This exam paper answers three questions. The first deals with regions of different countries, which wish to become separate states and their legal status in international law. The second assesses whether Nuclear Weapon States respect the Non-Nuclear Proliferation Treaty and how compliance could be ...
3. Arcadia is a region in the European State of Castellio. The government of Arcadia declares
its independence from Castellio. Critically assess whether third States can lawfully recognise
the State of Arcadia.
The right to self-determination has become a part of international customary law, having
been strengthened during the 1960s decolonisation process (Antonio Cassese, Self-
Determination of Peoples, (CUP, 1995) 68). Evidence about its wide recognition can be
found in the UN Charter, stipulating it as a key principle, guiding international relations in
Article 2 (1) and Article 55. Nevertheless, it is acknowledged that the initial guidelines have
been vague, referring to “self-determination” in general without specifying whether it was
internal or external, which groups of people are entitled to it or under what circumstances.
The subsequent development of international law has highlighted that colonial nations and
people groups under foreign domination are the holders of external self-determination, which
refers to the right to decide what their international status would be. This differs substantially
from internal self-determination of minority groups in established countries, as seems to be
the case of Arcadia, which ensures that such groups would have equal rights or autonomy
within nation-states. In this essay, it will be argued that the Arcadians do not possess the right
of external self-determination by addressing three main points. The first will explain that the
recognised international custom of external self-determination is limited to colonial peoples
or nations under foreign domination. The second will highlight that holders of internal self-
determination are granted solely the right to self-governance or equality within states. The
third will stipulate that recognising Arcadia would be illegal, as this would violate the
territorial integrity of Castellio.
The right to external-self determination is limited to colonial peoples or nations under
foreign domination (Macolm Shaw, International Law (CUP, 8th edition, 2017) 156). The
1960s decolonisation process made a mark on international law, since the right of colonial
peoples, inhabiting a separate geographical location with a historical connection to it who
were culturally and ethnically distinct from the colonising entity, to determine their own
international status was broadly accepted by the international community. The evidence,
demonstrating this was in the process of becoming customary law, could be seen not only in
the form of state practice, since many former colonies achieved independent statehood, but
also in the emerging opinion juris on the matter. Illustrations of the latter could be found in
resolutions of the UN General Assembly such as the 4 th principle of resolution 1514 (XV),
affirming that all colonial people in non-self-governing territories were entitled to self-
determination. It could be exercised through forming a new state, free association with
another state or integration into one as per the 6 th principle of resolution 1541 of the GA. The
fact this was favoured by a large majority of states demonstrates opinio juris, supporting a
customary right to external self-determination of colonial peoples. The ICJ has reaffirmed
this, further extending it to nations under foreign subjugation in its opinion on the Legal
Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 2004,
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, para 122. Thus, it has been crystallised that the holders of external self-determination are
colonial peoples or groups under foreign domination, which does not apply to Arcadia.
Moreover, minorities within established nation-states are protected through internal as
opposed to external self-determination (Rhona Smith, Textbook on International Human
Rights (OUP 9th edition 2019) 283). It is associated with the obligation on the part of states
to respect the principle of equal rights and refrain from blocking the ensured local autonomy
of certain communities, which possess objective distinguishing characteristics such as a
separate language, religion or culture. This has been outlined both in the Declaration on
Friendly relations and the Vienna Declaration and Programme of Action, where it was
outlined that self-determination should not be interpreted to be “encouraging any action
which would [...] impair [...] 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 [...] and thus possessed of a government representing the
whole people belonging to the territory without distinction as to race, creed or colour”. This
balances minority rights and the state’s interests of preserving its territory. However, it could
be interpreted as an indirect recognition that secession could be legitimate, should a state not
comply with the principle of equal rights. This is further compatible with the Canadian
Supreme Court’s decision on the The Reference on the Secession of Quebec [1998] 2 SCR
para 134, which stated that if minorities are blocked from meaningful internal self-
determination, they may be entitled to secession in extreme circumstances. This entails cases
of oppression of minorities such as the Kosovars and Serbia. Nevertheless, this cannot be
evidence of a recognised international customary law to a right of remedial secession, since
Kosovo has been treated as a sui-generis case and whether a right to remedial secession exists
is still highly disputed. Thus, even if the Arcadians are an autonomous minority group, this
does not entitle them to external self-determination, especially if the principle of equal rights
has not been violated by the central government.
Prematurely recognising Arcasia can be illegal, as this could violate the principle of
territorial integrity of Castellio. According to declaratory theory recognising a state is a
political issue, which has only a partial impact on how an entity, meeting the requirements for
statehood, will operate, mostly influencing which other actors it will interact with (Shaw,
supra 207). This is further supported by Article 3 and 6 of the Montevideo Convention.
Nonetheless, this could encourage secession, even when the internal problems could be
resolved peacefully and thus the territorial integrity preserved. Hence, the legal basis for the
illegality of similar acts of recognition could be the violation of Castellio’s sovereignty as
well. This might be further problematic, since the entity could fail to meet the criteria for
statehood from Article 1 of the Montevideo Convention, lacking an effective and independent
government. This document is considered to codify existing international customary law,
which supports the view it should be abided by (Anthony Carty, Philosophy of International
Law (EUP, 2007) 26). An example of such a violation is the case of South Ossetia,
recognised by Russia as a state in 2008, which lacked independent or effective government
due to its political and military dependence on the latter. It is similarly highly unlikely for
Arcasia to meet the criteria for statehood, since the region would be under the effective
control of the central authorities.
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