The secession of Crimea and-more broadly-the conflict in Ukraine reopened questions concerning th... more The secession of Crimea and-more broadly-the conflict in Ukraine reopened questions concerning the limits of a democratic expression of the will of the people and the use of force in order to procure annexation of a territory belonging to another State. This article seeks to clarify the law governing the change of the legal status of a territory through secession and merger with another state. It argues not only that the right of selfdetermination does not grant an entitlement to alter the legal status of a territory, but also that general international law does not prohibit such an alteration. The rules of international law favor the stability of the existing international borders and thus the territorial status quo, but this does not mean that a unilateral attempt at altering an existing territorial arrangement automatically constitutes an internationally wrongful act. Any change of the legal status of a territory becomes illegal, however, upon an outside use of force. Such an illegality cannot be "cured" by a democratically expressed will of the people.
Justifications and excuses have developed in various legal systems as defences for wrongful acts.... more Justifications and excuses have developed in various legal systems as defences for wrongful acts. In international law, defences appear in the ILC Articles on State
This article is concerned with the relationship between the right of self-determination and the p... more This article is concerned with the relationship between the right of self-determination and the political system of multiparty democracy. It considers whether international law supports the view that operation of the right of self-determination requires a multiparty political system. It also questions the position that elections in a multiparty setting lead to an automatic realisation of the right of self-determination. The article shows that the concept of democracy and the idea of self-determination to some degree share historical and philosophical underpinnings. But in contemporary international law we are dealing with self-determination as a human right and not with self-determination as an absolute political principle. As a human right, selfdetermination is subject to several limitations and should not be interpreted too broadly. The article concludes that in contemporary international law a multiparty political system is neither a necessary nor a sufficient condition for the realisation of the right of self-determination.
Although multiparty elections are not explicitly required by international human rights instrumen... more Although multiparty elections are not explicitly required by international human rights instruments or the European Convention on Human Rights (ECHR), certain human rights provisions have been interpreted as leading to such a requirement. While a democratic interpretation of human rights law has been settled in the ECHR framework, it remains disputable at the universal level. Despite numerous references to democracy in the documents adopted in the UN framework in the post-Cold War era, this article argues that an explicit link between international human rights law and multiparty elections has yet to be established. On the other hand, such a link has been developed by the European Court of Human Rights (ECtHR). Multiparty elections are considered to be part of the European public order. Moreover, the ECtHR has shown that it understands democracy beyond the existence of electoral procedures. But the role and understanding of democracy within the ECHR cannot be universalized.
When dealing with the dissolution of Yugoslavia, the Badinter Commission applied the uti possidet... more When dealing with the dissolution of Yugoslavia, the Badinter Commission applied the uti possidetis principle in order to "upgrade" internal boundaries to international borders. However, application of this principle outside of the context of decolonization remains controversial. Subsequent post-1990 state-creations nevertheless show a consistent practice of confining new international borders along internal boundary-lines. This article shows that such practice does not affirm the non-colonial scope of uti possidetis. Not just any internal boundary has a potential of becoming an international border in non-colonial situations -only boundaries delimiting historically well-established self-determination units have this potential.
Human rights treaties contain provisions for the so-called democratic rights. These provisions ar... more Human rights treaties contain provisions for the so-called democratic rights. These provisions are textually almost identical in various regional and universal human rights treaties, yet courts and other judicial bodies have constructed diverse understandings of democracy through interpretation. The main questions that arise are whether human rights treaties require a multiparty political setting and how they accommodate limitations on the will of the people. This article analyses developments in the context of the ICCPR and the three regional systems. It demonstrates that human rights courts have clearly established a requirement for multiparty elections and have even attempted a more robust, substantive definition of democracy. However, a new problem has arisen in recent case law. The electoral process has become dominated by political parties and electoral systems have often proven to be unable to accommodate independent candidates. The result is that candidates wishing to run at elections may be forced to associate with others. The contemporary interpretation of human rights treaties does not necessarily provide for suitable avenues to take part in elections outside of the framework of party politics. If it was once questionable whether human rights treaties guarantee the right to associate in political parties, it now seems that parties have become too central in the exercise of the so-called democratic rights.
The General Assembly has accorded to Palestine the status of a non-member observer State in the U... more The General Assembly has accorded to Palestine the status of a non-member observer State in the UN. Some commentators have taken the position that Palestine's legal status as a State has thus been confirmed. This article draws on historical examples to demonstrate that the status of non-member State is not necessarily granted only to States. The recent vote in the General Assembly, therefore, neither confirmed nor altered the legal status of Palestine. But irrespective of this vote, Palestine nevertheless has a previously acquired international capacity to act like a State and can, inter alia, become a party to the ICC Statute and possibly bring a case to the ICJ. Such a capacity could be seen as an implicit confirmation of statehood. This article, however, demonstrates that State creation cannot be an implicit side-effect of international treaties or voting procedures in international organizations. Not even (full) membership of the UN is an exception.
In the Kosovo Advisory Opinion, the International Court of Justice took the position that Kosovo'... more In the Kosovo Advisory Opinion, the International Court of Justice took the position that Kosovo's unilateral declaration of independence did not violate any applicable rules of international law. This article does not dispute the final finding, but rather critically examines the Court's somewhat controversial reasoning and considers the added value of the opinion for the clarification of legal doctrine in relation to unilateral declarations of independence. An argument is made that the Court's interpretation of the question and the identification of the authors of the declaration had significant implications for the Court's final finding. Yet, the Court cannot be criticized for not answering the question of whether or not Kosovo is a state, whether Kosovo Albanians are beneficiaries of the right of self-determination, or even whether the 'right to remedial secession' is applicable. However, the Court may well have implicitly answered that recognition of Kosovo is not illegal.
This Article identifies and analyzes the legal framework relevant for South Sudan's emergence as ... more This Article identifies and analyzes the legal framework relevant for South Sudan's emergence as a state and its international delimitation. It demonstrates that independence stemmed from the domestic constitutional arrangement.
In the context of the Kosovo Advisory Opinion, some governments and scholars advanced the view th... more In the context of the Kosovo Advisory Opinion, some governments and scholars advanced the view that declarations of independence do not fall within the purview of international law. Declarations of independence may be regulated by domestic law, while they are no more than ink on paper internationally. This article rejects such interpretations and argues that the question of whether or not a certain declaration of independence falls within the ambit of international law depends on the identity of the authors of the declaration. Thus, declarations of independence are not always issued in an international legal vacuum. Referring to the practice of states and UN organs, the article considers in which circumstances a declaration of independence itself, and not only its acceptance, may be illegal under general international law. In so doing, the article also shows that the illegality of a declaration is not determined by its unilateral character. It is concluded that international law neither endorses nor prohibits unilateral declarations of independence, but this is not to say that international law does not regulate declarations of independence at all.
International human rights treaties were drafted in the age of the Cold War. In this environment,... more International human rights treaties were drafted in the age of the Cold War. In this environment, they remained neutral with respect to the particular political system or electoral method. In the post-Cold War era, scholarly arguments have been made that contemporary international law should be read with a democratic bias. Analysing the practice of states and United Nations organs, this article critically considers the democratic reading of international legal norms and argues that even in the post-Cold War era, a state does not violate international law simply by not being democratic. But this conclusion is not unqualified. The article demonstrates that collective practice is emerging of denial of legitimacy to coup governments where they overthrow democraticallyelected ones. Governments can also lose international legitimacy on the basis of their abusiveness, although the latter is not necessarily determined by a lack of democratic electoral practices. Finally, where a regime change is internationalised, a collective attempt is commonly made to enact a new democratic government. Although not a legal norm per se, democracy is often an international policy preference which has influenced even some legally-binding documents adopted in the post-Cold War period.
The secession of Crimea and-more broadly-the conflict in Ukraine reopened questions concerning th... more The secession of Crimea and-more broadly-the conflict in Ukraine reopened questions concerning the limits of a democratic expression of the will of the people and the use of force in order to procure annexation of a territory belonging to another State. This article seeks to clarify the law governing the change of the legal status of a territory through secession and merger with another state. It argues not only that the right of selfdetermination does not grant an entitlement to alter the legal status of a territory, but also that general international law does not prohibit such an alteration. The rules of international law favor the stability of the existing international borders and thus the territorial status quo, but this does not mean that a unilateral attempt at altering an existing territorial arrangement automatically constitutes an internationally wrongful act. Any change of the legal status of a territory becomes illegal, however, upon an outside use of force. Such an illegality cannot be "cured" by a democratically expressed will of the people.
Justifications and excuses have developed in various legal systems as defences for wrongful acts.... more Justifications and excuses have developed in various legal systems as defences for wrongful acts. In international law, defences appear in the ILC Articles on State
This article is concerned with the relationship between the right of self-determination and the p... more This article is concerned with the relationship between the right of self-determination and the political system of multiparty democracy. It considers whether international law supports the view that operation of the right of self-determination requires a multiparty political system. It also questions the position that elections in a multiparty setting lead to an automatic realisation of the right of self-determination. The article shows that the concept of democracy and the idea of self-determination to some degree share historical and philosophical underpinnings. But in contemporary international law we are dealing with self-determination as a human right and not with self-determination as an absolute political principle. As a human right, selfdetermination is subject to several limitations and should not be interpreted too broadly. The article concludes that in contemporary international law a multiparty political system is neither a necessary nor a sufficient condition for the realisation of the right of self-determination.
Although multiparty elections are not explicitly required by international human rights instrumen... more Although multiparty elections are not explicitly required by international human rights instruments or the European Convention on Human Rights (ECHR), certain human rights provisions have been interpreted as leading to such a requirement. While a democratic interpretation of human rights law has been settled in the ECHR framework, it remains disputable at the universal level. Despite numerous references to democracy in the documents adopted in the UN framework in the post-Cold War era, this article argues that an explicit link between international human rights law and multiparty elections has yet to be established. On the other hand, such a link has been developed by the European Court of Human Rights (ECtHR). Multiparty elections are considered to be part of the European public order. Moreover, the ECtHR has shown that it understands democracy beyond the existence of electoral procedures. But the role and understanding of democracy within the ECHR cannot be universalized.
When dealing with the dissolution of Yugoslavia, the Badinter Commission applied the uti possidet... more When dealing with the dissolution of Yugoslavia, the Badinter Commission applied the uti possidetis principle in order to "upgrade" internal boundaries to international borders. However, application of this principle outside of the context of decolonization remains controversial. Subsequent post-1990 state-creations nevertheless show a consistent practice of confining new international borders along internal boundary-lines. This article shows that such practice does not affirm the non-colonial scope of uti possidetis. Not just any internal boundary has a potential of becoming an international border in non-colonial situations -only boundaries delimiting historically well-established self-determination units have this potential.
Human rights treaties contain provisions for the so-called democratic rights. These provisions ar... more Human rights treaties contain provisions for the so-called democratic rights. These provisions are textually almost identical in various regional and universal human rights treaties, yet courts and other judicial bodies have constructed diverse understandings of democracy through interpretation. The main questions that arise are whether human rights treaties require a multiparty political setting and how they accommodate limitations on the will of the people. This article analyses developments in the context of the ICCPR and the three regional systems. It demonstrates that human rights courts have clearly established a requirement for multiparty elections and have even attempted a more robust, substantive definition of democracy. However, a new problem has arisen in recent case law. The electoral process has become dominated by political parties and electoral systems have often proven to be unable to accommodate independent candidates. The result is that candidates wishing to run at elections may be forced to associate with others. The contemporary interpretation of human rights treaties does not necessarily provide for suitable avenues to take part in elections outside of the framework of party politics. If it was once questionable whether human rights treaties guarantee the right to associate in political parties, it now seems that parties have become too central in the exercise of the so-called democratic rights.
The General Assembly has accorded to Palestine the status of a non-member observer State in the U... more The General Assembly has accorded to Palestine the status of a non-member observer State in the UN. Some commentators have taken the position that Palestine's legal status as a State has thus been confirmed. This article draws on historical examples to demonstrate that the status of non-member State is not necessarily granted only to States. The recent vote in the General Assembly, therefore, neither confirmed nor altered the legal status of Palestine. But irrespective of this vote, Palestine nevertheless has a previously acquired international capacity to act like a State and can, inter alia, become a party to the ICC Statute and possibly bring a case to the ICJ. Such a capacity could be seen as an implicit confirmation of statehood. This article, however, demonstrates that State creation cannot be an implicit side-effect of international treaties or voting procedures in international organizations. Not even (full) membership of the UN is an exception.
In the Kosovo Advisory Opinion, the International Court of Justice took the position that Kosovo'... more In the Kosovo Advisory Opinion, the International Court of Justice took the position that Kosovo's unilateral declaration of independence did not violate any applicable rules of international law. This article does not dispute the final finding, but rather critically examines the Court's somewhat controversial reasoning and considers the added value of the opinion for the clarification of legal doctrine in relation to unilateral declarations of independence. An argument is made that the Court's interpretation of the question and the identification of the authors of the declaration had significant implications for the Court's final finding. Yet, the Court cannot be criticized for not answering the question of whether or not Kosovo is a state, whether Kosovo Albanians are beneficiaries of the right of self-determination, or even whether the 'right to remedial secession' is applicable. However, the Court may well have implicitly answered that recognition of Kosovo is not illegal.
This Article identifies and analyzes the legal framework relevant for South Sudan's emergence as ... more This Article identifies and analyzes the legal framework relevant for South Sudan's emergence as a state and its international delimitation. It demonstrates that independence stemmed from the domestic constitutional arrangement.
In the context of the Kosovo Advisory Opinion, some governments and scholars advanced the view th... more In the context of the Kosovo Advisory Opinion, some governments and scholars advanced the view that declarations of independence do not fall within the purview of international law. Declarations of independence may be regulated by domestic law, while they are no more than ink on paper internationally. This article rejects such interpretations and argues that the question of whether or not a certain declaration of independence falls within the ambit of international law depends on the identity of the authors of the declaration. Thus, declarations of independence are not always issued in an international legal vacuum. Referring to the practice of states and UN organs, the article considers in which circumstances a declaration of independence itself, and not only its acceptance, may be illegal under general international law. In so doing, the article also shows that the illegality of a declaration is not determined by its unilateral character. It is concluded that international law neither endorses nor prohibits unilateral declarations of independence, but this is not to say that international law does not regulate declarations of independence at all.
International human rights treaties were drafted in the age of the Cold War. In this environment,... more International human rights treaties were drafted in the age of the Cold War. In this environment, they remained neutral with respect to the particular political system or electoral method. In the post-Cold War era, scholarly arguments have been made that contemporary international law should be read with a democratic bias. Analysing the practice of states and United Nations organs, this article critically considers the democratic reading of international legal norms and argues that even in the post-Cold War era, a state does not violate international law simply by not being democratic. But this conclusion is not unqualified. The article demonstrates that collective practice is emerging of denial of legitimacy to coup governments where they overthrow democraticallyelected ones. Governments can also lose international legitimacy on the basis of their abusiveness, although the latter is not necessarily determined by a lack of democratic electoral practices. Finally, where a regime change is internationalised, a collective attempt is commonly made to enact a new democratic government. Although not a legal norm per se, democracy is often an international policy preference which has influenced even some legally-binding documents adopted in the post-Cold War period.
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