1 Introduction
In the first part of this study, we confirmed the triumph of normative considerations over illegally introduced facts by using the deductive approach, namely by applying general legal concepts to a particular case. The deductive method, like all individual methods of legal inquiry, should be complemented by additional methods. Christian Tomuschat has pointed out the limits of deductive reasoning: it ‘can be easily overstretched and even abused. Students of international law could simply ‘invent’ a basic principle from which they then infer concrete conclusions.’1 Ex injuria ius non oritur could potentially be such a very broad principle, open to overinterpretation. In the preceding chapters of this study, concerning restoration of legal rights, the investigation of application of the principle of restitutio in integrum already led to the discovery of a discrepany between a (disputable) general rule and the facts of the cases under examination. That inconsistency was resolved by this author by suggesting slight modifications in the interpretation of the general rule on the basis of recent State practice. Therefore, an inductive approach was already being taken. It may prove useful to further examine the lessons of the Baltic case in this last chapter with the help of the inductive method.
The main issue is: what ideas have crystallized, together with the Baltic case, in international law? What evidence does the Baltic case give about norms and developments in international law? What about the impact of politics which, as we have demonstrated, played an important role in crystallizing the Baltic case? It may then be helpful to employ the inductive approach once again, and compare the Baltic situation with other significant parallel cases.
As we shall see in the following, recent developments in State practice seem to have taken a more normative direction, confirming that the outcome of the Baltic case was not a purely accidental or political fiction. However, each time the international community tries to resist the pull of illegally created facts, it notices that international law cannot totally ignore the power of facts either.
According to a recent rule crystallized in customary international law, the international community is obliged to refuse recognition to illegally achieved annexations. The formulation of the UN GA 1970 Friendly Relations Declaration was discussed above. The duty of non-recognition was supported by the Namibia decision of the ICJ, although this case did not involve illegal use of force against a State. In the Namibia case the ICJ stated that ‘[t]he Member States of the United Nations are…under obligation to recognize the illegality and invalidity of South Africa’s continued presence in Namibia.’2 The ICJ determined that official acts performed by the Government of South Africa on behalf of or concerning Namibia after the termination of the Mandate are illegal and invalid.’3 The effectiveness arising from South Africa’s continued occupation of Namibia was thus overriden.
In 1940, and in the view of some legal scholars even subsequently,4 third States were in principle entitled to choose whether or not to recognize a new situation born of aggression. As a consequence, State practice was not uniform and authors used to point out that ‘[e]ntre la théorie et la pratique de la non-reconnaissance des acquisitions territoriales effectuées en violation du droit des gens, subsiste ainsi un écart considerable.’5 Today, a State recognizing a situation born from violation of the prohibition of threat or use of force itself violates international law.6
It is true that even in 1970 several Western States expressed their doubts about the viability of the duty of non-recognition.7 The question has therefore been debated: to what situations exactly does the duty of non-recognition apply? For example, it has been argued that the obligation to refuse recognition to situations born of violation of the right of peoples to self-determination—that is, to be differentiated from illegal use of force against another State—has
a The Annexation of East Timor and the Uncertainties of Non-Recognition in State Practice
On August 30, 1999, a referendum on independence was held in East Timor in which 79 per cent of the people voted for independence. On October 25, 1999, the UN SC passed resolution 1272, establishing a UN Transitional Administration in East Timor (UNTAET) ‘to support capacity building for self-government.’ Indeonesian rule over East Timor came to an end.
East Timor was a former Portuguese colony invaded by Indonesia on December 7, 1975 and annexed on July 17, 1976.9 As with the USSR and the case of the Baltic States, claims by Indonesia that it did not violate the prohibition of the use of force, and was invited to intervene, were rejected by a segment of the international community. However, similarly to the Baltic case after 1940, the reaction of the State community to the annexation was not uniform.10 Among others, several western States recognized East Timor at least de facto as part of Indonesia.
International legal scholars have deemed the invasion and annexation of Indonesia illegal on two grounds: illegality of the use of force and violation of the right of the East Timorese people to self-determination.11 In its Resolution 32/34 of November 28, 1977, the UN General Assembly rejected ‘the claim that East Timor has been integrated into Indonesia, inasmuch as the people of the Territory have not been able to exercise freely their right to self-determination and independence.’12 The prevailing view among legal scholars is that, during
When the practice of non-recognition in the case of annexation of the Baltic States contributed to consolidation of the rule by which annexations following illegal use of force must be refused recognition, the case of East Timor supported a similar rule according to which annexation violating the right to self-determination may not be recognized either. However, some international legal scholars have remained cautious when interpreting State practice.
For example, the German scholar Jochen Abraham Frowein used two qualifications when arguing that ‘[t]erritorial changes brought about by the use of force are generally seen to be unlawful and will in most cases not be recognized in present-day international law.’15 Although there may still be good reasons for caution with exceptional constellations, non-recognition practice in the cases of Southern Rhodesia and the Israeli annexation of East Jerusalem and the Golan Heights16 has overall followed the spirit of the 1970 Friendly Relations Declaration. A noteworthy exception was when the USA under President Trump recognized Israeli sovereignty over the Golan Heights in 2019. Nevertheless, overall there are indications of opinio iuris in State practice: the duty of non-recognition has become a rule of customary international law.17 Non-recognition of illegal situations has become organized and in a certain sense collective in the State community—it is employed in order to maintain
According to the ILC Articles on State Responsibility,20 adopted at the second reading on August 3, 2001, States have an obligation not to ‘recognize as lawful a situation created by a serious breach within the meaning of Article 40, nor render aid or assistance in maintaining that situation’ (Article 41). The duty of non-recognition has been characterized as ‘an early model for the consequences of the breach of an erga omnes obligation.’21
b State Continuity as a Necessary Consequence of Illegality of Annexation
After the end of the Cold War, the rule that illegal annexation does not extinguish the personality of the annexed State was reconfirmed following Iraq’s invasion and occupation of Kuwait in August 1990.22 The UN Security Council called upon all States not to recognize ‘any regime set up by the occupying Power’, and expressed its great concern about Iraq’s declaration of a ‘comprehensive and eternal merger’ with Kuwait. It declared that the ‘annexation of Kuwait by Iraq under any form and whatever pretext has no legal validity, and is considered null and void.’23 In a later resolution the Security Council determined that the situation in Kuwait was one of continued occupation by Iraq24 and stated that ‘the Fourth Geneva Convention applies to Kuwait.’25
The UN and virtually all States viewed the purported annexation of Kuwait by Iraq as null and void ab initio. Iraq’s occupation and annexation, being illegal, did not affect Kuwait’s status under international law. Therefore, the Latvian international law scholar Ineta Ziemele has argued that the Kuwait crisis exemplifies that the prohibition of forcible annexation prevents extinction of the annexed State and that this rule nowadays is binding erga omnes.26
State continuity notwithstanding, the nullity of annexation is a function of the by now ius cogens nature of the prohibition of use of force in modern international law. There is evidence that a customary rule has developed as a corollary of the prohibition of the threat or use of force, a rule according to which a State would preserve its legal personality notwithstanding illegal annexation, similarly to the classic rule preserving State continuity in cases of occupatio bellica. This is essentially what the Baltic illegal annexation case has been about.
By supporting the continued existence of a State, the international community and international law create a legal fiction. The continued existence of an illegally annexed State is different from that of the ‘normal’ case of statehood where a State government exercises de facto power over its people on a defined territory. Such States are during the illegal annexation only ‘sleeping’ States, although governments in exile may exist as well. Their existence is primarily the continued existence of their rights and duties. Insistence on the continued existence of the legal personality of the State is also a protest; a condemnation and negation of a factual situation achieved by illegal means; a function of the illegality of annexation.
The essence of the matter thus lies in the affirmation of the legal existence of a State as a purely ideal notion. This point cannot be emphasized strongly enough. For the question does not concern a miraculous resurrection of a State which had once become extinct and has subsequently been restored, in which case the problem would not be one of State continuity, but one of a new State creation. On the contrary, the punctum saliens is the actual legal existence of the State during the actual period of its physical suppression which view alone allows the affirmation of continuity.27
On other occasions, the international community refrains from asserting that States which have sunk into chaos and anarchy have become extinct. Christian Tomuschat argues that ‘Somalia has become a fictitious entity, measured by the yardstick of what is required of a State’, but that there are good reasons why Somalia should not easily become extinct: ‘For the international community, it is much simpler to carry a man half-dead with it, contending that he is well and alive, instead of issuing a death certificate, which inevitably gives rise to struggles about inheritance.’31 In the case of illegal annexation, a very active wanna-be-inheriter is waiting for recognition of their right of inheritance. In that case, the question is no longer what would be simpler or more difficult for the international community to do: it may even be easier to recognize the right of the subjugator. But that the international community would not accord such recognition to the annexing State, and would ‘carry a man half-dead with it’, seems just to fulfill the minimum requirements of international solidarity and bear witness to the very existence of an international community worthy of
c Other Relevant Factors beside Illegality? Precedential Effects
A question that must be posed, however, is: which cases do qualify under the rule of continued existence of State personality notwithstanding illegal annexation? Was the outcome in the Baltic case determined by legal and/or extralegal factors other than the illegality of the annexation?
It confuses reference to probable future decisions. It fails to distinguish between past decision and preference for future decision. It confounds statement of past trend in decision and scientific study of variables affecting decision. By overemphasis on past decision, it retards inventiveness in the creation of new situations.33
In short, McDougal argues that decisions taken in each case have their own unique contextual grounds, which makes it premature to insist that general legal rules offer pre-determined normative solutions in particular cases. This view is contrary to the positivist model of the rule of law which regards law as impersonal and general, dealing ‘with persons and situations as examples of types and not as individual cases to be treated each according to its special circumstances.’34 In the context of State succession and identity, the Austrian scholar Konrad Bühler has recently challenged the ‘theoretical illusion that the identity of a State was “a matter of law to be determined objectively.”35
However, the present author has earlier suggested that the crucial element in the case of the Baltic States was the illegality of the annexation, based upon the illegality of the use or threat of military force. Nevertheless, it has been argued that the Baltic case was decided as much by the right of the Baltic peoples to self-determination as by the illegality of Soviet use of force in 1940.36 However, the right of the Baltic peoples to self-determination, which Soviet Russia had recognized in the Peace Treaties of 1920, further confirms the illegality of annexation. Jorri Duursma seems to overlook this aspect when he counterposes the right of self-determination to the illegality of annexation, and argues that ‘…the non-recognition of the 1940 annexations was not necessarily the main legal reason for accepting the secession of the Baltic States in 1990.’37 The Soviet violation of the right of the Baltic peoples to self-determination was just a further factor which made the annexation illegal.38
Due to the the right of peoples to self-determination, the non-acquiescence of the Baltic peoples to Soviet rule also acquired an important role in the preservation of the Baltic republics. Although rudimentary remnants of the Baltic State organs continued to function in exile, the illegally suppressed statehood was primarily vested in the Baltic peoples. It may be too bold to argue that, in international law, statehood can be carried on by the people of the State, even in the case of lack of an effective government.39 Nevertheless, State peoples
An additional criterion for legal status, besides the principle of ex injuria ius non oritur, is the self-understanding of the restored State.40 A forceful claim of State continuity by the affected State seems to be a condition sine qua non for the affirmation of such continuity. Note, for instance, that today’s Republic of Moldova, whose territory was also occupied and annexed by the USSR in 1940,41 has not claimed restoration of its interwar legal status as a part of Romania. Correspondingly, no such status has been accorded to it by the international community.
The illegality of annexation must therefore be supported by a strongly presented continuity claim. When any one of these aspects is represented weakly, the international community is reluctant to accept State continuity. For example, State practice demonstrates that continuity claims alone, if not accepted, are not capable of according legal continuity to the claimaint. It seems instructive to compare the facts of the Baltic case with another claim to State identity that was almost simultaneous with the Baltic identity/continuity claim—but found a quite different reception in State practice, namely the case of Georgia.
i Georgia 1921–1991: A Non-Recognized Claim of State Continuity
Georgia, an independent republic in the South Caucasus has, with varying consistency, claimed to be legally identical with the independent Georgian Democratic Republic proclaimed on May 26, 1918, and occupied and annexed by the Soviet Russia in 1921.42 In reference to the Treaty of May 7, 1920, concluded between Georgia and Soviet Russia, the Supreme Soviet of the Georgian SSR declared in the Decree of March 9, 1990, that ‘the seizure of [Georgia’s] whole territory in legal terms amounted to military interference (intervention) and occupation with a purpose of overthrowing the existing political order as from a
Georgian statehood, which originates from the depth of the centuries, was lost in the 19th century by the Georgian nation as a result of annexation by Russia and abolition of its statehood by the Russian Empire. The Georgian people never submitted to the loss of freedom. By the proclamation
of Independence Act of 26 May 1918 the abolished Georgian statehood was restored. (…) Georgia did not voluntarily join the Soviet Union and its statehood exists until today, the Independence Act and the Constitution are still legally valid since the Government of the Democratic Republic did not sign the capitulation act and continued activity in exile.
The Supreme Council of the Republic of Georgia elected by multi-party, democratic vote on 28 October 1990 based on the unanimous will of the Georgian population expressed by the Referendum of 31 May 1991, states and makes publicly known the restoration of Georgian independent statehood on the basis of the Georgian Independence Act of 26 May 1918.48
Subsequently, in January 1992, the Military Council (Georgian provisional Government) decided to re-instate the Georgian Constitution of February 22, 1921.49 This decision remained, as Ferdinand Feldbrugge has argued, rather a political gesture by the Gamsakhurdia government than an actual change of constitution.50 Although on August 24, 1995, the new Georgian Constitution was adopted, its preamble reiterates the fundamental principles of the 1921 Georgian Constitution.51
Notwithstanding the Georgian position, its claim to State continuity has not found any specific recognition in international practice.52 Therefore, as a general rule, Georgia was still considered to be bound by the legal obligations of the USSR.
Why was State identity recognized in the Baltics, but not in the Georgian case? This must be asked, especially in light of the fact that the duration of the incorporation of the Baltic States, fifty-one years, is not fundamentally different from the seventy-year annexation of Georgia. When a State can, as a legal
However, the crucial differences between the Georgian and the Baltic cases seem to lie elsewhere. Why did key Western States ultimately recognize the Soviet seizure in Georgia but not in the Baltic case? The most crucial factor seems to be the legality of forcible seizure under general international law. Of course, today’s Georgia has correctly argued that Soviet Russia violated the non-aggression treaty in force between Georgia and Russia when it occupied and annexed Georgia in 1921. Before that, ‘Georgia possessed all the necessary attributes of a State and was rendered recognition by more than twenty States out of the total number of States that existed at the beginning of the century.’53 At the same time, however, it played a significant role in practice that the period of Georgia’s independence (1918–1921) was too short for later international recognition of the continuity link. Georgia’s independence could not properly crystallize before it was taken over by Soviet Russia in 1921.
Most importantly, Soviet Russia did not violate a universal norm prohibiting the use of force when it resubjugated Georgia in 1921. For these reasons, the claim to independent Georgia’s continuation as a subject of international law during the Soviet period (1921–1991) was dismissed by the international community. At the same time, no clear answers have yet been given in State practice about whether Georgia is to be treated as a classic successor State of the USSR in terms of mandatory succession to all relevant treaty obligations of the USSR.54 As the Russian Federation recognized the ‘independence’ of the breakaway regions of Abkhazia and South Ossetia in 2008, both parts of the Georgian SSR, today’s Russia and Georgia continue a deep conflict over the borders and geopolitical orientation of Georgia.
The case of Georgia demonstrates that State continuity in cases of annexation is never about pure symbolism of status—if it would, Georgia’s identity would have been recognized as easily in 1991 as the identity of the Baltic States.
ii The Status of Non-Recognized State Continuity Claims
It is evident that the claim to be a subject of international law identical with a previous historical State formation has no international consequences when that identity is dismissed by the State community, on the basis that the annexation was legal at the time and other States consider the former State to have become extinct. When other States deny a State’s claim to identity on the ground of legality of annexation, then continuity is, from the standpoint of international legal personality, non-existent, notwithstanding the constitutional claims by the affected State. This holds especially true in the historical cases mentioned when there was no rule of ex injuria ius non oritur preserving the continuity of annexed States. From today’s point of view of morality, the (third) partition of Poland in 1795 may be just as reprehensible as the Iraqi annexation of Kuwait in 1990, yet it was not illegal from the point of view of international law at the time.
It may be concluded that in State practice, identity claims can sometimes also be irrelevant for the purposes of international law. Such, for instance, is the Lithuanian claim that it was occupied between 1795 and 1918. Kazimiera Prunskiene, a former Lithuanian prime minister, enters the terrain of political rhetoric rather than international law when she argues that ‘[i]n den letzten zwei Jahrhunderten wurde Litauen (…) zweimal von Russland bzw. der Sowjetunion okkupiert. Die erste Okkupation dauerte 120 Jahre und endete 1918.’55
There can be no identity of two subjects of international law when the first subject has been annexed with no clear violation of the international law of that time.
What, then, is the fate and value of the identity (and continuity) claim of a State when other States reject it on legal grounds? No other actor in international relations can, of course, prohibit a State from seeing itself as it wishes. One recalls the primacy of political interest in determination of international legal status in cases of continuity/ succession.56 However, for continuity claims
Therefore, State identity in the domestic (constitutional) and international sense can also be regarded separately.57 A State may or may not be identical with its predecessor in the sense of domestic law (the respective position of the State itself being the only decisive factor), while its status as a subject of international law can differ from that position.58 Communist Russia after 1917 was continuous with Tsarist Russia as a subject of international law, but not in the sense of its own constitutional understanding. Poland after 1918 was regarded by its courts as the same State as pre-1795 Poland in the constitutional sense, but not by the international community, at least not in the legally relevant sense.
Although a State’s self-understanding with respect to its legal personality can have a strong influence on the attitude of the international community, it does not, however, determine the identity of a subject of international law.59 In cases when an identity/continuity claim is raised but not recognized, one can speak, not of the continuity of the State as a subject of international law, but about the historical or political revival60 of the State, of restoration in the sense of constitutional law. The re-birth of a State, involving its political and historical—but not its legal—identity is not a case of identity in the sense of international law.61
The unsuccessful claim by Georgia demonstrates that the international community is willing to support claims of State continuity only when supported by elements such as a clear violation of the rule prohibiting the use of force against a State, and subsequent non-recognition of annexation. Claims that do not fit these criteria, although born in situations of considerable injustice, will likely be rejected. Such may be the issue with the argument of the precedential effect of the restoration of the Baltic States for the situation in Chechnya.
Dr Thomas D. Grant of Cambridge University has examined the question whether the restoration of the independence of the Baltic States in 1991 may have served as a legal model for Chechnya, the formerly separatist North Caucasus republic in the composition of the Russian Federation.62 The military conflict in Chechnya and the attempts undertaken during the 1990s to achieve and consolidate Chechnya’s independence have been much publicized in the mass media. Grant lays out Chechnya’s tumultuous history, in particular the history of the expansion of the Russian Empire in the Caucasus during the 19th century. From 1849 to 1856 there appears to have been a Chechen State, led by Shamil.63 Of course, this State was not recognized by European countries and did not enjoy the privileges of jus publicum europaeum. Grant demonstrates how Chenchnya’s history in the composition of the Russian Empire and later in the USSR has been one of rebellion, resistance and repression. Even during the Soviet period, Chechnya remained a somewhat unsafe periphery of Soviet effective control with a ‘diarchy of structures’ where official structures such as district committees of the party, kolkhozes and courts functioned on the surface, but ‘in reality all of them were no more than outward forms of the traditional Islamic structures.’64
It may well be that it is this very status that Aslan Maskhadov would like to prove Chechnya too possesses—a territory never incorporated de jure into the Russian Empire and thus a territory not requiring recognition as a new state. If Chechnya could be proven to possess a status like that of the Baltic States, then the international community in treating Chechnya as a state would not effect any change in legal statuses.66
It was, however, quite doubtful whether the continuity of the Baltic States could serve as a legal model for the independence claim by the Chechen rebel movement. It appears highly questionable whether Chechnya has ever been recognized as a sovereign State, as a subject of international law. Moreover, it seems incorrect to question the existence of prescription in the case of the Russian seizure of Chechnya in the 19th century, a conquest that cannot be challenged according to the international law of that time. Chechnya became legally a part of the Russian Empire. Should Russian title to Chechnya be denied on the basis of absence of prescription, it could be denied, in a similar stretched application of the concept, in other parts of Russia and furthermore, the world. Most States treated the rebellion in Chechnya over the 1990s differently from the case of the Baltic States in 1989–1991—from the standpoint of the legal positions de facto as opposite examples. The analogy of Chechnya makes evident once again the importance of established statehood and of illegal annexation in the solution given to the Baltic situation.
A solution to the situation of Chechnya in the framework of international law must be found within the limits of the right of peoples to self-determination. However, according to international law today, the existence of the right to self-determination supports the claim for an independent State only in exceptional circumstances.
3 Departures from the Effectiveness Principle and Fear of Unfulfilled Fictions
Other parallel developments and cases involving State personality point to the fact that statehood in international law can no longer be understood simply as a sociological fact. When confronted with violations of peremptory norms of international law, the practice of States has started to depart from unrestricted application of the effectiveness doctrine. Similarly to the problem of
For instance, Southern Rhodesia had effective government, but was not recognized as State, since its government had violated the rule prohibiting apartheid and the right to self-determination.70 The domestic effectiveness of the regime of Ian Smith, in power in Southern Rhodesia for more than fourteen years, has never been questioned. However, for the purposes of recognition, considerations of effectiveness were ignored, in order to ensure enforcement of an international norm deemed fundamental to the international community.71
Vera Gowlland-Debbas has argued that fourteen years of collective non-recognition of the effective situation in Southern Rhodesia did not necessarily highlight the powerlessness of legality as opposed to effectivity—on the contrary, ‘[i]t is undoubtedly because of the general non-recognition of the effectiveness of the situation created by the illegal regime over the years, that the Southern Rhodesian case came closer to a solution than it otherwise would have done.’72
The principle of effectiveness could not, however, be ignored altogether in the Southern Rhodesian case. It was in the interest of the international community to establish that during the time of its de facto existence, Southern Rhodesia would not, notwithstanding its illegality, stand completely outside of international law—rather, its status was characterized as that of a de facto regime.73
… if an entity emerges onto the international scene through acts which are illegal under international law, no matter how effective it might be, its claims to statehood could not be maintained. It … cannot be clothed with legitimacy by the international community.76
At the same time, international lawyers sometimes express doubts about the effectiveness of such fictions, which attempt to ignore ‘sociological reality.’ Antonio Cassese maintains that ‘(i)nternational law is a realistic legal system (…) largely based on the principle of effectivity.’77 Louis Henkin has argued that the Rhodesian case did not overhaul the usual criteria for statehood, based on effectiveness, but constituted only an exception to those criteria. However, according to Professor Henkin, ‘[t]hat exception may not be pragmatic or ‘realistic’ but it is designed for a practical end, to put pressure on the offending State to terminate the illegality.’78 The most significant concern for international law seems to be the possibility of a situation where a fiction has been adopted, and pressure on the offending State to terminate illegal behaviour is present, but the situation has been consolidated to the extent that the fiction indeed starts to appear non-efficient and irrealistic. This, in its turn, could potentially undermine the credibility of the relevant international legal rule.
Such doubts have sometimes been confirmed in State practice. An example would be the situation in Northern Cyprus. The Turkish army invaded Cyprus in 1974—according to the Turkish position in order to protect the Turkish minority in Cyprus. On November 15, 1983, the Turkish Republic of Northern Cyprus (TRNC) was proclaimed on the ‘Turkish’ part of the island. Although
However, non-recognition of the TRNC has so far not brought an end to the illegal situation. Voices demanding a political compromise between Cyprus, Turkey and Greece, and thus due attention to the principle ex factis oritur ius, have become increasingly audible. In the past, US President Clinton’s statement on September 28, 1999 that there could be no return to the pre-1974 status of the island was regarded as a significant breakthough by Turkey and the first step to achieving some way of satisfying northern Cyprus’s demand for recognition short of statehood.80 In the legal literature, too, it has been doubted whether the initial illegality of the creation of the TRNC can stand against its statehood ad infinitum.81
The phenomenon of departure from the ‘three elements theory’ for the defence of illegally annexed States and against other illegally managed situations, thus continues to be accompanied by the eroding effect of the principle ex factis oritur ius. Moreover, legal developments cannot of course expel the political from matters of recognition and non-recognition of statehood. Often pronouncements that have been made on recognition and statehood are a mixture of political considerations and legal standards. Some non-factual criteria, as proclamied in recent State practice, may leave some space for manipulation, or maybe even for forms of modern imperialism. The December 16, 1991 EU Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union made no reference to effectiveness, but contained a long list of normative requirements, such as rule of law, democracy and human rights, instead.82 At the same time, the EC recalled that ‘its member States will not recognize entities which are the result of aggression.’83 In another circumstance, however, a controversial statement by the EC Arbitration Commission
The complex interplay between international law and politics can also be observed in the case which most genuinely resembles the legal situation of the Baltic States during their illegal annexation, namely that of the Chinese annexation of Tibet.
a Legality and Effectiveness in Tibet
Tibet’s modern political history has certain parallels with developments in the Baltic States. Historically, Tibet in the Himalayas has always been a buffer zone between Chinese and Indian civilizations.85 The exiled leaders of Tibet and the Chinese leadership hold opposing views about the historical relationship between China and Tibet. Tibet’s status in medieval times is difficult, if not impossible to explain with the help of notions which were developed in late medieval Europe, such as sovereignty or State. In any case, international law was hardly universal at the time and in East Asia the Sinocentric system of tributary neighbours of China was the reality. In earlier centuries, Tibet appears to have been a de facto independent entity, with only a symbolic relationship of suzerainty with the Chinese Emperor. It has been suggested that the status of Tibet at this time was something akin to a loose protectorate or tributary State; in any case, it was not a province of China.86 From 1912 until 1950, Tibet was de facto independent from China.87 However, during its independence, Tibet followed an isolationist policy: it was a hermit State. For example, it never applied for membership in the League of Nations at the time.
China, however, has always opposed the position that Tibet was an independent State. According to the official Chinese position, Tibet has always been a part of China—with varying degrees of autonomy.88
The Communists, coming to power in China under the leadership of Mao Zedong, invaded Tibet on October 7, 1950. The 14th Dalai Lama, Tenzin Gyatso, sought support from other States, and wrote, for instance, to the UN that ‘… there
Initially, the Tibetan leaders were allowed by the Chinese authorities to remain formally in their positions. However, the formal annexation of Tibet to China was carried out in 1951. On May 23, 1951, the Chinese forced the Tibetan delegation in Beijing to sign an ‘Agreement of the Central People’s Government of Tibet on Measures for the Peaceful Liberation of Tibet’ (also known as the Seventeen-Point Agreement). This agreement was not voluntary, was concluded under duress, and was therefore not ratified or sealed by the Dalai Lama.90 Due to the violations involved, the Tibetan leadership has considered the Seventeen-Point-Agreement null and void. Complete subjugation of Tibet’s autonomy by China followed in 1959, subsequent to an anti-Chinese uprising in Tibet. The Dalai Lama and approximately 100,000 of his fellow Tibetans were forced to flee the country and take refuge in neigbouring India and other countries.
Under the leadership of the 14th Dalai Lama, the Tibetan government in exile—the Kashag—was formed in Dharmsala, India. This government in exile has, however, not been recognized by other States. To the contrary, all States have formally recognized Tibet as part of China. At the same time, the attitude of third States to China’s claims has sometimes been inconclusive and noncommittal.91 The USA, for instance, seems on the one hand to recognize Chinese sovereignty over Tibet, but on the other hand, it has also condemned China’s aggression and invasion of Tibet.92 Notwithstanding Chinese protests, US President George W. Bush met with the Dalai Lama in a ‘private capacity’, on the 50th anniversary of the Chinese-Tibetan 17-point agreement which China claims confirmed Chinese sovereignty over Tibet.93 Moreover, Chinese human rights violations in Tibet have several times been condemned by the GA of the UN.94
The continued support for the Dalai Lama among the overwhelming majority of the population, the active resistance to Chinese rule in Tibet, the successful development of Tibetan policy in exile, and the functioning of the government in exile are all factors that contribute to the continuity of the Tibetan State.98
If one accepts the proposition that Tibet was an independent State before the Chinese invasion, it can be concluded that legal considerations similar to the Baltic case apply in the case of Tibet as well. The challenge in the situation of Tibet, however, is similar to the Baltic States during the 1970s/1980s. One can forever insist on the illegality of annexation and on unchanged legal status, but if the illegal situation appears to be effective for so long… The main task for the government in exile remains to guarantee the survival and the safeguarding of basic interests of the Tibetan people. Die normative Kraft des Faktischen has caused a realization of the need for compromise among the Tibetan leaders. Until the 1970s, the Tibetan government in exile fought for the complete independence of Tibet. Recently, however, the Dalai Lama has stepped back from this demand, and has instead consented to real autonomy of Tibet within China.99 In 1988, the Dalai Lama presented the details of his autonomy plan for Tibet to the European
It seems, however, that most States nowadays fail to condemn the situation in Tibet outright as illegal in terms of China’s sovereign title. If anything, Western states sometimes point out human rights violations; not ony in Tibet but in other Chinese regions as well.
4 Concluding Observations
The discussion about the legal status of the Baltic States upon restoration of their independence led us to analyze other relevant cases in international relations such as that of Tibet. The case of the Chinese annexation of Tibet demonstrates that a legal study about the consequences of illegal annexation should not be restricted to the past—the story of the illegal annexation of the Baltic republics in 1940–1991 is today relevant elsewhere, and will very likely be relevant in the future, too. It is an inspiring story for nations whose sovereignty is temporarily suppressed.
This book highlights how the principles of both ex injuria ius non oritur and ex factis oritur ius contradict and complement each other in the practice of international law. On the one hand, international law seeks to be normative and keep its promise of distinguishing between legal and illegal acts. On the other hand, the pursuit of normativity and justice in international law has always been balanced with the principle of effectiveness. This contradiction is sometimes revealed in responses of international law to annexations following illegal use of force.
In the Baltic case, the principle ex injuria ius non oritur managed to keep its central promise. Already during World War II, the international community accepted the legal principle that an illegally annexed State would not become extinct as a subject of international law. Restoration of the sovereignty of Estonia, Latvia and Lithuania in 1991 reconfirmed this legal rule—notwithstanding that the Soviet illegal annexation had lasted for half a century. The case of the Baltic States therefore demonstrates that the international community and international law have taken a further step in protection of established States against illegal annexation. A rule has developed in customary international law, according to which an illegally annexed State does not become extinct, and can consequently preserve its legal personality for as long as fifty years. Before the prohibition of the use and/or threat of force, the response of international law to forcible seizure was that a State became extinct when its independent government—for whatever reasons—disappeared or ceased to exercise effective
Recent State practice regarding statehood thus confirms the observation of Sir Robert Jennings that ‘the law will always lean towards the principle that a wrongful act must be ineffective to change or to create legal rights.’100 The case of the Baltic States illustrates a phenomenon which has been described as the emerging decline of the effectiveness doctrine in international law.101 International law must be based on considerations of effectiveness, but effectiveness cannot prevail when respect for most fundamental provisions of international law is at stake. In the context of statehood, the trend has been towards overhauling the strict application of the ‘purely fact-based’ Montevideo criteria of statehood in cases of illegality.102 We agree with the observation of Obiora Chinedu Okafor that ‘the traditional deference of international law is slowly giving way to the incorporation of normative requirements in decision-making regarding the legitimacy or otherwise of states.’103
Vor allem muß man sich vor dem Fehlschluß hüten, daß andere Staaten und Völker für die nationalen Forderungen eines bestimmten Volkes ein besonderes Interesse hätten. Ihre eigene Ruhe und Sicherheit ist ihnen wichtiger. Bezeichnend ist die Äußerung von Proudhon: ‘Qu’est-ce que le monde a perdu en laissant perir la Pologne?104
But the Baltic case also reveals that facts, too, tend to have their own power, as indeed does the principle ex factis oritur ius in international law. While the principle of State continuity was clearly supported in State practice in the Baltic case, some consequences of this principle remained debatable. In practice, the main issue concerning restoration of the Baltic States was what the identity and continuity of those States with the pre-war Republics should mean. Ultimately, the Baltic States were not successful in claiming restitutio in integrum: the international legal relations of the pre-annexation period could not be restored in totality. The present book has suggested that international law doctrine should move closer to the facts in the cases of illegal annexation, and distinguish between the continuity of legal status as such, on the one hand, and the continuity of legal rights and duties on the other. State continuity in cases of illegal annexation of course presupposes continuity of rights and duties, but failure to restore all pre-annexation legal relations would not necessarily call into question the continuity of status as such. The concept of State continuity in cases of illegal annexation demonstrates the increasing reluctance of the international community to accept the principle of unrestricted effectiveness, and thus symbolizes a further maturing of international law.
See C. Tomuschat, ‘Obligations Arising for States without or against their Will’, in: 241 RCADI 1993, pp. 199–374 at 303.
See Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971, p. 54 (para. 118). See also p. 56 (para 126).
Namibia Opinion, ICJ Rep. 1971, p. 56.
W.G. Grewe, Epochen der Völkerrechtsgeschichte, Baden-Baden: Nomos, 2. Aufl., 1988, p. 710: ‘Ob das Prinzip der Stimson-Doktrin (…) Bestandteil des geltenden Völkerrechts geworden ist, mag (…) zweifelhaft erscheinen.’
J. Verhoeven, La reconnaissance internationale…,1975, p. 308. “Thus a considerable gap remains between the theory and practice of non-recognition of territorial acquisitions achieved in violation of the law of nations.”
But see A. Cassese, International Law, Oxford: University Press, 2001, p. 304.
See J. Verhoeven, La reconnaissance internationale …, 1975, p. 292. See also H. M. Blix, ‘Contemporary Aspects of Recognition’, RCADI 1970-II, t. 130, pp. 567–703 at 662–664.
See J. Crawford, Legal Counsel for Australia, Case Concerning East Timor, I.C.J. Reports 1995, Public Sittings, CR 95/11, 16 February 1995, p. 45 and H. Krieger, Das Effektivitätsprinzip im Völkerrecht, p. 197.
See East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, p. 90. See also J.G. Taylor, The Indonesian Occupation of East Timor 1974–1989. A Chronology, London, 1990; H. Krieger (ed.) East Timor and the International Community. Basic Documents, Cambridge University Press, 1997; P. Escarameia, Formation of Concepts in International Law. Subsumption under Self-determination in the Case of East Timor, Lissabon, 1993.
See for overview in: Krieger, p. xxiv and xxv and S. Marks, ‘Kuwait and East Timor: a brief study in contrast’, in: International Law and the Question of East Timor, CIIR/IPJET, 1995, pp. 174–180.
See R.S. Clark, ‘The ‘Decolonisation of East Timor and the United Nations Norms on Self-determination and Aggression’, in: International Law and the Question of East Timor, CIIR/IPJET, 1995, pp. 65–102 at 73 et seq.
Reprinted in Krieger, East Timor…, p. 125. For analysis, see T. D. Grant, ‘East Timor, the UN. System, and Ebforcing Non-Recognition in International Law’, 33 Vanderbilt J. of Transnational Law 2000, pp. 273–310.
See e.g. L. Hannikainen, ‘The Case of East Timor from the Perspective of jus cogens’, in: International Law and the Question of East Timor, 1995, p. 103–117 at 111 et seq, H. Krieger, Das Effektivitätsprinzip, p. 471 and C. Antonoupoulos, ‘Effectiveness v. the Rule of Law Following the East Timor Case’, 27 Netherlands YBIL 1996, pp. 75–111 ar 77.
East Timor Case (Portugal v. Australia), Judgment of 30 June 1995, ICJ Rep. 1995, pp. 105–106, para. 37.
See J.A. Frowein, ‘Non-recognition’, EPIL 10, 1987, pp. 314–316 at 315. Italics added.
See for East Jerusalem: UN Doc. S/Res./252 of 21.5.1961, for Golan Heights: S/Res/497 of 17.12.1981.
Cf. V. Gowlland-Debbas, Collective Responses to Illegal Acts in International Law, 1990, p. 284 et seq. See e.g. Judge Skubiszewski, dissenting opinion, East Timor, Judgment, I.C.J. Reports 1995, p. 224 at 261 et seq. paras. 122–133. See also Conference of Yugoslavia Arbitration Commission, Opinion No. 3 of January 11, 1992, 31 ILM 1992 p. 1488, at pp. 1499–1500.
Cf. J.A. Frowein, ‘Reactions by not Directly Affected States to Breaches of Public International Law’, 248 RCADI 1994, pp. 345–437 at 431.
H. Krieger, Das Effektivitätsprinzip im Völkerrecht, 2000, p. 256 and 416.
See A/CN.4/L.6o2/Rev.i, 26 July 2001.
C. Tomuschat, General Course …, p. 105–6.
See generally B. Stern (ed.) Les aspects juridiques de la crise et de la guerre du Golfe, Paris, Montchrestien, Cahier du C.E.D.I.N. no. 6, 1991.
UN SC Res. 662 (1990),) 9 August 1990.
UN SC Res. 670 (1990), 25 September 1990.
UN SC Res. 674 (1990), 13 September 1990.
I. Ziemele, op. cit., p. 34.
Marek, op. cit., p. 552.
See also H.-J. Uibopuu, ‚Gedanken zu einem völkerrechtlichen Staatsbegriff‘, in: C. Schreuer (ed.) Autorität und internationale Ordnung. Aufsatze zum Völkerrecht, Berlin: Duncker & Humblot, 1979, pp. 87–110 at 88.
See e.g. H. Ruiz Fabri, ‘État (création, succession, compétences). Genèse et disparition de l’état a I’époque contemporaine’, 38 AFDI 1992, pp. 153–178 at 154–155.
But see H. Krieger, Das Effektivitätsprinzip im Völkerrecht, p. 175.
See C. Tomuschat, General Course, p. 110–111. See also Y. Osinbajo, ‘Legality in a Collapsed State: the Somali Experience’, 45 ICLQ 1996, p. 910.
“The members of the family of nations cannot with honour abandon any independent free nation to international gangsters or pirates.’ P.M. Brown, ‘Sovereignty in Exile’, 35 AJIL 1941, p. 667.
M. McDougal, ‘Some Basic Theoretical Concepts about International Law: A Policy-Oriented Framework of Inquiry’, in: R. Falk and S. Mendlovitz (eds.) The Strategy of World Order, vol. III—International Law, New York: World Law Fund, 1966, p. 117.
J.L. Brierly, The Outlook for International Law, Oxford: Clarendon Press, 1945, p. 40.
See K. Bühler, op. cit., p. 316. See also pp. 318–319: ‘…in certain marginal cases the subjective factor of recognition and acceptance of a State’s claim to continuity by the international community will become the ultimately decisive criterion for State identity.’
Cf. on this aspect of self-determination in the Baltic case in A. Cassese, Self-determination of Peoples. A Legal Reappraisal, Cambridge UP, 1995, p. 262.
See J. Duursma, Fragmentation and the International Relations of Micro-States. Self-determination and Statehood, Cambridge UP, 1996, p. 99.
See e.g. the US Congress, House Concurrent Resolution 416, 22 October 1966 (pointing to ‘denial of the rights of self-determination for the peoples of Estonia, Latvia, and Lithuania and calling for ‘restoration of these rights to the Baltic peoples.’)
This has been suggested with respect of Somalia in J.-D. Mouton, ‘L’État selon le droit international: diversité et unité’, in: L’État souverain a 1’aube du XXIe siècle. Colloque de Nancy, Paris, pp. 79–106 at 103.
Fiedler, p. 60–61. See also on ‘self-understanding’ in K. Schmid, ‚Gedanken zu Untergang und Entstehung von Staaten in Mittel- und Osteuropa’, 69 Friedens-Warte 1993, pp. 72–97 at 93 et seq.
See Graham, ‘The Legal Status of the Bukovina and Bessarabia’, 38 AJIL 1944, pp. 667–673.
K. Korkelia, G. Lordkipanidze, ‘State Succession in Respect of International Treaties in Post-Independent Soviet Union: Some Reflections on the Status of Georgia’, in: International Law Journal (Tbilisi State University), Vol. III, 1998, No. I-II, pp. 41–50. Interestingly, after 1918 claims were made for the identity of independent Georgia with Georgia before its incorporation into Tsarist Russia in 1802. See O. Nippold, La Géorgie du point de vue du droit international, Berne: Bureau de Presse géorgien, 1920. For critique, see Dörr, op. cit., pp. 48 and 226 et seq.
See Sakartvelos sabchota sotsialisturi respublikis uzenaesi sabchos utskebebi/the Supreme Soviet Official Gazette of the Georgian Soviet Socialist Republic, 1990, N3 (596), March, Tbilisi, Decree of N52 on Safeguards of the State Sovereignty of Georgia, p. 9. N 214-XI S, March 9, 1990. (Quoted and translated by Korkelia and Lordkipanidze, ibid.)
Ibid.
Ibid.
Sakartvelos sabchota sotsialisturi respublikis uzenaesi sabchos utskebebi/the Supreme Soviet Official Gazette of the Georgian Soviet Socialist Republic, 1990, N6 (599), June, Tbilisi, Decree of the Georgian Supreme Soviet concerning Creation of Legal Mechanism of Restoration of Independent Statehood p. 12–13. N 218-XI S, June 20, 1990. Quoted and translated by Korkelia and Lordkipanidze, ibid.
See Sakartvelos respublikis uzenaesi sabjos mier migebuli kanonebisa da dadgenilebesis krebuli/Laws and decrees adopted by the Supreme Council of the Republic of Georgia, Act of Restoration of the Georgian Independent Statehood, N 291, April 9, 1991. Quoted and translated by Korkelia and Lordkipanidze, op. cit., p. 47 et seq. For a critical account, see Dörr, Die Inkorporation, p. 48.
See ibid. (Sakartvelos…).
See Korkelia and Lordkipanidze, op. cit., p. 47.
See F.J.M. Feldbrugge, ‘The Law of the Republic of Georgia’, 18 Review of Central and East European Law, 1992, No. 4, p. 372.
See Korkelia and Lordkipanidze, op. cit., p. 48.
See C. Gray, YBEL, p. 487. The position accepted by State practice is that all former Soviet republics, except the Baltic States became successor States of the USSR. The Russian Federation was recognized as the State continuator to the USSR. See e.g. ILA Helsinki Conference (1996), Aspects of the Law of State Succession, Rapport preliminaire sur la succession d’etats en matiere de traites, pp. 13–15. See also L. Love, ‘International Agreement Obligations after the Soviet Union’s Break-up: Current United States Practice and Its Consistency with International Law’, Vanderbilt Journal of Transnational Law, Vol. 26, 1993, pp. 394–395.
Korkelia and Lordkipanidze, op. cit., p. 48.
It is interesting to note that Georgian authors K. Korkelia and G. Lordkipanidze refer to the continuity claim of Georgian constitutive acts from 1990–1992, but at the same time argue that ‘the status of Georgia within the Soviet Union could match the definition of Newly Independent States given in article 16 of the Vienna Convention.’ On the basis of these two—in the view of this writer, contradictory—premises, the authors argue: ‘Thus, it could be stated that the status of Georgia is different from that of the other republics (except the Baltic States) of the Soviet Union in contradistinction to the views held by some legal scholars from the former Soviet Union.’ See op. cit., p. 48.
See K. Prunskiene, ‘Unabhängigkeit als Option für die Selbstbestimmung—das Beispiel Litauen’, in: K. Ludwig (ed.) Perspektiven für Tibet. (…), München, 2000, pp. 91–97 at 91. “[i]n the last two centuries Lithuania (…) has been occupied twice by Russia and the Soviet Union respectively. The first occupation lasted 120 years and ended in 1918.”
See also P.M. Eisemann, ‘Bilan de recherches…’, in: State Successsion: Codification Tested Against the Facts, Hague Academy, 1996, p. 52: ‘Face à cet événement, les États concernés vont élaborer une stratégie juridique correspondant à leurs fins politiques. Leur “politique juridique extérieure” les conduira tout naturellement à utiliser le droit international pour parvenir au but qu’ils se sont assignés plus qu’ils ne chercheront à appliquer des normes supposées “objectivement’ applicables.”
See Fiedler, Staatskontinuität… 1970, p. 102 et seq. and Fiedler, Das Kontinuitätsproblem…1978, pp. 38–39 and 102.
See the views of Kelsen, Verdross and Marek, as summarized by Cansacchi, op. cit. p. 19; Cf. also U. Scheuner, ‘Die Funktionsnachfolge und das Problem der staatsrechlichen Kontinuität’, in: Vom Bonner Grundgesetz zur gesamtdeutschen Verfassung, (Festschrift für Franz Nawiasky), München: Isar Verlag, 1956, p. 9 at 12 and 14.
Cf. Fiedler, Das Kontinuitätsproblem…, p. 69.
Cf. Fiedler, ibid., p. 37.
Cf. Marek, op. cit., p. 28 and 581.
T.D. Grant, ‘A Panel of Experts for Chechnya: Purposes and Prospects in Light of International Law’, IX Finnish YBIL 1998, pp. 145–248, especially at 204 et seq.
See ibid. p. 174–177.
See ibid. p. 184 and 187.
See ibid. p. 195.
See ibid, p. 204.
Grant, op. cit., p. 222.
Grant, op. cit. p. 233.
See T. Darsow, Zum Wandel des Staatsbegriffi. Unter besonderer Berücksichtigung der Lehre und Praxis internationaler Organisationen, der Mikrostaaten und der Palästinensischen Befreiungsorganisation (PLO), Frankfurt: Peter Lang, 1984, p. 264. See also H. Krieger, Das Effektivitätsprinzip im Völkerrecht, 2000, p. 176.
UN SC Res. 217 (1965), 277 (1970), 288 (1970), 328 (1973), 423 (1978), 445 (1979), 448 (1979). See further J. Crawford, The Creation of States…, 1979, pp. 105–6. J. Dugard, Recognition and the United Nations, Cambridge: Grotius Publications, 1987, pp. 90–8.
See further V Gowlland-Debbas, Collective Responses to Illegal Acts in International Law. United Nations Action in the Question of Southern Rhodesia, Dordrecht: Martinus Nijhoff, 1990, p. 182 et seq.
V Gowlland-Debbas, Collective Responses to Illegal Acts…., 1990, p. 325. See also V Gowlland-Debbas, ‘The Functions of the United Nations Security Council in the International Legal System’, in: M. Byers, The Role of Law in International Politics, Oxford, 2000, pp. 277–314 at 304.
See H. Krieger, Das EJfektivitätsprinzip im Völkerrecht, p. 203 and 218.
See UN SC Res. 402 (1976). See also J. Dugard, Recognition and the United Nations, Cambridge: Grotius Publications, 1987, pp. 90–98 and E. Stabreit, Der völkerrechtliche Status der Transkei, Ciskei, Bophuthatswanas und Vendas während der Zeit ihrer formellen Unabhängigkeit von der Republik Südafrika, Frankfurt a.M., 1997.
J. Dugard, op. cit., p. 131.
N.L. Wallace-Bruce, Claims to Statehood in International Law, New York: Carlton Press, 1994, p. 67.
A. Cassese, International Law, Oxford: University Press, 2001, p. 12.
See L. Henkin, ‘International Law: Politics, Values and Functions’, RCADI 1989-IV, t. 216, p. 32.
See UN SC Res. 541 (1983). (The UN SC ‘… 2. Considers the declaration referred to above as legally invalid and calls for its withdrawal; … 7. Calls upon all States not to recognize any Cypriot State other than the Republic of Cyprus …’) See further K. Chrysostomides, The Republic of Cyprus. A Study in International Law, The Hague: Nijhoff, 2000 and for a Turkish view: Y. Altuğ, ‘The Cyprus Question’, in: 21 GYBIL 1978, pp. 311–344.
See R. Dwan, ‘Armed Conflict Prevention, Management and Resolution’, in: SIPRI YB 2000. Armaments, Disarmament and International Security, Oxford UP, 2000, pp. 77–134 at 122.
H. Krieger, Das Effektivitätsprinzip im Völkerrecht, 2000, p. 253.
See for the text e.g. in 31 ILM 1992, p. 1486. See also J. Charpentier, ‘Les déclaration des Douze sur la reconnaissance des nouveaux États’, R.G.D.I.P., 1992, pp. 343–355 and R. Bieber, ‘European Community Recognition of Eastern European States: A New Perspective for International Law?’, in: ASIL Proceedings 1992, pp. 374–378.
See ibid.
Published in R.G.D.I.P. 1992, pp. 264–269. See also A. Pellet, ‘Note sur la Commission d’arbitrage de la Conférence pour la paix en Yougoslavie’, AFDI, 1991, pp. 329–348.
See generally A.D. Hughes, ‘Tibet’, in: EPIL 4, 2000, pp. 858–861.
See International Commission of Jurists (ed.) The Question of Tibet and the Rule of Law, Geneva, 1959, p. 83.
See G. Gyaltag, ‘Das Recht auf Selbstbestimmung aus historischer Sicht’, in: Ludwig (ed.), pp. 49–59 at 56. See also C.H. Alexandrowicz-Alexander, ‘The Legal Position of Tibet’, 48 AJIL 1954, pp. 265–274.
See e.g. T.-T. Li, ‘The Legal Position of Tibet’, 50 AJIL 1956, pp. 394–404.
From the Appeal by His Holiness the Dalai Lama of Tibet to the United Nations, November 11, 1950, UN Doc. A/1549, reprinted in M.C. van Walt van Praag, The Status of Tibet, p. 337.
See Int. Com. Of Jurists, The Question of Tibet, p. 96 and M.C. van Walt van Praag, The Status of Tibet. History, Rights, and Prospects in International Law, Boulder: Westview Press, 1987, p. 147 and 157.
See M.C. van Walt van Praag, The Status of Tibet, p. 185.
See further van Walt van Praag, p. 186.
See E. Eckholm, ‘A New Poke in the Eye: China Bristles Over Tibet’, NY Times, May 23, 2001.
See Res. 1353 (XIV) of October 21,1959, 1723 (XV) in 1961 and 2079 (XX) of December 18, 1965 of the UN GA.
See e.g. R. McCorquodale/N. Orosz (eds.) Tibet: The Position in International Law. Report of the Conference of International Lawyers on Issues relating to Self-Determination and Independence for Tibet, London, 1994; G. Schmitz, Tibet und das Selbstbestimmungsrecht der Völker, Berlin: Walter de Gruyter, 1998.
See e.g. van Walt van Praag, p. 154.
Van Walt van Praag, p. 187.
Van Walt van Praag, p. 187.
See His Holiness XIV Dalai Lama, ‘Die Zukunft Tibets’, in: K. Ludwig (ed.) Perspektiven für Tibet. Auf dem Weg zu einer Zukunft in Freiheit und Selbstbestimmung, München: Diamant Verlag, 2000, p. 13–23 at 13.
R. Jennings, ‘Nullity and Effectiveness in International Law’, in: Cambridge Essays in International Law, Essays in Honour of Lord McNair, London, 1965, p. 64–87 at 72.
See also O.C. Okafor, Re-Defining Legitimate Statehood (…), The Hague: Nijhoff, 2000, p. 65.
102 See for similar conclusions: T.D. Grant, ‘Defining Statehood: The Montevideo Convention and its Discontents’, 37 Columbia JTL 1999, pp. 403–457 at 408 and 434.
103 See Okafor, ibid. p. 65.
W Schätzel, Die Annexion im Völkerrecht, 1920, reprinted in 1959, p. 175 (quoting Proudhon, La guerre et la paix, 1861, t. I, p. 59). “Above all, one must beware of the fallacy that other states and peoples have a special interest in the national demands of a particular people. Their own peace and security is more important to them. Proudhon’s statement is significant: ‘What has the world lost in allowing Poland to die?”