Raic D. Statehood and the Law of Self-Determination

Kluwer Law International, 2002. — 516 p. — ISBN: 90-411-1890-X.This study is divided into three parts.
Part I, entitled 'Statehood', consists of four chapters. This part will focus primarily on the concept of 'State' in international law, first from the perspective of the more or less generally accepted law of statehood, and thereafter in the light of additional criteria for statehood which may be suggested on the basis of modern state practice. In that respect, some basic legal concepts, such as 'subject of international law' and 'personality', will be examined in Chapter 1. Chapter 2 addresses the general characteristics and attributes of statehood, as well as the role of recognition in the process of the formation of States. Chapter 3 analyses the content and status of the so-called 'traditional' criteria for statehood, which are factual criteria based on the pre-condition of effectiveness. Some suggested additional criteria for statehood which are based on legality rather than effectiveness are discussed in Chapter 4, against the background of the doctrine of non-recognition of illegal acts and situations. It will be seen that a number of question relating to statehood and the status of certain entities remain unanswered on the basis of the discussion as it has developed thus far.
It is submitted that these questions may be answered from the perspective of the law of self-determination.
Part II of the study, entitled 'Self-Determination', consists of three chapters focusing on the rules and principles of the law of self-determination. Chapter 5 charts the development of the concept of self-determination from its first international appearance during World War I up to and until its role in the context of decolonization. This analysis leads to a formulation of the raison d'être and main objective of the principle of self-determination insofar as this may be deduced from the development of the concept in the said period. In Chapter 6, the analysis of the law of self-determination is taken a step further. In this Chapter, the question of whether or not the right of self-determination
extends beyond decolonization and if so, in what form is examined. In this respect both the 'internal' and the 'external' aspect of the right of self-determination will be addressed. Also, the legal status of (internal and external) self-determination in the post-colonial era is analysed, as well as the (potential) holder of that right. It will be shown that the right of self-determination does extend beyond the colonial context as a continuing right, primarily in the form of 'internal' self-determination. However, in certain aspects external self-determination is also a continuing right, in the sense that the entire population of a State is always free to choose integration in, or association with, another existing State. The exercise of the external aspect of self-determination leads to a change in the external boundaries of a State. It has been suggested that
the right of self-determination, particularly in its 'external' form, conflicts outright with two other principles of international law: the principle of
territorial integrity and the principle of uti possidetis. The content of these two principles as well as their relation to the right of self-determination is addressed in the final part of Chapter 6. The question of the existence of a right of unilateral secession is dealt with in Chapter 7 on the basis of a number of case studies, including the birth of Bangladesh, the crisis in the former Yugoslavia and attempts at secession within the territory of the former Soviet Union.
Part III is entitled 'Statehood and Self-Determination' and consists of Chapter 8. The purpose of this Chapter is to identify the precise role of the law of self-determination in the process of the formation of States under contemporary international law.