile in Colombey-les-Deux-Églises. Charles de Gaulle initially seemed to confirm the Algerian settlers  – he famously shouted, ‘Je vous ai compris!’ (‘I have understood you’) when he arrived in Algiers in June 1958 (Meredith 2005: 57). But privately he indicated that he had no intention of maintaining control of nine million Algerians for the benefit of one million settlers. This attitude was manifest in the new constitution, which provided for the right of the overseas territories to request complete independence. In a referendum held throughout the Union Française all the former colonies voted to become members of the new commonwealth. Only French Guinea opted for complete independence. This solved an immediate problem for de Gaulle. But it did not solve the Algerian problem. Armed resistance continued, and following negotiations with the main resistance movement Front de Libération Nationale, the parties reached an agreement on the Évian Accords, which subsequently was approved in a plebiscite in both France and Algeria. In April 1962, 91% of the French voters approved the agreement, and two months later 99% of the Algerian voters followed suit. Given that the result was a French withdrawal, it is interesting how the referendum was framed and spun by the media. The headline in the Guardian left no one in doubt that the result was a victory for Charles de Gaulle: ‘The good sense of people prevailed’, wrote the Manchester Guardian on the 8th of January 1961, in a somewhat editorialising manner. The paper went on to quote the French Prime Minister Michel Debré’s exuberant statement in the wake of the publication of the result: ‘The reply of the voters is clear and striking…what a feeling of rallying, of unity and strength. The nation has surmounted its divisions and has expressed its deep confidence’ (Guardian 8th January 1962). The  referendum campaign  – held simultaneously in both France and in Algeria  – had not  given any indication of the ‘unity and strength’ of which Debré’s spoke. Indeed, on average 20 people had died every day during the referendum campaign. This  number was, as the Guardian duly admitted, ‘not an unusual figure  even when no polling is in progress’ (The  Guardian, ibid). Whether it was worth it, whether the referendum was a good idea, or, indeed, if there were other possibilities is a hotly debated question. But apart from the French referendums and the large number of ethnonational referendums held in French-dominated areas in the 1950s and the 1960, plebiscites on ethnic and national issues were relatively rare. Jamaica voted unilaterally to secede from the West-Indian Federation, and Malta voted in two attempts to sever its ties with the United Kingdom. The  years after the period of decolonisation were meagre years in terms of ethno-national referendums. Whereas the 1950s and the 1960s were characterised by referendums on secession and independence, the 1970s and the 1980 where characterised by referendums dealing with ethnic conflict management (e.g. the polls in Greenland, Scotland, Wales, the Basque Country, Galicia and Catalonia in 1979) and referendums on difference-eliminating policies in, among other places, Zaire (1984), the Central African Republic 1986 and the Ivory Coast

26 Matt Qvortrup

in 1986. ‘Periods of peace are the empty pages in the history books’, observed Hegel in his lectures on the Philosophy of History (Hegel 1995: 55). The same, it seems, is true as far as referendums are concerned. But this changed after 1989.

Ethno-national referendums after the fall of communism There have been 114 ethno-national referendums since the Second World War. Sixty seven were held after 1989 and of these 35 of these were held between 1989 and 1993, and were all and more or less direct consequence of the fall of communism. That such momentous events shake the political kaleidoscope is not surprising, nor, perhaps, is it surprising that the developments left their mark on legal practice. There is a bit of a sea change in the new doctrine adopted after 1989. As Matthew Craven has observed, ‘Of the new states that were to emerge in the 1990s … most held plebiscites or national polls by way of authorization’ (Craven 2010: 234). It became a norm in international law that countries ought to win approval from the people in order to be recognised as an independent state, and it became recognised – at least in democratic states – that policies of difference management required positive approval from the citizens concerned. As we can see from Table 2.8, most of the referendums held post-1989 were held in former communist countries. And 31 of the 66 votes were held in countries TABLE 2.8 Ethno-national referendums 1989–2019

Country

Area

Year

YES

Philippines Philippines Yugoslavia USA Burundi USSR USSR USSR USSR USSR USSR USSR Georgia Georgia Yugoslavia Croatia Yugoslavia USSR Bosnia Serbia Serbia USSR

Philippines Philippines Slovenia Palau Burundi Lithuania Estonia Latvia Georgia Ukraine USSR Kourilles South Ossetia Abkhazia Croatia Serbs Macedonia Armenia Serbs Sandjak Kosovo Turkmenistan

1989 1990 1990 1990 1991 1991 1991 1991 1991 1991 1991 1991 1991 1991 1991 1991 1991 1991 1991 1991 1991 1991

– – 94 60 89 91 77 74 98 70 75 99 98 99 98 98 70 95 90 96 99 94

Turnout 50 – 93 – 96 84 83 88 90 85 73 NA 90 58 83 83 75 90 – 67 87 97 (Continued )

TABLE 2.8 (Continued)

Country

Area

Year

YES

Turnout

USSR USSR Macedonia Moldova Yugoslavia Yugoslavia Georgia Bosnia Canada Ethiopia Bosnia USA Netherlands Georgia Quebec Canada UK UK UK Canada UK Comoros Sudan St Kitts and Nevis USA Indonesia Somalia Cyprus Burundi Spain New Zealand Yugoslavia Algeria Spain Denmark France Mayotte UK Sudan United Kingdom Iraq Spain France Bangsamo Ethiopia PNG

Karabagh Uzbekistan Albanians Transnistria Bosnia Montenegro South Ossetia Krajina Canada Eritrea Serbs Porto Rico Curacao Abkhazia Cris Quebec Scotland Scotland Wales Nunavut Northern Ireland Anjouran Sudan

1991 1991 1991 1991 1992 1992 1992 1992 1992 1993 1993 1993 1993 1995 1995 1995 1997 1997 1997 1998 1998 1998 1998 1998 1998 1999 2001 2004 2005 2006 2006 2006 2005 2007 2008 2009 2011 2011 2014 2017 2017 2018 2019 2019 2019

99 98 99 97 99 96

99 94 93 NA 64 66

99 45.6 99 96 48.4 17.9 96 95 49.4 74 63 50 69 71 99 99 61 51 78 97 24 79 78 64 55 97 90 76 95 63 9844 92 97 43 88 98 99

64 – 98 92 73 – 52 75 94 60 60 5 81 81 91 NA 57 71 94 99 89 49 44 95 36 79 35 72 61 35 97 84 72 43 80 87 99 84

Porto Rico East Timor Somaliland Cyprus Burundi Catalonia Tokelau Montenegro Algeria Andalusia Greenland Wales Southern Sudan Scotland Kurdistan Catalonia New Caledonia Philippines Sidama Bougainville

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that were formerly ruled by one-party communist regimes, such as Eritrea (then part of Ethiopia), Ukraine, the Baltic States and various successor states in the former Yugoslavia. Yet other ethno-national referendums were – at least indirectly – a consequence of the end of the Cold War. The  nationalist aspirations of the population of East Timor were well known before the fall of communism, but for geo-political reasons, the United States supported Suharto’s regime. Once the threat from the Soviet Union was gone, the USA loosened its grip and accepted (and some would even say encouraged) the fall of the autocracy, and as a result East Timor was allowed to vote on independence in 1999 (Steele 2002). Another interesting factor is that referendums in democratic countries (here defined at ‘Free’ following the Freedom House classification) rarely vote for independence. After the 1995 vote in Quebec, a political scientist (who later became a leader of the Liberal Party!) wrote, There has never been a single case of secession in democracies if we consider only the well-established ones, that is, those with at least ten consecutive years of universal suffrage. The cases most often mentioned happened only a few years after the introduction or significant expansion of universal suffrage: Norway and Sweden in 1905, Iceland and Denmark in 1918, … Secessionists never managed to split a well-established democracy through a referendum or an electoral victory. We must conclude that it is very hard for them to achieve and maintain the magic number of 50 per cent support (Dion 1996: 269). The defeat for the Scottish National Party in the 2014 referendum and the defeat of the separatists in New Caledonia in 2018 suggest that Dion is partly right, though Iceland only formally seceded from Denmark in 1944 (after another referendum). Moreover, some may claim that the controversial vote in Catalonia in 2017 is an example of a referendum that yielded a ‘yes’ in a democratic country. However, the referendum was boycotted by more than half of the population and held under less than ideal circumstances, and not in accordance with Spanish constitutional law. Of course, not all the ethno-national referendums held after 1989 are related to the end of the Cold War. The referendums in Canada in 1992 and in Quebec in 1995 are a result of an internal dynamic; the same is true for the polls held in New Caledonia in 2018 (which resulted in a no vote) and in Bougainville in 2019 (which resulted in a vote for independence). But most of the votes relate to momentous effects. After the fall of communism and the events related to that, the number of ethno-national referendums fell again, and the few polls that were held.

Two hundred years of ethno-national referendums The history of ethnic and national referendums started in the wake of the French Revolution. Nationalism and self-determination went hand in hand, and this was sought through referendums. E.H. Carr, the British historian and theorist of international relations, observed correctly that,

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Self-determination and democracy went hand in hand. Self-determination might indeed be regarded as implicit in the idea of democracy; of if every man’s right is recognised to be consulted about the affairs of the political unit to which he belongs, he may be assumed to have an equal right to be consulted about the form and extent of the unit (Carr 1942: 39). History has moved a great deal since the age of Napoleon, but the idea that nations have a right – at least in principle – to determine their own affairs has become an unquestionable doctrine in international politics. Even the Bolshevik government of Lenin recognised the right of ‘all nations dwelling in Russia … the genuine right to self-determination’ (Lenin quoted in Umozurike 1972: 162). Of course, more often than not, this acceptance of the right to self-determination has been tempered by short- and long-term political calculations. But referendums on national and ethnic issues have not disappeared; indeed, overall their number have grown, especially in times of geopolitical upheaval. But, while voters have tended to vote for more autonomy or devolution, they have (at least in democratic countries) tended to be sceptical of votes for secession.

References Australian Electoral Commission (AEC) (2011) Federal Election Fact Sheet 1  – The Referendums 1898–1900, AEC, Canberra. Ballis, W.B. (1951) ‘The Pattern of Sino-Soviet Treaties, 1945–1950’, Annals of the American Academy of Political and Social Science, Vol.  277, Report on China, September Issue, pp. 167–176. Bateson, G. (1962) Steps to an Ecology of Mind, Chicago, University of Chicago Press. Bogdanor, V. (1981) ‘Referendums and Seperatism II’, in Austin Ranney (Editor) The  Referendum Device, Washington, DC, The  American Enterprise Institute, pp. 143–170. Carr, E.H. (1942) The Conditions of Peace, New York, Macmillan. Craven, M. (2010) ‘Statehood, Self-Determination and Recognition’, in Evans, M.D. (Editor), International Law (3rd ed.), Oxford, Oxford University Press, pp. 203–251. Davies, J.A. (1997) ‘Italy: 1796–1870: The  Risorgimento’, in Holmes, G. (Editor) The Oxford Illustrated History of Italy, Oxford, OUP. Deakin, A. (1901) Commonwealth Parliamentary Debates, Vol. 4, p. 4807, 12 September 1901. Dion, S. (1996). Why is secession difficult in well-established democracies? Lessons from Quebec. British Journal of Political Science, 26(2), 269–283. Farley, L.T. (1986) Plebiscites and Sovereignty: The  Crisis of Political Legitimacy, Boulder, Westview Press, p. 3. Forr, G., Per Egil Hegge and Olav Njolstad (Editors) Mellem Plikt og Lyst: Norske Statsministre 1873–2010, Oslo, Dinamo Forlag. Freudenthal, F. (1891) Die Volksabstimmung bei Gebietsabtretungen und Eroberungen. Eine Studie aus dem Völkerrecht, Erlangen, Th. Blaesing. Gell, L. (1998) Aufbruch der Freiheit, Nikolai, Frankfurth aM. Gellner, E. (1983) Nations and Nationalism, Oxford, Blackwell. Goodhart, P. (1981) ‘Referendums and Separatism’, in Austin Ranney (Editor) The Referendum Device, Washington, DC, The American Enterprise Institute, pp. 138–142.

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Goodlad, J.H. (1987) ‘The  Faroese Road to Autonomy: An Analysis of the Faroese Political System’, Shetland Life, 1987, pp. 1–26. ‘De Gaulle Well Satisfied with Algeria Votes’, The Guardian, 8 January, 1962. Hegel, G.W.F. (1995) The Philosophy of History, Hacker, Indianapolis. Kahn, E. (1960) ‘On the Road to Republic’, in Annual Survey of South African Law, Vol. 1, pp. 1–12 Kedouri, E. (1960) Nationalism, Oxford, Blackwell. Laponce, J.A. (2010) Le Référendum de souveraineté. Comparisons, Critiques et Commentaires, Quebec, Les Presses de l’Université Laval. Lee, E.C. (1981) ‘The  American Experience 1778–1978’, in  Ranney, A. (Editor) The Referendum Device, Washington, DC, AEI, pp. 46–73. Locke, J. and Lasslett, P. (Editor) (1988) Two Treatises of Government, Cambridge, Cambridge University Press. Machiavelli, N. (2002) II Principe, Rome, Newton. MacIntyre, S. (2004) The Concise History of Australia, Cambridge, Cambridge University Press. Mattern, J. (1921) The  Employment of the Plebiscite, Baltimore MD, Johns Hopkins University Press. McGarry, J. and O’Leary, B. (1993) ‘Introduction: The  macro-political regulation of ethnic conflict’, in John McGarry and Brendan O’Leary (Editors) The  Politics of Ethnic Conflict Regulation: Case Studies of Protracted Ethnic Conflicts, London, Routledge, pp. 1–40. Meredith, M. (2005) The State of Africa: A History of Fifty Years of Independence, London, The Free Press. Mill, J.S. (1890) Considerations on Representative Government, London, Holt. Morel, L. (1996) ‘Towards a less controversial use of the Referendum, in Europe’, in Michael Gallagher and Pier Vincenzo Uleri (Editors) The  Referendum Experience in Europe, London, Macmillan, pp. 66–85. Nohlen, D., Grotz, F. and Hartmann, C. (2001) Elections in Asia: A  Data Handbook, Volume II, Oxford, Oxford University Press. Salisbury, L. (1890) House of Lords Debates, vol. 345, Col 1311–1312, 19 June 1890. Solière, E. (1901) Le Plébiscite dans l’annexion. Étude historique et critique de droit des gens, Paris, L.Boyer. Steele, J. (2002) ‘Nation Building in East Timor’, World Policy Journal, 19(2), 76–87. Umozurike, U.O. (1972) Self-Determination in International Law, Hamden, Archon. von Martens, G.F. (1801) Recueil de Principaux traits d’alliance de paix, J.C. Dieterich, Göttingen. Wildavsky, A. (1973) ‘If Planning is Everything, maybe it’s nothing’, Policy Sciences, Vol.4, 4(2), 127–153. Williams, G. and Hume, D. (2010) People Power: The History and Future of the Referendum in Australia, Sydney, NSW, University of New South Wales Press. Zurcher, A.J. (1935). The Hitler Referenda. American Political Science Review, 29(1), 91–99.

Part II

A theory of self-determination

3 SECESSIONIST REFERENDUMS IN INTERNATIONAL AND DOMESTIC LAW Peter Radan

Introduction The right of peoples to self-determination is usually cited as the justification for secession. Declarations of independence, which are the usual means of initiating the process of secession, generally base their claims for independence on the right of peoples to self-determination. For example, the independence declarations of Slovenia and Croatia, which triggered the secessionist wars of the early 1990s in the former Yugoslavia, both justified secession on the basis of the right of self-determination (Radan 2002). In many cases, the holding of a referendum of secession is what is proffered as a legitimate expression of the right to self-determination. Although such referendums are of undoubted significance in terms of assessing the political legitimacy of any secessionist claim, the issue to be addressed in this article is the place of such referendums from the perspectives of relevant international law and the domestic law of a state that is subjected to a secessionist demand. (For the sake of convenience, the state that is subjected to a secessionist claim will be hereafter referred to as the ‘parent state’). This article will not address issues relating to the very important procedural aspects of such referendums (On this topic, see: Tierney 2004: 284ff, Jovanović 2007: 183ff, Farley 1986: 49ff ). However, before that issue can be addressed, the meaning of secession needs to be clarified, as there can be no understanding of the relevance of referendums on secession from a legal perspective without first determining what types of state creation fall within the definition of secession.

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The meaning of secession The  definition of secession is contested. At  one end of the spectrum of definitions is that of James Crawford who, in his seminal work, The  Creation of States in International Law, defines secession as ‘the creation of a State by the use or threat of force without the consent of the former sovereign’ (Crawford 2006: 375). The elements of the use of force and lack of consent limit cases of secession to what is more often referred to as unilateral secession. Indeed, in his book, Crawford often uses the expression ‘unilateral secession’ when discussing what he has previously defined as cases of secession (Crawford 2006: 388, 403, and 416–418). On the basis of his definition of secession, Crawford argues that, at the time of writing his book, the international recognition of Bangladesh’s independence from Pakistan (See Musson 2008, Castellino 1997) constituted the only case of secession outside the context of decolonisation since 1945 (Crawford 2006: 415). By way of contrast, the present author has argued for a broader definition of secession and defined it as ‘the creation of a new state upon territory previously forming part of, or being a colonial entity of, an existing state’ (Radan 2008: 18). This definition of secession extends secession beyond unilateral secession. It includes the creation of new states out of existing states by consent of the existing state. Examples here include Eritrea and Southern Sudan. It also includes new states resulting from the dissolution of an existing state (Radan 2008: 30–31). Examples here include most of the states emerging from the dissolution of the Union of Soviet Socialist Republics, Yugoslavia and Czechoslovakia. For Crawford, state creation of the type that occurred in these former states did not amount to secession, although he concedes that most of them were initiated by demands for secession (Crawford 2006: 390).

International law and referendums on secession The role of referendums on secession in international law is very much dependent upon secession being legally regulated by international law. In this respect, the existence of any legal right of secession in international law is a matter of dispute. The  essence of the debate on this question is whether the guarantee of the territorial integrity of states set out in Article 2(4) of the Charter of the United Nations is absolute. It has been argued that the right of peoples to selfdetermination establishes a limited right of secession and thus makes the territorial integrity of states conditional upon states complying with their obligations in relation to the right of peoples to self-determination. The legal right of peoples to self-determination began to emerge in the wake of the plebiscites held in Europe after World War I (Knop 2002: 281ff and 324ff ). Today the right of peoples to self-determination is recognised as a peremptory and non-derogable norm of customary international law, which is most significantly expounded upon in the United Nations General Assembly Declaration

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on Friendly Relations in 1970, as evidenced also by case law (See e.g. Barcelona Traction, Light, & Power Co (Belgium -v- Spain)). Thus, it is argued that the so-called ‘safeguard clause’ in the declaration’s provisions dealing with self-determination renders a state’s territorial integrity conditional and provides an implied right of secession. The safeguard clause stipulates: Nothing in the foregoing paragraphs  [dealing with self-determination] shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour (Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations), General Assembly Resolution 2625 (XXV), 24 October 1970. The declaration goes on to stipulate that ‘the establishment of a sovereign and independent state’ as one of three ways in which the right of self-determination may be realised. On the basis of these stipulations in the Declaration on Friendly Relations, many scholars and commentators have argued that there exists a socalled ‘remedial’ right of secession. For example, Antonio Cassese has asserted, [S]ecession is implicitly authorized by the Declaration … when the central authorities of a sovereign State persistently refuse to grant participatory rights to a religious or racial group, grossly and systematically trample upon their fundamental rights, and deny the possibility of reaching a peaceful settlement within the framework of the State structure … A racial or religious group may secede – thus exercising the most radical form of external self-determination – once it is clear that all attempts to achieve internal self-determination have failed or are destined to fail (Cassese 1995: 119–120) (See also: Roth 2008, McCorquodale 1992, Nanda 1981). Others deny that any right of secession arises pursuant to this declaration or the right of peoples to self-determination generally (See Summers 2007). Thus, Crawford asserts that ‘secession is neither legal nor illegal in international law, but a legally neutral act the consequences of which are internationally regulated’ (Crawford 2006: 390). The principal legal regulations that Crawford refers to are the recognition of belligerency and the laws of war in the context of secessionist conflicts. In  2010, in the Kosovo Advisory Opinion Case, the International Court of Justice (ICJ) was presented with the opportunity to clarify the law on this issue in the wake of Kosovo’s declaration of independence from Serbia, which was proclaimed on 17 February 2008 (ICJ 2010). The court had been asked for an

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advisory opinion on ‘whether or not  the applicable international law prohibited  [Kosovo’s] declaration of independence’. The  opinion of the ICJ avoided dealing with the substantive question of whether any right of secession existed in international law by making a distinction between, on the one hand, the proclamation of a declaration of independence and, on the other hand, whether such a proclamation constituted the exercise of a right conferred by international law. The ICJ Opinion stated that the question before the court required an answer to the first, but not the second, point (Ibid.: 425). The ICJ Opinion ruled that there was no general prohibition in international law against proclaiming independence. The opinion went on to state that the court made no rulings as to the existence of a legal right of secession in international law nor as to whether or not the secession of Kosovo was legal (Ibid.: 423). Although the majority opinion of the ICJ did not discuss the substantive question of the right of secession in international law, three of the court’s judges did so in separate opinions. Thus, Judges Yusuf and Cancado-Trindade endorsed the view that a remedial right of secession did exist in international law, while Judge Koroma came to the opposite conclusion (See Radan 2011). Judge Yusuf, in his Separate Opinion, said: A  racially or ethnically distinct group within a State, even if it qualifies as a people for the purposes of self-determination, does not have the right to unilateral secession simply because it wishes to create its own separate State, though this might be the wish of the entire group … This does not, however, mean that international law turns a blind eye to the plight of such groups, particularly in those cases where the State not only denies them the exercise of their internal right of self-determination (as described above), but also subjects them to discrimination, persecution and egregious violations of human rights or humanitarian law. Under such exceptional circumstances, the right of peoples to self-determination may support a claim to separate statehood provided it meets the conditions prescribed by international law, in a specific situation, taking into account the historical context … [The safeguard clause in the Declaration on Friendly Relations] makes it clear that so long as a sovereign and independent State complies with the principle of equal rights and self-determination of peoples, its territorial integrity and national unity should neither be impaired nor infringed upon. It therefore primarily protects, and gives priority to, the territorial preservation of States and seeks to avoid their fragmentation or disintegration due to separatist forces. However, the [safeguard] clause in its latter part implies that if a State fails to comport itself in accordance with the principle of equal rights and self-determination of peoples, an exceptional situation may arise whereby the ethnically or racially distinct group denied internal self-determination may claim a right of external self-determination or separation from the State which could effectively put into question the State’s territorial unity and sovereignty (Kosovo Advisory Opinion 622ff ).

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To the extent that the right of peoples to self-determination underpins an implied right of secession, determining the will of the people to exercise such a right is a matter of central importance. The most obvious way in which this could be done is by means of a referendum. However, it is not the only way. It has been noted that self-determination – and therefore secession – could also be achieved by war or revolution or by agreement, neither of which involve the holding of a referendum. Thus, as James Summers points out, ‘[t]he referendum … may be useful for conferring legitimacy on a self-determination claim, but it may also be somewhat tangential to it’ (Summers 2007: 43). In cases of secession that fall within Crawford’s narrow definition of secession, state practice indicates that referendums are of no relevance whatsoever. International recognition of states in this context may very well be legally justified under the remedial right of secession, but referendums are neither part of the process of secession nor a precondition to international recognition. Thus, in the case of Bangladesh, there was no referendum on secession. The case of Kosovo, which also comes within Crawford’s narrow definition of secession, is more complex, but ultimately one in which a referendum played no relevant part in the process of secession. Kosovo first declared its independence from the former Yugoslavia on 18 October 1991 following a referendum on independence held on 26–30 September 1991. However, that independence declaration was never internationally recognised (Radan 2002: 199), and Kosovo’s legal status remained unchanged until the political settlement was reached in the wake of the NATO-led military intervention against Yugoslavia in 1999. This settlement contained a provision in which the final status of Kosovo would be resolved by an international meeting after three years at which one of the factors to be taken into account would be a referendum on Kosovo’s final status (Weller 2009: 142). Under this settlement, the holding of a referendum was not mandatory, nor, if it was held, was it determinative of Kosovo’s final status. Indeed, by the time Kosovo declared its independence in February 2008, no referendum on independence had been held. If, however, one accepts the broader definition of secession that includes within its scope the creation, with the consent of the parent state, of new states out of parent states, as well as the creation of new states resulting from the dissolution of an existing state, the role of the referendum is more significant. At the outset, it can be said that there is no rule of international law that requires a referendum before state creation of this kind can occur and that Crawford is undoubtedly correct when he observes that, from the perspective of international law, ‘there is no recognition of a unilateral right to secede based merely on a majority vote of the population of a given sub-division or territory’ (Crawford 2006: 417). And, it might be added, from a purely legal point of view, the holding of a plebiscite in the context of disputes between states over territory is not required by customary international law (Rudrakumaran 1989–1990). However, a referendum may nevertheless be a legal requirement pursuant to any agreement – usually consummated through the mediation of a third-party

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state or international organisation – entered into as a means of resolving a secessionist claim. However, even where there is no such legal requirement to hold a referendum, the absence of such a referendum may have significant political ramifications. In either case, the relevance of the referendum stems from its relationship with the right of peoples to self-determination, which quite apart from its legal status is also an important political principle in the realm of international relations. In relation to internationally brokered agreements aimed at resolving secessionist conflicts, the holding of a referendum is usually a key provision. This can be illustrated by the cases relating to the secessionist demands in Bougainville, Southern Sudan and Turkish Northern Cyprus (See Keymak in this volume). In relation to Bougainville’s claim to independence from Papua New Guinea, Article 4 of the Kopoko Agreement of 26 January 2001 stipulates as follows: The constitutional amendments will guarantee that the referendum will be held: no earlier than 10 years, and in any case, no later than 15 years after the election of the first autonomous Bougainville Government, when the conditions listed below have been met, unless the Bougainville Government decides, after consultation with the National Government and in accordance with the Bougainville Constitution, that the referendum should not be held. The conditions to be taken into account include: weapons disposal, and good governance. The actual date of the referendum will be agreed after consultations by the autonomous Bougainville Government and the National Government (Quoted in Weller 2009) (See also Ghai and Regan 2006). Similarly, in the case of Southern Sudan’s successful secession from Sudan, the Comprehensive Peace Agreement entered into in 2005 in Clause 2.5 of its Machakos Protocol provided for ‘an internationally monitored referendum … to: confirm the unity of the Sudan by voting to adopt the system of government established under the Peace Agreement; or to vote for secession’. The processing of the referendum, which was held in January 2011, was regulated by the subsequently enacted Southern Sudan Referendum Act 2009, which in Section 6 stipulated: While exercising the right to self-determination through voting in the referendum, the people of Southern Sudan shall cast vote (sic) for either: i. Confirmation of the unity of the Sudan by sustaining the form of government established by the Comprehensive Peace Agreement and the Constitution, or ii. secession (Southern Sudan Referendum Act 2009) In  relation to the secessionist demand in Turkish Northern Cyprus, the Comprehensive Settlement of the Cyprus Problem (the Annan Plan) of 31

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March 2004 was an agreement designed to end, rather than confirm, the Turkish Cypriot attempt at secession and thereby end the de facto partition of Cyprus that came about in the wake of the Turkish Cypriot independence declaration of 1983. Article 1 of Annex IX to the Annan Plan required separate referendums to be held and approved in the two parts of Cyprus controlled by the Turks and Greeks, respectively, for the Cyprus problem to be resolved. The referendums were held on 22 April 2004. However, the Annan Plan became null and void as the referendum in the Greek Cypriot electorate was rejected (Özersay 2005). In other cases of secession, the holding a referendum has been seen as a prerequisite to obtaining international recognition as a state. This is well illustrated by the cases of the former Yugoslav republics of Slovenia, Croatia, BosniaHerzegovina and Macedonia whose declarations of independence led to the disintegration of Yugoslavia in the early 1990s. International recognition of these four seceding Yugoslav republics was seen by the international community as the application of the right of peoples to self-determination. This is clear from the European Community (EC) Guidelines on the Recognition of States issued on 16 December 1991, which were underpinned by the EC’s commitment ‘to the principles of the Helsinki Final Act and the Charter of Paris, in particular to the principle of self-determination’ (Trifunovska 1994: 431–432). In  recognising these four republics as states the holding of a referendum on independence was a determinative matter. Thus, in the case of Bosnia– Herzegovina, the initial application for recognition was delayed until such a referendum was held (Radan 2002: 167ff ). Antonio Cassese has suggested that the circumstances relating to the recognition of these republics ‘elevated the referendum to the status of a basic requirement for the legitimation of secession’ (Cassese 1995: 272). Antonello Tancredi argues that the holding of a referendum is part of a process where ‘international law intervenes’ by ‘setting out a normative “due process” through which a secession must happen’ because secessionist claims ‘must be founded on the consent of the majority of the population, democratically expressed through plebiscites or referendums’ (Tancredi 2006: 189–190). Finally, it relation to secessionist aspirations not based upon any implied right of secession flowing from the safeguard clause in the Declaration on Friendly Relations, it is suggested that the holding of a referendum would be a political necessity. In such a case, the referendum may lead to secession processed within the framework of the constitutional law of the parent state (to be discussed below). However, as the Supreme Court of Canada has recognised, even if the secessionist claim is not processed through the parent state’s constitutional law provisions, it may nevertheless be recognised internationally (Re Quebec 449). In  such cases of international recognition of statehood, it is hard to envisage the international community acceding to any secessionist demand that was not underpinned by popular support determined by a referendum. In the context of decolonisation, although the use of the referendum, usually conducted under the auspices of the United Nations (Beigbeder 1994: 97),

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as a prerequisite to independence was common, it was not universal (Crawford 2006: 417). In some cases, such as that of Namibia, the right of self-determination was made through representative procedures (Suksi 1993: 247). On the other hand, in some cases the result of the referendum led to the relevant nonself-governing territory being divided into two states, with the decolonisation of British Cameroons being such an example (Wells 1963: 159–183).

Domestic law and referendums on secession From the perspective of a state’s domestic legal system, the Supreme Court of Canada has aptly observed that secession raises ‘momentous questions that go to the heart of  [any] system of constitutional government’ (Re Quebec: 393). Indeed, by means of explicit constitutional affirmations of the relevant states, •

•

•

Indivisibility (e.g. Albania, Article 3; Australia, Preamble; Azerbaijan, Articles 5(2) & 11(1); Croatia, Article 1(1); Cyprus, Article 185(1); Estonia, Article 2(1); France, Article 2(1); Italy, Article 5; Laos, Article 1; Nigeria, Preamble and Article 2(1); Russia, Article 4(3); South Africa, Section 41(1)(a); Spain, Article 2; Thailand, Chapter I, Section 1; Turkey, Article 3(1); Ukraine, Article 2); National unity (Azerbaijan, Article 5(2); India, Preamble; Russia, Articles 4(3), 5(3); South Africa, Section  41(1)(a); Turkey, Article 3(1); Vietnam, Articles 1 & 13(2)), or Territorial integrity (Azerbaijan, Article 5(2); India, Preamble; Russia, Articles 4(3), 5(3); South Africa, Section  41(1)(a); Turkey, Article 3(1); Vietnam, Articles 1 & 13(2)).

And, of course, many state constitutions prohibit secession. However, in relation to these states, secession could still legally take place because the constitutional prohibitions against secession could be removed by amending the relevant state’s constitution, a process itself that in many states involves a referendum. Although few state constitutions explicitly allow for secession to take place, there is a growing body of judicial opinion to the effect a state’s constitutional law is subject to an implicit right of secession. At the heart of these explicit constitutional provisions and judicial pronouncements lies the legitimising principle of consent, the origins of which can be traced back, at the very least, to President Abraham Lincoln’s pronouncements in response to the secession declarations of eleven American states in the winter of 1860–1861 (Radan 2010). This principle of consent requires both the consent of the people in the territorial entity that wishes to secede as well as the consent of the parent state. Current states with explicit constitutional provisions regulating secession are Ethiopia, St Kitts and Nevis and Liechtenstein. Article 39(4) of the Constitution of the Federal Democratic Republic of Ethiopia of 1995 stipulates that, following a demand for secession by a two-thirds majority of the Legislative Council of any relevant nation, nationality or people, secession can only take place if, within three

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years, the council’s decision is supported by a majority vote at a referendum. Article 113 of the Federation of St Kitts and Nevis Constitution of 1983 allows for the secession of the island of Nevis if there has been a resolution in favour of secession passed by a two-thirds majority of the Nevis Legislative Assembly, which also receives the support of a two-thirds majority of votes cast at a referendum held on the island of Nevis. A referendum on the secession of Nevis in 1998 failed to reach the required two-thirds majority vote ( Jovanović 2007: 137–138). Article 4(2) of the Constitution of the Principality of Liechtenstein of 1921 permits the secession of individual communes in Liechtenstein following the holding of a referendum in favour of secession supported by a majority of the relevant communes, citizens who are entitled to vote. It can also be noted that Montenegro’s secession in 2006 from its union with Serbia required that a referendum be held before secession could be legalised. Article 60 of the Constitutional Charter of the State Union of Serbia and Montenegro of 2003 stipulated that the decision to secede from the State Union could only be made following a successful referendum in support of independence. The referendum required a minimum of 55% of votes cast in support of secession, which was achieved when Montenegrins voted in the May 2006 referendum (On Montenegrin secession see Jovanović 2017). In  relation to an implicit constitutional right of secession, the decision of the Supreme Court of Canada in 2008 in Reference re: Secession of Quebec is the most significant. In that case, one of the specific questions put to the court in the context of a possible secession of the province of Quebec was, ‘Under the Constitution of Canada, can the National Assembly, legislature or government of Quebec effect the secession of Quebec from Canada unilaterally?’ (Re Quebec, cit op. 394). The  court answered this question in the negative. However, in so doing, it stressed the relevance of ‘four fundamental and organizing principles of the Constitution’ of federalism, democracy, constitutionalism and the rule of law, and respect for minorities. These principles dictated that, under Canadian constitutional law, a negotiated amendment to the Canadian Constitution was a means by which secession could be legally achieved. The court ruled that: [T]he secession of Quebec from Canada cannot be accomplished by the National Assembly, the legislature or government of Quebec unilaterally, that is to say without principled negotiations, and be considered a lawful act. Any attempt to effect the secession of a province from Canada must be undertaken pursuant to the Constitution of Canada, or else violate the Canadian legal order (Ibid.: 430–431). The court further ruled that, although ‘an act of secession would purport to alter the governance of Canadian territory in a manner, which undoubtedly is inconsistent with [Canada’s] current constitutional arrangements’, secession could be facilitated by a negotiated constitutional amendment. Such an amendment was

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possible because, under Canada’s Constitution, ultimate sovereignty rests with the Canadian people who can alter the constitution in any way it deems fit, including to permit secession of a Canadian province, provided that such an amendment was achieved by the relevant amendment procedures set out in the Constitution (Ibid.: 423). The court stated that the first step towards a secession amendment for Quebec would be ‘a clear expression of the people of Quebec of their will to secede from Canada’ (Ibid.: 423). This expression of popular will could be determined by a referendum on secession. Although the referendum itself would have no legal effect and could not bring about a unilateral secession, a clear referendum vote in favour of secession ‘would confer legitimacy on the efforts of the Quebec government to initiate the Constitution’s amendment process in order to secede by constitutional means’ (Ibid.). The political legitimacy that would flow from a referendum that showed a clear desire on the part of the population of Quebec to secede would place an obligation on the other provinces and the federal government to enter into negotiations ‘to negotiate constitutional changes to respond to that desire’. Such negotiations would need to be conducted in conformity with the principles of federalism, democracy, constitutionalism and the rule of law, and respect for minorities. A  refusal by any party to so act would undermine the legitimacy of that party’s position and could jeopardise the negotiations as a whole. The negotiations could reach an impasse, in which case, provided they had been conducted properly by all parties, it would mean that, from the perspective of Canada’s constitutional law, the secession of Quebec would not  be permitted because of the absence of a constitutional amendment (Ibid.: 424–428). As to the referendum that could trigger this procedure, the court, on a number of occasions, referred to the need that the referendum amount to a ‘clear expression’ of the population of Quebec in favour of secession. The court declined to define what was meant by a ‘clear expression’ by the people in the context of a secession referendum in Quebec, on the ground that this was a matter best left to the political process (Ibid.: 429). In  Quebec’s 1980 and 1995 referendums on secession the provincial government claimed that a bare majority of votes cast would have been sufficient. In  the wake of the Supreme Court’s decision, this position was maintained by the then Parti Quebecois government, which passed An Act Respecting the Exercise of the Fundamental Rights and Prerogatives of the Quebec People and the Quebec State, 2000 S. Q., c. 46, s. 4. However, the court’s judgment clearly suggests that more than a simple majority of the vote is required. The Canadian federal government has consistently rejected the Quebec government’s contention, and in the wake of the Quebec Secession Reference decision passed legislation to the effect that unless the federal House of Commons is satisfied that a clear majority of Quebec’s population supported independence, it would not participate in any constitutional negotiations on secession and has passed federal legislation to this effect (See: An Act to Give Effect to the Requirement for Clarity as Set Out in the Opinion of the Supreme Court of Canada in the Quebec Secession Reference, 2000 S. C., c. 21, s. 2).

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Where a state’s constitution contains no explicit or implicit provision on secession, the state may legislate to facilitate secession. Thus, in the United Kingdom, the unsuccessful referendum on Scottish independence that was held in 2014 was facilitated by legislation passed by the United Kingdom Parliament. This  was done by an amendment to the Scotland Act 1998 (UK). Prior to the passing of the United Kingdom legislation, Matt Qvortrup persuasively argued that, on the basis of various decisions of the British courts, a Scottish referendum would have been constitutionally illegal (Qvortrup 2014: 71–90). Further support for Qvortrup’s argument can be found on the basis of legislation passed by the United Kingdom Parliament by which Northern Ireland has been granted a conditional right to leave the United Kingdom to become part of Ireland. Though, it is perhaps worth pointing out that Northern Ireland’s possible departure from the United Kingdom would not, strictly speaking, amount to secession. Rather, it would be an instance of irredentism. However, it would involve, like a secession of Scotland, a departure of an existing territorial unit from the United Kingdom. This  legislation states that a referendum can be held to determine if ‘a majority of the people of Northern Ireland’ wishes to ‘cease to be part of the United Kingdom’ and become ‘part of a united Ireland’ (See Northern Ireland Act 1998 (UK), s 1.) The conditional nature of that right is confirmed in a schedule to the legislation that provides that such a referendum can only be held if the United Kingdom’s Secretary of State determines that ‘it appears likely to him that a majority of those voting would express a wish that Northern Ireland should cease to be part of the United Kingdom and form part of a united Ireland’ (Ibid., Sch. 1). On the other hand, Timothy Waters has suggested that there is some doubt as to whether the legislation that was passed granted the Scots the right to hold the referendum, as the United Kingdom government claimed, or whether it merely confirmed or clarified the right of Scotland to hold the referendum, as the Scottish government claimed (Waters 2016: 128). In most cases of attempts at secession, the territorial entity seeking independence is a federal unit within a federal state. Less frequently, the territorial entity will be constituted by one or more local government units within the parent state. In either case, there are governmental structures in place which are controlled by secessionist politicians who will use their control over the instruments of power to call for, organise and run, what is often referred to as a ‘legislative referendum’. In cases where secessionist leaders do not hold political power of this kind, the ability to call for a referendum on secession depends upon whether the relevant political unit enables citizens to initiate what is often referred to as a ‘popular referendum’. In the United States, although a legislative referendum is possible in all of its states, only 24 states allow for the holding of a referendum initiated by the state’s citizens or popular referendum.

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In relation to the latter, relevant state laws set the rules to be complied with for such a referendum to be held. For example, under Alaskan law a popular referendum cannot take place if it proposes something that is clearly unconstitutional. It was on the basis of this rule, in late 2006, the Supreme Court of Alaska ruled that a popular referendum on the question of whether Alaska should seek a legal path to independence could not proceed (See Kohlhaas v Alaska). In coming to its decision the court relied on the 1869 decision of the Supreme Court of the United States in Texas v White, which it mistakenly interpreted as authority for the proposition that secession in the United States is clearly unconstitutional. The decision in Texas v White only renders unilateral secession illegal and leaves it open for constitutionally legal secession to take place (Radan 2006). Thus, the decision in Texas v White was not a basis to conclude that secession was unconstitutional and therefore not a basis upon which the Alaskan Supreme Court could properly rule against the holding of a popular referendum on a possible secession of Alaska from the United States. Although referendums are critical in relation to amending constitutions that either prohibit secession or are part of the process towards facilitating secession, the supermajority that any such referendum usually requires ‘imposes’, as Rivka Weill aptly points out, ‘such burdensome obstacles on the secession process that it becomes impossible to follow’ (Weill 2018: 975).

Conclusion The preceding discussion of the legal significance of referendums in the context of secession indicates that the holding of a referendum on secession is very much related to determining the will of the people pursuant to the right of peoples to self-determination. Although the right to self-determination is an important principle of customary international law it is also a very important political principle. Thus, although the holding of a referendum is only sometimes a legal  requirement, it is more often than not  a matter of political necessity. The legal necessity of holding a referendum arises in only two situations. The first is in cases of a secessionist claim where the relevant parties enter into an agreement that requires a referendum to be held as a means of resolving the secessionist claim. The second relates to explicit provisions in a parent state’s constitution that mandates the holding of a referendum as part of the process of secession. Otherwise, as is pointed out by Suksi, ‘the employment of the institution of the referendum does not seem to be mandated by the norms of international law or any general principles’ (Suksi 1993: 247). However, this does not mean that the holding of the referendum is unimportant politically. In such cases, the holding of a referendum will usually be determinative of the political legitimacy (and ultimately the success) of any particular secessionist claim. This is so because secessionist claims are fundamentally reliant upon the right of peoples to self-determination and this ‘requires that the wishes of the people be at least ascertained and taken into account’.

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References Beigbeder, Y. (1994) International Monitoring of Plebiscites, Referendums and National Elections, Self-determination and Transition to Democracy, Dordrecht: Martinus Nijhoff Publishers. Cassese, A. (1995) Self-Determination of Peoples, A Legal Reappraisal, Cambridge: Cambridge University Press. Castellino, J. (1997) “The Secession of Bangladesh in International Law: Setting New Standards?” Asian Year Book of International Law, Vol. 7, pp. 98–100. Crawford, J. (2006) The  Creation of States in International Law, 2nd edition, Oxford: Clarendon Press. Farley, T. (1986) Plebiscites and Sovereignty, The  Crisis of Political Legitimacy, Boulder: Westview Press. Ghai, Y. and Regan, A.J. (2006) “Unitary State, Devolution, Autonomy, Secession: State Building and Nation Building in Bougainville, Papua New Guinea”, The Round Table, Vol. 95, Issue 386, p. 598. Jovanović, M. (2007) Constitutionalizing Secession in Federalized States, A  Procedural Approach, Utrecht: Eleven International Publishing. Jovanović, M. (2017) “Consensual Secession of Montenegro—Towards Good Practice?”, in Pavković, A. and Radan, P. (eds), On the Way to Statehood, Secession and Globalisation, London: Routledge, pp. 133–148. Knop, K. (2002) Diversity and Self-Determination in International Law, Cambridge: Cambridge University Press. McCorquodale, R. (1992) “Self-Determination Beyond the Colonial Context and Its Potential Impact on Africa”, African Journal of International  & Comparative Law, Vol.  4, pp. 603–604. Musson, J. (2008) “Britain and the Recognition of Bangladesh in 1972”, Diplomacy and Statecraft, Vol. 19, pp. 125–44. Nanda, P. (1981) “Self-Determination Under International Law: Validity of Claims to Secede”, Case Western Reserve Journal of International Law, Vol. 13, pp. 269–70. Özersay, K. (2005) “Separate Simultaneous Referendums in Cyprus: Was is a ‘Fact’ or an ‘Illusion’?” Turkish Studies, Vol. 6, Issue 3, pp. 379–99. Qvortrup, M. (2014) Referendums and Ethnic Conflict, Philadelphia: University of Pennsylvania Press. Radan, P. (2002) The Break-up of Yugoslavia and International Law, London and New York: Routledge. Radan, P. (2006) “‘An Indestructible Union … of Indestructible States’: The Supreme Court of the United States and Secession”, Legal History, Vol. 10, pp. 187–205. Radan, P. (2008) ‘Secession: A Word in Search of a Meaning’, in Aleksandar Pavković and Peter Radan (eds.), On the Way to Statehood, Secession and Globalisation, Aldershot: Ashgate Publishing Ltd., pp. 10–30. Radan, P. (2010) ‘Lincoln, the Constitution, and Secession’, in Don Doyle (ed.), Secession as an International Phenomenon, From America’s Civil War to Contemporary Separatist Movements, Athens and London: University of Georgia Press, pp. 56–75. Radan, P. (2011) ‘International Law and the Right of Unilateral Secession’, in Aleksandar Pavković and Peter Radan (eds.), The  Ashgate Research Companion to Secession, Aldershot: Ashgate Publishing Ltd., pp. 327–30. Roth, B.R. (2008) ‘State Sovereignty, International Legality and Moral Disagreement’ in T. Broude and Y. Shany (eds.), The Shifting Allocation of Authority in International Law, Oxford: Hart Publishing, pp. 136–37.

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Rudrakumaran, V. (1989–1990) “The  ‘Requirement’ of Plebiscite in Territorial Rapprochement”, Houston Journal of International Law, Vol. 12, pp. 23–54. Southern Sudan Referendum Act 2009, (2010) International Journal of African Renaissance Studies, Vol. 5, Issue 1, pp. 192–224, doi:10.1080/18186874.2010.520201. Suksi, M. (1993) Bringing in the People, A Comparison of Constitutional Forms and Practices of the Referendum, Dordrecht: Martinus Nijhoff Publishers. Summers, J. (2007) Peoples and International Law, How Nationalism and Self-Determination Shape a Contemporary Law of Nations, Leiden and Boston: Martinus Nijhoff Publishers, pp. 343–348. Tancredi, A. (2006). ‘“A Normative” “Due Process” in the Creation of States through Secession’, in Kohen, M. G.,  and Kohen, M. G. (eds.), Secession: International Law Perspectives, Cambridge: Cambridge University Press, pp. 411–74. Tierney, S. (2004) Constitutional Law and National Pluralism, Oxford: Oxford University Press. Trifunovska, S. (1994) Yugoslavia Through Documents, From its Creation to its Dissolution, Dordrecht: Martinus Nijhoff Publishers, pp. 431–32. Waters, T.W. (2016) “For  Freedom Alone: Secession After the Scottish Referendum”, Nationalities Papers, Vol. 44, Issue 1, pp. 124–43. Weller, M. (2009) Contested Statehood, Kosovo’s Struggle for Independence, Oxford: Oxford University Press. Weill, R. (2018) “Secession and the Prevalence of Both Militant Democracy and Eternity Clauses Worldwide”, Cardozo Law Review, Vol. 40, Issue 3, pp. 905–90. Wells, B.J. (1963) United Nations Decisions on Self-Determination, New  York University: Unpublished Doctoral Dissertation, pp. 159–83.

Legal cases Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion [2010] ICJ Rep 403. Barcelona Traction, Light,  & Power Co (Belgium v Spain), Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 [1971] ICJ Rep 16, pp. 89–90. Kohlhaas v Alaska 147 P 3d 714 (2006). Reference re: Secession of Quebec (1998) 161 DLR (4th) 385. Texas v White 74 US 700 (1868).

4 THEORY OF STATE RECOGNITION A contemporary assessment Mikulas Fabry

For many decades now, academic study of this subject has been dominated by international lawyers (ILs). That scholarship has been driven by a keen theoretical interest in its nature and effects. Entire library shelves can be filled with the debate revolving around two seemingly irreconcilable theories of recognition. The  so-called declaratory theory discounts its overall significance. Widely affirmed today as dominant, the theory holds that an entity becomes a state on the international stage as soon as it meets the objective legal criteria of statehood, regardless of its recognition, or lack thereof, by other states. In contrast, the constitutive theory, held at present by only a small contingent of lawyers, maintains that an entity’s status as a state in international relations and law stems from its recognition by existing states. This  debate has, on occasion, met with considerable dissatisfaction among lawyers. Ian Brownlie writes that ‘there is no doubt room for a whole treatise on the harm caused to the business of legal investigation by theory. In the case of “recognition”, theory has not only failed to enhance the subject but has created a tertium quid which stands, like a bank of fog on a still day, between the observer and the contours of the ground which calls for investigation.’ In his view, the two rival theories ‘have assumed a “theological” role as a body of thought with its own validity which tends to distract the student, and to play the role of master rather than servant’ (Brownlie 1983: 627, 634). Despite this and other sporadic expressions of scepticism (Grant 1999: ix, 216; Roth 2011a), the inherited orthodoxies continue to cast a spell over legal writings on state recognition. As several observers (Fabry 2010; Coggins 2014) recently noted, despite the central importance of states as building blocks of the global political and legal order, international relations (IR) scholars pay little attention to the processes of state formation. To the extent they do, they have not found the long-standing IL debate on recognition very fruitful (Caplan 2005; Fabry 2010; Ker-Lindsay 2012;

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Agné et al. 2013; Onuf 2013; Coggins 2014) and have shied away from a deeper engagement with it. However, the debate raises theoretical and policy issues of fundamental importance to the wider IR field. A  sustained engagement with the IL literature on recognition should be beneficial not  only to IR scholars specialising in statehood-related topics but also to all those whose work rests on assumptions about what constitutes the state in world politics. As will be seen, several IR theories rest on various misconceptions about state emergence and, by extension, statehood. This chapter assesses the current state of theorising on state recognition. It contends that despite its many insights, the IL literature, with some exceptions, rests on defective conceptualisations of recognition theory and practice, and of the relationship between the two. The central objective of IL theories is to provide a coherent account of recognition as it relates to the presumed character and ends of the overall international legal system. In this framework, as Brownlie implies, practice is typically examined with the aim of confirming, refuting or refining the pre-existing theories. Moreover, what counts as ‘practice’ is routinely understood in narrow terms, with evidence disproportionately sought in, and derived from, legal or quasi-legal texts. Drawing on several strands of English School and constructivist scholarship on norm evolution, practice and statehood, the article argues that this theoryfirst, limited practice-second approach ultimately distorts the picture of state recognition in world affairs. The principal task of a theory of recognition must be to illuminate the activity on its own terms, that is to provide a general explanation of actions and intentions of those who carry it out. Recognition is a prerogative of central governments and, in almost all cases, a competence of their executive branch. It is an institutionalised practice: a purposive activity defined by a set of norms or criteria (‘Norms’ and ‘criteria’ are used interchangeably in this chapter, along with ‘rules’, ‘standards’ and ‘principles’.) They are all understood as prescriptive statements delineating appropriate conduct which rests on some idea of what is right, good or proper which specifies the agents who perform it and guide these agents’ performance of it. As with most other international practices performed by the executive branch, its acts are neither pro forma nor fixed: they entail an inescapable discretionary element as general norms have to be interpreted when applied to specific cases. That discretion is what makes a modification and evolution in the precise substance of norms – and, thus, in practices – possible in the first place. The role and criteria of recognition can be fully ascertained only by a comprehensive examination of the reasoning and actions of those who grant or withhold it. Legal or quasi-legal texts are pertinent to this endeavour only to the extent they inform or mirror executive acts. Consistent with conclusions reached by a number of English School and constructivist theorists, this chapter contends that recognition is organically connected to the development of modern society of states and its law. As empirically independent territorial ‘states’ came to conduct their mutual relations on a basis of shared law, they began to encounter challenges to the prevailing distribution

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of that status. Newly emergent entities asserted their claim of statehood not only vis-à-vis the state they were part of but also vis-à-vis third states with whom they sought ordered relations. By ‘recognition’, existing states would certify – bilaterally and, if followed by other existing states, cumulatively – that a new claimant was a ‘state’: that is, a bearer of the rights and obligations attached to this status in international relations and law. Statehood thus developed from an exclusive domestic category into a simultaneous domestic and international category: it came to pertain both to the state and to the society of states. Domestic society and law delineate the former, international society and law the latter. Recognition links the two: external statehood is established when the existing states generally acknowledge an internally constituted ‘state’ to have this standing in their mutual relations. Although this may at first glance appear as just another restatement of the constitutive theory, it is not. Traditional constitutivists are correct in the basic point that it is recognition that establishes new entities as ‘states’ in the international order. As several of them note (Oppenheim 1905: 110; Tsagourias 2006: 224), if new entities were so established automatically upon meeting certain requirements, then the entire notion of external recognition would be redundant, if not meaningless. Why institute ‘recognition’ and not just directly assume stateto-state relations with an entity that has met the objective criteria of statehood, and why ever resort to ‘non-recognition’ of such an entity? Likewise, the declaratory theory cannot make sense of the highly charged, and at times wartriggering, recognition disputes involving conflicting claims of statehood. Why resist actual or potential recognition decisions if those have nothing to do with statehood as such and thus, by extension, with those conflicting claims? Such contestation is intelligible only if these decisions collectively bring about a new international person and, in so doing, authoritatively settle that a particular claim is internationally legitimate and the competing ones are not. Still, what many traditional constitutivists miss is that the practice of recognition has been conducted within a distinct normative framework. This framework has not always been readily detectable, and it has certainly not been immutable. As with most norms in a system without a central government, recognition criteria lack fully systematised procedures for implementation, enforcement, modification and adjudication of interpretive differences. During periods of major international shifts in understandings of the proper means of acquisition and political rationale of statehood, existing states sometimes disagreed on the substance of recognition criteria; agreement on their content did not necessarily translate into agreement on their application in particular situations; and even their broadly perceived infringement did not  guarantee adverse consequences for the transgressors. And yet the practice of recognition cannot be understood without them and their evolution. Although always containing a permanent population, territory and government, ‘states’ have never been purely physical entities. Rather ‘states’ have been corporate entities which combine physical attributes and normative conceptions of sociopolitical legitimacy. Put differently,

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when contemplating recognition of a new state, existing states do not ask: ‘Does an entity satisfy a fixed set of physical attributes?’ Instead they ask: ‘Does an entity with a set of physical attributes satisfy the prevailing criteria of legitimate statehood?’ As the criteria of legitimate statehood have evolved with developments in international morality and law, so has the practice of recognition. The rest of the article proceeds as follows. After briefly summarising the legal theoretical debate, it outlines state recognition as an evolving, norm-guided practice. The  following section then considers the role and function of this practice, touching on various claims and assumptions among IL and IR scholars. The  subsequent part charts the evolution of the criteria guiding the practice since 1815. The  last segment reflects on the critical potential of a theory of recognition, suggesting that it is unlikely to be realised without appreciating the normative basis of actual recognition practice.

The declaratory-constitutive debate The declaratory theory downplays the significance of recognition. It holds that a new entity becomes a state with international rights and duties upon meeting the legal criteria of statehood, irrespective of the view taken on this matter by other states. Recognition is a specific formality: a prerequisite for establishing regular relations with a new state. As such, it is separate from, and secondary to, statehood. Recognition confirms that a new state exists; it does not bring it into existence. While the criteria of statehood are legal and objective, decisions to recognise or not  are largely political and optional. The  declaratory character of recognition and the criteria of statehood are mentioned in a number of legal documents. The most frequently cited is the 1933 Montevideo Convention on the Rights and Duties of States which stipulates that ‘the political existence of the state is independent of recognition by the other states’ and that ‘the state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states’. There have been different readings of the exact meaning of these criteria, but the most common position is that a new state must have a government in de facto or effective control of its population and territory and be constitutionally as well as actually independent of all external authorities. The declaratory theory remains the prevalent IL mode of conceiving statehood and recognition despite the fact that in recent decades a substantial number of new states patently did not  meet the Montevideo criteria. Bosnia and Herzegovina, Croatia, Azerbaijan, Georgia or Moldova, just as numerous ex-colonies before them, all became regarded and treated as states internationally when their government manifestly did not possess effective control over considerable parts of the territory and population they claimed. On the other hand, entities such as ‘Rhodesia’, ‘the Turkish Republic of Northern Cyprus’ and the ‘Republic of Somaliland’ endured effectively for many years but, with the exception of Turkey’s relations with Northern Cyprus, were not regarded or treated as states by foreign authorities.

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One response to these developments has been to qualify the declaratory theory by arguing that after Montevideo, the criteria of statehood changed with new developments in other relevant areas of international law. Some writers, for instance, contend that government effectiveness became discounted as a criterion where entities claimed statehood following violations of international law, such as those pertaining to the right to self-determination (e.g. Rhodesia) or the prohibition on the use of force against political independence and territorial integrity of states (e.g. Northern Cyprus) (Raič 2002: ch. 4; Crawford 2006: ch. 3). However, this qualification of the declaratory theory is contested. Stefan Talmon (2005) maintains that the criteria of statehood, which in his view never required actual but only constitutional independence, have not really changed. He argues that entities such as Rhodesia and Northern Cyprus were/are states in international relations and law, regardless of their general non-recognition. An increasing number of declaratory authors today also maintain that in some cases of uncertainty of status the evidence of widespread recognition may “tip the balance” and resolve the lack of clarity (Crawford 2006: 27). That, however, raises the very basic question – unaddressed by any IL scholar – of why objective, self-executing criteria would ever need to be confirmed by such evidence (Roth 2010: 397 n. 7). A minority of IL scholars denies that any self-executing criteria of statehood can exist internationally  – whether the Montevideo criteria in their original form or as adjusted by subsequent global legal developments – and instead holds that a state becomes an international person through recognition by the already existing states. The  assumption of this constitutive theory is that any system of law requires a designated procedure and organ to determine the validity of claims of status and personality under that law. In the case of the anarchic and decentralised international system and new claimants of statehood, that procedure is state recognition and that organ is each existing state (Lauterpacht 1947: 6, 32, 55). Individual acts of foreign recognition are constitutive because only in their aftermath does an entity become a ‘state’ – that is, a bearer of rights and obligations attached to this status in international law – for the recognising states (Kelsen 1941: 608). Acts of recognition are typically accompanied by an overt gesture, such as public declaration, but they do not have to be. What matters is a tangible institutional manifestation that an existing state henceforth considers a new claimant to be a ‘state’ for international purposes. Confusingly, existing states, on rare occasions, make statements of ‘recognition’ separately from such a manifestation, as in the cases of the Federal Republic of Yugoslavia (FRY) and Macedonia. Both entities became widely regarded as ‘states’ in 1992, but statements of ‘recognition’ were issued only in later years. Adherents of the declaratory theory highlight these unusual cases as a proof of the theory’s reflection in practice (Vidmar 2012: 372–4), but this is inaccurate – the FRY and Macedonia did not become ‘states’ automatically but rather foreign recognition of this status was implied in the transformed external conduct towards them (Hillgruber 1998: 498–9). It is imperative to discern the intention of statements and actions.

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Western declarations in 1992 refused to accept Macedonia’s claimed official name and the FRY’s claim to be the sole successor of the former Yugoslav federation, not their assertions of statehood as such. See European Council Declaration on Former Yugoslavia, Annex II to the Conclusions of the EC Presidency, 26–27 June 1992. The  cumulative effect of these individual acts is the conferral of statehood on the entity in the international legal system as a whole. While beginning with Hegel (1952: paras. 71, 330–40), in the nineteenth century most constitutive theorists held that state recognition lacks any discernible legal standards and is instead informed by political interests of governments (Lauterpacht 1947: 2, 38–41); subsequently, some of them came to argue otherwise. They  came to insist that there are criteria of recognition, and they reflect the criteria of statehood. However, the first, and as of yet the last, major study in this mould came shortly after World War II (Lauterpacht 1947), and there have been only a handful of authors holding this position surveying practice since then (Hillgruber 1998; Roth 2010). They also point to the departure from government effectiveness as a criterion of statehood/recognition in cases where relevant international norms, especially those concerning self-determination and the interstate use of force, warranted it.

Norms and practice in international relations and law How can one ascertain whether either of the theories is correct, and, if yes, to what extent? Both theories in their various versions claim that state practice conforms to their tenets. By and large, however, ILs approach it through the doctrinal sieve of the two rival theories. Rather than seeking to understand practice on its own terms, they tend to investigate it with the aim of corroborating, contesting or improving the pre-existing theories. Moreover, that practice is often conceived narrowly: there is overly heavy evidentiary reliance on legal or quasi-legal texts, be they treaties, rulings of judicial and quasi-judicial bodies, legal opinions of governmental bodies or resolutions, reports and draft articles of intergovernmental and non-governmental organisations. There is a clear presumption among most IL scholars that it is these texts that encapsulate what recognition and its criteria are. This approach to practice is inadequate and ultimately misleading. Following authors such as Friedrich Kratochwil (1989, 2000), Wayne Sandholtz (2009), Ian Johnstone (2011), Ingo Venzke (2012) and Antje Wiener (2014), I contend that the substance of norms is not  fixed at their adoption but rather continually evolving. Typically, individual norms – whether legal or non-legal, written or unwritten  – are formulated broadly, and their relationship to other norms is not well-defined. Their general, open character and fuzzy boundaries make their precise meaning often unclear or indeterminate when applied to particular situations: it has to be interpreted by agents who enact them. This need leads frequently to divergent interpretations, which in turn set off arguments and

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contestation, what Venzke (2012: 58) calls ‘semantic struggles’. The contention that most norms do not  have unambiguous application in every contingency and can conflict with one another is no less true of domestic than international norms. Domestically, there are highly formalised and universally binding procedures to resolve uncertainty over the meaning of legal norms, encompassing executive and legislative acts, and, in the last instance, rulings of courts with compulsory jurisdiction. Internationally, there are no general procedures of this kind, but less formal conventions do exist. With no executive, legislature or court with compulsory jurisdiction, uncertainty over norm content in the international arena is, in most situations, settled by states themselves through bilateral and multilateral argumentation when a norm is invoked to justify, demand, defend, support, contest or resist a particular course of action. The consequence of this interactive communicative process is an impact on the content of a norm, whether by reaffirming it in light of precedents, by modifying it to fit new, changed or exceptional circumstances, by clarifying the boundaries of its applicability or by obscuring it in case of persistent differences. Crucially, in the absence of an authority to adjudicate differing understandings of the same norm, the argumentation outcome in one situation – what Sandoltz (2009: 8) calls a ‘cycle’ of norm argumentation – has a direct bearing on norm interpretation in subsequent situations. Cycles of norm change are path dependent, linked forward and backward in time: ‘Previous cycles establish the context of norms and precedents in which new disputes arise; the outcome of those new disputes alters the context of norms and precedents for subsequent controversies’ (Stiles and Sandholtz 2009: 336). What a particular norm is thus cannot be known apart from its use in and across concrete cases. Put differently, the exact substance of the norms of recognition, self-defence, non-intervention, self-determination, diplomatic immunity, military targeting, free trade, refugee protection and countless others will not be revealed by a mere perusal of international documents that lay them down. There is simply no telling how those actually extending or declining recognition will construe, say, the general criteria found in the Montevideo Convention in actual cases. Because, as Kees van Kersbergen and Bertjan Verbeek (2007: 222) write, ‘norm practice reveals to the actors involved what affected parties actually intend the norm to mean’; the precise content of a norm can be determined only by considering the specific situations in which it is invoked. What Kratochwil (1989: 19) says of international law can be said of all international norms, The law…[cannot] be understood … as a static system of norms … Rather the law is a choice-process characterized by the principled nature of the norm-use in arriving at a decision through reasoning. What the law is cannot be therefore decided by a quick look at statutes, treaties or codes (although their importance is thereby not diminished), but can only be ascertained through the performance of rule-application to a controversy and the appraisal of the reasons offered in defense of a decision (italics in original).

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Indeed this ‘performance of rule-application’ is consistent with the notion of practice highlighted by the English School as well as some constructivists and social theorists: as a goal-oriented activity defined by a set of social norms which inform agents as they carry it out. Cornelia Navari (2011) calls this a telic conception of practice, whereas Mervyn Frost and Silviya Lechner (2016) identify it with Wittgenstein’s notion of a language game. There are other conceptions – indeed in recent years there has been a steadily growing interest among IR theorists in practice. In  the words of Terry Nardin (1983: 7), which echo Kratochwil: ‘…[E]very practice is continuously modified and reconstituted in the actions of those who interpret and apply the usages, procedures, instructions, and rules of which it is composed. All practices are therefore more or less liable to change … ’ Conversely, as Charles Taylor (1993: 58) puts it, a norm ‘lies essentially in the practice…[it] is, at any given time, what the practice has made it (italics in original)’. The key virtue of the approach that links norms with practice is that it can account for the dynamics of norm evolution, something that the static, textoriented approach of most recognition theorists cannot do. But how does one get from the practice of individual states and other relevant agents, such as international organisations, to a change within norms, and what factors contribute to this change? Above all, what prevents the process of norm application by different international actors from turning into infinite self-serving interpretations of a norm’s meaning? While self-serving motives can never be ruled out in discretionary decisions, a fundamental reality facing all actors is the need to persuade the rest of international society – which acts as the ‘interpretive community’ ( Johnstone 2011: 33–41) of intersubjective meanings beyond national borders  – of the reasonableness of their interpretation. Whatever their actual rationale, these actors are expected  – and they generally strive  – to legitimise their understanding within the parameters of the prevailing international normative context, demonstrating either that (1) there is a compatibility with a previous construction and relevant precedents of the norm, or (2) that there are compelling reasons for an innovative interpretation based on the new, unique or unusual circumstances of the case and/or other relevant moral and legal considerations. If the novel interpretation elicits international acceptance, then one can speak of a shift in the content of a norm. Although usually incremental ( Johnstone 2011: 50), shifts of more substantial magnitude do occur, especially in the wake of major disruptions, such as wars and large-scale political and technological transformations (Sandholtz 2009: 11). On the other hand, dubious interpretations  – including those put forth by powerful countries  – tend to clarify or reaffirm rather than to blur or undermine the prior conception of the norm if they are widely disputed (Badescu and Weiss 2010). In any event, even great powers cannot transform the substance of norms, which are inherently social, on their own – their alterations must garner support of others in the international social sphere ( Johnstone 2011: 52). The most basic characteristic of the practice of recognition is that it is performed by central governments and, in nearly all past and present instances,

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by their executive branch. As recognition decisions require an interpretation of norms that delineate appropriate circumstances under which it can be undertaken, the purpose and norms of recognition can be fully determined only by turning to the reasoning and actions of the executives which carry them out. A common IL method of citing assorted legal or quasi-legal texts irrespective of their relation to executive acts can scarcely accomplish this task. It should be emphasised that in order to illuminate executive practice, one must scrutinise not only executive decisions but also decision-making that bring them about. The reason is simple: often the basis for those decisions may not be sufficiently clear without understanding the domestic and international deliberations that shape them. Yet these deliberations are largely disregarded by ILs. There are, in all likelihood, two reasons for this. First, systematic investigation of executive decision-making, such as that found in diplomatic papers and other governmental communications, does not  lend itself to ordinary techniques of legal inquiry and is very labour-intensive. Second, many, if not most, IL scholars are ultimately interested not only in explanation but also prescription. Numerous theoretical accounts presume what recognition should or can be in light of perceived objectives or limits of international law. Whereas declaratory theorists disclose distinct idealist proclivities by believing that the operation of at least some fundamental norms in international law must not rest on the discretionary choice of states, constitutive theorists assume that the enactment of international legal rules necessarily involves such choice. When faced with a seeming gap between the doctrine and reality of recognition, IL scholars routinely resolve the matter by falling back on doctrinal beliefs instead of continuing to wrestle with the empirical record at hand. As William O’Brien and Ulf Goebel (1965: 98) put it, ‘international law authorities have rendered a most elusive subject even more complex by imposing their own unsubstantiated theories on a record of practice that is murky enough already and that often becomes further distorted by subjective analyses’. Even those studies that do undertake extensive investigation of executive decisions tend to overlook the decision-making that led to them and to conflate explanatory and prescriptive claims. In contrast, this chapter maintains that recognition theory has to (1) confront the activity of recognition in all its complexity and malleability, (2) go beyond the comfortable professional confines of a single academic discipline, and (3) keep the question of what recognition practice is analytically separate from the question of what it ought to be.

The nature and purpose of recognition The  dominance of the declaratory theory suggests that most accounts of the state in academic international law rest on an individualist ontology. If anything, this ontology is even more pronounced in IR scholarship. Realists, liberals, Marxists, historical sociologists  – and even some associated with the English School – conceptualise the modern state through an exclusive domestic prism. They  presume the state is a self-constituted and self-contained body, existing

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because it has been able to maintain functioning government ruling a defined population and territory to the exclusion of any external authority. New states are no exception: they come into being when they establish these conditions. External authorities can play a crucial role in maintaining a state’s existence: for example, by way of alliances or collective security arrangements. But these eventualities are contingent to, not constitutive of, statehood. States are ontologically prior to any ties or structures formed by them. Constitutive theorists as well as numerous writers broadly linked with the English School (Wight 1977; Nardin 1992; Bull 2000; Jackson 2000) and constructivist approaches (Strang 1991; Wendt 1999; Onuf 2013; Coggins 2014) implicitly or explicitly dissent from this conceptualisation of the state. They see individual states as part and parcel of a larger social sphere. Their view is grounded in a holistic social ontology, the principal characteristic of which is that this larger societal sphere has constitutive effects on the identity and interests of individual units which form it. The pertinent social structure for questions of statehood as a corporate identity is what was traditionally called the ‘family’ or ‘society of nations’ (Wheaton 1866: 33; Oppenheim 1905: 10–12) and more recently the international society or community of states. One can speak of such society because states ‘have established by dialogue and consent common rules and institutions for the conduct of their relations, and recognize their common interest in maintaining these arrangements’ (Bull and Watson 1984: 1). The record of international practice suggests that, from a particular historical moment on, the social ontological view provides a better account of statehood as a corporate identity. The post-medieval era began with the emergence of multiple self-constituted and self-governing territorial entities claiming and maintaining sovereign rule independent of external authorities. In the seventeenth and eighteenth centuries, these de facto entities came to acknowledge each other’s status as sovereign, independent ‘states’ and to conduct their relations on a basis of shared law. That law was predominantly natural law, and it regulated mutual relations not only within Europe but also between European states and numerous nonEuropean de facto independently governed territorial communities, which were, given these attributes, deemed natural ‘states’ entitled to equal rights and duties (Alexandrowicz 1969). With the decline of natural law and the ascent of positive law in the late eighteenth century, non-European non-Christian territorial political communities failing to meet a new positive ‘standard of civilisation’ came to be excluded from full state rights and privileges by unequal treatment or colonial incorporation (Gong 1984). At roughly the same time, existing European-based states began to face new claims of statehood from within and therefore needed to determine whether the claimants qualified as ‘states’ for the purposes of IR and law. The responses to this practical imperative evolved into the activity of ‘recognition’. Only if a new territorial entity had generally been ‘recognised’ as a ‘state’ was it regarded and treated as such in international diplomacy and law. Thus, the society of states came to ontologically precede any new state; the collectivity of states morphed from ‘an aggregate of separate communities’ into

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‘itself a community: a community of communities tied together by its constitutive practices, including those defining the attributes of statehood’ (Nardin 1992: 26). In contrast to earlier ‘separate communities’, such as Austria, France, Spain, Denmark and Sweden which predated the modern era and were original members of international society, later-founded collectivities such as the United States of America, Mexico, Brazil, Belgium and Liberia became constituted as new ‘states’ internationally only after seeking and receiving foreign recognition. Indeed, contrary to the declaratory theory, no new claimant of statehood has been treated internationally as a ‘state’ automatically upon its becoming a collectivity that would fit some pre-existing notion of what a ‘state’ is, even if not all acts of recognition would necessarily be overt. The  indispensability of recognition for an entity’s status of a state internationally and recognition’s constitutive effects were articulated by numerous executive decision-makers throughout the nineteenth and twentieth centuries. For  instance, when confronting disruptions to the British trade with Spanish America in the aftermath of the ejection of Spanish authority from the newly independent republics, which was denied by Spain, British Foreign Secretary George Canning wrote to the cabinet: ‘What recourse do we have but to take away all pretext for the enforcement of these absurd and obsolete pretensions against us, by conferring on the colonies, so far as our recognition can do it, an independent, instead of a colonial character, thus cutting short all disputes as to Spain’s colonial jurisdiction?’ See Canning’s Memorandum for the Cabinet, November 15, 1822, in Webster (1925: 393–398). In 1991, Germany argued for an early recognition of Croatia because doing so would transform the Yugoslav army’s lawful domestic presence in that republic into an unlawful intervention against a foreign country. International law allows third-party counterintervention to repel the unsolicited presence of foreign troops, including by all forms of military assistance. None of this is to deny that unrecognised new entities have existed for extended periods of time, or that they have time and again had various ongoing interactions with outsiders, or that they have on occasion been accorded some international legal competence and standing before national courts. But external forbearance, limited contacts and circumscribed legal capacity do not, as such, indicate the operation of the rights and obligations associated with statehood. In fact, there is no empirical evidence that existing states have ever considered unrecognised claimants of statehood to occupy the same international legal and political plane as themselves. To the contrary, despite impassioned appeals to the declaratory theory and the Montevideo definition of statehood, these entities have found their internationally illegitimate existence very precarious, even though its negative consequences vary in intensity and scope. The adverse effects facing unrecognised entities range from the daily humiliation of seeing their constitutional name placed in quotation marks or qualified by adjectives such as ‘self-proclaimed’ or ‘self-styled’ and the inability to carry out regular diplomatic and economic relations, join intergovernmental institutions and sign

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most international treaties and agreements, to active diplomatic isolation and economic sanctions, to direct armed attacks. Contrary to the contention that unrecognised states have at the very least the right to political independence and territorial integrity (Talmon 2005: 149), their lack of international legitimacy leaves them legally exposed to forcible subordination or displacement by the actually recognised parent state. Three recent cases of unrecognised entities whose asserted independent statehood was vividly ended in this fashion are the ‘Republic of Serbian Krajina’ (1991–1995), the ‘Bosnian Serb Republic’ (1992–1995), and ‘Tamil Eelam’ (1983–2009). Another area of confusion has traditionally been the basis of recognition. Given the often highly politicised atmosphere surrounding recognition, most legal theorists have concluded that the procedure is essentially a matter of policy, not any criteria or norms (Lauterpacht 1947: 1; Rich 1993). For declaratists, there are legal criteria of statehood but not of recognition, with the exception of the prohibition to act prematurely, prior to an entity’s fulfilment of the requirements of statehood. For Hegelian constitutivists, recognition too does not rest on shared criteria. Among the evidence used by both theories are cases where newcomers are recognised by some but not other existing states. For Hegelian constitutivists, this is a reason to close the legal debate: recognition decisions, while constitutive of legal rights and obligations, are determined by differing political interests of states. For declaratists, this is a reason to deny that discretionary acts of recognition can have a status-creating legal effect. The declaratory stance rests less on empirical evidence and more on the a priori moral belief that to grant or deny entities equal state rights in international law irrespective of whether they fulfil the criteria of statehood is unacceptable (Chen 1951: 4; Talmon 2005: 102; Crawford 2006: 27). However, both lines of argument fail to consider another possible explanation of why some new states may be recognised by some but not  others: that recognition is subject to norms, but in the absence of central government, there is no authority to compel states to interpret them uniformly, thus allowing haphazardness in a new state’s constitution as an international legal person. Whatever the theoretical controversy, the preponderance of evidence shows that recognition has not been a matter of arbitrary political will. Recognising states have generally sought to justify their decisions as reflecting, or not contravening, the criteria of legitimate statehood (Fabry 2010). Although outside of nineteenth-century Britain and the United States, governments have only rarely admitted a duty to recognise a collectivity that met these criteria – the general existence of which Lauterpacht (1947) asserts on the basis of this limited practice and his prescriptive preferences – one would be, at the same time, hard-pressed to find examples where new claimants manifestly fulfiled the criteria prevailing at the time and yet remained generally unrecognised, or where they patently failed to satisfy them and yet received general recognition. If states have not  treated recognition as a matter of unfettered political discretion, how does one explain its frequent political dimension? The answer

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is in the same way one explains the presence of politics in other discretionary acts of foreign policy made by the executive branch. An act of recognition is no different in its structure from, say, an act of employing military force or an act of imposing economic sanctions or an act of expelling a foreign diplomat. Each is a single decision with both normative and non-normative aspects. Each is constrained by legal or other norms that, once interpreted, demarcate appropriate conditions under which it can be undertaken, and moulded by non-legal factors that decide its actual execution once those conditions have been deemed as met. There can be no doubt that recognition decisions have been commonly influenced by national interests, shared interstate interests or lobbying from domestic interest groups. They have repeatedly been timed or employed strategically  – for instance, as part of larger external efforts  to achieve conflict resolution  – and conditioned politically by demanding the fulfilment of vital international standards or objectives, such as ending the slave trade, institutionalising minority rights and undertaking nuclear disarmament. However, none of this negates the fact that existing states have generally understood recognition of a new state to be an activity regulated by binding criteria that are independent from, and logically precede, these factors, strategies and conditions. In fact, disagreements among governments contemplating or extending recognition have usually concerned the interpretation and application of those criteria in particular circumstances, as claimed by the theorists of norm evolution discussed earlier. One factor that sustains the recurrent politicisation of recognition of new states is its decentralisation and diffusion. As with a whole array of other normgoverned practices in a world without international government, it is ultimately up to each state’s executive to decide whether the conditions postulated by the criteria have been satisfied and to take into account relevant non-legal considerations. There  have been numerous instances of joint and coordinated recognition or non-recognition, including by decisions of international organisations such as the League of Nations and the United Nations binding on its members. Admission to both organisations has certainly served as evidence of widespread recognition of particular entities as states. However, there is no set procedure for collective recognition as such – the prerogative continues to rest with individual states. Still, the potential for a myriad of disparate decisions made possible by the location of recognition authority at the state level should not  be exaggerated. While such messy outcomes do occur  – however ‘absurd’ (Chen 1951: 41) or ‘deficient’ (Vidmar 2012: 316) it may appear for the declaratory doctrine, Kosovo, South Ossetia and Abkhazia are in fact considered to be states by some foreign governments but not others – they are uncommon and of relatively limited duration. This is because state recognition has been a practice led and shaped by major powers, especially the great powers. Claims of statehood have from the very beginning had a propensity to enmesh themselves with questions of wider international order, and questions of international order in turn have been a

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special preserve of the great powers (Bull 2012: ch. 9). Recognition by great and major regional powers has normally preceded, and carried far more weight than, recognition by other states. Indeed, the latter would usually look to the former for direction; where they did not, their decisions alone had, on the whole, little impact on the international status of an entity. In general, where the decisions of the great powers and major regional powers would make up a ‘critical mass’ – that is, no significant differences over acknowledgment of a particular state or group of states would arise among them – the smaller countries would follow with their recognition in a ‘snowball effect’ (Fawn and Mayall 1996: 206) or a ‘cascade’ (Coggins 2011: 449). On the other hand, the bigger the disagreements among major powers over the interpretation and application of recognition criteria, the greater the precariousness of recognition practice. The greatest volatility arose during general great power hostilities, especially the Napoleonic Wars and World Wars I and II, paralleling the volatility of the entire international order. Most IL scholarship of recognition implicitly acknowledges the central role of major powers by confining its attention to their practice. What is lacking is any theoretical explanation of that selective focus.

The criteria of recognition If one can meaningfully talk about the criteria or norms of recognition, and if these mirror how legitimate statehood is conceived of internationally at any point in time, what have they been and what ideas have they reflected? In  a monograph examining them in historical detail (Fabry 2010), I argued that since the end of the French Revolutionary Wars, the criteria have been, one way or another, linked to the evolving idea of self-determination of people. Recognition emerged as a full-fledged practice in response to its early nineteenth-century articulation and altered with the significant shift in its conception as selfdetermination became entrenched in positive international law in the course of post-1945 decolonisation. Prior to the nineteenth century, state recognition arose only infrequently in international relations. While the mid-seventeenth century saw the acknowledgement of Swiss, Dutch, and Portuguese independence, the United States of America was the sole new generally recognised state in the eighteenth century. Unable to rely on an established practice or recent precedents for guidance, the overwhelming majority of existing states, most of which were hereditary absolutist monarchies, applied to the unilateral secession of the thirteen colonies the positivist criterion of dynastic rights. According to this criterion, the dominion of a legitimate monarchy was inalienable. The only valid method of change of title to sovereignty or territory, and hence the only way a new state could be recognised, was through the consent of the affected monarch. With the sole exception of France, which disputed the applicability of dynastic rights to the creation of new states and instead in 1778 recognised the United States on what it claimed was the proper naturalist basis of de facto or effective statehood

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going back to the sixteenth century, the existing states refused to acknowledge the US as an independent state until the British crown indicated it would do so in peace talks with the US negotiators in 1782 (Fabry 2010: 26–36). Dynastic legitimism as a recognition standard received a fatal blow in the Western Hemisphere. As Spanish American territories followed in the footsteps of the thirteen colonies and unilaterally seceded from the Spanish crown, the major powers espousing it insisted on non-recognition and some threatened military intervention to help restore Spanish rule. These powers, collectively assembled in the Holy Alliance, were, however, strongly opposed by Britain and the United States, the former having undergone a series of monarchy-weakening, liberal constitutional reforms since the early 1790s and the latter having established itself as a regional power. As professed believers in the respective legacies of the Glorious and American Revolutions, early nineteenth-century British and American statespersons argued that each people have a natural right to determine their political destiny, including a right to renounce the sovereignty under which they live, and contended that, unless directly harmed, third parties have an obligation not  to interfere in this process. They construed this right – ‘self-determination’ had not yet entered the vocabulary – negatively as ‘the right of a people “to become free by their own efforts” if they can, and non-intervention [was] the principle guaranteeing that their success will not be impeded or their failure prevented by the intrusion of an alien power’ (Walzer 2006: 88). Along with thinkers such as Immanuel Kant (1991: 96) and J.S. Mill (1962: 410–11), they argued that only the self in question could achieve it. Nonetheless, the requirement that third parties abstain from intervening in the self-determination process also demanded that they respect the self-determination outcome. This  is how Secretary of State John Quincy Adams (Manning 1925: 156–57) justified US acknowledgment of the first wave of new Spanish American states, without Spain’s prior consent, to the outraged parent government in 1822: In every question relating to the independence of a nation, two principles are involved; one of right, and the other of fact; the former exclusively depending upon the determination of the nation itself, and the latter resulting from the successful execution of that determination…The United States… yielded to an obligation of duty of the highest order by recognizing as independent states nations which, after deliberately asserting their right to that character, have maintained and established it against all the resistance which had been or could be brought to oppose it…This recognition…is the mere acknowledgment of existing facts, with the view to the regular establishment, with the nations newly formed, of those relations, political and commercial, which it is the moral obligation of civilized and Christian nations to entertain reciprocally with one another (italics original). Adams’ statement is revealing on multiple levels. First, it suggests a positivist division into the ‘civilised’ and ‘uncivilised’ worlds. The pre-nineteenth century

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naturalist standard of de facto or effective statehood now presupposed civilisation. Second, Adams anchored de facto statehood in classical liberalism. A  collectivity that had attained statehood in demonstrable fact was entitled to acknowledgment of that statehood in law due to the decisive normative meaning of the achievement: the formation of a stable, effective territorial entity in which the population habitually obeyed the new rulers was taken as an authoritative expression of the will of the people to constitute an independent state as neither the de facto state’s founding nor its continued existence could come to pass without at least tacit approval by its inhabitants. In the absence of international agreement as to what constitutes a valid method of verifying popular will, any foreign assessment thereof was necessarily presumptive: the de facto state was taken to embody, in his predecessor Thomas Jefferson’s words (Wharton 1887: 521), ‘the will of the nation substantially declared’. It was this presumption of popular consent – and its normative trumping of the idea of dynastic consent – that in American and British eyes converted the fact of new independent states into the right to independent statehood and external recognition. And third, the statement delineates the proper role of third states in contests over statehood. In  his explanation of the relationship between the right to self-determination and recognition, Adams made clear that US deference towards the right of the Spanish Americans to change their government did not put an immediate end to US obligations towards Spain. As a third party, the United States had a duty to continue to respect Spain’s sovereignty and territorial integrity in the Americas. But this duty was not  unlimited or infinite: it depended on Spanish America actually being in Spanish hands. The displacement of the parent country by a ‘self-determined’ de facto state extinguished that obligation. Proclaimed to the world by the United States in a Congressional address later known as the Monroe Doctrine (Manning 1925: 217) and by Britain in the much less known Polignac Memorandum (Webster 1938: 114–15), the criteria of de facto or effective statehood were gradually incorporated in recognition policies of other powers in the course of the nineteenth century (Fabry 2010: chs. 2–3). Having also the practical advantage of investing new authorities with international responsibility for externally harmful acts emanating from their territories and territorial waters, the criteria became the undisputed standard of recognition in the Americas and with the decline of the Holy Alliance and the rise of constitutional governments across Europe they displaced the criterion of dynastic rights. The criteria of de facto statehood were invoked not only in response to unilateral secessions such as Texas (1836), the ‘Confederate States of America’ (1861–1865), Panama (1903) and the Baltic republics (1917–1922), but also to other types of internally effected changes to existing statehood, such as the merger of several states into a Kingdom of Italy (1859–1861), the dissolution of Austria-Hungary (1918), the decolonisation of Iraq (1932) and the establishment of Israel in the wake of the British mandate (1948–1949). Moreover, the criteria proved to be workable in a wide range of contexts, including those involving ethnically defined peoples without prior juridical status or boundaries (e.g. the unilateral secession of Greece,

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1821–1832) and foreign military interventions in defence of third-party rights (e.g. the unilateral secession of Belgium, 1830–1839). Finally, the infringement of the criteria served as a basis for non-recognition where new entities were declared not as the outcome of internal self-determination but external proclamation (e.g. the ‘Kingdom of Poland’, 1916) or external force (e.g. the ‘State of Manchukuo’, 1932–1945). It  goes without saying that entities thus constituted lacked actual independence of all external authorities. The practice of non-recognition of entities established as a result of outside force became legally buttressed by Article 10 of the League of Nations Covenant (1919), which obligated the League members to preserve the territorial integrity of all the League members against external aggression, by the Briand–Kellogg Pact (1928), which outlawed war among the signatories, and after World War II by Article 2 (4) of the UN Charter (1945), which essentially reproduced Article 10 of the League Covenant. Most IL scholars have turned the historically, geographically and culturally confined criteria of de facto statehood  – as captured, for instance, in the Montevideo Convention of 1933  – into a timeless and universal definition of statehood in international relations and law. However, as a number of studies (Myers 1961; O’Brien and Goebel 1965; Jackson 1990; Kreijen 2004; Fabry 2010) make clear, with post-1945 decolonisation, international society largely eschewed the criteria of de facto statehood as the basis for recognising indigenously founded new states. This does not mean that the countries recognised since then necessarily lacked effectiveness, only that it was not  a condition of their recognition. Since the late 1950s the determining factor in admission of new members into the society of states has been whether an entity is deemed to have a pre-existing positive right to self-determination in international law. If an entity has been considered to have such a right internationally, a nominal rather than effective government has been sufficient for recognition of statehood. The notions that meeting the criteria of de facto statehood qualifies one for foreign acknowledgment as a state – and that falling short of them excludes one from such acknowledgment – have been effectively abandoned. All of this, just like the shift from dynastic legitimacy to de facto statehood as the basis of recognition in the nineteenth century, is consistent with Sandholtz’s argument that the most sweeping shifts within norms are brought about by large-scale transnational changes. The rise of self-determination as a positive right reflected the global political revolution, which took place in the course of the 1950s, that colonialism and the underlying hierarchical division of ‘civilised’ and ‘uncivilised’ peoples were no longer tolerable in international society. Landmark UN General Assembly Resolution 1514 (1960) defined, for the first time, specific peoples a priori entitled to statehood – the colonial populations of the non-self-governing and trust territories  – while stipulating that the lack of effectiveness should have no bearing on this entitlement. Whereas in Resolution 1514 and other important political and legal documents decolonisation was explicitly premised on the affirmation that all peoples had a right to self-determination, no text

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defined ‘peoples’ bearing the right to independence in the non-colonial context. The  decolonisation and post-colonial recognition practice clarified what the documents left obscure. After 1960, the legitimate candidates for recognition were restricted to non-self-governing and trust territories whose positive right to self-determination and independence was not  yet realised, blocked or violated (e.g. East Timor and Western Sahara); to constituent units of consensually dissolved states (e.g. Senegal and Mali emerging from the Mali Federation); and to entities arising out of consensual mergers (e.g. Yemen) and secessions (e.g. Singapore). This practice has been the result of conscious and deliberate subordination of all non-colonial notions of self-determination to the principle of territorial integrity (In the case of the new states, the principle of territorial integrity was also referred to as the principle of uti possidetis juris). A critical paragraph in Resolution 1514 postulated that ‘any attempt aimed at the partial or total disruption of the national unity and territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations’. That an ex-colony cannot lose territory against its will – not just from outside, by way of external aggression, outlawed since the adoption of the League of Nations Covenant in 1919, but also from inside, by way of internal secession – was later broadened to encompass all UN member states in another important UN General Assembly Resolution 2625 (1970). Whatever the right to self-determination meant outside the colonial context – it became typically interpreted as an ‘internal’ right consisting of the right to political participation and minority rights since the citizens of existing states came to be deemed to have had their ‘external’ right to independence already realised – it excluded non-consensual secession from the territory of a state. The  beliefs underpinning the right to self-determination institutionalised during decolonisation, especially its alignment with territorial integrity of existing sovereign states and its rejection of unilateral secession, were complex. They crystallised gradually in response to actual and potential secessionist cases, and in the course of the late 1960s, their application broadened from the colonial to non-colonial settings. They  came to include worries about the domino effect of endless secessionist bids given the given the sheer number and demographic diversity of ex-colonies; fear of violence and instability inherent in nonconsensual situations involving clashing claims of statehood; perceptions that past territorial partitions (e.g. Ireland, India and Palestine) had failed to resolve conflicts over statehood; and a marked global shift in the wake of World War II experience with Axis rule in favour of an inclusive civic conception of peoplehood which represents all citizens within existing boundaries as opposed to an exclusive ethnic conception which represents only a particular group within them (Fabry 2010: ch. 5). Whatever the actual external beliefs in any specific case, the independence claims other than those falling within the new self-determination paradigm were excluded from foreign recognition. Beginning with the watershed UN

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SC Resolution 169 (1961), which affirmed the Congo’s territorial integrity and rejected ‘completely’ Katanga’s claim that it was a ‘a sovereign independent nation’ – the first time an international body authoritatively rebuffed a secessionist attempt in an essentially domestic situation since the Holy Alliance conferences upholding dynastic legitimacy – each change in the international status of a territory had to be blessed by the central government in question. No post-colonial substate entity has been able to establish an internationally legitimate state without such consent except Bangladesh, which garnered widespread, if not  universal, recognition thanks to the great power acquiescence to the disabling of Pakistani authority in East Pakistan by India’s military intervention in 1971. The  global taboo against unilateral secession persisted irrespective of the reason given for, or the demonstrated ability to carry out, particular secessions. Some peoples managed to create de facto entities with effective control over the population and territory they claimed. Under the old criteria, the ‘Republic of Eritrea,’ the ‘Republic of South Sudan’ (Eritrea and South Sudan did ultimately garner recognition, but this occurred only after their parent states’ eventual acceptance of an independence referendum), the ‘Republic of Bougainville’ or the ‘Republic of Somaliland’ could have at a certain point of their existence qualified for foreign recognition, but under the new one, they were condemned to languish in an international legal and political limbo. Indeed, the post-colonial era made the term ‘de facto state’ a synonym for ‘unrecognised state’. In the post-Cold War period, international society solidified the recognition criteria settled during decolonisation, extending them into new geographical areas. The  breakup of the Soviet Union in 1991 and Czechoslovakia in 1992 might have commenced as separatist bids by some of their constituent units, but foreign recognition of the successor states came only once the respective central governments had agreed to the dissolution of the unions. Western countries waited for prior agreement of the central government even in the case of the Baltic republics, despite the fact that most considered them to be under illegal occupation by an external power rather than an integral part of the USSR (Fabry 2010: 182–4). Unilateral separatist drives from the newly independent states, whether it was the ‘Nagorno-Karabakh Republic’ (Azerbaijan), the ‘Republic of Abkhazia’, the ‘Republic of South Ossetia’ (both Georgia), the ‘Transdniestrian Moldavian Republic’ (Moldova), or the ‘Chechen Republic of Ichkeria’ (Russia) met with foreign non-recognition in the 1990s. The  foreign response to the claims arising out of the complex and tragic breakup of the Socialist Federal Republic of Yugoslavia (SFRY) was consistent with this ‘neo-decolonisation territorial approach’ (Hannum 1993: 38). During the initial phase of the Yugoslav collapse, which also started as a series of secessionist undertakings by its constituent republics, foreign authorities endorsed the territorial integrity of the SFRY. That position changed only after a majority of Yugoslav republics had ceased to be represented in the highest federal institution, the presidency, under highly contentious circumstances in early

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October 1991. The withdrawal of the majority of the population and territory from a federal state was a historically unprecedented occurrence, but one to which third states as well as relevant international organisations found a speedy solution that only Serbia and Montenegro opposed: they came to regard what was occurring in the SFRY as a case of dissolution legally equivalent to the consensual dissolution of the USSR or Czechoslovakia (Fabry 2010: 192–3, 200). Only after this judgment did the individual republics become eligible for recognition. As during post-1945 decolonisation, the successor republics to the SFRY garnered recognition irrespective of whether they met the criteria of de facto statehood. They  all became safeguarded, as a matter of international right, against external territorial designs as well as against unilateral secession. This was made evident in the consistent non-recognition policies towards those who challenged the territorial integrity of Croatia, Bosnia and Herzegovina and later the Federal Republic of Yugoslavia. The  1991/92 unilateral independence claims of the ‘Republic of Serbian Krajina’, the ‘Croat Community of Herzeg-Bosna’, the ‘Bosnian Serb Republic’ and the ‘Republic of Kosova’ were rebuffed internationally. As in the case of ex-colonial and ex-Soviet entities falling outside the ambit of the post-colonial right to self-determination, the formation of enduring entities actually independent from their parent state within the territory of the former SFRY added to the global number of unrecognised communities. In the wake of the North Atlantic Treaty Organization humanitarian interventions in Bosnia and Herzegovina in 1994–1995 and the FRY in 1999, the principal external actors went so far as to opt for interim international administration within their territories rather than to accede to the separation of their respective secessionist entities. Following recognition of Kosovo’s second unilateral declaration of independence in 2008 by a substantial number of countries, it may appear that the territorial integrity of existing states is no longer effectively protected against disruptions from inside. This would be a premature conclusion since most recognising countries justified their decision as a one-time ‘exception’ in regards to a ‘unique’ situation, more than 40% of the UN members have yet to recognise Kosovo, almost all states rejected or did not  follow Russia’s invoking of recognition of Kosovo as a valid precedent for recognition of South Ossetia and Abkhazia in 2008 and Crimea in 2014 (Russia recognised the unilaterally declared independence of the ‘Republic of Crimea’ on 17 March  2014, a day before annexing it on request of its putative authorities), and there was nearunanimous opposition to the prospect of unilateral independence of Catalonia and Iraqi Kurdistan in 2017. Be that as it may, Kosovo, South Ossetia, Abkhazia and Crimea as well as the considerable support for Palestine’s assertion of statehood clearly demonstrate is that for the governments that acknowledged one or more of them, statehood is not what most IL scholars say it is: none of the entities had either effective control over their territory and population or actual independence of external authorities, or both.

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The explanatory and critical functions of the theory of state recognition A  theoretical account of state recognition must explain its purpose and criteria, as they are exhibited in actual executive actions. However, the worth of any such account is determined not only by its explanatory force but also by its ability to provide a critical window on various substantive and procedural aspects of those actions. Two examples of how legal theory’s explanatory shortcomings have hobbled its critical potential will be mentioned here. The first concerns the negative impact of legal theory on the legal dimension of recognition practice. One outcome has been confusion: the dominance of declaratory theory among lawyers has led to a disconnect between, on the one hand, the positions of domestic legal advisers and international legal bodies and, on the other hand, executive decisions. The doctrinal mantras about the Montevideo criteria and statehood as a fact, continually and reflexively propounded by legal officials (See Talmon [2005: 106–7] for examples), have masked the actual demise of those criteria as the determinants of recognition of new states over the past half century. The  opinion of the Badinter Commission in 1991 that the effects of recognition are ‘purely declaratory’ (Opinion No. 1 of the Arbitration Commission of the Peace Conference on Yugoslavia, 29 November 1991, in Trifunovska 1994: 417) was belied by the very Yugoslav cases the commission sought to adjudicate, most conspicuously by that of Bosnia and Herzegovina. Another outcome, however, has been more pernicious. The effective abandonment of the Montevideo criteria by executive decision-makers combined with the declaratory view that recognition is largely political has made it more difficult for lawyers to identify a firm basis on which to question seemingly problematic recognition initiatives. Indeed, they can defend such decisions more easily. In the proceedings concerning Kosovo’s unilateral declaration of independence at the International Court of Justice in 2009 multiple legal delegations, including those of major powers (See Written Comments of the United States of America, 17 July  2009, p.  1; Written Comments of the United Kingdom, 17 July  2009, p.  2; Written Comments of Germany, 14 July 2009, p. 9; and France’s position in Oral Statement, CR 2009/31, 9 December  2009,  pp.  3, 6, 9), took the position that Kosovo was factually an independent state, even though it was an internationally administered territory and the Kosovo government’s authority, such as it was, did not  extend to the ethnically Serb northeast. If Kosovo could be considered an independent state at the time of its US-led recognition, on what objective ground can one incontrovertibly refute Russia’s claim that Abkhazia, South Ossetia and Crimea were independent states at the time of their recognition by Russia, irrespective of foreign military presence on their territories? And on what impartial basis can some of the same governments championing Kosovo’s statehood object to the statehood asserted by Palestine, which, despite its putative government’s control of no more than a fraction of the claimed territory,

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was either directly or indirectly recognised by more than two-thirds of the UN member states? (Apart from many individual recognitions, 138 countries voted in 2012 in support of UN GA  resolution A/RES/67/19 to accord the ‘State of Palestine’ the status of a ‘non-member observer State’ [italics added] in the United Nations). It is hard to escape the impression that the law of statehood and recognition, as articulated by most IL scholars and officials, has become less a constraint on power and political interests than their servant. Second, because recognition practice continues to give rise to contestation and conflicts, it inevitably raises a number of normative questions. The arguably most important is, who should qualify as a state? Kosovo, South Ossetia, Abkhazia, Catalonia, Iraqi Kurdistan and a host of other cases make it evident that the evolution of self-determination as a positive right has not led to a disappearance of claims of statehood that stand outside of its confines. Substate groups that feel dissatisfied within the existing states they are part of continue to make demands for independence – just as they had done since the late eighteenth century  – in disregard of the fact that they may not  have any positive international right to it. With rare exceptions such as the Slovaks and the Scots, these groups cannot agree with their parent governments  – just as it had already become typical by the early 1820s – on who qualifies as a people entitled to independence and by what procedure can that entitlement be exercised. The widespread belief in democracy and democratic procedures such as referendums in recent decades has not really resolved the matter. Referendums settle contests over statehood only when all the relevant parties agree on all aspects of the exercise, including the referendum question and the makeup of the electorate. Such agreements have been quite scarce. The external insistence on the territorial integrity of existing states even when they manifestly lost or never actually possessed the loyalty of, and therefore effective control over, a  part of their claimed citizenry and territory, has made it more difficult to find permanent and self-sustaining resolutions to the contests over statehood. It has either left these states in a perpetual condition of active or frozen conflict or required long-lasting external intervention to keep them united. Both scenarios have generated a myriad of moral and practical challenges, not only at the local and regional but also global level. A recent outside attempt to resolve the contest over Kosovo statehood by a unilateral proclamation of its ‘uniqueness’ has proved no exception: it has given rise to successive trenchant and hard-toresolve disputes among major powers. Yet the ultimately static theoretical image of recognition and statehood has prevented most IL scholars from reflecting on who should get recognised, despite their long-standing prescriptive concerns. The rare exceptions have been authors who employ a multidisciplinary approach and investigate the recognition criteria disclosed in executive practice over time (Lauterpacht 1947; Kreijen 2004; Roth 2010, 2011b). It is doubtful that one can expect substantial critical deliberations that the continual pleas for recognition worldwide would seem to demand without wrestling with the normative basis of past and present recognition practice.

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Conclusion This  article argued that, on the whole, ILs do not  provide adequate theoretical accounts of state recognition and, by extension, of statehood. The chief exceptions have been the authors who acknowledge both recognition’s constitutive effects and its general norm-guided character. Little theoretical progress can be expected unless the scholarly community, both IL and IR, accepts that statehood in IR, and law is what existing states make it to be and that it is through the claimants’ inclusion in, and exclusion from, membership in international society by way of recognition and non-recognition by existing states that the reigning conception of statehood is revealed. This acceptance is also a precondition for critical reflection on the legal aspects of recognition as well as the larger question of who gets recognised, a much-needed task given that disputes over statehood continue to generate some of the most serious and intractable conflicts around the globe.

Acknowledgements I am grateful to Jean d’Aspremont, William Bain, Ryan Griffiths, Zoran Oklopcic and Brad Roth for their comments on previous drafts of this chapter.

References Agné, Hans et  al. (2013), ‘Symposium “The  International Politics of Recognition”’, International Theory, 5: 94–176. Alexandrowicz, Charles (1969), ‘New and Original States: The  Issue of Reversion to Sovereignty’, International Affairs, 45: 465–480. Badescu, Cristina G. and Thomas G. Weiss (2010), ‘Misrepresenting R2P and Advancing Norms: An Alternative Spiral?’, International Studies Perspectives, 11(4): 354–374. Brownlie, Ian (1983), ‘Recognition in Theory and Practice’, in Ronald Macdonald and Douglas Johnston (eds.), The Structure and Process of International Law: Essays in Legal Philosophy, Doctrine and Theory, Dordrecht: Martinus Nijhoff. Bull, Hedley (2000), ‘The State’s Positive Role in World Affairs’, in Kai Alderson and Andrew Hurrell (eds.), Hedley Bull on International Society, London: Macmillan Press. Bull, Hedley (2012), The  Anarchical Society: A  Study of Order in World Politics, 4th ed., New York: Columbia University Press. Bull, Hedley and Adam Watson (eds.) (1984), The  Expansion of International Society, Oxford: Clarendon Press. Caplan, Richard (2005), Europe and the Recognition of New States in Yugoslavia. Cambridge: Cambridge University Press. Chen, Ti-Chiang (1951), The  International Law of Recognition, with Special Reference to Practice in Great Britain and the United States, London: Steven and Sons. Coggins, Bridget (2011), ‘Friends in High Places: International Politics and the Emergence of States from Secessionism,’ International Organization, 65: 433–467. Coggins, Bridget (2014), Power Politics and State Formation in the Twentieth Century: The Dynamics of Recognition, New York: Cambridge University Press. Crawford, James (2006), Creation of States in International Law, 2nd ed., Oxford: Oxford University Press.

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Nardin, Terry (1992), ‘International Ethics and International Law’, Review of International Studies, 18: 19–30. Navari, Cornelia (2011), ‘The  Concept of Practice in the English School’, European Journal of International Relations, 17: 611–630. O’Brien, William and Ulf Goebel (1965), ‘United States Recognition Policy toward the New Nations’, in William O’Brien (ed.), The  New Nations in International Law and Diplomacy, New York: Frederick A. Prager. Onuf, Nicholas (2013), ‘Recognition and the Constitution of Epochal Change’, International Relations, 27: 121–140. Oppenheim, Lassa (1905), International Law, Vol. 1, New York: Longmans. Raič, David (2002), Statehood and the Law of Self-Determination, The Hague: Kluwer Law International. Rich, Roland (1993), ‘Recognition of States: The Collapse of Yugoslavia and the Soviet Union’, European Journal of International Law, 4: 36–65. Roth, Brad (2010), ‘Secessions, Coups and the International Rule of Law’, Melbourne Journal of International Law, 11: 1–48. Roth, Brad (2011a), ‘New Developments in Public International Law: Statehood, SelfDetermination and Secession’, National Taiwan University Law Review, 6: 642–658. Roth, Brad (2011b), Sovereign Equality and Moral Disagreement, Oxford: Oxford University Press. Sandholtz, Wayne (2009), ‘Explaining International Norm Change’, in Wayne Sandholtz and Kendall Stiles (eds.), International Norms and Cycles of Change, Oxford: Oxford University Press. Stiles, Kendall and Wayne Sandholtz (2009), ‘Cycles of International Norm Change’, in Wayne Sandholtz and Kendall Stiles (eds.), International Norms and Cycles of Change, Oxford: Oxford University Press. Strang, David (1991), ‘Anomaly and Commonplace in European Political Expansion: Realist and Institutional Accounts’, International Organization, 45: 143–162. Talmon, Stefan (2005), ‘The  Constitutive versus the Declaratory Doctrine of Recognition: Tertium Non  Datur?’ in James Crawford and A. V. Lowe (eds.), The British Year Book of International Law 2004, Oxford: Clarendon Press. Taylor, Charles (1993), ‘To Follow a Rule…’, in Craig Calhoun, Edward LiPuma and Moishe Postone (eds.), Bourdieu: Critical Perspectives, Chicago: University of Chicago Press. Trifunovska, Snezana (ed.) (1994), Yugoslavia through Documents: From Its Creation to Its Dissolution, Dordrecht: Martinus Nijhoff. Tsagourias, Nicholas (2006), ‘International Community, Recognition of States, and Political Cloning’, in Colin Warbrick and Stephen Tierney (eds.), Towards an ‘International Legal Community’?, London: British Institute of International and Comparative Law. Van Kersbergen, Kees and Bertjan Verbeek (2007), ‘The Politics of International Norms: Subsidiarity and the Imperfect Competence Regime of the European Union’, European Journal of International Relations, 13: 217–238. Venzke, Ingo (2012), How Interpretation Makes International Law: On Semantic Change and Normative Twists, Oxford: Oxford University Press. Vidmar, Jure (2012), ‘Explaining the Legal Effects of Recognition’, International and Comparative Law Quarterly, 61: 361–387. Walzer, Michael (2006), Just and Unjust Wars, 4th ed., New York: Basic Books. Webster, C. K. (ed.) (1938), Britain and the Independence of Latin America, Vol. 2, London, Oxford University Press.

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Part III

Case studies

5 PHANTOM REFERENDUMS IN PHANTOM STATES Meaningless farce or a bridge to reality? Dahlia Scheindlin

Introduction to phantom states Entities that have unilaterally declared independence, possess most criteria of statehood, yet are internationally under- or unrecognised states pose numerous problems for scholars. Scholars even fail to agree on a single term for them. Pegg (1998) and Bahcheli et  al. (2004) call them de facto states; Lynch (2004) uses ‘separatist states’. The term ‘quasi-states’ had been coined by Jackson (1990) for the opposite phenomenon of recognised entities lacking in empirical qualities of sovereignty, while Caspersen (2011) prefers ‘unrecognised states’. The diversity of their situations makes them notoriously hard to classify and theorise. The phantom states under consideration here, according to the definition above, include Turkish Republic of Northern Cyprus (TRNC), Somaliland, Kosovo, Palestine, Nagorno-Karabakh (NK), Transdniestria, Abkhazia and South Ossetia. As the reader will notice, I leave out Western Sahara. Admittedly, this is included by Geldenhuys (2009). My reason for excluding this case is that the government in exile has even less in control of its territory than Palestine – itself a borderline case, which, as will be described toward the end of this paper, does not meet sufficient criteria of statehood to be included. Their aetiologies differ. These entities may emerge from long-simmering nationalist movements, contests for resources, or open conflict; their political goals evolve and shift in chaotic environments often involving the collapse of a sovereign state. The constitutive elements of statehood according to the 1933 Montevideo Conference – a defined people, government and territory, may be uncertain and unstable. Without recognition, they are unable to conduct foreign relations freely. Even the putative goal of sovereignty may not be permanent or absolute.

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These entities do share a solid wall of opposition to sovereignty, by external actors who possess a powerful combination of military resources and international legitimacy. Yet even the specific reactions of those actors vary, as will be shown. The main common feature defining this group of entities is the enactment of state-like behaviour, although the sovereign state does not exist in official international terms. Each of the entities asserts its sovereignty in various ways, as if living in a parallel reality. Based on this determination to behave like a state, even if they must do so within an alternate political reality – I call them ‘phantom states’. A few more additional important cases are also relevant for a discussion of referendums. Iraqi Kurdistan possesses some of the central qualities of a ‘phantom state’; however, the regional leadership has never formally declared independence. Still, the referendum in September of 2017 strongly favouring independence and a strong measure of de facto control of the territory makes this case relevant for an examination of referendums. There  are convincing reasons why Kurdistan overlaps with the phantom category in general (Voller 2015). Catalonia is a second example of an entity that was not considered in the category of phantom states, since until 2017 it lacked either a declaration of independence or the main qualities of statehood other than the autonomy as agreed in the Spanish constitution. While there were tensions and challenges to this status over the years, they all took place within the framework of Spain’s governing institutions – hence, there was no dispute over sovereignty or recognition from either side. Then in September 2017, Catalonia held a referendum on secession which passed, leading to a declaration of independence. This might have put Catalonia into the category of phantom states. However, the Spanish government promptly disbanded the local government, and implemented direct rule from Madrid. The result is that Catalonia temporarily had less de facto autonomy than prior to 2017; after electing a new government, the region reverted to the same status as prior to the referendum. The focus of this study is on the elaborate political processes conducted by entities that have rejected the constitutional order and sovereignty of their parent state, both in declaration and through de facto territorial control, in practice too. Their quest is to maintain or improve the status they have attained in practice, through international – and domestic – recognition. To do this, nearly all observers of the phenomenon have pointed out that phantom entities adopt symbols such as flags and anthems signifying their independence. Nearly every phantom state has conducted at least one referendum. What does a referendum process mean in an unrecognised entity? Once again, there is a need to clarify why the examination does not cover the two 2017 cases in the same depth. They represent the opposite situation, in which a referendum process might have led to the emergence of a phantom state, while the focus here is on the role referendums play in the political and national journey of existing phantom states as defined at the start. However, they will be addressed where relevant for contrast or comparison.

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The role of referendums Scholars generally view referendums as one of various political processes that phantom states undertake to achieve recognition by proving their political justification and viability (Qvortrup 2014). To strengthen their case externally, they often make self-determination claims, or try to prove that they fulfil the 1933 Montevideo criteria for statehood (Lynch 2004). There  are strategies for generating internal legitimacy, too, such as ‘hard’ and ‘soft’ state building. The  former focuses on strengthening state institutions, while the latter refers to the consolidation of national identity through symbols (Kolstø 2006); democracy-building, in Caspersen’s research, is seen to address both internal and external audiences Caspersen 2011). Which of these roles are referendums aimed to fulfil? How effective can they be, as an unrecognised process in an unrecognised entity? What is the measure of effectiveness? In  most cases, the referendum cannot possibly fulfil the goals expressed by their questions and turn them into reality – such as independence or constitutions that assert independence. Does this make them an empty exercise – merely symbolic? Kolstø and Kaufman both imply that symbolism has a particularly important role to play when the institutions and legitimacy of a state are weak (Kaufman 2001). Thus, the central question guiding this study is whether a referendum in a phantom entity has any meaning in the quest for recognition – empirically or symbolically – or whether it is merely a farce, good for headlines but little else.

Referendum for changes of sovereignty A brief review of referendums in the context of changes of sovereignty highlights why the referendum in phantom states requires a different approach. Sussman identifies a category of referendums involving a change of sovereign borders (Sussman 2001), as determined by the people of a sovereign state. After the Second World War, he argues, sovereignty referendums became a tool of ‘stateseeking nationalism’ (Sussman 2001: 6). While referendums in a phantom state are certainly an expression of state-seeking nationalism, they do not represent the sovereign state whose borders would change. Sussman dismisses such a case, writing: ‘Any vote without the consent of the central state is a ‘unilateral’ vote, at best a statement of protest’ (Sussman 2001). The  ‘peace referendum’, as described by Johansson, can result in secession or creation of a new entity is a similar concept. But that poll is built into peace agreements as part of a conflict resolution process  – again, with the express agreement of a sovereign state ( Johansson 2009). This type of accord produced the South Sudan referendum and subsequent secession in August 2011. Perhaps the phantom-state referendums are basically similar to the selfdetermination referendums that emerged following World War II, for former

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colonial societies and ethnic groups living under foreign domination. But in those cases, referendums were only a partial expression of popular will, often not binding, and certainly not mandatory. This implies that they play only a limited role – returning us to the question of why such a tool is so widespread among phantoms. The  phantom referendum therefore seems unlikely to advance externally recognised sovereignty. Perhaps they are more about strengthening internal sovereignty – defining ‘the relationship between the government of a state and the people residing in that state’ (Suksi 1993). But when a government ‘cannot deliver the basic services’, in Kolstø’s language (Kolstø 2006: 724), what do the authorities hope a referendum will accomplish in this situation? Is there a reason to think that holding a referendum shores up domestic legitimacy despite failure to provide the same level of services, state protections and international recognition as a recognised state would offer its citizens? The  approach here mirrors what Harvey and Stansfield (2011) recommend for the theoretical study of phantom states in general. These entities present ‘a counterintuitive challenge to the concepts of statehood and sovereignty’ and should be ‘approached as examples of something else completely’. By association, the political process of a referendum within these entities must also be viewed as ‘something else’. This paper explores the meaning of referendums in phantom states beyond the stated goal of its question, which they are unlikely to achieve. I argue that symbolic significance takes a winding path but can have both intentional and non-intended consequences that stand to change the dynamics of the conflict. These votes can thus be an assertion of sovereignty in its ‘linguistic’ form  – a constructivist notion in which, for Closson, drives communal belief in sovereignty. That belief provides a bridge from current and future potential political reality (Closson 2011: 64).

Referendums in phantom states In  the analysis of phantom referendums, roughly five main ideas emerge: (1) initial expression of political intention/goals, (2) symbolic self-determination, (3) democratisation, (4) consolidating political alliances and divisions, and (5) nonreferendum. The last is a negative category; it refers to entities that do not hold a referendum at all, a decision that also reflects on political goals and trajectories of the entity at hand. These meanings may or may not overlap with the stated goal of the referendum, and they may or may not be intentional. It is beyond the scope of this paper to review every referendum ever held in every phantom state – the examples here are selected as those that best highlight the point. The groups are not exclusive, and any one referendum may hold multiple meanings. Initial expression of political goals. In some cases, the referendum may be the first open, coherent statement of political intention to change the borders of the sovereign – what is often termed the parent state, beyond scattered, non-unified

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calls. This intention usually marks a significant departure from the modern history of the sovereign parent state, and a new political trajectory for the conflict. Although some of the entities in question held a measure of autonomy or fell under another country’s sovereignty in the past, usually that era ended decades earlier. Almost none of them had ever openly sought or achieved independence prior to the current conflict. Somaliland is the exception, having been a recognised independent state for a few days following independence. Even in this case, however, 30  years elapsed between the last (brief ) moments of independence, and the renewed claim in 1991 (On Somaliland see Bradbury 2008). The early referendums are not always full independence claims. Sovereignty, it turns out, can be an evolving goal. At various points, TRNC, Palestine, NK, Kosovo, South Ossetia and Abkhazia have all entertained the possibility of merging with a different sovereign state, or various forms of autonomy, federation or confederation with the parent state. The initial referendums may be part of this proto-independence claim; they provide a record of how the phantom entity’s self-defined goals change. Similarly, both Catalonia and Kurdistan at one point accepted the constitutional structure of the parent state. However, both referendums were held outside the legal framework of the state and were rejected by the sovereign. They were also clear indications of support for independence but did not constitute declarations of independence in themselves; symbolically they acknowledge the previous situation and indicate support for breaking the order of the past. If in the future either of these entities shift to become phantom states (as per the current definition), the referendums can be seen as a significant step on that journey. In the early stages of their sovereignty quests, both Nagorno-Karabakh and Transdniestria held referendums to advance their secession, from Azerbaijan and Moldova, respectively. In  both cases, the entities initially sought reunification (or unification) with another state (Armenia and Russia, respectively). In both cases, the referendums became the arena for revealing new and changing political goals within an unstable, transitory political environment. Throughout most of the twentieth century, the Armenian national movement in Nagorno-Karabakh had generally agitated for greater identification with Armenia. With perestroika allowing for freer expression in the late 1980s, Karabakh Armenians both in and outside of Nagorno-Karabakh stepped up activism for reunification of NK with Armenia, accompanied (or leveraged by) rising ethnic tensions in the region De Waal 2003: 16). In 1987, a petition was circulated calling explicitly for reunification with Armenia. When 80,000 people had signed, the Armenian leadership in 1988 called the petition a referendum. The Nagorno-Karabakh Oblast Soviet deemed the results a sufficient basis on which to make its first appeal to the Supreme Soviets of the USSR, Azerbaijan and Armenia, requesting to secede from Azerbaijan and reunite with Armenia. The response was uncertainty from the USSR, and utter rejection by Azerbaijan. Outside observers viewed the referendum with derision (Kaufman 2001: 60). Not only did it fail to achieve any of the goals specified in the petition, but the

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ensuing political response moved both sides towards war: Two days after  the request for secession/reunification, violence broke out, and eight days after the request, major riots in Sumgait now called ‘pogroms’ touched off the first stage of a bloody conflict that would last for six years (Kaufman 2001: 63) Then, after two years, Armenian nationalists ceased to call for reunification with Armenia and began openly advocating independence. Azerbaijan became increasingly determined to deny any such claim, rejecting the very notion of the Karabakhi Armenians as a ‘people’. A struggle for recognition of existence developed, and the Armenian leadership in NK planned a second referendum in late 1991. But in November of that year, the Supreme Soviet of Azerbaijan declared the abolition of the autonomy of the Nagorno-Karabakh Oblast – accompanied by the renaming of the Karabakhi capital to an Azerbaijani name (De Waal 2003: 292). This seems to have become the ultimate denial of claims of Karabakh Armenians, and it was reinforced by physical violence. Still, the second referendum went ahead on 10 December 1991. Azerbaijanis, 17% of Nagorno-Karabakh’s population, did not participate. Voters were asked: ‘Do you agree that the proclaimed Nagorno-Karabakh republic be an independent state acting on its own authority to decide forms of cooperation with other states and communities?’ Despite denying its political existence, Azerbaijan was sufficiently attentive to the referendum to bomb the region on voting day. With 82% turnout, 99% of the participants voted for independence. Bolstered by this public statement, Parliamentary elections were held less than three weeks later (28 December), and the new Parliament declared the independence of Nagorno-Karabakh in early January 1992. The shift of political intention was complete: although Nagorno-Karabakh’s declaration of independence recognised the people’s ‘responsibility to the fate of the motherland’, and established Armenia as the national language – the notion of reunification with Armenia was gone and never again emerged as a serious option. By contrast to Nagorno-Karabakh, Transdniestria, the small strip of Moldova across the Dniester River and bordering Ukraine, had almost nothing resembling a coherent national or ethnic identity. Its population comprised three almost evenly divided ethnic groups  – Russians, Ukrainians and Moldovans. The conflict over this region is grounded in language politics and multi-ethnic clashes, along with powerful economic interests related to the heavy steel industries that were located in Transdniestria during Soviet times. When in the late 1980s, political forces seeking unification of Moldova with a Greater Romania became more vocal, the reaction was that Russification forces ratcheted up the call for separation from Moldova, so as to unify with Russia. As part of its quest to secede from Moldova, and enact a form of de facto statebuilding, Transdniestria has held no fewer than seven forms of referendums. The first two asserted the evolving political goals of the disputed region. Here too, the impending dissolution of the Soviet Union led Russophile elites fearful of growing Romanian nationalism in Moldova, and they developed

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strategies to entrench a Russophile identity. This  included defiance of new Moldovan language laws designed to entrench social and economic stratification; security provocations leading to casualties-cum-martyrs among its camp – and eventually, a vision of political separation from Moldova emerged. Tensions escalated from 1989 through the 1990s, exacerbated by a symbolic struggle over the regional flag (Kaufman 2001: 148). In  1990, several referendums were organised asking the public in Tiraspol and Bendery (the two major cities) about its support for territorial autonomy – 96% voted in support. This was the first public expression of a desire for change in sovereign status, and it was of course rejected by Moldova. Yet based on the momentum that arose from those results, the pro-Soviet leadership declared the establishment of a Transdniestrian Moldovan Soviet Socialist Republic on 2 September 1990 – as Moldova itself seceded from the USSR. In late 1991, a second referendum asked residents to vote again on separation from Moldova, while remaining part of the Soviet Union. Kaufman calls the vote a ‘mirage’, and a ‘chimera’, because its stated goal was contradictory and impossible: without Soviet consent for Transdniestria’s unification, there was no chance for the vote to make any actual change. Kaufman believes this referendum was hardly about soliciting mass opinion, but was mainly intended as an elite bargaining chip (Kaufman 2001: 128). The  integrity of the process mattered little. The  98% support for secession is widely considered fraudulent and inflated, since roughly 40% of the residents were ethnic Moldovans; irregularities, intimidation and media bias were welldocumented (Kaufman 2011: 128). And yet, the secessionist pro-Soviet leader Igor Smirnov used the results as a basis to claim independence, which became part of the justification for violent escalation and war in the name of a non-unified people seeking a never-existing entity (Kaufman 2001: 151). These first two examples show how referendums in chaotic conflict zones can mark various stages in the political evolution of a breakaway region. Although they do not necessarily seek independence, and may be largely ineffective at the moment, they may encourage the development of a political trajectory that can end up with very different goals. The  first referendum in Turkish Cyprus also represents a sharp break with political developments up to that point. But there is a major difference: There, the Turkish Cypriot leadership repeatedly insists that independence is a step on the path toward reunification of the island (See Erol Kaymak’s chapter in this volume). The 1960 constitution, which established Cyprus following decolonisation, attempted to achieve stability and codify relations between the majority and minority people. Like the 1974 Yugoslavian constitution dealing with Kosovo, the 1960 Cyprus constitution gave relatively broad rights to the Turkish Cypriot community. The  system in Cyprus was generally a consociational system, which including a Turkish Cypriot vice president with veto rights, on matters including sovereign issues such as foreign affairs. The constitution had provisions

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that legislation would be adopted through separate parliamentary majorities, and that a proportion of Turkish Cypriots were members of cabinet, and the Parliament. The system also stipulated that the proportion of civil servants outweighed their actual proportion of ethnic Turkish citizens within the population (Loizides 2007). But the implementation failed, or it was unrealistic to begin with (depending on which side one heeds). By 1963, Greek Cypriots had total control over the government and thus began roughly a decade of difficulty for the Turkish residents of the island. In  1974, Greece staged a coup against Cyprus’ leadership, and in response, Turkey invaded the northern part of the island. When the dust had settled, Turkey controlled roughly one-third of the island, which was now mainly populated by Turks. Although negotiations for reunification began under international auspices following the Turkish invasion, the establishment of the ‘federated state’ was understood to have been deliberately timed to suspend negotiations between the two communities regarding new constitutional proposals (See Kaymak in this volume). Barely one year after the division of the island in 1974, following a Greek coup and the Turkish invasion, at a crucial moment of negotiations, then-Vice President of the Republic of Cyprus Rauf Denktas established the Turkish Federated State of Cyprus with no prior public consultation. Many saw it as a provocation designed to suspend the negotiations over new constitutional proposals (See Kaymak in this volume). But as if to drive the intention home, the Turkish Cypriots went ahead and set up a Constituent Assembly, drafted a constitution, and held a referendum on 8 June 1975 – following the putative state declaration (by contrast to the first two examples). The results as published in the Official Gazette were 99.4% in favour of the constitution (See Kaymak in this volume). The referendum symbolised a characteristic common of phantom states – lack of clarity about the actual goals. The diplomatic rhetoric focussed on reunification, but policy on the ground indicated further separation. While the Turkish Cypriot leadership said that the federated state precluded partition or annexation, the referendum was clearly viewed as a vote on the constitution for a selfdeclared state. Indeed, over the coming years, highly symbolic acts effectively strengthened the independence of the Turkish side. Within three years from the first declaration and referendum, the goal of maintaining the de facto separation, and/or Turkish control of the island was openly stated in Turkish Cypriot proposals for settlement. These processes portrayed ‘completely contrasting ideologies of permanence and impermanence’ to Turkish society in the north, and the international community – contributing to the construction of two alternate, diverging realities. The international response registered confusion: The United Nations Security Council (Res. 376) ‘regretted’ the decision to proclaim the federated state, but did not  prevent states from eventually recognising it. The  Turkish Cypriot

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leadership was still included in direct negotiations. Another election in 1976 to replace the Constituent Assembly with a legislative assembly was implicitly acknowledged by some international figures. But what was the ultimate intention? Necatigil maintains that Denktas’ goal was always to achieve equality of the two partners who had ‘co-founded’ Cyprus, which was intended to advance negotiations. The assertion of statehood, in this context, was supposed to compensate for internal repression of Turks inside Cyprus (See Keymak in this volume). In sum, the referendum as a statement of political intentions in a phantom state may reveal – or advance – political goals that have not yet clearly or explicitly articulated. They may signal shifts in the evolving political trajectory towards sovereignty as in Nagorno-Karabakh, and assertion in the face of attempts to deny the people’s existence. The referendum may seek to forge peoplehood out of diverse ethnic populations, as in Transdniestria. And the political intention may be an attempt to assert equal status of both sides in a conflict, not initially intended to drive sovereignty. But in all cases, the referendum articulated an unprecedented political goal which in each case, led ultimately to long-term, enduring sovereignty claims.

Symbolic self-determination and constitutional referendum The referendum is one of the key ways of demonstrating a self-determination claim. In  international norms, the ‘self ’ of ‘self-determination’, was historically predicated either on a unique ethnicity, or political tradition of autonomy in the early twentieth century; following World War II it referred mainly to people  – united or ethnically diverse  – living under former colonial rule ( Jackson 1990). By these grounds, some phantom entities do not  have a particularly strong self-definition claim. This would seem to lower the chances that a referendum on self-determination could have much of an impact. But self-determination was becoming a prominent theme again following decolonisation, during the fall of the Soviet Union and as such was embraced in several cases, even if their claim was weak. The Albanians of Kosovo, for example, had been neither colonised nor did they represent a distinct ethnic group lacking a homeland, given that there is a sovereign state of Albania. Further, Kosovo did not  have a history of autonomy. It  was made part of Serbia following World War II, but then-Yugoslavian leader Tito declared it an Autonomous Region in the 1946 constitution. But because Albanians were a national minority who already had a sovereign state, it was not granted the same status held by the other six republics of Yugoslavia  – so that it would not  be viewed as a ‘nation’ within Yugoslavia and potentially threaten Yugoslavian unity. Instead it became first a region, then a province with some autonomy, but Kosovo lacked the right to secede like the full republics.

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Between 1963 and 1974, Kosovo was granted increasing autonomy and a relaxation of cultural rights, and this period was described this as the ‘zenith of good relations between the Serbs and Albanians. At this time, Kosovo received the greatest amount of autonomy it would ever have in Yugoslavia’ (Pavlakovic and Ramet 2004). Yet nationalist sentiments remained and grew. In 1981, Albanian student riots led to scattered calls for independence, which had little impact. By the late 1980s, the Yugoslavian leader Slobodan Milosevic was becoming increasingly Serbian-nationalist – and increasingly repressive of Kosovo Albanians. After a series of legislative steps, in July 1990, Serbia moved to annul Kosovo’s autonomy and abolish the Kosovo Assembly (Weller 2009: 38). Albanian Kosovars perceived a direct threat to their political, national and ultimately physical existence. In response, the outlawed Kosovo Assembly secretly drafted and adopted a constitution defining Kosovo as a sovereign state, and declared independence on 22 September 1991. From September 26 to 29, 1991, Kosovo’s Albanian community held a purportedly secret referendum on independence, asking voters about the establishment of an independent state and rights to alliance inside a sovereign Yugoslavia. It was, writes Kuci, ‘the greatest step to that date toward self-determination and expression of free will’ (Kuci 2005: 342). Eight-seven percent of the electorate participated, and 99.87% of the Albanian voters supported independence. The  referendum was recognised by Albania, ignored by others, and Serbia completely rejected it. This  has been interpreted as a rejection of the Kosovo Albanians’ right to self-determination (Pavkovic 2000: 106). Yet the referendum gave the leadership the boost of legitimacy that inspired the next step: the formation of a government, parliamentary and presidential elections one year later. This sequence touched off a state-building effort that was so elaborate, it became known as a parallel state. The sweeping commitment of the local and diaspora Albanian population was crucial in this effort. Wars raged under the Milosevic era, and Kosovo remained committed to its independence strategy, using non-violent means under the leadership of Ibrahim Rugova. But the 1995 Dayton accords failed to resolve the Kosovo issue, and other Albanian factions in Kosovo increasingly shifted towards strategies of violence. The  conflict escalated and culminated in Milosevic’s campaign against Kosovo, leading ultimately to NATO intervention and the formation of a UN protectorate. Kosovo declared independence again in 2008 and has received widespread, if far from complete, international recognition. For  many, it is that near-annihilation that now  forms the moral basis for Kosovo’s right to self-determination. While international actors may disagree on the legitimacy of self-determination for Kosovo to this day, the reasons relate more to international political considerations (primarily between Russia and the West), than questions about Kosovo’s own commitment to its independence. But the referendum was a turning point for Kosovo Albanians to claim self-determination, long before victimisation became a basis its achievement.

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Arguably the last people to be granted recognised statehood on the basis of a selfdetermination claim largely grounded in near-destruction was the establishment of Israel. And even in that case, the claim was bolstered by the fact that the Jewish people had no other nation state representing them. The long-standing commitment and desire are now widely recognised despite the still-unresolved formal status, and Kosovo has been contrasted with Russia’s annexation of Crimea, where the population had much less history and less of a clear consensus of support for the move. The two breakaway regions of Georgia, South Ossetia and Abkhazia could be considered stronger cases for self-determination. They  are populated by ethnically distinct people who are different from Georgians, and neither has an existing sovereign ethnic kin-state. Yet in both cases, their initial goal was not independence but unity with Russia; the shift to outright self-determination claims only emerged later. In 2006, South Ossetia held its second referendum, following the original one seeking union with Russia. This time the focus was on self-determination and an affirmation of the elections – a marked shift of goals, as described in the first part. The referendum text did not even ask about support for a state, so much as it requested affirmation of a fact already in existence: ‘Do you agree that South Ossetia should keep its present status of an independent state and that it should be recognized by the international community?’ International observers and the media observed the vote, which resulted in 95% turnout and 99.9% ‘yes’ vote. Like the 1992 referendum, this seems to have continued a healthy tradition of transparent vote inflation, and the vote itself was viewed as a Russian-sponsored and supervised process. It turns out that the ‘international observers’ were invited by Moscow itself and included six Russian Duma deputies as well as members of the pro-Kremlin youth organisation Nashi, who conveniently took charge of the ‘exit poll’. These aspects belied a genuine sense of self-determination as a goal. It was clear from the start that the referendum had no chance of winning international support for independence or even secession. Indeed, American and general opposition was immediate. Abkhazia too self-consciously claimed self-definition in the Constitution adopted by its Supreme Council in 1994: ‘We, the people of Abkhazia, exercising our right to self-determination, aspiring to promote general welfare, internal tranquility [sic], respecting human rights and freedoms, establishing civil peace and harmony, solemnly proclaim and institute the Constitution of the Republic of Abkhazia’. But Abkhazia did not officially proclaim independence at the time (Geldenhuys 2009: 74). Rather, as self-determination became an increasingly prominent theme in the late 1990s, Abkhazia seemed to determine that popular support was needed. In 1999, it held a referendum on the constitution: 87.6% of voters participated, and 97.7% approved the constitution. Just a few days later, the president and People’s Assembly declared independence, and in that same month, uncontested elections for the president were held.

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The international community has not been swayed by the self-determination claims. The United Nations High Commissioner for Refugees in 2003 declared their self-determination claim to be void, because it does not take into account the will of the entire state (of Georgia). A 2009 report by a fact-finding mission of the Council of European Union following the 2008 Georgian war against South Ossetia stated: However, international law does not recognise a right to unilaterally create a new state based on the principle of self-determination outside the colonial context and apartheid. An extraordinary acceptance to secede under extreme conditions such as genocide has so far not found general acceptance (Independent International Fact-Finding Mission 2009). The flimsy processes of the votes undertaken by these entities raises the question of whether they themselves even believe in self-determination, or whether this is just a thinly disguised strategy for eventual Russian annexation. Thus, the actual goal of the referendum is less important than the political meaning that can be discerned from its process. By contrast, the second referendum in the TRNC, established in 1983, seemed to prove its determination to claim self-determination in the face of ongoing uncertainty about its intentions. Again, the upgrading of the federated state to the TRNC was intended to put Turkish Cyprus on an equal footing with Greek Cyprus in the international arena. The  constitution drafted by a new Constituent Assembly in 1985 stated: ‘ … the Turkish Cypriot People has, in exercise of its right of self-determination, proclaimed before the world and history, the establishment of the Turkish Republic of Northern Cyprus’. The referendum was held to ratify the constitution, and with it, the entity itself. The vote passed handily, with 70.15% support and 29.82% opposed. The victory was supposed to symbolise the shift from ‘a marginalized minority to a secured people within a ‘state’ (Loizides 2007: 177). Arguably, the constitution was, at least in part, intended to help seek a separate political identity (as opposed to achieving concessions in negotiations for reunification). On the immediate level, the constitution and referendum angered the international stakeholders, who were investing significantly in negotiations. Cyprus and the United Nations issued a tough rejection: Referring to the so-called referendum and presidential elections, Cyprus called them a mockery of democratic principles which violated UN resolutions on the island … without the ‘votes’ of the Turkish settlers, a majority in favour of the new ‘constitution’ could not have been secured (United Nations 1985: 253).

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Greece viewed the constitution and the referendum as further de facto division of the island. Far from meaningless, fears that the vote would legitimise TRNC may have encouraged more extreme positions to develop within Greek Cyprus. Like Kosovo, self-determination for the Turks in Cyprus is on shaky ground. The Turkish Cypriots are not ethnically stateless, since there is both a sovereign Cypriot state and a sovereign Turkish state. Did the vote help consolidate a sense of peoplehood? In  fact, the referendum may have passed only with the votes of imported Turkish settlers. And in later years, the Turkish motherland influence would wane (See Lacher and Kaymak 2005). By the next referendum in 2004 (recognised by Greek and Turkish Cyprus), Turkish Cyprus would support reunification – effectively choosing a pan-Cypriot identity over the Turkish nationalist-Cypriot one (See Kaymak in this volume). Thus, the self-determination claim is unevenly embraced, and its effectiveness is inconsistent. The  referendums seem likely to be held when the selfdetermination claim is weak. The Palestinians, whose right to self- determination has long been recognised by the UN and again explicitly in General Assembly, have never held a referendum. Yet in at least one case, the wishful notion expressed in a forgotten referendum ultimately set a course towards achieving just that.

Democratic practice as strategy Nina Caspersen shows that unrecognised entities realise that democracy is the  currency of international affairs (Caspersen 2008). They  may therefore embrace at least some aspects of democratisation for the dual purpose of making their case internationally and generating or maintaining legitimacy at home (Caspersen 2008: 344). Referendums and the direct participation of the people they facilitate is viewed as a unique means of exercising democratic norms. But Caspersen observes that in one view, democracy is not truly possible in an illegal, unrecognised entity. The other approach is that unrecognised entities are ‘natural’ democracies. They may have separated for the purpose of creating a freer society than the parent state offered their people, and their quest for international recognition may spur genuine efforts in a democratic direction. But Caspersen is sceptical that referendums in these cases indicate genuine democratic progress (Caspersen 2011: 342). She questions whether the processes themselves – elections or referendums – are democratic, and given the Caucasus cases, the concern is justified. Nagorno-Karabakh’s constitutional referendum in 2006 illustrates this complexity. On one level, the process appeared sound: the constitution had been developed through Parliamentary hearings with representatives of civil society and a range of non-governmental organisations. The Constitutional Committee published the draft 25 days prior to the referendum (10 December) in newspapers,

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which were also distributed in villages and regional centres, and it was ‘widely advertised’ on television. Citizen feedback was solicited and incorporated into the final draft (personal conversation with Vardan Barseghian, Deputy Foreign Minister of Nagorno-Karabakh 16 September 2009). Turnout was recorded at 87%, and 99% affirmed the constitution. The organisation of the referendum was considered free and fair. The international community, including the Organisation for Security and Cooperation in Europe (OSCE) and the Council of Europe, rejected it or labelled it ‘unhelpful’ to the negotiation process (Powell 2006). But Caspersen argues that because of its non-recognised status, the Constitution was not truly about determining the political character of the land, but asserting its existence, something no citizen could deny. …there were no significant voices arguing against the constitution; this would have been … arguing against NK’s existence, not just against the content of the constitution. The  referendum was seen as an occasion to demonstrate unity and consolidate the de facto independence of the entity, not an occasion to air political differences (Caspersen 2008: 15). But are assertions of existence and an open vote for a constitutional process mutually exclusive? Recall that the constitutional referendum held in TRNC in 1985 was opposed by a healthy 30% – although it was essentially about the establishment of the TRNC. Further, the opposition themes focussed mainly on the perception that the Constitution did not  sufficiently protect liberal rights; in other words, a substantive political critique was expressed and adopted by a significant portion of voters despite the fact that TRNC was simultaneously seeking sovereignty through the referendum. Deputy foreign minister of Nagorno-Karabakh Vardan Barseghian explained to this author that the constitution and referendum process had helped effect a shift of Karabakhi identity, from a militarist, survival-based society to unity based on civic culture and a permanent, peacetime existence (Conversation with the author 16 September 2009). Thus, even if the referendum process was not fully open (Caspersen’s view), it may have begun building a society capable of nurturing democratic norms. In Somaliland, democracy has been less of a strategy to earn recognition, and more the raison d’etre for independence. As a former British colony, this region had a stronger self-determination claim than some other cases. After independence, Somalia and Somaliland began a process of merging; but within one year, Somalilanders felt unrepresented and marginalised by the south  – and began expressing their desire for separation. In  1961, a referendum in the putatively united Somalia to approve the Constitution unifying them was boycotted in the north: 15% of eligible voters participated, and those who did rejected the provisional constitution by a 60% majority. Thus, the earliest expression of reindependence was through a

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legitimate referendum (held by a sovereign state), which the people sought to delegitimise. The rejection of Mogadishu’s authority was expressed later that same year in an attempted coup. Somalia crumbled under dictatorship and civil war in the following decades, including repression of the north that fanned discontent. In  1991, Somaliland declared independence and immediately established a contrasting identity to the chaos of Somalia by constructing a national ethos of relative political stability and democratic intentions. Despite total non-recognition internationally, it also achieved a measure of economic stability. Somaliland began drafting a constitution in 1995, but by 1999 it had still not been ratified. In August that year, President Egal declared that international recognition depended on adopting multi-party system of governance enshrined in the constitution, but Bradbury writes that the real political pressure for this move came from within Somaliland (Bradbury 2008: 128). Finally, a plan for ratification was generated to ‘reinforce’ the local legitimacy of Somaliland and inaugurate a process to establish a constitutionally based and popularly elected government. The  process involved all branches of government, public debate, diaspora input and a referendum on a constitution that enshrined party rights, women’s suffrage, and other civil liberties (Bradbury 2008: 133). The referendum was held in May 2001. International observers from the US were present. Although the vote was deemed ‘primarily a vote to show support for independence rather than an endorsement of the numerous provisions of the constitution’, but in this case, that did not compromise its legitimacy – the Washington-based think tank noted that the elections were open, fair, nonviolent, with very minimal indications of fraud, and met international standards (Shinn 2002: 2). The referendum was a turning point. The following year, Somaliland held its first local elections  – ‘a huge political event in which the whole country was engaged’ (Bradbury 2008: 135), followed by presidential, Parliamentary and another presidential elections  – four in total (to date), including close results, Supreme Court challenges and peaceful transitions of power. Thus, by contrast to the processes of the Caucasus described earlier, in Somaliland and Nagorno-Karabakh, the referendums indicate and even help explain the genuine democratising potential for phantom states despite non-recognition.

Creating international divisions and communities Although the referendum in a phantom state is supposed to be meaningless, parent states or the international community often find the votes significant enough to respond – mainly to reject it – as seen above. This rejection seems to serve two main purposes. First, it expresses support to an individual ally or member of an international club such as the United Nations (the rejection of the Georgia breakaways, for example, is clearly a show of support for Georgia). Second, rejection

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reinforces the meaning of sovereignty in the international system – by rejecting even symbolic expressions of secessionism or dissolution of a sovereign state. This explains the long-term suppression of Kosovo’s claim to sovereignty despite strong moral sentiment in this direction – the international community repeatedly stressed the inviolability of Serbia’s sovereignty. But both goals may also have politically motivations – such as supporting the pro-Western Georgia in opposition to Russia. That means that the norms of recognition may be inconsistent. Despite Palestine’s stronger self-determination claim, global politics and the US-Israel alliance have prevented widespread recognition (until recently). Conversely, the vote is an opportunity for supportive entities to recognise the phantom’s legitimacy in lieu of diplomatic relations. ‘Patron states’ that sometimes prop up phantoms may often recognise a referendum: Russia has done so for South Ossetia, Abkhazia and Transdniestria; Turkey for TRNC (political consistency posing no problem for Turkey, given its rejection of NagornoKarabakh in solidarity with Azerbaijan). It is not always patron states that support the vote: American observers who watched the Somaliland referendum lend legitimacy to the state-like process, although recognition is not yet forthcoming. Recognising a referendum may be a prelude to recognising the state. Russia, for example, recognised South Ossetia’s 2006 referendum before recognising it as a state following the 2008 war. Even the presence of French observers in Nagorno-Karabakh’s 2006 vote could possibly indicate creeping international legitimacy from a country not directly aligned in the conflict. Phantom referendums can also highlight a second international division  – between the recognised family of states (despite disagreements) – and the alliance of illegitimate entities who support the referendum out of political solidarity. After Transnistria’s September 2006 referendum endorsing secession from Moldova and joining the Russian federation, both South Ossetia and Abkhazia expressed support for the process and the results. Transdniestria’s referendum may even have provided inspiration: shortly afterward, South Ossetia announced its forthcoming referendum in 2006. The question remains of what this strange alliance of phantoms can mean in the international system. But the referendum recognition as a way to express international norms and political alliances is clear.

Non-referendum Brady and Kaplan assert that when a transitional society does not hold a referendum, this may say ‘as much and maybe more about a polity as those that are held’ (Brady and Kaplan 1994: 210). The only case that has never held a referendum is Palestine. The situation is somewhat ironic, given that Palestine arguably has a stronger case to statehood than some of the others here. The Palestinian national cause and identity have taken shape over the course of the twentieth century, inextricably bound up with

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the end of British colonial rule and the foundation of Israel. A Palestinian entity was proposed as the solution to the end of British rule, in 1947, as part of the partition plan – which was ultimately rejected. The establishment of Israel in 1948 then led to mass (although not total) displacement of Palestinians from lands that became part of the new state, and the bulk of Palestinians were now located in the West Bank and Gaza, controlled by Jordan and Egypt, respectively. The Six Day war in 1967 led to Israeli occupation and control over those areas, and eventually, both Egypt and Jordan would relinquish any claims to the Palestinian areas – all of which served to highlight the limbo-status of statelessness of the Palestinian residents. As a result, in the following decades, both the international community and ultimately Israel would recognise the Palestinian right to selfdetermination and even statehood. When the Palestine Liberation organisation officially moved away from terrorism in the 1980s, it began to gain international legitimacy. This  would be cemented by the PLO’s signing of the Oslo accords with Israel in 1993, designed to advance both sides towards a two-state solution. Yet Palestine arguably has fewer of the empirical criteria of statehood than some of the other cases: at present, it lacks de facto control over much of its territory. Since 2007, its putative government has been dangerously divided, and until 2001, most Western countries refused to recognise it. Still, Palestine maintains a level of international legitimacy that the others lack: Over 100 countries have recognised the original PLO declaration in 1988 (Geldenhuys 2009: 155), and more recently, various Western countries either recognised or upgraded Palestine’s status even prior to the appeal for UN recognition in 2011. Thus, the non-referendum seems almost counterintuitive: with the international legitimacy of Palestine’s claims, and, a precedent of relatively fair elections, it would seem that a referendum actually stands to be recognised as part of its struggle for sovereignty. Why hasn’t one been held? Three possible explanations present themselves: First, as noted earlier, self-determination is widely and internationally recognised, including by Israel itself, and the Palestinians felt no need to hold a vote on self-determination. A  second explanation affirms Brady and Kaplan’s observation that division of leadership and political goals is perhaps the most prominent reason for not holding a referendum in a transitional situation (Brady and Kaplan 1994: 210). The  internal political uncertainty of the current ruling elite, the Fateh-led Palestinian Authority, is chronically threatened by its competitor force, Hamas. At present, following a decade of right-wing rule in Israel, compounded since 2016 by humiliating political blows to the Palestinians from Netanyahu-aligned President Trump, Palestinians in general are losing faith and support for a twostate solution (as are Israelis). A highly public referendum process in this direction could ultimately become a referendum on the PA  itself, and if so, would surely lose – providing a possible death blow to its increasingly tenuous authority. In the event that it would win, the enormous gap between such a process and the

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chances of actual independence could turn the process into an actual farce – in the eyes of the participants. This would have the opposite result from strengthening domestic legitimacy even if, ironically, such a result could boost international legitimacy. The third option is that the non-referendum is the opposite of the referendum that is used to state political intention above: the leadership may have determined that a referendum might lock their claims into a single political goal – such as a state within the territory Israel captured in 1967 – which could limit its bargaining power. The demand for a single, binational democratic state, for example, could no longer be used to pressure the other side into concessions. Thus, on both levels of the ‘two-level game’ (internal and external relations in a conflict), the people’s voice in this case could be a constraint (See Shamir and Shikaki 2010).

Conclusion The extensive significance of the referendum processes in phantom states belies the notion that an unrecognised vote is ‘merely’ symbolic or a momentary statement of protest. The referendum may indeed be symbolic, but force of that symbolism can carry long-term consequences within the state-seeking entity. It can also, as shown, have reverberations for the international community, which may reject or accept the vote, but usually is compelled to address it and the increasingly real problem the phantom entity poses. Viewed in this light, three further cases should be considered in this light: two referendums that have been held, and one that has not  been held, all in one  troubled region. In  2014, a referendum was held in Crimea to legitimise annexation by Russia. However, this is not a de facto independent entity, but a matter of secession, annexation – or irredentism. Referendums held in the Donbass region of Ukraine in May 2014 are more relevant, as they called for a heavily ambiguous ‘self-rule’. At the same time, they could also be interpreted as support for de facto Russian takeover, or preference to remain under Ukrainian sovereignty. The referendums were considered poorly and hastily managed, with no international observers or indications of fair political processes; hence, there is little available data regarding turnout and only anecdotes about the results showing a win for the ‘self-rule’ result. Once again from the outside, it was largely disregarded. However, the referendums of that time were leveraged symbolically as part of a war that has not ended and continues to be a major destabilising factor. Further, the most recent development as of 2018 is Russian President Vladimir Putin’s rumoured plan to conduct a second referendum there, to resolve the situation. These too would likely focus on autonomy rather than annexation. If held, they can be expected to garner more attention, higher standards of procedural mechanisms, and could represent the next rung on a ladder towards actual autonomy – a far greater threat to Ukrainian territorial integrity than the heavily sanctioned Russian presence today.

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The  various meanings and consequences of the referendums provide useful theoretical understandings of these unpredictable entities: the referendum-stating intention may be the first sign of a genuine bid to change sovereign borders with a measure of commitment, although the entity may appear powerless at the time – and yet those initial political goals are subject to change and evolution. The self-determination referendum appears, apparently, to assert a weak or easily dismissed claim to this right. The determination to prove this right may override the commitment to a sound democratic voting process – raising a quixotic problem of whether a self-determination claim can be genuine if the process intended to assert this claim is not truly the will of the people. And yet in at least one case, Kosovo, the self-determination referendum touched off an internal commitment to state-building that ultimately threatened the parent state sufficiently to escalate into near-destruction. Instead of the self-determination claim failing after a meaningless referendum, ultimately, Kosovo won the right to self-determination on a rare basis of extreme victimhood – despite the fact that an ethnic kin-state already exists. The referendum may be an attempt to assert a democratic culture to the international community as part of demonstrating fitness for sovereignty, and internally, to legitimise its authority and civic identity. This  may be true in a geopolitical environment where democracy is sorely lacking, and as such, the phantom may be a ‘natural’ candidate for more successful democracy than its neighbours. Finally, the avoidance of a referendum may indicate deep divisions of leadership and internal political goals. Precisely by contrast to the referendum designed to pressure international actors and negotiators into recognition, the non-referendum may be a means of keeping various political demands open as pressure on the other party of a conflict, instead of locking the negotiators into one political route (statehood) that has so far been unsuccessful. And in observing the largely consensual results of these votes, one final observation stands out. It seems that in situations of profound uncertainty about national and political identity, legitimacy, and leadership, referendums are more likely when the authorities can guarantee  – or orchestrate  – an indisputable majority in the desired direction.

References Bahcheli, Tozun, Bartmann, Barry and Srebrnik, Henry, Editors (2004) De Facto States: The Quest for Sovereignty. London and New York: Routledge, 2004. pp. 142–163. Bradbury, Mark (2008) Becoming Somaliland. London: Progressio. Brady, Henry E. and Kaplan, Cynthia S. (1994) “Eastern Europe and the Former Soviet Union”, in Butler, David and Ranney, Austin, (Editors). Referendums Around the World: The Growing Use of Direct Democracy. Washington, DC: Macmillan, pp. 174–217. Caspersen, Nina (2008) Separatism and Democracy in the Caucasus. Survival 50(4), 113–136. Caspersen, Nina (2011) Democracy, Nationalism and (lack of) Sovereignty: The Complex Dynamics of Democratization in Unrecognized States. Nations and Nationalism 17(2), 337–356.

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Closson, Stacy (2011) “What Do Unrecognized States Tell Us About Sovereignty?”, in Caspersen, Nina and Stansfield, Gareth, (Editors). Unrecognized States in the International System. US and Canada: Routledge, pp. 58–69. De Waal, Thomas (2003) Black Garden. New York and London: New York University Press. Geldenhuys, Deon (2009) Contested States in World Politics. London: Palgrave Macmillan. Harvey, James and Gareth Stansfield (2011) “Theorizing Unrecognized States”, in Nina, Caspersen and Gareth, Stansfield, (Editors). Unrecognized States in the International System. London and New York: Routledge, pp. 11–26. Independent International Fact-Finding Mission on the Conflict in Georgia (IIFFMCG) (2009) “Report,” Vol. I, August 2009. Jackson, Robert (1990) Quasi-States: Sovereignty, International Relations and the Third World. Cambridge: Cambridge University Press. Johansson, Patrik (2009) Putting Peace to the Vote: Displaced Persons and a Future Referendum on Nagorno-Karabakh. Refugee Survey Quarterly 2(1), 122–139. Kaufmann, Bruno (2011) The European Citizen Initiative: The Next Big Thing for Europe. Brussels: Egmond. Kaufman, Stuart (2001) Modern Hatreds: The Symbolic Politics of Ethnic War. Ithaca: Cornell University Press. Kolstø, Pal (2006) The Sustainability and Future of Unrecognized Quasi-States. Journal of Peace Research 43(3), 723–740. Kuci, Hajredin (2005) The  Legal and Political Grounds for, and the Influence of the Actual Situation, on, the Demand of the Albanians of Kosovo for Independence. Chicago-Kent Law Review 80, 331–351. Lacher, Hannes and Kaymak, Erol (2005) Transforming Identities: Beyond the Politics of Non-Settlement in North Cyprus. Mediterranean Politics 10(2), 147–166. Loizides, Neophytos, G. (2007) Ethnic Nationalism and Adaptation in Cyprus. International Studies Perspectives 8, 172–189. Lynch, Dov (2004) Engaging Eurasia’s Separatist States: Unresolved Conflicts and de Facto States. Washington, DC: United States Institute of Peace Press. Pavkovic, Aleksander (2000) A Reconciliation Model for the Former Yugoslavia. Peace Review 12(1), 103–109. Pavlakovic, Vjeran and Sabrina Petra Ramet (2004) “Albanian and Serb Rivalry in Kosovo”, in Tozun Bahcheli, Barry, Bartman and Henry, Srebrnik, (Editors). De Facto States: The Quest for Sovereignty: Unrecognized States in the International System. London and New York: Routledge. Pegg, Scott (1998) International Society and the de Facto State. Aldershot, UK: Ashgate Publishing. Powell, Zoe (2006) Constitutional Referendum: Nagorno-Karabakh Gains a Constitution, but Little Clarity for Future. Eurasia Net. Qvortrup, Matt (2014) Referendums and Ethnic Conflict. Philadelphia: University of Pennsylvania Press. Shamir, Jacob and Shikaki, Khalil (2010) Palestinian and Israeli Public Opinion: The Public Imperative in the Second Intifada. Bloomington and Indiana: Indiana University Press. Shinn, David, H. (2002) Somaliland: The  Little Country that Could. Africa Notes 9, Center for Strategic and International Studies. Suksi, Markku (1993) Bringing in the People: A  Comparison of Constitutional Forms and Practices of the Referendum. Dordrecht: Martinus Nijhoff Publishers.

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Sussman, Gary (2001) “When the Demos Shapes the Polis—The  Use of Referendums in Settling Sovereignty Issues,” London School of Economics—Unpublished Manuscript. http://www.iandrinstitute.org/New%20IRI%20Website%20Info/I&R%20Research%20 and%20History/I&R%20Studies/Sussman%20-%20When%20the%20Demos%20 Shapes%20the%20Polis%20IRI.pdf United Nations (1985) Yearbook of the United Nations. New York: Department of Public Information. Voller, Yaniv (2015) Contested Sovereignty as an Opportunity: Understanding Democratic Transitions in Unrecognized States. Democratization 22(4), 610–630. Weller, Marc (2009) Contested Statehood: Kosovo’s Struggle for Independence. Oxford: Oxford University Press.

6 LEGACIES OF A FAILED REFERENDUM Negotiations to ratify a peace treaty in Cyprus Erol Kaymak

Introduction On 21 March  2008, the Greek Cypriot and Turkish Cypriot leaders, Demetris Christofias and Mehmet Ali Talat, prepared a joint statement declaring that ‘[t] he agreed solution will be put to separate simultaneous referendums’ (UN News Centre 2008). Consequently, the sides agreed to a repeat of the ratification process that ended in the failure of the aborted ‘Annan Plan’ four years prior. In contrast with the process that led to failure in 2004, there had been hope in 2008 that the negotiations would lead to a mutually acceptable compromise that the respective leaders would endorse. This was meant to be a negotiation ‘of Cypriots, by Cypriots’ without outside mediation or arbitration. In agreeing to another referendum as the basis of ratification, the leaders were setting the bar high. More than a decade later, a second referendum has proven ever more elusive. The legacy of the Annan Plan was such that public assent was raised to the status of a ‘veto player’ that could not easily be appeased. On 24 April 2004, the plan was approved by 64.9% of the Turkish Cypriot electorate in the referendum held in North Cyprus, while it was simultaneously rejected by 75.8% of the Greek Cypriot electorate in the referendum held in South Cyprus. The referendums results were considered valid; although the regulation of the referendum campaigns themselves was subsequently scrutinised (See Qvortrup 2005). This meant that the Greek Cypriot voters would likely be keen to see substantively different elements embedded in any new settlement package. Against this, Turkish Cypriots now had a benchmark and raised expectations regarding the realisation of a power sharing within a federal system, as well as with respect to probable territorial adjustments. The  overwhelming rejection of the plan on the part of the Greek Cypriot electorate not only had the legal effect of rendering it (and the entire process that

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led to the final blueprint) ‘null and void’ but also undermined any political basis for further negotiation. Despite this, the leaders committed themselves to talks that could only be endorsed through referendums. The question remained whether a qualitatively different approach and design of referendum could plausibly overcome the 2004 result. It has been argued that the process of international arbitration had negative consequences for the referendum result (Drath 2004). The Annan Plan had been drafted by the United Nations (UN), albeit based on positions of the respective sides. The lesson that international mediators took from the failure was that local ownership was essential in any future process that would similarly be subject to referendum as the means of adoption and ratification. If the sides in Cyprus, along with international mediators, still pinned hope to a referendum, this must be informed by the relatively successful cases, particularly those of Northern Ireland and possibly South Africa (Loizides 2009). Ostensibly referendums provide for stability in post-settlement societies through longer-term binding commitments (Qvortrup 2014). In  converging on this means of ratification, the sides clearly risk failure. Moreover, it has been noted that – empirically speaking – referendums are neither necessary nor sufficient to anchor a peace treaty and to ensure enduring and durable peace (Loizides 2009). There  have been peace deals completed in the absence of a referendum, as, for example, in the Mozambique Peace Pact of 1992 and the Bosnia Dayton Accord of 1995. Significantly, the (Greek Cypriot-led) Republic of Cyprus is a rarity within the European Union in not holding referendums to ratify international treaties. The referendums in Cyprus were not exercised on the basis of a bill passed by the legislative authority of the Republic of Cyprus. The plan was a UN document submitted by that international organisation. In  the context of Cyprus, referendums have proven politically and legally problematic. The failed referendums of 2004 not only forestalled reunification in Cyprus (ostensibly the goal of the respective sides) but also negated any convergences that may have been salvaged from the previous round of negotiations. Similarly, the holding of referendums had legal implications that the international community has difficulty containing. It has been argued that the very act of holding separate referendums suggested the exercise of an ‘inherent’ right to self-determination, potentially undermining the Republic of Cyprus (Ozersay 2005). In  short, other methods of ratification could have been contemplated. However, the sides have formally agreed to a referendum to conclude a comprehensive package deal on both the internal and external aspects of a settlement. The  purpose of this chapter is to assess the current negotiation process given the 2004 precedent and legacies. It poses the question of whether the ‘Cypriot-led’ process entailed a qualitatively different approach to design that could affect the outcome of a future referendum. The chapter also highlights the legal problem of ratification that inhibits the sides from making commitments that would otherwise pave the way for framework agreements in the absence of a comprehensive package.

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The former matters insofar as ownership could potentially limit the role of ‘spoilers’ in a referendum campaign by forging robust coalitions in favour of the settlement plan. The latter is critical, since without commitment on the part of leaders and a mandate from the electorate, the ratification of an orphaned settlement plan could be left to the voters to veto, leading to a repeat of 2004. The goal here is to demonstrate that ‘design’ is not limited to a typology where referendums are characterised by either ‘moral hazard’ or the imposition of outside mediators. In fact, the referendum process may have suited the sides for conflicting purposes related to varying interpretations of how the ratification process of the ‘new state of affairs’ affects the sensitive matter of state succession or devolution in Cyprus (as the case may be). In the case of devolution, there would be continuity between the old and new Republic. In this sense, referendums should also be differentiated with respect to their legal effects. Thus, a plebiscite or mandate referendum is quite distinct from what the Annan Plan referendum had implied. In Cyprus, given the stakes and the potential legal effects of any future referendum, there is limited room for mandate referendums or other lesser forms of direct democracy. At the end of the day, people will be called upon to cast votes on a package with far-reaching consequences. One solution is for the sides to hold referendums on a more basic foundation agreement, thus granting the leaders leeway to negotiate the technical details. By contrast, the Annan Plan referendum was doomed from the start in that neither side signed the foundation agreement. What follows is an analysis of how the on and off negotiations that spanned from 2008 through 2018 related to the (re)design of separate, simultaneous referendums to be held in Cyprus had the negotiations been completed successfully. Subsequently, the chapter suggests that opportunities to bring citizens into the process have been missed. As the negotiations led to numerous instances of deadlock, the international mediators have had to exert more pressure to move the process forward. As a result, what was meant to have been a ‘Cypriot-led’ process moved in the direction of internationalisation, which ended in spectacular failure through an international conference in the summer of 2018. One upshot may be that another referendum will not be held and that the negotiations will shift away from the long-agreed-to federal basis for settlement. Finally, an analysis of the potential legal effects of a future referendum can be gleaned from the experience of the Annan Plan. Ultimately, the comprehensive nature of the negotiations and the potential legal implications of the process and outcomes serve to hinder the sides in their endeavour to conclude negotiations. Thus, there is the risk that the sides will, for varying and conflicting reasons, attempt to limit the legal effects of a subsequent referendum, should negotiations ever get that far. Thus, referendum design may also harbour the ulterior goals of the sides.

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From the interim impasse to the endgame: post-referendum stalemate On 1 November 2011, the UN Secretary General Ban Ki-moon read out a statement following a three-party summit in Greentree, Long Island, New  York, making reference to an endgame of the negotiations. The Secretary General hoped that within a couple months sufficient progress on the ‘internal aspects of the Cyprus problem to have been resolved so that we can move to the multilateral conference shortly thereafter’ (Ibid.). To get to the endgame, the sides had been called upon to engage in genuine give and take across ‘core issues’. Since the inception of the talks, which commenced in 2008 with the convening of working groups (to focus on core issues in the dossiers subject to negotiation) and technical committees (to address dayto-day issues, otherwise known as confidence-building measures), the trend had been increasingly towards focussing on ‘core issues’ at the expense of ‘soft issues’. Following the failed Annan Plan, the international community was leery of embarking on another round of mediation between the sides. Thus, the dual track of discussing mediation modalities coincided with confidence-building initiatives. This  approach, heeding post-mortem analyses of how the referendum was lost, attempted to treat core and soft issues as co-dependent (Drath 2004: 341). The fate of the Annan Plan itself was decided on 24 April 2004 when it was rejected by the Greek Cypriots. Thereafter, the Republic of Cyprus acceded to the European Union (EU) on 1 May  2004, itself a mere formality resulting from the signing and ratification of the Accession Treaty in prior months. Significantly, Cyprus acceded to the EU without any negotiated derogations to account for the territorial division of the island, the presence of foreign forces, or for the suspension of various constitutional articles related to power sharing with Turkish Cypriots. Similarly, contradictions between the 1960 system and the acquis communautaire were not accounted for through the act of accession. Some claim the two are fundamentally incompatible (Mallinson 2011). Turkish Cypriots followed up their ‘yes’ vote by electing the moderate Mehmet Ali Talat to the presidency of the internationally unrecognised Turkish Republic of Northern Cyprus (TRNC). Thus, on the Turkish side, there remained at the time a political will and mandate to negotiate within the parameters of the UN blueprint. Yet, the Greek Cypriot ‘no’ was to be further consolidated through the May 2006 parliamentary elections in the South, which some dubbed a ‘second referendum’ and an endorsement of the Greek Cypriot president, Tassos Papadopoulos, who had led the ‘no’ campaign against the Annan Plan (Ker-Lindsay 2006) (See also: Anastasiou 2007). Significantly, following the 2004 referendum, Papadopoulos was extremely reluctant to submit a list of amendments to the United Nations. At the time, there was still talk among diplomatic circles of a possible second referendum (to be held

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exclusively among Greek Cypriots), pending amendments. So, whereas Greek Cypriot opposition to the Annan Plan was taken for granted, it was not possible to analyse and provide a hierarchy of concerns from which mediators could reengage with the sides. The 2006 parliamentary election results laid bare the reality that the Annan Plan could not be resuscitated. From that point on, the international community had to acknowledge that the democratic will of the Greek Cypriot people prevailed over the Annan Plan, irrespective of its relative merits (or lack thereof, depending on one’s standpoint). Given the apparent congruence between the Greek Cypriot leadership and its citizenry, diplomatic focus shifted toward analyses of the dynamics affecting views on core issues in Cyprus and on processes that might engender greater trust across the Green Line that divides the island. Some research aimed to demonstrate that public opinion was not as malleable as mediators hoped, suggesting that only reassurances on substantive matters could convince a sceptical public to endorse a peace treaty (See: Lordos 2008). The problem, hence, would be to discern potential convergences from which to build towards a broader consensus. The United Nations in Cyprus (UNFICYP) commissioned an intercommunal survey in 2007 ostensibly to assess confidence in the UN presence in Cyprus, while a large portion of the survey dealt with the Cyprus problem (UN Peacekeeping Force in Cyprus 2007). Further survey research was conducted through the Centre for European Policy Studies (CEPS) (Lordos et al. 2009). The CEPS work is notable since the Greek Cypriot negotiation team is said to have derived its position in favour of rotational presidency for cross-voting through direct reference to this survey work. Survey analysis had been conducted through the inter-peace-implemented ‘Cyprus 2015’ project, funded by United Nations Development Programme–Action for Co-operation and Trust UNDP-ACT and the European Commission. During the negotiation process that commenced in 2008, the UN Secretary General intervened and made references to survey analysis and insisted that the respective leaders work for inclusivity and ownership at the grassroots level. In the UN Secretary General’s report of 3 March 2011, he ‘made it clear when I  met with the leaders in New  York in November, and again in Geneva in January, that the United Nations respects the talks as a Cypriot-led and Cypriotowned process and that it is precisely for this reason that we expect the two sides to assume their responsibility to drive the process. The destiny of Cyprus is in the hands of its leaders. It is they who must act to reconcile their differences. Without their dedication and commitment to reunifying the island, the process cannot move forward’ (S/2011/112, paragraph 16). Moreover, significant research into the dynamics of the Cyprus problem was conducted through the Peace Research Institute of Oslo (PRIO) that provided venues, sometimes closed sessions under Chatham House rules, for representatives and civil society actors to share views regarding technical matters.

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PRIO has produced a significant amount of work related to some of the dossiers under negotiation (On reconciliation see Sitas et al. 2007). Work on reconciliation became the focal point of the Association for Historical Dialogue and Research (AHDR). Meanwhile, civil society organisations were developing a network under the stewardship of the UNDP’s peacebuilding project in Cyprus, Action for Cooperation and Trust (UNDP-ACT) program. The European Commission contributed towards the end of developing the competitive capacity of the Turkish Cypriot economy in preparation for the island’s reunification, hence the ultimate inclusion of the North in the customs union and common market. In addition, the commission earmarked significant funds subsidising projects designed to enhance reconciliation between the communities (Council Regulation (EC) No. 389/2006 of 27 February 2006). However, these efforts did not become part of the official negotiation strategy. The closest to public diplomacy had been conferences organised through PRIO, but these have been relatively elite affairs. Significantly, the commencement of fully fledged negotiations in 2008 did not qualitatively change the bifurcation of functions between Track 1 and civil society initiatives. Optimists in 2008 considered that Talat and Christofias were a unique negotiating pair, sharing the goal of reunification (Varnanva 2011). Thus, when technical committees were finally established, they were treated as akin to Track 1 actors and subordinated to political authority. As a result, very little of the technical committee work trickled down into public discourse. Also, relatively little synergy was achieved in cross-fertilising ideas between technical committees and nongovernmental organisations (NGOs) through research with some exceptions. Moreover, most decisions taken at the technical committee level were never implemented. This lack of congruence between civil society initiatives and the Track 1 negotiation process was not  surprising, especially in the absence of any momentum until 2008. Following the failed referendums of 2004, the sides could not agree to terms for recommencing talks. It was not until 2006 that the sides formally reconfirmed their commitments to federalism and power sharing (that is, the bi-zonal, bi-communal features of a future Cyprus). Beyond these general parameters, all matters were subject to negotiation. The 8 July 2006 ‘Set of Principles’ called for the establishment of both technical committees to deal with day-to-day issues and working groups designed to prepare proposals for the leaders on substantive aspects of the Cyprus problem during the year 2006. In practice, there was no progress. In fact, the sides could not agree on a list of technical committees and working groups. This  meant a lack of congruence on what constituted the ‘soft’ issues, let alone the ‘core’ ones. In these pre-negotiations, the sides were keen to include certain issues but to omit others in efforts to affect the parameters of the negotiations. Failure to agree on ‘soft’ issues also reflected the conflation with ‘core’ issues. For instance, cooperation on the ghost town of Varosha/Maraş remains elusive. Whereas it may be part and parcel of an interim agreement and as part of a confidence-building-measures (CBMs)

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package, in practice it could serve to prejudice the overall outcome of the comprehensive talks to the extent it entails a territorial dimension. This lack of progress was not unsurprising, since on the one hand Turkey was under pressure to open ports to Greek Cypriot vessels under the EU Customs Union, whereas the Republic of Cyprus was under pressure to accept a proposed Direct Trade Regulation between the EU and the Turkish Cypriots. Given the context, the 8 July agreement and negotiations regarding technical committees served ulterior motives. One motive was to undermine the Annan Plan by sidestepping the core issues in the interim while providing alternatives to the EU direct trade promised to the Turkish Cypriots. This allowed the Greek Cypriots time to strengthen the EU’s Green Line Regulation (based on intra-island trade) at the expense of other EU-led CBM initiatives that ostensibly served the interests and needs of the TRNC. Therefore, the utility to the Greek Cypriot side was apparent. However, Turkey also wished to avoid opening ports to Greek Cypriot vessels given the implications of recognising the Republic of Cyprus (prior to a settlement deal). Given the impasse, it was less likely that the EU would pursue the matter in earnest. The talks allowed the Cyprus problem to fester in limbo.

Fully fledged negotiations: talks for and by Cypriots Fully fledged negotiations that could pave the way for a settlement agreement and subsequent referendum would have to wait until 2008. The election of Demetris Christofias in February 2008 rekindled hopes that the stalemate could be reversed and that a new momentum could be injected into the talks. Christofias and Mehmet Ali Talat were billed as ‘moderates’. Both were considered to genuinely prefer a federal settlement to the status quo leading to guarded optimism regarding the eventual outcome of the talks. The UN approached the sides, and it was agreed to meet at the end of March. The hope was that two moderates, who originated from parties with a similar ideological background, could negotiate in good faith. To this end, the leaders were eager to get off to a quick start, agreeing to the parameters of the settlement. The  idea was that these would be ‘Cypriot’ talks, in contrast with the internationally mediated Annan Plan. However, the sides remained constrained by previous commitments and strategy. The Talat and the Turkish side insisted on direct negotiations with a fixed deadline with a view to settling the Cyprus problem by the end of 2008. Against this, the new Greek Cypriot leader insisted on following the format agreed on 8 July 2006 between his predecessor and Talat, which envisaged a preparatory stage of working groups and technical committees and objected to deadlines. So, in fact, there was a lot of continuity. Beyond the technical matter of commencing direct talks, there was a concern with the endgame from the start. The Greek Cypriots were keen to bifurcate internal issues from the external issues whereby external issues related to security

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in the form of the Treaty of Guarantee, whereas other matters, including territory, should be treated as an internal matter. These matters are the subject of further analysis in the latter sections of this chapter where the implications of a referendum are analysed. In balance, Christofias approached the negotiations in much the same way as Papadopoulos in terms of tactics, if not strategy. Moreover, Christofias would have endured ‘audience costs’ had he failed to follow up with preparatory work based on the 8 July agreement. Christofias prevailed in his desire for a two-stage process, and the leaders agreed to set up working groups and technical committees that would draft positions on the substantive elements of the Cyprus problem and deal with day-to-day issues and CBMs. They also agreed to meet three months hence to review the progress of the working groups, implying that direct negotiations would commence soon thereafter. Despite this, Talat was not really interested in using the working groups to explore means of bridging gaps, considering an inventory taking function for the fully-fledged negotiation process. In essence, it was a compromise he had to acquiesce to in order to get Christofias to agree to commence direct negotiations. Christofias’ and Talat’s respective representatives, Giorgos Iakovou and Ozdil Nami, met to discuss the agenda of the committees and working groups that commenced work on 18 April. Until the appointment of former Australian Foreign Minister Alexander Downer as Special Adviser to the UN Secretary General, Elizabeth Spehar was temporarily appointed as the UN Secretary General’s Acting Special Representative in Cyprus during the transition period. The UN assisted the sides through its good offices, whereas the EU was largely marginalised in the negotiations by both sides. As a result, the format of the talks was similar in that the UN good offices services were to be utilised, and talks were to proceed on the basis of UN parameters. A  federation had been the basis of negotiations since the 1977 and 1979 high-level agreements between the sides in Cyprus. The 1977 agreement foresaw an ‘independent, non-aligned, bi-communal federal republic’. Subsequent, UN  Security Council resolutions have confirmed that the solution sought would provide for the establishment ‘of a federation that will be bi-communal as regards the constitutional aspect and bi-zonal as regards the territorial aspects’. (UN Security Council 649 1990). On the face of things, the talks were well placed to succeed, given the presence of moderate negotiators, the potential for CBMs including an agreement on new crossings in Nicosia, and the establishment of technical committees. Acrimonious negotiations to open the Ledra Street/Lokmacı crossing had spanned many months during the presidency of Papadopoulos, but the matter was settled in a matter of weeks with the arrival of Christofias. Moreover, the EU was finally able to release a financial aid package totalling 259 million euros to the Turkish Cypriot community. Despite continued stalemate on the proposed Direct Trade Regulation, some minor changes were realised in the Green Line Regulation. In short, there was an overall momentum supportive of the talks. The leaders also engaged in symbolic gestures, acknowledging the other community.

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If the ground was fertile for successful negotiations, what followed must be categorised as missed opportunities as the talks reverted back to Track 1 at the expense of broader ownership among citizenry. Not only was progress in working groups limited but technical committee work was distant from the people and did not lead to implementation, despite survey polls that demonstrated overall support for CBMs. Progress was assessed in terms of joint statements between the leaders. On 23 May, the leaders met to discuss the progress of the working groups and in a joint statement reiterated their commitment to a bi-zonal, bi-communal federation with political equality, as defined by the relevant Security Council resolutions. This partnership will comprise of a federal government with a single international personality, along with a Turkish Cypriot constituent state and a Greek Cypriot constituent state, which will be of equal status. Despite this agreement, direct talks did not commence until the fall of 2008. Instead, during the summer, the sides continued to negotiate parameters. On 1 July, the leaders met again to review anew the progress of the working groups with a view to commencing direct negotiations. The meeting was significant in that Talat agreed to a ‘single citizenship and sovereignty’. Talat paid a political price for making what were portrayed as concessions by rightwing parties and elites in the TRNC. Talat’s apparent concession was seen as contradictory to the ‘virgin birth’ approach in the UN blueprint of 2004 where sovereignty was only obliquely dealt with in the name of ‘constructive ambiguity’. Moreover, the concept of a ‘single sovereignty’ is also an oddity, as it stems from previous UN Security Council resolutions that were designed to condemn the unilateral declaration of the TRNC. Talat’s fortunes were not helped by developments on the domestic front. His erstwhile party, the Republican Turkish Party, was part of an unpopular governing coalition that went on to lose the subsequent parliamentary poll. In return, Christofias made a pledge to start direct negotiations in the fall; although this was not made public at that meeting. The formal announcement would have to wait for a subsequent meeting. As previously but privately agreed, 3 September 2008 was the declared date for the commencement of direct negotiations between both leaders. Both also announced various CBMs. Substantive progress in the working groups was limited to the portfolios of governance and power sharing, EU matters, and the economy, whereas in other working groups the gaps could not be significantly narrowed. The technical committees, by contrast, had agreed on a total of 22 CBMs, including cooperation in environmental management, crime and criminal matters, health, and cultural heritage. Despite the nominal progress in the technical committees, implementation in many areas was not evident through the end of 2008, nor  thereafter. Despite surveys and polls that demonstrated public support for the implementation of CBMs, the work of the technical committees was all but shelved.

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In similar fashion, much of the work of the working groups ceased upon the commencement of the fully fledged negotiations. Negotiations were once again firmly a Track 1 affair with scant societal input. Meanwhile, disagreements on the opening of further crossings – most prominently at Limnitis/Yeşilırmak  – served to poison relations, thus undermining the implementation of CBMs more generally. Effectively, ‘soft issues’ became conflated with ‘core issues’ insofar as the former have implications for the latter in terms of the exercise of sovereignty. By the time negotiations commenced, the distance between the sides had grown. Tellingly, on the 3 September, during a ceremony marking the commencement of fully fledged negotiations, the two leaders read out separate statements highlighting the gap between the sides. By the end of 2008, the leaders had met 13 times, but the governance and power-sharing dossier had yet to be closed. At  the end of 2011, no dossier was formally or provisionally declared closed. ‘Soft’ issues, far from paving the way for constructive negotiations, became the cause of delays and crises. The  most significant failure in this respect was slow progress in readying the Limnitis/Yeşilırmak checkpoint for crossings. In  the autumn, the resumption of the intercommunal talks was delayed by a week because of disagreements regarding the lists of Greek Cypriot pilgrims attempting to cross into the TRNC via Limnitis, which was not yet an official checkpoint. In response, the Greek Cypriot side cancelled the first meeting. As a result, the negotiations got off to a poor start. The stalemate carried over into 2009 but was eventually broken through provisional agreement on the election of the executive in a future federal system. Christofias suggested a weighted cross-voting system that would ostensibly provide incentives for candidates to moderate stands and appeal to voters of either community. Whereas this compromise was not particularly popular, the leaders continued to negotiate within the proposed framework. Verbal agreements were nonbinding and proved insufficient for closing all outstanding issues in the chapter. In  other words, opportunities to enhance trust were missed in many instances. The crisis over Limnitis was reminiscent of previous crises, especially that of the Ledra Street/Lokmacı crossing between Talat and Papadopoulos in previous years. Mistrust was not  limited to intercommunal relations. Although ‘Cypriot’ talks convened, international efforts to establish links with the Turkish Cypriots persisted. The fact that moderates were at the helm did not change fundamental strategic objectives, and thus conflict along familiar lines followed. EU institutions became part of the conflict environment. Rather than contributing to conflict transformation, European institutions became arenas reifying the conflict regarding ‘sovereignty’. Significantly, the Republic of Cyprus contested the validity of a Direct Trade Regulation proposed by the Commission. Later, the European Parliament (EP) reconsidered the correct legal basis for the direct-trade regulation in 2010 due to implications of the Lisbon Treaty. Since 2004, the Greek

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Cypriot side has successfully objected to direct trade between the North and the EU, despite a Commission commitment to the contrary. Ultimately, Turkish Cypriot attempts to secure representation in EU institutions remained frustrated. Thus, Turkish Cypriots failed to secure either direct trade or representation in the EP. For instance, in 2009, Talat demanded that the president of the EP, Hans Gert Poettering, leave two of the four Cypriot seats in the Parliament vacant for allocation to Turkish Cypriots, who would fill the seats once a solution was reached. The Greek Cypriot side rejected the request, and all six seats were taken by Greek Cypriot candidates. So, whereas European Commission tenders were made in the financial aid regulation, these other areas, arguable legacies of the failed referendum, continued to frustrate the sides as legacies of the failed referendum. The continued cold war related to EU initiatives served to divide the sides and the respective publics. The resurfacing of the legal implications of the proposed EU direct-trade regulation that had divided Talat and Papadopoulos reemerged under the watch of ‘moderates’. Thereafter, the UN mediators grew increasingly concerned with how slowly the negotiations were progressing and how support amongst Turkish Cypriots for a settlement might be eroding. After more than a year of negotiations, it had become clear that the sides were reaching a stalemate, failing to have provisionally closed any chapter under negotiation. Moreover, the apparent window of opportunity was closing pending the results of presidential elections in the TRNC. For the first time since negotiations commenced, the lack of progress worried the international community and prompted the UN Secretary General to intervene in attempts to regain momentum while issuing a warning to the sides regarding the potential for failure. In an attempt to salvage the talks, international efforts to prop up Talat led to anxiety among Greek Cypriots that the Cypriot-led talks would give way to mediation and time frames. In short, the talks would move in the direction of the internationalisation of Track 1, leading to an even greater distance from the people. Clearly, this was not the intent of the UN, given statements and good offices mission reports chastising the leaders for engaging in blame games and for failing to prepare the people for a referendum (See UN Security Council Resolution /2011/112, paragraph 17). The  leaders’ commitment to intensify negotiations on governance and power sharing provided the UN Secretary General a point of entry. However, his intervention was partially preempted in January 2010 by the Turkish side (including Turkey) when it submitted a proposal on governance and power sharing. This proposal was the outcome of a joint policy initiative by Talat and the Turkish government in Ankara. The proposal included cross-voting and a rotating presidency, two elements that the Greek Cypriot side had been advocating in previous months and over which Talat had made some verbal agreements with Christofias. However, the package proposal also included demands that the Greek Cypriot side would not  consider, including provisions for two separate

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flight-information regions (FIRs) as well as provisions for the exercise of the four basic freedoms throughout Cyprus (i.e. entry, movement, settlement and acquiring property) for Turkish nationals residing on the island. The internationalisation of the negotiations was now imminent, evidenced by letters from the Republic of Cyprus to the United Nations Security Council and to EU member states that declared the Turkish proposal unacceptable and the various provisions within at odds with the agreed basis of the talks.

Enter Eroglu: internationalisation of the talks With Talat’s fortunes dwindling, the UN hoped that convergences to date could be approved prior to TRNC presidential elections in April 2010. Ban Ki-Moon pushed for the publication of a comprehensive list of convergences, but Christofias could not be persuaded. Christofias was reluctant to detail specific convergences, apparently concerned that these would be subsequently binding within the negotiation framework. Consequently, Ban had to settle for a leaders’ joint statement that only confirmed that ‘good convergence’ had been made in some chapters, including ‘important progress’ in the governance and power-sharing dossier during an intensified round of negotiations in January 2010, significantly short of the detailed list that Ban had hoped for. As a result, the progress was neither itemised nor initialised, hence not binding on the sides. The stalemate in turn prompted the Turkish side, including Ankara, to push for further internationalisation of the negotiation process. Coupled with uncertainty regarding Talat’s reelection prospects, the proposed international conference would ostensibly serve to narrow divergences and to reach a comprehensive settlement. The envisioned conference would have been comprehensive, dealing with all outstanding matters including security and territory (i.e. the international dimensions of the Cyprus problem) that the Turkish Cypriot side could not negotiate independent of Turkey. Agreeing on the terms of a multilateral conference proved difficult. The sides continued to disagree on form and substance. Significantly, the sides attached significance to which parties were represented at such a meeting. Thus, the Turkish proposals envisaged a four-, five-, or six-party conference, including the three guarantor powers, denying the Republic of Cyprus independent status in the conference where the Cypriot sides would participate only as equal ‘communities’. The Greek Cypriot counterproposals aimed at wider participation including the five permanent members of the UN Security Council, the EU, Greece, Turkey, and crucially the Republic of Cyprus, as well as the representatives of the Turkish Cypriot and Greek Cypriot communities. With regard to substance, the Greek Cypriot side insisted that the scope of any conference on the international dimensions of the Cyprus Problem focus on guarantees and security, the presence of foreign military forces on the island, and the presence of settlers from Turkey. Moreover, the Greek Cypriot side

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proposed that the conference be held only after the finalisation of the internal arrangements of a settlement package. Since the issue first surfaced, differences have not been bridged; hence, the international conference has not convened. Crucially these developments portended a return to the international mediation that Christofias wished to resist. In 2004, the Annan Plan negotiations concluded through a similar international conference held in Burgenstock, Switzerland. In the run-up to the TRNC presidential election in April 2010, Talat sought more robust confirmation of progress in the talks. Negotiations continued throughout March and sought further convergences in the governance and power-sharing chapter. Talat and Christofias issued a final joint statement after meeting for the last time before the talks were suspended. Similar to the previous statement, specifics were omitted, and only ‘important progress’ was reported in the governance and power-sharing chapter; although the scope of convergences now  covered the chapters on EU matters and on the economy. The leaders maintained that with perseverance should achieve a comprehensive settlement. Thus, Chrisotfias prevailed once again, and the specific points of convergence and divergence were omitted. Talat, independent of Christofias, presented to Turkish Cypriots details of the various points of convergence and divergence that Christofias was reluctant to make public. Despite Talat’s efforts, he lost the presidential election on 18 April 2010 to Dervish Eroglu in the first round of voting. Eroglu was sworn in on 23 April. This, too, was interpreted as an implicit referendum where the Turkish Cypriot electorate expressed a loss of faith in a federal settlement. Eroglu was considered a hardliner and during the campaign pledged to reverse some of Talat’s commitments, especially with respect to a ‘single sovereignty’. Eroglu was quick to declare his intention to carry on with the negotiations from where they left off in a letter to the UN Secretary General. Thus, the Turkish side exhibited fundamental continuity despite the election result. However, Eroglu’s letter omitted any reference to the 1 July 2008 joint statement of Christofias and Talat that highlighted an envisioned ‘single sovereignty’ for a future federal Cyprus. Ultimately, these developments reflected potentially lost ground for Christofias, both with respect to some of the official commitments, such as the single sovereignty issue but also in relation to the verbal/unofficial agreements between himself and Talat where no formal convergence papers existed (such as with respect to crossvoting). It also foretold of more internationalisation to follow. The  stalemate in negotiations affected the agenda and led to an exploration of alternative methods to expedite the talks. Thus, the Greek Cypriot side argued  that progress could be made if there was give and take across dossiers. Until that point, the method of negotiation had excluded cross-dossier negotiations. The Turkish side insisted that negotiations in property be closed before negotiations moved to other chapters. Significantly, the discussion of modalities was designed to invite the UN to play a more mediating role, since the sides could not  agree through direct

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contact. By default, the negotiations increasingly entailed efforts by the sides to convince international mediators and the wider international community of the value of their respective proposals instead of endeavouring to convince the other side. The internationalisation became more acute when Ban Ki-moon intervened on 22 October 2010 by calling for a tripartite meeting in New York to expedite the talks. It was agreed that the meeting would be held on 18 November. During this first of several tripartite meetings, the UN reviewed the status of the negotiations, regarding the various chapters under negotiation, with a view to restore momentum in the talks. After the meeting, Ban Ki-Moon chastised the two leaders for conducting the talks so far ‘without clear progress or a clear end in sight’ and urged both sides to ‘assume their responsibilities’ and not to engage in ‘endless talks’. Ban’s statements were interpreted as an implicit threat to end the good offices mission should progress be insufficient. It was agreed that a subsequent meeting would be held in Geneva at the end of January 2011. The January deadline was meant to exert pressure on the sides to produce results to present at the subsequent tripartite meeting. The  leaders agreed to intensify contacts in the coming weeks to establish a ‘practical plan for overcoming the major remaining points of disagreement’ on all outstanding issues. On the 24 November, the Secretary General reported on his mission of good offices reminding the sides of their commitment to produce a practical plan to overcome disagreements, asserting that the talks ‘cannot be an open-ended process’ (Secretary-General 2010). On the 26 November, Ban Ki-Moon reported on the United Nations operation in Cyprus warning that a critical window of opportunity to resolve the Cyprus issue was rapidly closing. As a result, Ban was leveraging the good offices mission as a means to prompt more give and take. The year 2011 produced a similar pattern, with the Turkish side pushing for a conclusion of the negotiations through an international conference. The Greek Cypriot side argued throughout that convergences were insufficient to conclude talks. The year 2011 also saw increasing tension as the Republic of Cyprus was to assume the EU presidency in 2012, affecting Turkey’s accession negotiations with the EU. Additionally, disagreements regarding Cyprus’ exclusive economic zones (EEZs) led to further crises. Summits in July and October 2011 failed to bridge differences.

Anastasiades–Eroglu: the joint declaration of 11 February 2014 On 1 July  2012, the Republic of Cyprus assumed the EU presidency. Stalled negotiations were formally suspended. Moreover, Christofias did not  run for reelection; thus, the period was also a virtual interregnum. Any hopes for a recommencement of negotiations would have to wait for the election of Nicos Anastasiades in January 2013. Anastasiades of the DISY Party had formally supported the Annan Plan in 2004 in line with the then leader, Glaf kos Clerides,

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who was considered a spiritual leader of the philosophy behind the UN blueprint. Still, Anastasiades was discreet on settlement strategy given the perception in the Greek Cypriot community that Christofias had made too many concessions in years prior. Upon assuming the office, Anastasiades faced a serious financial crisis and an EU-induced ‘bail-in’ that saw bank depositors deprived of millions. In  response to these domestic constraints, Anastasiades was slow to engage with Eroglu. Moreover, in July  2013, he delegated negotiation responsibilities to a diplomat, Andreas Mavroyiannis, effectively downgrading the process. As a consequence, Eroglu also appointed his own corresponding chief negotiator. A resumption of formal full-fledged negotiations was now dependent on agreement over a ‘joint declaration’. This would not be achieved until 11 February 2014, which was hailed as a breakthrough. Whereas Eroglu had expressed opposition to his predecessor’s recognition of a ‘single sovereignty’, he eventually accepted a text that referred to a single international sovereignty. The  joint declaration also proved costly to Anastasiades as the DIKO Party left his governing coalition on the basis that Anastasiades had tacitly accepted various past convergences that Christofias had agreed to with Talat. The leader’s respective representatives, Mavroyiannis and Ozersay, were aided by the appointment of Espen Barth Eide, a Norwegian politician, as United National Special Adviser on Cyprus. Against this backdrop, disputes over seismic exploration and drilling for natural gas in the Eastern Mediterranean complicated diplomatic efforts. Turkey issued a NAVTEX, valid through mid-April 2015, declaring its intent to explore in areas declared by the Republic of Cyprus to be part of its EEZ. The Turkish side insisted that the issue of natural gas be part of the formal negotiation as a chapter. This was resisted by the Greek Cypriot side that maintained that natural resources would be under federal jurisdiction in the event of a settlement.

Akinci: a new hope but ultimate failure Eroglu was defeated in a run-off vote against Mustafa Akinci, a former mayor of Turkish Nicosia and a politician dedicated to a federal settlement in Cyprus. His election was greeted with great enthusiasm by the international community given his perceived willingness to conclude negotiations in good faith. He appointed Ozdil Nami as his chief negotiator, although Akinci made clear that he was to be directly involved at all stages of negotiation. On the one hand, Akinci benefitted from the fact that the NAVTEX had not been reissued, buying time for recommencement of negotiations. Akinci and Anastasiades were quick to seize the momentum of the new talks by announcing a series of CBMs, including mobile-phone interoperability. On the other hand, Akinci was perceived as not  being in favour with Turkey’s leadership, especially Prime Minister Tayyip Erdogan. Meanwhile, the 2016 TRNC parliamentary elections produced a nationalist coalition that was

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sceptical at best of federation. Similarly, parliamentary elections among Greek Cypriots in 2016 saw the far-right ELAM Party win representation for the first time. Mainstream and pro-settlement parties, including Anastasiades’ DISY, and the left-wing AKEL saw relative falls in support. Despite the domestic political costs, Anastasiades and Akinci made progress in formal negotiations. It was widely viewed as the closest the sides had been to a settlement since 2004. Still, there was no means of expediting the process, as there were no deadlines or end point. Thus, whereas significant progress was determined to have been made in some chapters, including economic affairs, EU affairs, citizenship and governance structures, important divergences remained over rotating presidency, territory and security guarantees. Inevitably, the Eide and the UN prodded the sides to determine if there was potential to resolve these matters via an international, multilateral conference, including the sides in Cyprus but also the three guarantor powers. Eide succeeded in convening the Mont Pelerin conference on 8 November 2016. Disagreements on the chapters on territory and displaced persons spilled over to linkages regarding the security dossier. The  reconvening of the conference on the 20–21 November failed to overcome these obstacles. Eide and the sides remained determined to continue nonetheless and a conference was convened on 9 January 2017 in Geneva. Here a sequence was to be followed whereby all issues aside from territory and security were to be resolved before the sides would submit formal preferred maps on territorial adjustment on 11 January, followed by a five-party conference on security guarantees on 12 January. Whereas the sides approved rotating presidency in principle and on a ‘United Federal Cyprus’, disagreements over the submitted maps proved insurmountable. The  Turkish map submitted by Akinci did not  include Morphou/Güzelyurt, a town that was to be returned to Greek Cypriot jurisdiction in the Annan Plan. The five-party summit on 12 January ended in failure. A  blame game ensued, first among the sides, but ultimately by the Greek Cypriots directed at the UN special representative, Eide. Aside from the fallout from Geneva, relations between the sides were further strained when on the 13 February 2017 the Greek Cypriot parliament passed an ELAM-sponsored bill on Enosis (union with Greece) commemoration, although DISY members had abstained during the vote. Despite the fallout, talks resumed on 11 April 2017 while the UN made arrangements for another international conference. Eide referred to seeking a ‘bottom line’ as well as a ‘working roadmap’, all of which implied deadlines and an endgame to the indecisive negotiations. Anastasiades came under pressure from political opposition that maintained that the UN had usurped the role of preparing a document on security with Eide accused of bias. Subsequently, Eide had to abandon the idea of tabling a discussion paper although his efforts continued in preparation for a multilateral conference. Given Eide’s diminished room for manoeuvre, it was left to the UN Secretary General, Antonio Guterres, to play a more overt hand to assist Eide in developing a framework for discussions on the security dossier. The UN convened

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another conference, this time in Crans Montana, Switzerland, on 28 June 2017. On 30  June  2017, Guterres produced a ‘non-paper’ including six points for resolution. The points implied, among other things, that the existing Treaty of Guarantee be replaced with a more contemporary system of security guarantees, but that Greek Cypriots accede to power sharing in the form of a rotational presidency. Although ambiguous it was possible to interpret that balances that Guterres had in mind, including the return of Morphou to the Greek Cypriots. These and other compromises were to be hammered out on the 1st and 2nd of July. On 3 July, the sides submitted counterproposals. Turkey called for the guarantees to remain but for the withdrawal of troops, similar to the provisions of the Annan Plan of 2004. Greek Cypriots insisted on the abolition of the guarantee system and treaty. The Turkish foreign minister, Mevlut Cavusoglu, made it clear that ‘zero guarantees, zero troops’ was out of the question. Thereafter, from 3 to 7 July, differences on rotating presidency, Morphou, and property proved insurmountable. Eide declared the conference closed on 7 July 2017. Guterres submitted a report on his Good Offices mission to the UN Security Council on 28 September 2017. Since then, the talks have been in abeyance, suspended indefinitely, despite efforts by Guterres to probe the sides for willingness to reengage on the basis of his six points or otherwise. Given Anastasiades’ reelection campaign, it was not possible to reengage until after January 2018. By that time, the Turkish positions had shifted. On the one hand, Turkey and opponents of Akinci were calling for ‘new ideas’ and a ‘Plan B’, implicitly advocating a twostate settlement model. Akinci, whilst resisting ditching wholesale UN federal settlement parameters, made political equality and deadlines prerequisites for the resumption of any talks suggesting that the negotiation framework must change. The lack of deadlines and consequences of failure, all based on the ‘nothing is agreed to until all is agreed to’ modality had run its course, according to Akinci. Guterres appointed a special representative in 2018 to determine if a ‘terms of reference’ could be agreed to, but this had not come to pass as of the summer of 2019. Anastasiades, for his part, argued that the political equality or effective participation envisioned by Akinci whereby at least one positive vote would have to cast by a Turkish Cypriot at all levels of federal governance was effectively a veto on the majority. Guterres’ results-oriented stance proved effective at getting the sides to declare their positions, but the lack of trust made compromises extremely difficult (Secretary-General 2019). Given the difficulty in bridging some of the gaps, a piecemeal approach that salvaged existing convergences as the basis of sustained talks might have been desirable. As chronicled above, the sides have been generally reluctant to confirm substantive convergences. This is ostensibly for two reasons. First, commitments made in one dossier of negotiation limits leverage in negotiating across dossiers, hence affecting the parameters of the negotiations. Second, commitments may be construed binding in a more legal sense, limiting the scope of action of the sides should negotiations fail.

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The  aftermath of the Annan Plan process is instructive in this sense, since it implies constraints and strategies for the sides in the current round of negotiations.

Commitment and consequences: political and legal effect If the behaviour of moderate leadership dyads such as Christofias–Talat or Anastasiades–Akinci was tactically, if not strategically, in line with that of erstwhile hardliners, the explanation might be found in the structure of the negotiations. Convergences are potentially recorded and binding for subsequent rounds of negotiations. Whereas the sides maintain that this is the ‘final’ round of negotiations, there is apparently much concern about the aftermath of another failed round of talks. The emphasis on achieving a settlement has come at the expense of a focus on reconciliation, which in turn leads to greater alienation of stakeholders from the negotiation process. Moreover, the legacy of the previous referendum implies that the outcomes may not be innocuous. A brief overview of the effects of the 2004 referendum is useful to appreciate the stakes for a future referendum. Importantly, despite the ‘null and void’ plan of 2004, the international community proceeded with efforts to ‘reward’ the Turkish Cypriots for their political stance. Thus, the outcome of the negotiations may lead to externalities – political and legal – that the sides may either desire or wish to contain. Whereas many of the legal consequences of the 2004 referendums may have been contained, this was only due to the threat of veto on the part of Russia as a permanent member of the Security Council. Otherwise, what was at stake at that time was a reinterpretation of United Nations Security Council Resolutions that condemned the unilateral declaration of the TRNC. In balance, this was a diplomatic success for the Greek Cypriot-led Republic of Cyprus. Not only was the Annan Plan ‘null and void’ from a legal standpoint but any implications that the Turkish Cypriot entity should be upgraded were also thwarted. Noting that the design of the Annan Plan was such that it had rendered the plan ‘null and void’ as a result of the yes/no vote, the immediate political consequence was that the Cyprus problem remained unresolved. Against this, the Greek Cypriotled Republic of Cyprus acceded to the EU with a divided territory. This anomaly, in turn, was accommodated through a protocol to the Accession Treaty. Protocol 10 of the Accession Treaty determines that given the failure to arrive at a settlement the acquis will remain suspended in areas of the  Republic of Cyprus in which the Government of the Republic of Cyprus does not  exercise effective control. According to the EU, it was ready to accommodate the terms of such a settlement in line with the principles on which the EU is founded. At the same time, the EU decided that the council, acting unanimously on the basis of a proposal from the commission, shall decide on the withdrawal of the suspension referred to. Meanwhile, the protocol maintained that ‘nothing in this Protocol shall preclude measures with a view to promoting the economic development. (See  http://eur-lex.europa.eu/treaties/dat/12003T/htm/12003T.html, accessed

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5 February 2012). So, with accession to the EU emerged a tension between the principle of unanimity (implying a Greek Cypriot veto) and a commitment to promote economic development in the North. In the interim, the question that looms large for the international community and for the EU in particular is what precisely to do regarding the division of Cyprus. Following the failed referendum, the EU acted quickly. On 26 April 2004, the EU foreign ministers agreed to end the isolation of the Turkish Cypriot community and to facilitate the reunification of Cyprus by encouraging the economic development of the latter community. Despite the Greek Cypriot ‘no’, the EU was concerned not  to isolate the Turkish Cypriots. In fact, EU officials made clear their frustration with the ‘no’ campaign that had taken place in the South. The EU Commission, in line with its mandate from the council, proceeded to draft further regulations to ostensibly ‘lift the isolation’ on the Turkish Cypriot community, who, according to the UN Secretary General, by ‘no fault of their own’ remain outside of the EU (Secretary General 2004). The UN Secretary General’s report expressed hope that members of the Security Council would ‘give a strong lead to all States to cooperate both bilaterally and in international bodies to eliminate unnecessary restrictions and barriers that have the effect of isolating the Turkish Cypriots and impeding their development, deeming such a move as consistent with Security Council resolutions 541 (1983) and 550 (1984)’. This was a reference to the resolutions in which UN Security Council had condemned the 1983  declaration of independence, which it had defined it as legally invalid. These resolutions, as well as the decision of the European Court of Justice in 1994 concerning the import of products from the TRNC, collectively led to the economic, social, cultural and political isolation of the Turkish Cypriots. However, divisions in the Security Council meant that the report was never endorsed by the Security Council; thus, the specific reinterpretations of 541 and 550 have not been adopted. Interestingly, in order to get to a reinterpretation of 541 and 550, Annan had to contend that the Turkish Cypriots had rescinded their unilateral declaration of independence of 1983, which itself led to a referendum to ratify the TRNC constitution of 1985. Thus, in the same report, Annan reflected on the referendum results, maintaining that the Turkish Cypriot ‘yes’ suggested a rejection of secessionism. The  isolation of the Turkish Cypriots is not  as clear cut as it used to be, since the international community decided to reconsider its view of the Turkish Cypriots as unambiguous aggressors and unrepentant secessionists. The upshot was that the Turkish Cypriots enjoyed a bolstering of their position. But praise for their willingness to compromise and reconcile translated into few tangible benefits, and earlier American and European promises to bring the Turkish Cypriots in from the cold (especially direct flights and direct trade) rang hollow. Had the plan and subsequent referendum been designed differently, the legal impacts could have been more pronounced. The problem in Cyprus is how to ratify a ‘new state of affairs’ and what this means. Ultimately, the referendums

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are acts of ( joint) self-determination. But one problem that plagues the process is whether this also implies double (inherent) self-determination. Another problem is whether the referendums are meant as a constitutional amendment (hence, the devolution of the existing Republic of Cyprus) or whether there is an element of state succession. Similarly, the referendums deal not only with internal aspects of the Cyprus problem but also relate to external self-determination in that voters are asked to weigh in on the international treaties to be amended. Given the inherent complexity and contradictions of the matter, as well as the conflicting starting points of the sides, the Annan Plan had left ambiguous the issue of sovereignty. Instead of dealing with the matter directly, the Annan Plan required interpretation regarding the coming into being of the ‘new state of affairs’. During the current round of negotiations, Talat’s commitment to a ‘single sovereignty’ was a step in a new direction in this respect. It is important to highlight that Cyprus should be regarded as unique in some respects that affect the application of the referendum. Due to the particular circumstances under which the original Republic of Cyprus was established in 1960, there is an inherent tension between the principle of self-determination and the various treaties that established the Republic. Crucially, a settlement to the Cyprus problem will entail treaty amendments. As in the Annan Plan, referendums have been determined to be the procedure. This implies the consent of Greek Cypriots and Turkish Cypriots but leads to varying legal interpretations. Critically, the Greek Cypriot side prefers to construe the referendums as indicative of direct democracy. By contrast, separate simultaneous referendums may also imply an act of double self-determination. These conflicting interpretations, in turn, affect the question of state succession versus devolution into a bi-zonal federation. Given the stakes, the only surprising element is that the Greek Cypriot side agreed to a referendum during the 1990s when the UN’s ‘Set of Ideas’ featured this for the first time. Presumably, the Greek Cypriots interpreted it to be in line with direct democracy to ratify a new constitution, not a new state, hence the continuation of the Republic of Cyprus. Ultimately any settlement in Cyprus will require attention to the unique international personality of the Republic of Cyprus. Looking back to the Annan Plan, the envisioned procedure required the democratically elected leaders to sign and submit the text to referendums. Thereafter, had the plan been accepted through the two referendums, it was left to the guarantor states to sign the same document and then to sign a new treaty with the United Cyprus Republic thereafter, resulting in an amended and ‘new state of affairs’. In many ways, technically speaking, the procedure to put the Annan Plan into force was similar to that for the 1960 system and accords. In the first two versions of the plan, the signatures of the ‘democratically elected leaders’ of Greek Cypriots and Turkish Cypriots were required in order to obtain their consent on the

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comprehensive settlement and on submitting the text to referendums. The document eventually submitted to referendums was entitled the ‘Comprehensive Settlement of the Cyprus Problem’. Had the document been accepted in both referendums, then the three guarantor states would have been virtually obliged to sign the same document and committed themselves to sign together with Cyprus a general treaty in which the 1960 treaties would have been amended and the new state of affairs would have come into force. Specifically, the Greek Cypriot and Turkish Cypriot leaders would have had to sign on behalf of the United Cyprus Republic an amended Treaty of Guarantee. Clearly the big difference was the referendums, which never featured in 1960. But there was another significant difference. Unlike the respective leaders during the 1959–1960 process, the consent of the leaders was never obtained in practice during the Annan Plan negotiations. By the time the Annan Plan’s ultimate revision was put to referendums the leaders were no longer obliged to sign it. Instead, they only agreed to submit it to referendums. Thus, all signatures were omitted. Despite this, separate simultaneous referendums remained sufficient for the purposes of legally establishing the United Cyprus Republic and the new state of affairs.

The problem of consent and commitment (and of design) Criticisms regarding the process that led to a form of arbitration are certainly valid. In its ultimate form, it appeared to be an internationally imposed settlement package (with the large caveat that it was voted on through a democratic process). However, an analysis of the process reveals that all sides were complicit in this design. On the international side, the drafters working for the United Nations worked around the problem of reluctant political leaders in pragmatic fashion, which led to a document where the consent of voters would be sufficient. This allowed the sides to put the plan to referendums without making commitments. Annex IX of the Annan Plan described the procedure that would lead to the coming into being of a new state of affairs. Crucially, a failure in the referendums would mean that the plan would ‘be null and void, and have no legal effect’ (Law on Referendum with Regard to the Solution of the Cyprus Problem 2004). In previous iterations of the Annan Plan – that was revised several times over the course of a year and a half, from its release in November 2002 through the referendum of April 2004  – commitment was essential. However, with each iteration, the leaders were allowed to distance themselves from the Foundation Agreement and the rest of the annexes. The  result, ultimately, was the internationalisation of a draft. Thereafter, it was easier for the leaders to disown the plan and actively campaign against it in the subsequent referendum campaigns. Clearly, the rejection of the plan by the Greek Cypriot community was not simply a result of the decoupling of the settlement from the accession of the Republic of Cyprus to the EU. In short, the leaders produced a self-fulfilling prophecy

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and were complicit in the internationalisation of the Annan Plan. Ultimately, the various amendments in the procedure freed Papadopoulos to lead the ‘no’ campaign given that no legal effects would follow as a result of rejection. On the Greek Cypriot side, the distancing was further achieved by allowing the referendum to be exercised as a UN document submitted by that organisation, and not on the basis of a bill passed by the legislative authority of the Republic of Cyprus. The  process on the Turkish side was more complex. In  the end, the protests of veteran leader Rauf Denktash were not heeded, and a special bill was enacted. In  short, there were divisions on the Turkish side as to whether the referendums posed an opportunity or threat. Ultimately, given Turkey’s relations with the EU and alternative interpretations of the referendums process, Denktash was unable to nullify the parliamentary bill.

Designing for a new referendum Looking forward, there is a real risk that the process outlined above could be reenacted with similar results. Not  surprisingly, the Greek Cypriot side has been especially keen to remain within the parameters of a ‘Cypriot’ settlement that requires consensus on all internal matters, including the dossiers of governance, territory, property and economics. The Turkish side, on the other hand, is eager to see the culmination of the talks in the form of a final international or multilateral conference. The Greek Cypriot side will want to retain to the greatest degree continuity with the Republic of Cyprus in return for concluding the process. Thus, this time, the sides have not been able to sidestep sovereignty through a ‘virgin birth’ approach. It is likely that minus international prodding neither a consensus on the internal matters nor an international conference will materialise. That said, should a settlement plan be imposed, it is unlikely that the sides will acquiesce to the procedure. Even if the sides agree, survey data suggest that only a concerted effort on both sides would lead to a double ‘yes’ outcome. All else being equal, the Greek Cypriots are more likely than Turkish Cypriots to vote against any settlement plan. Put differently, independent of a particular plan, a significant number of voters in both communities – but somewhat more among Greek Cypriots – reject federation and power sharing in principle. The  process, if anything, has led to more alienation than ownership. This  implies that a referendum will either not  take place or in the event one is held it may fail. Either way, a failure to reunify Cyprus will engender new strategic thinking on the island and elsewhere. Despite UN Security Council Resolutions to the contrary, Turkish Cypriots may wish to emulate Kosovo and to redeclare independence through a referendum held exclusively among TRNC citizens. This serves as a reminder of the ulterior goals of the sides that in turn raises the stakes of the referendums. Given the problems associated with the negotiation process and anxieties related to potential referendums, as well as the lack of incentives, alternatives might be considered. As has been discussed, efforts to build ownership have been

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superficial and gave way to ‘blame game’ tactics. This limits the ability of the sides and the respective publics to give much credence to the other side. Thus, at this late stage what is required is a redesign of the referendums process. Should the sides reach a consensus, it is important that the results are not ‘null and void’. Only through a set of consequences and alternatives can the process build on any convergences and contribute to reconciliation at other levels. Staggering referendums or producing mandate referendums are not likely to work in this context, since without consequences the public are likely to exercise a ‘veto’ to most perceived concessions, allowing opposition parties to gain support at the expense of the peace process. The only means is to provide a fairly substantive foundation agreement for simultaneous vote, as was planned. Comparisons of the Cyprus referendums to the experiences of some other societies can be problematic. For instance, the status of Northern Ireland is subject to change, pending the wishes of the majority. In  Cyprus, the negotiations are structured as an all-or-nothing proposition. Moreover, the settlement envisioned is comprehensive and fairly static. Thus, in Cyprus, issues cannot be pushed farther down the road, as it were.

Conclusion Inevitably, the precedent of the Annan Plan has had its own legacy over developments in Cyprus since 2004. Whereas lack of ownership was understood to have been a weakness of the process that led to failure then, many of the same mistakes have been repeated. Opportunities to bring citizens into the process have been missed. Overcoming deadlocks in the negotiations has negated the ‘Cypriot-led’ process in all but name. Internationalisation, in turn, has led to greater distance with the people coupled with lower expectations of success. Many of these problems are inherent to a process that envisions ‘all-or-nothing’ outcomes based on an all-determining referendum result(s). The comprehensive nature of the negotiations and the potential legal implications of the process and outcomes serve to hinder the sides in their endeavour to conclude negotiations. Unless the structure of negotiations is revised, there is the very real prospect that another referendum will never materialise. Alongside the deteriorating geopolitical climate with Turley drifting away from the Western alliance, the ‘nothing is agreed to till all is agreed to’ method serves to undermine commitments. If anything, the future may entail mono-communal referendums, particularly among Turkish Cypriots who may be induced to unilaterally declare independence anew, effectively consolidating the permanent division of the island.

References Anastasiou, H. (2007) ‘Nationalism as a Deterrent to Peace and Interethnic Democracy: The Failure of Nationalist Leadership from the Hague Talks to the Cyprus Referendum’, International Studies Perspectives 8: 190–205.

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Drath, V. (2004) ‘The  Cyprus Referendum: An Island Divided by Mistrust’, American Foreign Policy Interests 26: 341–351. European Council, Council Regulation (EC) No. 389/2006 of 27 February 2006. Ker-Lindsay, J. (2006) ‘A  Second Referendum: Parliamentary Elections in Cyprus’, Mediterranean Politics 11(3): 441–446. Law on Referendum with Regard to the Solution of the Cyprus Problem Kıbrıs Sorununun Çözümüne İlişkin Halkoylaması (Özel ve Geçici Kurallar) Yasası [Special and Transitional Provisions] (22 March 2004, Number 2/2004). Loizides, N. G. (2009) ‘Referendums in Peace Processes’, Meeting of the International Studies Association, New York, 15–17 February. Lordos, A. (2008) ‘Rational Agent or Unthinking Follower? A  Survey-Based Profile Analysis of Greek Cypriot and Turkish Cypriot Referendum Voters’, in T. Diez and N. Tocci, eds., Cyprus: A Conflict at the Crossroads (Manchester: Manchester University Press). Lordos, A., E. Kaymak, and N. Tocci (2009) A People’s Peace in Cyprus (Brussels: Centre for European Policy Studies). Mallinson, W. (2011) ‘Foreign Policy Issues of a Part-Occupied EU State’, Cyprus Review 23(1): 155–160. Özersay, K. (2005) ‘Separate Simultaneous Referenda in Cyprus: Was it a “Fact” or an “Illusion”?’, Turkish Studies 6(3): 379–399. Qvortrup, M. (2005) ‘Fair Voting? The  Regulation of Referendums in Cyprus in Comparative Perspective’, Cyprus Review 17(2): 13–25. Qvortrup, M. (2014) Referendums and Ethnic Conflict, Philadelphia, University of Pennsylvania Press. Secretary General (2004) ‘Secretary-General on His Mission of Good Offices in Cyprus to the Security Council’ of 28 May 2004 (S/2004/437). Secretary General (2010) ‘Report of the Secretary-General on his Mission of Good Offices in Cyprus’ of 24 November 2010 (S/2010/603). Secretary-General (2019) ‘Report of the Secretary-General on His Mission of Good Offices in Cyprus, Tuesday, April 16, 2019|UN Cyprus Talks’. 2019. Uncyprustalks. Org. Accessed June 4 2019. http://www.uncyprustalks.org/report-of-the-secretarygeneral-on-his-mission-of-good-offices-in-cyprus-tuesday-april-16-2019/. Sitas, A., D. Latif, and N. Loizou (2007) ‘Prospects of Reconciliation, Co-Existence and Forgiveness in Cyprus in the Post-Referendum Period,’ Report 4/2, Nicosia, Cyprus: PRIO Cyprus Centre. UN News Centre (2008) ‘Greek Cypriot and Turkish Cypriot Leaders Announce “Full-Fledged” Negotiations’, http://www.un.org/apps/news/story.asp?NewsID 27489&Cr=Cyprus&Cr1 (accessed 6 February 2012). UN Peacekeeping Force in Cyprus (UNIFCYP), ‘UN in Cyprus: An Inter-communal Survey of Public Opinion by UNIFCYP’, February–June (2007), http://www.unficyp. org/media/Survey 24 04 2007ENG.pdf (accessed 5 February 2009). United Nations Security Council Resolution 1990/649. United Nations Security Council Resolution 2011/112. Varnanva, A. (2011) ‘Why the Latest Initiative to Reunify Cyprus Will Fail: The  Six Pillars of the Cyprus ‘Problem’ and the Impregnable Roof ’, Cyprus Review 23(1): 147–154.

7 SELF-DETERMINATION OR THE WILL OF THE PEOPLE? DECLARATIONS OF INDEPENDENCE AND THE PARADOX OF ‘ALIEN-DETERMINED SELF-DETERMINATION’ Aleksandar Pavkovic´

Declarations of independence and the paradox of alien-determined self-determination Declarations of independence are public pronouncements, issued by individuals or collective bodies alleging to represent peoples (populations) of specific territories, which state that a new state, on that territory, has become independent. Apart from making this kind of statement, declarations of independence invite other states to officially recognise the new state as an independent state. But as Derrida (1986, 9) has pointed out, ‘[o]ne cannot decide … whether independence is stated or produced by this utterance [i.e. the declaration]’. Even if the independence is not in any way ‘produced’ or established, those who are making such declarations are making public at least their intention to remove the sovereignty of the ‘host’ state from that territory and to create a new sovereign state on the same territory. In short, declarations of independence are used as rhetorical instruments for legitimising the rejection or overthrow of the sovereignty of an existing state and replacing it with the sovereignty of a new state (Nardin 2015, 100). In  his magisterial history of declarations of independence David Armitage (2007) traces the genealogies of several waves of such declarations, relating them to the Ur-Declaration, that of the United States of America of 1776. As already noted by Nardin (2015) in another context, Armitage shows no interest in an important rhetorical device deployed in many such declarations – that of national self-determination. Another rhetorical device in which Armitage shows no interest, is found in the phrase ‘the will of the people’, where ‘the people’ refers to the population on whose behalf the declaration of independence is issued. These two rhetorical devices are, in declarations of independence, primarily used to legitimise or justify the overall objective of independent statehood. Thus, the will of the people to be independent legitimises declaring independence and establishing

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an independent state, and the principle or the right of self-determination is considered the ultimate or the fundamental quasi-juridical justification for declaring independence and establishing an independent state. These two devices are far from being exclusive; as this paper will show, some declarations of independence refer both to the will of the people and its right of self-determination. The  two rhetorical devices originate in different intellectual traditions and differ in their conceptual connotations. The  concept of the will of the people originates in the idea of the general will found in the works of Jean Jacque Rousseau, in particular in his Social Contract (1762); one of its first legislative expressions is found in Article 6 of the Declaration of the Rights of Man and the Citizen passed by the National Assembly in Paris in August 1789. The concept is closely linked with the concept of popular sovereignty – the rule of the people – and thus with democracy either in its direct, plebiscitary form, or its indirect, representative forms (assemblies, parliaments): plebiscites or representative assemblies are believed to express the will of the people who are voting in the plebiscite or represented in an assembly. But as seen below in the 1908 Manifesto of Ferdinand I of Bulgaria, even in the absence of the expression of either kind, monarchs or political leaders may also respond to or follow the will of the people by issuing declarations of independence. This suggests that the concept of the will of the people does not require or presuppose any specific overt action on behalf of the people whose will that is. The phrase is already found in the 1811 Venezuelan (Armitage 2007, 211) and the 1821 Mexican declaration of independence (Fisch 2015, 75). By proclaiming that ‘…the general will is decided in favour of the Independence of Peru from Spanish domination … .’ (Anna 1975, 221) the Peruvian declaration of 15 July 1821 was probably the first to legitimise state independence by a direct appeal to the will of the people (here ‘the general will’). The phrase ‘the will of the people’ is not, of course, restricted to just declarations of independence; any regime or rule which is not considered democratic may be proclaimed to be against the will of the people. The  phrases ‘self-determination’ and ‘the right of self-determination’ are first found in the writings of German historians in the 1860s (Fisch 2015, 118). These terms gained widespread use in the debates within social democratic and Marxist parties, in particular in the multinational empires of the Habsburgs and Romanovs. Already in 1916 Lenin, as the leader of the Bolsheviks in Russia, linked the right of self-determination to the creation of an independent state and claimed that all peoples, including colonial ones, have that same right (Fisch 2015, 121). On 15 November 1917, the Soviet government, under his chairmanship, proclaimed ‘the right of the peoples of Russia to free self-determination, even to the point of separation and the formation of an independent state’ (Declaration Rights of the Peoples of Russia 1917; Fisch 2015, 130). According to Fisch (2015, 134) US President Woodrow Wilson took the same phrase from Lenin’s vocabulary but restricted its meaning to self-government or the ‘consent of the governed’. Unlike Lenin, Wilson, according to Fisch, never meant to give colonial peoples or any ethnic groups the right to establish independent states.

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On 4 December, the Senate of Finland declared the independence of Finland, referring to the Finnish people’s ‘right to determine its fate’ (To the Finnish People 1917); and on 18 December Lenin, on behalf of the Soviet government, recognised Finnish independence ‘in accordance with the principle of national self-determination’. Soon after, on 16 February 1918, the Council of Lithuania, proclaimed the independence of Lithuania ‘on the ground of the recognised right of self-determination’ (Resolution 1918). But this right found its first codification in international law only in 1960, in the United Nations (UN) General Assembly Declaration on Granting Independence to Colonial Countries and Peoples which assigns this right, in its second article, to ‘all peoples’ but provides no clue as to who those peoples are. Yet Article 5 in effect restricts the use of this right to the legitimisation of the independence of the European overseas colonies (past and present). Finally, Article 6 rules out its use to legitimise secession from UN member states since ‘any attempt at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations’ (General Assembly 1514 1960, #6). In spite of these limitations, the right of self-determination is here – and in later UN declarations – explicitly constructed so as to legitimise the creation of independent states out of the territories which were not independent before: Article 5 of the preceding declaration demands an ‘immediate transfer of [state or sovereign] powers’ to the populations of the territories which have not attained independence in order to make them independent. As a universal human right, possessed of all peoples, this instrument of legitimisation of independence itself appears to be independent of the contingencies of history, ethnicity or geography. In view of its universality, it is understandable that from the end of World War II onwards, declarations of independence, as Armitage (2007, 110) notes, increasingly refer to such universal human rights. In his historical survey of the concept of self-determination, Fisch (2015, 115) notes that in the second half of the nineteenth century, the European Great Powers acted as arbiters of independence. These powers were granting independence to various segments of the Ottoman Empire whose populations were not  at the time ‘determining’ themselves in any particular way nor were they expected or asked to perform any acts of ‘self-determination’. In short, peoples were granted independence by outside powers without any self-determination on their behalf. Fisch (2015, 116) finds this paradoxical and, to highlight the paradox, calls this kind of case ‘alien-determined self-determination’. An example of ‘alien-determined self-determination’ is found in the history of Bulgaria’s path to independence. In the Russo–Turkish War of 1878, the Russian military conquered a large territory in the Eastern Balkans, populated by the Bulgarians and, as a result, the peace agreement between the Russian and Ottoman governments, in San Stefano, envisaged a large and independent state of Bulgaria. In June 1878, at the Congress of Berlin, following Austria–Hungary’s and Great

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Britain’s objections, the Great Powers divided the so envisaged large state and recognised only a smaller segment as the principality of Bulgaria, to be placed under the rule of a Christian prince from a European dynasty but still paying tribute to the Ottoman state (Crampton 2005, 86). Only in 1908 did the then Prince Ferdinand (of the German/Hungarian House of Saxe-Coburg and Gotha-Koháry) declare independence of the (by then significantly enlarged) Kingdom (or Empire) of Bulgaria. His ‘Manifesto’ starts with the expression of gratitude to the Russian Tsar and his Romanian allies for liberating his country from slavery and ends with the proclamation of independence of the Kingdom of Bulgaria made ‘in order … to respond to the will of the people’ (Manifesto 1908). In  this case, Bulgaria first achieved a conditional independence which was a result of an outside military intervention, an intervention which was acknowledged, with gratitude, in its later declaration of (full) independence. While this conditional independence was granted by the Great Powers in 1878, the 1908 declaration of independence – in the form of a manifesto by a non-native monarch (allegedly) responding to the will of his people – removed the earlier conditionality (the tribute paid to the Ottoman Empire) and established Bulgaria’s full independence. This chapter explores five cases of ‘alien-determined self-determination’ in the period from 1971 to 2008, in which independence from the former host state was also a result of military intervention by outside state(s); these are the cases of Bangladesh, East Timor, Northern Cyprus, South Ossetia and Kosovo. The question the essay addresses is how the rhetorical devices of self-determination and of the will of the people are used (if at all) in the declarations of independence that preceded or followed the military intervention that brought independence from the previous ‘host’ state, primarily by removing its agents and institutions from the territory. At the time of writing, the preceding five states all exercise sovereign powers through their state institutions, including the armed forces and ministries of foreign affairs. The independence of these five states was first recognised by the states whose military intervention led to their independence; this recognition, at least in some cases, signalled that the aim of the military intervention was not the occupation or annexation of the territory. However, the independence of Bangladesh and East Timor was also recognised by their former ‘host’ states  – Pakistan (after a two-year delay) and Indonesia, respectively – whereas the former ‘host’ states of the Turkish Republic of Northern Cyprus, South Ossetia and Kosovo have not recognised the independence of these three seceded states. Partly as a consequence of this selective recognition, only Bangladesh and East Timor are members of the UN, Kosovo is currently recognised by more than 100 UN member states but is not (as yet?) a member of the UN, while South Ossetia is recognised by five (Russia, Venezuela, Nicaragua, Nauru and Syria) and the Turkish Republic of Northern Cyprus by one UN member state, Turkey.

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Bangladesh Bangladesh’s first declaration of independence was contained in the pre-recorded radio message by Sheik Mujibur Rahman, broadcast on 25 March 1971 from a makeshift radio transmitter in Dacca, following the military takeover of East Pakistan by Pakistani armed forces. Sheik Rahman was the leader of the Awami League, a Bengali party in East Pakistan, which in January 1971 won a majority of seats in the Parliament of the whole of Pakistan. Unlike most of the leaders and deputies from his party who fled to India before 25 March, he remained in East Pakistan, was arrested by the Pakistan Army and transferred to West Pakistan (Sisson and Rose 1990, 159). His brief declaration began with ‘Today Bangla Desh is a sovereign and independent country’ and continued to describe the attack of the Pakistani Army in various places in the former East Pakistan, now Bangladesh. It ended with a statement and a prayer: ‘The Bengalis are fighting the enemy with great courage for an independent Bangladesh. May Allah aid in our fight for freedom. Joy Bangla [Victory to Bangladesh]’ (Guhathakurta and van Schendel 2013, 225). On 27 March, Major Zauir Rahman (no relation to Sheik Rahman), as the head of the Bangladesh armed forces and on behalf of the Sheik Rahman, proclaimed the independence of Bangladesh over makeshift radio transmitter in Kalurghat, Chittagong, without mentioning the first declaration by Sheikh Rahman. Having proclaimed the independence, he went on to declare ‘ … we have already framed a sovereign, legal Government under Sheikh Mujibur Rahman … The  new democratic Government is committed to a policy of non-alignment in international relations. It will seek friendships with all nations and strive for international peace. I appeal to all Governments to mobilise public opinion in their respective countries against the brutal genocide in Bangladesh’. The declaration ended with the claim that this government is ‘entitled to recognition from all democratic nations in the world’ (Guhathakurta and van Schendel 2013, 226). Both declarations were short. The  first primarily dealt with the Pakistan Army attack and the fighting that ensued while the second emphasised the legality of the newly formed government, its peace-seeking international policy and appealed for international support and recognition. Neither mentioned selfdetermination, the right to self-determination, or the will of the people. Three weeks after these two declarations, on 17 April 1971 a number of Bengali politicians who had fled to India crossed over the border to the village of Baidyanathala in Bangladesh, and under Indian military protection, proclaimed themselves a Constituent Assembly. This assembly went on to ‘declare and constitute Bangladesh to be a sovereign People’s Republic and thereby confirm the declaration of independence already made by … Sheikh Mujibar Rahman’ and in the same paragraph appointed him the President of the Republic, giving him the power to appoint the government and to ‘do all other things that may be necessary to give to the people of Bangladesh an orderly and just Government’ (Guhathakurta and van Schendel 2013, 227–229).

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The Preamble of this declaration makes it clear that the initial declaration of independence was a response to the war against the Bengali people: ‘While still conferring with the elected representatives of the Bengali people’, the Pakistani authorities ‘declared an unjust and treacherous war’ and …in the facts and circumstances of such treacherous conduct Bangabandhu Sheikh Mujibur Rahman, the undisputed leader of the 75 million people of Bangladesh, in due fulfillment of the legitimate right of self- determination of the people of Bangladesh, duly made a declaration of independence at Dacca on 26 March 1971, and urged the people of Bangladesh to defend the honour and integrity of Bangladesh… In spite of the treacherous and unjust war levied against them, the declaration stated that the ‘people of Bangladesh by their heroism, bravery and revolutionary fervour have established effective control over the territories of Bangladesh’ (Guhathakurta and van Schendel 2013, 228). In the Preamble of this declaration, ‘war’ – variously described as ‘treacherous’, ‘unjust’, ‘savage’ ‘ruthless’  – is mentioned three times while ‘genocide’ is mentioned twice (including ‘numerous acts of genocide’). There is no mention of the will of the people, and the right of self-determination is mentioned only once as ‘being duly fulfilled’ by the initial declaration by Sheikh Rahman. How this right is ‘duly fulfilled’ through a declaration that did not  mention it is, of course, not entirely clear. One possible interpretation is that Sheikh Rahman, without mentioning the right, has in fact exercised this right by declaring independence on behalf of the 75 million inhabitants of Bangladesh whose leader he is believed to be. In  other words, the people of Bangladesh, prior to the war, had already had the right of self-determination which was then exercised through the initial declaration of independence. While this is not  the only possible interpretation of the above phrase ‘in due fulfilment’, this interpretation avoids the paradox of alien-determined selfdetermination. In early December 1971, the Indian Army entered East Pakistan/ Bangladesh and on 16 December 1971, after heavy fighting, the Pakistani Army surrendered to the Indian Army which, together with the Bengali Freedom Fighters, took full control over the territory of Bangladesh. During the fighting, on 6 December 1971 the Indian government recognised the independence of Bangladesh, without any reference to its earlier declarations of independence. According to the preceding interpretation, the Indian Army’s takeover of Bangladesh had nothing to do with self-determination – let alone with the right of self-determination. The  right of self-determination had already been exercised by Sheikh Rahman on 25 March 1971 by or through his declaration of independence. According to this interpretation, a people’s right of self-determination can be exercised by or through a declaration of independence (made by a purported leader of that people) which makes no mention of the right. In this way,

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independence from the host state may result from a military intervention and the subsequent takeover of territory by another state – and yet prior to the military intervention the people’s right of self-determination had already been exercised through the declaration of independence. The Bangladesh case then provide the first way out of the paradox of aliendetermined self-determination: the achievement of independence from the former ‘host’ state – that is, the removal of its institutions and agents from the territory  – is divorced from the exercise of the right of self-determination; the exercise of the latter need not be related to the achievement of its independence from the host state. This is a model whereby the right of self- determination is divorced from the achievement of independence.

East Timor On 28 November 1975, the Central Committee of the Frente Revolucionária do Timor-Leste Independente (FRETILIN) ‘[f ]ollowing the aspiration of the people of Timor Leste and in order to safeguard their legitimate rights and interests as the Sovereign Nation… decreed and proclaimed, unilaterally, the independence of East Timor which… becomes the Democratic Republic of East Timor, anti-colonial and anti-imperialist’ (Texto 1975). This very short proclamation, in Portuguese, did not mention self-determination or the will of the people – nor did it mention Portugal or colonialism. At the time of declaration, there was no Portuguese colonial administration in East Timor since the Portuguese governor and his staff left the capital already in August 1975. But a few days after the declaration, on 7 December 1975 the Indonesian Army invaded and occupied East Timor, and from 1976 until 1999 East Timor remained incorporated into Indonesia. In spite of that, in response to this declaration, 15 countries of Asia and Africa, mostly countries with Marxist regimes in power, including PR China, recognised the Democratic Republic of East Timor (Grant 1999, 146). The  Preamble of the Constitution of East Timor, which the Constituent Assembly of East Timor passed on 28 May 2002, reaffirms this proclamation: the very same independence of the Democratic Republic of East Timor, declared by the revolutionary Marxist organisation, FRETILIN in 1975, was, according to this Preamble, internationally recognised on 20 May 2002 (there is no mention of its international recognition in 1975). According to the Preamble, the independence of East Timor was recognised once ‘the liberation from colonisation and illegal occupation… by foreign powers has been accomplished’ (Preamble 2002). The Preamble appears to suggest that East Timor had to be first decolonised (from Portugal?) and liberated from occupation (by Indonesia?) in order to gain the recognition of its independence. The Preamble also offers a brief outline of the struggle for liberation (including the role of the Catholic Church in it) and pays respects to ‘all the martyrs of the Motherland’. As in the initial Proclamation of Independence, there is no mention of the right of self-determination nor of an act

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of self-determination. Instead, the Preamble mentions ‘the self-determined will for independence’ in the context of the referendum of 1999: Based further on the results of the referendum of the 30th of August 1999 organised under the auspices of the United Nations which confirmed the self-determined will for independence… (Preamble 2002). The referendum to which the Preamble refers was a ‘popular consultation’ organised by the UN mission to East Timor concerning the proposal for special autonomy of East Timor offered by the Indonesian government at the time. The eligible voters in East Timor were asked whether they accept special autonomy, offered within the unitary state of Indonesia or they reject this proposal, thus ‘leading to East Timor’s separation from Indonesia’. On 30 August 1999, 78.5% of those voting, rejected the proposed special autonomy (Aucoin and Brandt 2010, 249). According to the then Secretary General of the UN, in rejecting this proposal ‘the people of East Timor expressed their wish to begin a process of transition towards independence’ (UNSEC Press 1999). The word ‘independence’ does not occur in the text of the two questions put to the voters and this ‘popular consultation’ was not presented, in the UN reports, as an act of self-determination. The Preamble assumes that the individuals voting in a referendum or popular consultation of this kind somehow express the ‘will’ of the people as a whole; in this case, the referendum is said to ‘confirm’ this will. The phrase ‘the self- determining will for independence’ is perhaps a shorthand for ‘the will to establish an independent state of East Timor’. The  Constitution and its Preamble does not  mention the Australian and British military forces which, as part of a larger multinational UN peacekeeping force, landed in East Timor on 20 September 1999 and soon established control over East Timor. Nor is there any mention of the UN Transitional Authority, set up shortly after the military intervention, which governed East Timor from October 1999 until May 2002, and organised and supervised the elections for the Constituent Assembly that passed the above Constitution. Although the Indonesian government, under pressure from the US, accepted the UN military intervention as a peacekeeping operation, the international military deployment was necessary in order to neutralise the militias, armed and supported by the Indonesian military, which opposed independence and terrorised the population of East Timor (Cotton 2004, 71). In contrast to Bangladesh, where the Indian Army handed over control of the country to the Bengali politicians returning from India, East Timor was, prior to its international recognition, governed for three years by a transitional UN administration. In spite of the significant differences between these two military interventions, independence in either case could not have been achieved without an outside military intervention. The paradox of alien-determined self-determination is here avoided simply by avoiding any mention of the right of self-determination and its exercise: no self-determination, no alien-determined self-determination. But the people of

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East Timor, the Preamble implies, had the will to become independent, the will which was ‘confirmed’ in the referendum/popular consultation of 1999. This is the second way of avoiding the paradox: the right of self-determination is absent and its role as a legitimising device is taken up by the will of the people.

Northern Cyprus On 20 July 1974, following a coup in Greece which threatened to lead to a forced unification of the whole of Cyprus with Greece, Turkish armed forces invaded Northern Cyprus; as a result, an armed conflict broke out on the island between Greek and Turkish ethnic groups. In 1975, the Turkish Federated State was created in the part occupied by the Turkish armed forces (Isachenko 2012, 44). Eight years later, on 15 November 1983 the Turkish Cypriot Parliament passed the Declaration of Independence of the Turkish Republic of Northern Cyprus (Declaration Northern Cyprus 1983). The declaration presents an extended justification, of over 5,000 words, for the establishment of the Turkish Cypriot State. The first part, Clauses 1 to 17, consists of a long list of grievances, primarily examples of systematic discrimination against Turkish Cypriots. Clause 10 refers to the Greek Cypriot ‘plans’ ‘for the extermination of the presence of the Turkish Cypriot people’ and to the violence committed against them prior to 1975. The second part of the declaration, from Clause 18 onwards, cites a variety of internationally recognised rights which have been denied to the Turkish Cypriot people. Clause 18 starts with the statement that the Parliament of the Turkish Republic of North Cyprus has been elected ‘by the free will of the Turkish Cypriot People’ and that this Parliament has already declared to the world that ‘the Turkish Cypriot People possess the right of self-determination’. Clauses 18 and 20 refer to a variety of rights, including the right of self-determination, found in various international declarations and covenants. Clause 20 contains direct quotes from various documents which are not sourced. It appears that two of the quotations are from the UN declarations and covenants and one from the US Declaration of Independence of 1776. The  basic argument of Clause 18 is that the Greek Cypriot administration denied the Turkish Cypriot people, in a systematic and intentional manner (described in Clauses 1 to 18), all their fundamental rights, recognised by international documents, and that this has disqualified the Greek Cypriot administration from being a legitimate government over the whole island and that, therefore, ‘the exercise of the right of self-determination has become an imperative for the Turkish Cypriot People’. Further, Clause 21 asserts that: The Turkish Cypriot People have in fact exercised this right a long time ago; they have established their own State with all its organs. All that is being done today is the confirmation and declaration of an existing reality and the renaming of our State.

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The  declaration does not  mention the presence of the Turkish armed forces on the territory of Northern Cyprus nor  their military intervention of 1974. The  UN Security Council in its Resolution 541 proclaimed this declaration of independence was illegal and urged UN member states not  to recognise the Turkish Republic of Northern Cyprus (UNSEC 1983), and all, except the Republic of Turkey, followed this advice. There is no comparable resolution of the UN Security Council regarding any other declaration discussed in this paper. Similar to the East Timor Preamble’s expression of gratitude to the fallen in the struggle of liberation, this declaration, in its final, 24th clause, also expresses gratitude to the martyrs who had sacrificed their lives for the ‘freedom and dignity of the Turkish Cypriot people’. And like the April declaration independence of Bangladesh, the Turkish Cypriot declaration appears to be a case of a retroactive legitimisation by reference to the right of self-determination. But in this case, a state had already seceded from its former ‘host’ state, as a result of an outside military intervention, and then, several years later, an attempt was made to legitimise its secession by appealing to the right of self-determination and citing various UN declarations  and covenants (without referencing their sources). This declaration thus appears to follow the model of divorce: the achievement of independence from the ‘host’ state is here also divorced from the right of self-determination of the Turkish people of Northern Cyprus. But unlike the case of Bangladesh, in which the exercise of the right of self-determination is possibly found in its initial (first) declaration of independence, Clause 21 of this declaration suggests that the right was exercised by the establishment of a separate state without any concurrent declaration of independence.

South Ossetia The first act of separation of South Ossetia can be traced to the Resolution of the Soviet of People’s Deputies of the South Ossetian Autonomous Oblast (Region) of 20 September  1990, which transformed the Autonomous Oblast into the South Ossetian Soviet Democratic Republic and requested the Supreme Soviet of the USSR (the federal Parliament) to let the new republic join the USSR as ‘an independent subject of the federation’ (Reshenie 1990). At the same time, the South Ossetian Soviet issued a lengthy Declaration on State Sovereignty which both ‘expressed the will of the people’ and established the statehood and sovereignty of the South Ossetian people as a ‘form of its self-determination’; the declaration concludes with the assertion that the Republic, as a sovereign and independent state, is a ‘subject of the federation (confederation) of the USSR and of the international law’ (Deklaracija 1990). In December 1990, the Georgian authorities proclaimed a state of emergency in this region and sent the newly formed Georgian National Guard to South Ossetia. This  led to a protracted conflict between Georgian armed forces and South Ossetian militias which ended only in June 1992 with the intervention of the Russian President Yeltsin in the conflict.

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While the capital of South Ossetia was besieged by the Georgian armed forces, on 21 December  1991, the Supreme Soviet of the Republic of South Ossetia, issued (in Russian) the ‘Declaration of Independence of the Republic of South Ossetia’. The declaration described the continuous armed attacks by the Georgian ‘bands’ as attempts to ‘physically destroy the Ossetian people’, claiming that ‘this genocide is continuing even today’. In response to this: Motivated by a desire to preserve the nation and the triumph of the ideals of freedom and human values, aware of the responsibility towards future generations, the session of the Supreme Soviet (Council) of the Republic of South Ossetia of 21 December 1991 proclaims the independence of the Republic of South Ossetia (Deklaracija 1991). Like the April declaration in Bangladesh, this declaration was made in response to what was considered an ongoing genocide. It does not mention the right of self-determination nor the concept of self-determination. Following this declaration, in January 1992 the Supreme Soviet of South Ossetia carried out a referendum of the inhabitants of the republic which asked them whether they agree to the independence of South Ossetia or not. Neither the initial declaration nor the referendum questions made any reference to selfdetermination. However, following the referendum, in which the majority of voters, according to the South Ossetan authorities, voted for independence, on 28 May 1992, the Supreme Soviet passed a very short ‘Act of Proclamation of Independence’, which ‘solemnly proclaimed’ the independence of South Ossetia ‘based on the right of self-determination stipulated by the Statute of the UN and other international legal acts’ as well as on the results of the referendum of January 1992 (Akt 1992). Like the first declaration of 1991, this declaration refers to the alleged genocide committed by the Georgian armed forces and the ‘mortal danger’ that South Ossetia has been exposed to. Less than a month after the May declaration, on 24 June  1992, President Yeltsin concluded a ceasefire and peacekeeping agreement in Sochi with Georgian President Schevernazde (a former Soviet minister of foreign affairs who had only recently replaced the previously elected president in a coup d’etat). This  ‘Agreement on the Principles of the Settlement of the GeorgianOssetian conflict’ in its Preamble ‘reaffirm[s] commitment to the principles of the UN Charter and the Helsinki Act’ without specifying whether these principles include the principle or right of self-determination to which the May 1992 Proclamation of Independence of South Ossetia refers. Perhaps it is not simply a coincidence that the second declaration of May 1992 but not the first, made in December 1991, is based on one of the principles – that of selfdetermination – of the UN Charter (which is in the second declaration misnamed ‘Statute’).

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This  was also a case of retroactive legitimisation: independence was first proclaimed without reference to the right of self-determination and then, five months later, in a different political context, independence was legitimised by a rather cursory reference to the right of self-determination. The June 1992 ceasefire agreement between Georgia and Russia led to the introduction of peacekeeping forces of the Russian Federation, Georgia and South Ossetia into the region and halted the large-scale violent conflict for the next 16 years; in this way, South Ossetia became de facto independent from Georgia (Summut 2008, 8–10). On 8 August 2008 Georgian armed forces, trained and equipped by the US, were sent to South Ossetia again; this time, Russian armed forces also entered the region, expelled the Georgian forces, and occupied parts of Georgia beyond the South Ossetian frontier. After a ceasefire was negotiated by the European Union (EU), Russian armed forces remained in South Ossetia but withdrew from the rest of Georgia. On 20 August  2008, Russia recognised the independence of South Ossetia and Abkhazia (followed by Venezuela and Nicaragua). Like India’s recognition of Bangladesh’s independence during the India’s military intervention, this recognition signalled that the military intervention was carried out in defence of the country’s independence and not as an act of conquest. But how is the paradox of alien-determined self-determination avoided here? The second declaration of independence in 1992, which did refer to the right of self-determination, was followed by an interstate agreement, between Russia and Georgia, which was not referring to this right. This agreement did not resolve the status of South Ossetia but resulted only in its de facto independence which no state recognised at the time. The  recognition of the independence by the Russian Federation followed the Russian military intervention in 2008 which removed the armed forces of its former ‘host’ state, Georgia, from its territory; South Ossetia’s current independence is a result of this military intervention and thus appears to be unrelated to the second declaration of independence of 1992 which refers to the right of self-determination. It thus appears that the paradox was avoided by following the model whereby the achievement of independence is divorced from the concept of self-determination.

Kosovo The first declaration of Kosovo independence was passed on 2 July 1990 by the majority Kosovo Albanian deputies of the Assembly of the Socialist Autonomous Province of Kosovo. As its Clause 4 suggests, this was a response to the amendments to the constitution of the Socialist Republic of Serbia of March 1989 (later incorporated in the constitution of Serbia of 1990), which restricted the legislative and political autonomy of the province of Kosovo. Entitled the

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‘Constitutional Declaration’, it declared Kosovo (using its Albanian name) to be an ‘ … independent and equal unit within the framework of the Yugoslav federation (confederation) and an equal subject with its counterparts in Yugoslavia’. The first clause states: 1. This  declaration expresses and proclaims the view of the inhabitants of Kosovo and of this Assembly towards the original constitutional stand of the people of Kosovo and of this Assembly as an act of political self-determination within the framework of Yugoslavia (Auserwald and Auserwald 2000, 44). The assembly also confirm[ed], in Clause 3, Kosovo’s new political and constitutional position within which ‘all citizens and equal nationalities in Kosovo where Albanians, as the majority of the population… as well as the Serbs and others living in Kosovo, are considered as a people-nation and not a nationality (national minority)’ (Auserwald and Auserwald 2000, 44). This  first declaration changed both the status of Kosovo from an autonomous province of Serbia to a federal unit (republic) of the Yugoslav federation (or confederation) and the status of the Albanian population of Kosovo from a nationality (minority) to a nation (people) within Yugoslavia. In  elevating Kosovo to the highest federal rank, the Kosovo Constitutional Declaration is comparable to the 1990 Resolution and the Declaration of State Sovereignty of the Soviet of South Ossetia transforming the South Ossetian Oblast into the South Ossetan Democratic Soviet Republic; and the assemblies in both Kosovo and South Ossetia which passed these declarations were elected under Communist rule and thus dominated by Communist Party members. But unlike the 1990 South Ossetian Declaration, the 1990 Kosovo Declaration contains no request to the Yugoslav federal Parliament to include the new federal republic into the Yugoslav federation nor does it claim that Kosovo is a subject of international law. According to its opening sentence, the declaration itself is proceeding ‘from the expressed will of the majority of people of Kosovo’ and, the declaration itself, in its first clause, is regarded as ‘an act of political self-determination within the framework of Yugoslavia’. There  is, however, no mention of the right of self-determination. Following the initial declarations of independence, in June 1991, of the federal units of Croatia and Slovenia from SFR Yugoslavia, on 22 September, the same Assembly of the Republic of Kosovo, constituted by the majority Kosovo Albanian deputies, passed the resolution proclaiming the ‘Republic of Kosovo as a sovereign and independent state, with the right to participate as a constituent republic in Yugoslavia on the basis of freedom and equality’ (Auserwald and Auserwald 2000, 55). Clause 1 of the resolution confirms that it is made in accordance with the ‘will of the people’ and with the previous Constitutional Declaration of 1990 as well as in line with the Constitution of Kosovo of 7 September 1990.

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This, second, September 1991 declaration is the first to proclaim Kosovo a sovereign and independent republic and to refer to the ‘will of the people’ (as opposed to the ‘majority of the people’ in the first declaration). It contains no reference to self-determination or the right to self-determination. On 28 September 1991, the government of Albania ‘hailed and supported’ this resolution, proclaiming it ‘a free and direct expression of the will our brothers in Kosovo’ (Auserwald and Auserwald 2000, 56). This is regarded as the first – and, until 2008, the only – recognition of Kosovo’s independence by a UN member-state. Following the reiterated declarations of independence of Croatia and Slovenia, on 19 October 1991, the same Assembly of Kosovo issued a statement concerning the results of the referendum, carried out on 29–30 September 1991, which confirmed that 99.87% of those voting voted ‘in favour of Kosovo’s sovereignty and independence’. This  statement ends with another declaration: ‘Therefore, the Assembly officially declares Kosovo to be a sovereign and independent republic’ (Auserwald and Auserwald 2000, 59). This statement, like the resolution of 22 September  1991, makes no mention of self-determination, the right to selfdetermination nor of the ‘will of the people’. The constitution of Kosovo, which this assembly enacted on 7 September 1990, makes several references to the right of self-determination as well as to the ‘sovereign will’ of the people. It seems that the drafters of the Kosovo Albanian Assembly’s declarations and resolutions thought that declarations and resolutions proclaiming independence and sovereignty need not appeal or refer to this right whereas the constitutional documents need to be grounded both on the right of self-determination and on the ‘will of the people’ or the ‘sovereign will’. It was on the basis of this, third, declaration and the results of the referendum that the chairman of the assembly and the prime minister of Kosovo requested international recognition from the European Community which proved not to be forthcoming. In their letter requesting recognition, the Kosovo officials stated that independence is both a right and the will of people (Trifunovska 1999, 767–769). In  March  1999, NATO starting an aerial bombing campaign against the Federal Republic of Yugoslavia, thus in effect providing air support to the secessionist Kosovo Liberation Army which since 1998 led a mass armed uprising against the Yugoslav/Serbian forces in Kosovo In June 1999, following the agreement between the EU and Russian negotiators and the Yugoslav government, the Yugoslav Army and officials left Kosovo and NATO-commanded armed forces took control of the province. UNSC Resolution 1243 authorised the establishment of the UN Mission in Kosovo as well as the deployment of a NATO-led military force (Kaufman 2002, 200–201); both still operate in Kosovo at the time of writing. Following the failure of the protracted negotiations with Serbia over Kosovo’s ‘final status’, on 17 February 2008 the Kosovo Albanian deputies (the Serb deputies were absent) of the Provisional Assembly of Kosovo, elected under the UN auspices, adopted a Declaration of Independence, the last declaration in the series of the Kosovo declarations.

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The  2008 Kosovo Declaration, in its first clause affirms that the declaration ‘reflects’ ‘the will of our people’ (Albanian and English) or ‘the will of the people’ (French version) (Kosovo Declaration 2008). But unlike the East Timor Preamble’s reference to its independence referendum, the declaration does not mention the referendum of 1991. And unlike the other declarations discussed in this paper, most of the clauses of this declaration concern the international obligations, regulations and norms which Kosovo is adopting, the international organisations which are welcomed in Kosovo and the plans for its future interstate relations. The  first clause, for example, states that Kosovo, through this declaration, fully accepts the plan of Martti Athisaari, the UN special envoy, which envisages a conditional and supervised independence of Kosovo. In  its further clauses the declaration accepts and welcomes the presence of the NATO forces and of the UN and EU administration in Kosovo. Further, the declaration expresses the intention of Kosovo to join the EU and to develop and improve relations with the Republic of Serbia (its former ‘host’ state) and to bring about the reconciliation of the two peoples. Unlike the East Timor Preamble, the Kosovo Declaration 2008 makes no reference to the prolonged Kosovo Albanian struggle for the liberation of Kosovo and to any of the previous Kosovo declarations/resolutions of independence. Although no previous declaration is mentioned in the most recent 2008 declaration, the first declaration, the Constitution Declaration of 1990, was, at its official anniversary celebration in 2010, proclaimed a historical document comparable to the Declaration of the Independence of the United States of America of 1776, and all the deputies who voted for it were awarded the Medal of Independence (Sejdiu 2010). But similar to the East Timor Preamble and to the Northern Cyprus Declaration, this declaration pays homage to the men and women who sacrificed their lives ‘for the building of a better future of Kosovo’. Yet unlike all of the other declarations discussed in this paper, it makes no reference to the war, atrocities, discrimination or genocide but refers only, in its Preamble, to the ‘years of the conflict and violence which had troubled the conscience of all civilised peoples’. And unlike all the others, this declaration expresses gratitude to ‘the world’ (the Albanian and English version) or the ‘international community’ (the French version) for intervening in 1999 and ‘removing the governance of Belgrade over Kosovo and placing Kosovo under United Nations interim administration’. The military aspect of this intervention and its primary agent – NATO – are not mentioned (Kosovo Declaration 2008). In spite of its extensive references to international law, this declaration makes no mention of the right of self-determination or of self-determination: Kosovo’s independence in its latest declaration is not regarded as a result of an act of selfdetermination. Like the East Timor Preamble to the Constitution, this declaration follows the second model for avoiding the paradox of alien-determined self-determination: it avoids any mention of self-determination and replaces it, as a legitimising device, with the will of the people.

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Concluding remarks: self-determination or the will of the people? All of the initial declarations of independence discussed in the paper, except that of Northern Cyprus, were made prior to military interventions by outside states which led to the eventual independence of these states. And all of these declarations, except the first three declarations in Kosovo, were made during or following the violent conflict on the territory whose independence is being proclaimed; in a way these declarations represent a public response to that violent conflict. This is most obvious in the case of the Bangladeshi and South Ossetian declarations which frequently refer to war and violence, but even the Preamble to the East Timor Constitution, the Turkish Cypriot declaration and the last (2008) Kosovo declaration, all issued several years after the end of the violent conflict, refer to it and pay homage to those who have died in it. The Bangladesh and South Ossetian declarations also claim that the armed forces of the ‘host’ state are carrying out a genocide of the people whose independence is being proclaimed. The  declarations of independence are here used to publicise and to condemn the crimes which the ‘host’ state is (allegedly) committing. These crimes – such as genocide – provide an obvious justification for the separation from the ‘host’ state and the establishment of an independent state which would protect its population. In contrast, those declarations/constitutional documents issued after the outside military intervention studiously avoid mentioning any military intervention: the 1983 North Cyprus Declaration and the 2002 Preamble of the East Timor Constitution fail to mention any intervention or involvement of outside states; and the only declaration which does refer to an outside intervention, the 2008 Kosovo Declaration, fails to identify it as a military intervention and fails to identify its primary agent, the armed forces of the NATO alliance members. The  most recent declarations, issued in the twenty-first century, the 2002 Preamble to the Constitution of East Timor and the 2008 Kosovo Declaration of Independence, fail to mention self-determination or the right of selfdetermination and instead refer to the will of the people. The phrase ‘the will of the people’ does not refer to any legal category and has little if any legal connotation. But the phrase has been widely used for a variety of political purposes, including that of declaring independence. Any body or any individual who is believed to command the allegiance of a particular people is free to appeal to the will of that people to legitimise their political acts and declarations. In the context of a secession, appealing to the will of the people is certainly less controversial than appealing to the right of self-determination: the use of this right in legitimising secession – as a disruption of the territorial integrity of states – has been ruled out in the UN declarations and conventions which codified this right. While ‘partial or total disruption of political unity and territorial integrity of a country’ may indeed be incompatible with the UN Charter (as the GA Resolution 1514 states), no UN document places any restriction on the role

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or use of the will of the people in legitimising acts of secession which lead to such a disruption. This  may be of significance if the declarations of independence are to be challenged in the UN or any other international fora. Thus, the 2008 Kosovo declaration – which refers to the will of the people but not to the right of self-determination – withstood the challenge initiated by the Republic of Serbia in the International Court of Justice, which, in its advisory opinion of July 2010, ruled that this declaration does not breach international law (ICJ Advisory Opinion Kosovo 2010). As we have seen, by avoiding use of the phrase ‘self-determination’ in declarations of independence, one also avoids the paradox of alien-determined selfdetermination in those cases in which the independence of the state is achieved by a military intervention from outside. There is nothing paradoxical in a people willing their independence and their independence being achieved by an outside intervention. And of course, if there is the will of the people to be independent, there is no need to assume that this independence needs to be achieved by an exercise of the right of self-determination. The  great advantage of the ‘will of the people’ here is that the willing  – as any willing – need not be exhibited in any specific action. This assumption leaves open the question of how, in the absence of any specific expression of the will, outside observers are to know that a people are willing to be independent. Political leaders/representatives of a particular people – and possibly anyone who believes to belong to that people – may perhaps claim to know this by simply being ‘one with their people’. Be that as it may, there is no doubt that achieving independence and willing independence are two distinct and independent acts. But if a people had the will to be independent – as the declarations of their independence or various other constitutional acts claim – then the independence achieved by an outside military intervention is not simply thrust upon an unwilling people: the people, these declarations allege, had the will to be independent without any specific indication of the way that this independence needs to be achieved. In such cases, the phrase ‘the will of the people’ conveniently indicates a strong and enduring link between the people in question and its independence which may or may not be brought about by an outside military intervention. Whether the preference for the will of the people over the right of selfdetermination in declarations of independence will persist in the future, even in the cases in which independence was not brought about by outside military intervention, remains to be seen. For example, the 2011 declaration of independence of South Sudan (which was soon thereafter admitted to the UN) referred exclusively (and several times) to the will of the people – which, the Declaration claims, found its expression in the referendum of January 2011; there was no mention of self-determination or the right thereof (Declaration South Sudan 2011). On the other hand, one of the most recent declarations, that of the members of the Parliament of Catalunya of 27 October 2017, refers exclusively to the right of self-determination with no mention of the will of the people. Through this declaration, the members of the parliament, as the representatives of the people

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of Catalunya, ‘…in the free exercise of the right of self-determination’ established the Republic of Catalunya as an independent and sovereign State (Declaració 2017). But, similarly to the declarations of independence of Bangladesh, South Ossetia and Northern Cyprus which, as we have seen above, were based on the right of self-determination, the Catalan declaration has also failed to elicit any international recognition of the Catalan state which was established through the exercise of this right.

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General Assembly 1514. (1960) ‘Declaration on the Granting of Independence to Colonial Countries and Peoples’. Adopted by General Assembly, Resolution 1514 (XV) of 14 December 1960. http://www.un.org/en/decolonization/declaration.shtml Grant, Thomas D. (1999) The Recognition of States: Law and Practice in Debate and Evolution. New York: Praeger. Guhathakurta, Meghna and Willem van Schendel, eds. (2013) The  Bangladesh Reader: History, Culture, Politics. London: Duke University Press. ICJ Advisory Opinion Kosovo (2010) International Court of Justice ‘Accordance with international law of the unilateral declaration of independence in respect of Kosovo’ Summary of the Advisory Opinion. http://www.haguejusticeportal.net/Docs/ Court%20Documents/ICJ/Advisory%20Opinion_%20Independance%20of %20 Kosovo_Summary.pdf Isachenko, Daria (2012) The Making of Informal States: Statebuilding in Northern Cyprus and Transdniestria. Houndmills, UK: Palgrave. Kaufman, Joyce P. (2002) NATO and the Former Yugoslavia: Crisis, Conflict and the Atlantic Alliance. Lanham, Maryland: Rowman and Littlefield. Kosovo Declaration (2008) ‘Kosovo Declaration of Independence’, English: http://www. assembly-Kosovo.org/?cid=2,128,1635. https://www.kuvendikosoves.org/common/ docs/declaration_d_independance_fr.pdf Manifesto (1908) ‘Manifest’ by Ferdinand I. Declaration of Bulgarian Independence 22 September 1908. https://en.wikisource.org/wiki/Bulgarian_Declaration_of_Independence Nardin, Terry (2015) ‘The Diffusion of Sovereignty’. Journal of European Thought. 41 (1): 89–102. Preamble (2002) ‘The Preamble of the East Timor Constitution’ http://www.constitution. org/cons/east_timor/constitution-eng.htm Reshenie (1990) ‘Решение четырнадцатой сессии Юго-Осетинского областного совета народных депутатов двадцатого созыва о преобразовании Юго-Осетинской автономной области в ЮгоОсетинскуюСоветскуюДемократическуюреспублику (The  Resolution of the 14th secession of the twentieth Soviet of People’s Deputies of the South Ossetian Regional Soviet on the transformation of the South Ossetian Autonomous Region into the South Ossettian Soviet Democratic Republic)’. Accessed 12 November 2107. http:// do.gendocs.ru/docs/index-40781.html?page=52 Resolution (1918) ‘Resolution’, 16 February 1918. Council of Lithuania. http:// viduramziu.istorija.net/etno/vasario16-en.htm Sejdiu (2010) ‘Sejdiu: 2 Juli 1990 je bio vrh artikulisanja osećaja slobode’. (Sejdiu [the former President of Kosovo]: 2 July 1990 was the peak of the articulation of the feeling of freedom). Accessed 1 December 2017. http://www.president-ksgov. net/?page=3,6,1198 Sisson, Richard and Leo E. Rose (1990) War and Secession: Pakistan, India and the Creation of Bangladesh. Berkley, CA: University of California Press. Summut, Dennis (2008) Background to the Georgia-Ossetia Conflict and future prospects for Georgian–Russian relations. A  Links report. https://danutm.files.wordpress. com/2008/08/links-report-background-to-the-georgia-ossetia-conflict.pdf Texto (1975) Texto da Proclamacao da Independencia de Timor Leste. http://www.amrtimor. org/docs/visualizador.php?bd=Documentos&nome_da_pasta=05000.264 To the Finnish People (1917) ‘To the Finnish People’. Finnish Declaration of Independence of 4 December 2017. https://en.wikipedia.org/wiki/Finnish_ Declaration_of_Independence

Declarations of independence 139

Trifunovska, Snezana (1999) Former Yugoslavia Through Documents: From its Dissolution to the Peace Settlement. The Hague: Nijhoff. UNSEC (1983) United Nations Security Council, Resolution 541 (1983) http://www. un.org/en/ga/search/view_doc.asp?symbol=S/RES/541(1983) UNSEC Press (1999) ‘Secretary-general informs Security Council: People of East Timor rejected special autonomy proposed by Indonesia’. 3 September 1999 Security Council Press Release. http://www.un.org/press/en/1999/19990903.sc6721.html

INDEX

Adams, John Quincy 61 Akinci, Mustafa 110–13 Alaska 44 Algeria 24 American Civil War 6 Anastasiades, Nicos 109–13 Annan Plan 39, 98–100, 111, 115–16, 118 Anschluss 10 Armenia 79 Armitage, David 120 Australia 17–22, 127 Austria 10 Azerbaijan 50 Bangladesh 34, 65, 123–7, 129–31 Ban Ki-moon 107, 109 Bateson, Gregory 11 Belgium 7, 57 Boer War 17 Bogdanor, Vernon 21 Bosnia-Herzegovina 5, 50 Bougainville 38 Bulgaria 122–3 Canada 17, 41–2 Canning, George 57 Carr, E.H. 28 Caspersen, Nina 77 Cassese, Antonio 39 Catalonia 76, 137 Catalunya see Catalonia Catholic Church 126 Charter of the United Nations 34

China 7 Christofias, Demetris 96, 101–10 Constant, Benjamin 14 Crawford, James 34–5, 37 Crimea 66, 92 Croatia 10 Cyprus 3, 39, 51 Czechoslovakia 65–6 Dayton Accords 84, 97 Debré, Michel 25 Denmark 16, 23 Dion, Stéphane 28 Disraeli, Benjamin 8 Downer, Alexander 103 East Timor 123, 126–9, 134–5 Egypt 91 Eide, Espen 110–12 English School 48, 56 Eritrea 10, 134 Eroglu, Dervish 107–10 Ethiopia 40 European Union 97, 99, 131 Faroe Islands 23 Fichte, Johann 14, 16 Finland 122 France 4, 7, 10 French Revolution 11–13 Gaulle, Charles de 24–5 Georgia 89, 129–31

142

Index

Germany 10, 57 Gladstone, William E. 17 Goebel, Ulf 55 Greenland 11 Guterres, António Manuel de Oliveira 112 Hegel, G.W.F. 26 Heine, Heinrich 14 Henri II, King of France 12 Herder, Johann Gottfried 14 Hitler, Adolf 22 Holy Alliance 62 ICJ 36 India 65 Indonesia 126–7 International Court of Justice see ICJ Iraq 9 Israel 92 Italy 15 Jamaica 10, 25 Jefferson, Thomas 62 Jordan 91 Kant, Immanuel 61 Kedouri, Elie 9 Kosovo 34, 59, 66–7, 75, 81, 84, 93, 123, 131–6 Kosovo Advisory Opinion 35 Kratochwil, Friedrich 52–3 Kurdistan 6–7, 66, 68, 76 Lampedusa, Guiseppe 4 Lauterpacht, Hersch 58 League of Nations 59, 63 Lenin, Vladimir I. 29, 121 Liechtenstein 41 Lincoln, Abraham 40 Lithuania 122 Locke, John 16 Lord Salisbury, Robert Arthus Gascoyne-Cecil 16 Macedonia 51 Machiavelli, Nicoló 15 Malta 25 Marx, Karl 14 Mattern, Johannes 12–13 McGarry, John 10 Mexico 121 Michelsen, Christian 19 Milosevic, Slobodan 84 Mitchell, Sir James 22

Moldova 80–1 Mongolia 24 Monroe Doctrine 62 Montenegro 41 Montevideo Convention of Rights and Duties 1933 50, 53, 75, 77 Nagorno-Karabakh 79–80, 87 Napoleon I 14–15, 29 Napoleon III 15 NATO 133–5 Nauru 123 New Caledonia 9, 28 Nicaragua 123 Northern Cyprus 75, 79, 86, 99, 123, 128–9, 134–5 Northern Ireland 10, 43 Norway 19 O’Brien, William 55 O’Leary, Brendan 10 Oslo Accords 91 Ottoman Empire 123 Pakistan 34, 123–5 Palestine 67, 75, 80, 87, 90 Palestine Liberation Organisation (PLO) 91 Papadopoulos, Tassos 99, 103, 106 Papua New Guinea 38 Peru 121 Philippines 5 Polignac Memorandum 62 Puigdemont, Carles 7 Putin, Vladimir 92 Quebec 28, 42 Qvortrup, Matt 43, 77, 96–7 Rahman, Zair 124 Re Quebec 40 Risorgimento 4, 10 Rousseau, Jean-Jacques 14, 121 Russia 29, 79, 92 Russo-Turkish War 1878 122 Saarland 10 Sandholtz, Wayne 52 Schleswig-Holstein 16, 21 Scotland 10, 28, 43 Second World War see World War II Serbia 41, 131–4 Slovenia 10, 33 Solière, Eugène 12

Index 143

Somalia 65, 88 Somaliland 65, 75, 79, 88–90 South Africa 17, 97 South Ossetia 59, 65, 67, 79, 85, 90, 123, 129–32 South Sudan 34, 65, 136 Soviet Union 6, 10–11, 28, 34, 65, 79, 83 Spain 57, 76 Stalin, Joseph 23 St Kitts and Nevis 40–1 Sudan 38 Suksi, Markku 44 Supreme Court of Canada 39 Sussman, Gary 77 Sweden 16, 19 Syria 123 Talat, Mehmet Ali 96, 101–8 Tancredi, Antonello 39 Taylor, Charles 54 Texas v White 44

Transdniestria 75, 80, 90 Trump, Donald 91 Turkey 123 Ukraine 28, 92 United Nations Charter 63, 130 United Nations General Assembly 7, 34, 87, 122 United Nations Security Council 7 United States Declaration of Independence 120 United States of America 28, 62, 67 Venezuela 123 Wales 10–11 Western Sahara 75 Wildavsky, Aaron 10 Wilson, Woodrow 20, 121 World War I 21, 34 World War II 77, 83, 122