Resolving Claims to Self-Determination.
In March 2014, following the close of the 22nd Winter Olympic games in Sochi, Russia, the world turned its view from the athletes' podiums to the militants rolling into the Crimean peninsula of the Ukrainian state. By March 16th, the Russian government had supported a referendum of Crimeans, and announced that 87% had voted to "reunite with Russia as a constituent part of the Russian Federation". (1) On March 18th, President Putin gave a lengthy speech recalling the historic relationships between the Crimean and Russian peoples and decrying the tyranny that had oppressed the Crimeans, among other Russian groups, over the ages. He celebrated the referendum as "the first time in history [the residents of Crimea] were able to peacefully express their free will regarding their own future." (2)
Andrew K. Coleman's book, Resolving Claims to Self-Determination: Is there a role for the International Court of Justice?, (3) could not be more timely. In this volume, which grew out of his Ph.D. thesis on the same subject, Coleman attempts to provide a framework whereby claims for self-determination could be resolved peacefully, and with the expertise and impartiality of the International Court of Justice (ICJ) that would support the claims' legitimacy. His central question is, "to what extent can and should legal tribunals by applying legal analysis, and principles of international law, assist with the resolution of claims for self-determination?" (4)
The book answers this question through four parts that logically set out Coleman's argument. Part One establishes a framework by which the court could determine whether or not a claim for self-determination is legitimate. Part Two describes how in theory and practice the international community determines whether or not a nation or people is a "state". Part Three analyzes the different jurisdictions of the ICJ and argues that the court's advisory jurisdiction offers promise for resolving claims of self-determination. Part Four assesses the potential contribution of the ICJ for "highly political matters."
Coleman crafts his argument in incremental steps, making his case point by point, so that reading the book in its entirety makes the thesis whole. Nonetheless, the, book is also a helpful resource in its parts. For example, Part 2 contains a section on state recognition and the role of states in determining statehood, which helpfully outlines competing theories and a history of state practice. Many sections of the book provide a topical review of theory and ICJ case law so as to provide a stand-alone reference for research or for teaching sections of a course on self-determination or international law. As necessary, Coleman repeats cases and theories so that each section can be read on its own.
Throughout Resolving Claitns to Self-Determination, three themes permeate Coleman's argument. The first theme is that claims for self-determination are relational. The right to self-determination arises from a relationship of domination/subjugation more than a purely territorial dominion. Using decisions such as the Supreme Court of Canada's Reference re Secession of Quebec (5) and the ICJ's Kosovo Opinion, (6) Coleman finds that freedom from oppression and alien subjugation is the "golden thread" that determines the legitimacy of claims for self-determination. (7)
Coleman's second theme is that states support or oppose claims for self-determination on political rather than legal grounds, and that such reasoning threatens long-term peace and stability. As states act in their self-interest, they do not recognize claims for self-determination on the basis of legal criteria, which leads to the inconsistent application of legal norms by states. (8)
The third theme of the book is that the international community should strengthen the role of its institutions so that they can resolve disputes before they develop into armed conflicts. As Coleman notes, most claims for self-determination simmer for an average of 13 years before they break out into violence, (9) and then take an average of 14 subsequent years of serious conflict before the group's goals are met. (10) The cost in human life, violations of human rights and economic growth is staggering. Coleman refers to a "structural deficiency" in the UN's ability to resolve disputes regarding self-determination that leaves claimants with no option other than violence. (11)
Interestingly, all three of these themes were present in President Putin's March 18 speech: he spoke of the oppression of the Crimean and Russian peoples, the political motivations underlying the West's opposition to Crimea's independence and the weakness of international institutions.
Coleman's argument requires the reader to imagine a world where the ICJ could contribute to the resolution of highly political claims, but he acknowledges the practical difficulties claimants may face. For example, only states have standing before the ICJ, making it impossible for a subjugated people to bring a claim to the court. (12) Furthermore, state parties must consent to the contentious jurisdiction of the court before any state-to-state complaint may be heard. (13) Thus it is unlikely, for example, that Ukraine could ever bring a claim to the court regarding Russia's intervention in Crimea. For this reason, among others, Coleman argues that the ICJ's contribution would best be realized through its advisory jurisdiction.
Can we imagine what would happen if the United Nations General Assembly followed Coleman's method and submitted the Crimean claim for self-determination to the ICJ for an Advisory Opinion? In the event that the court held that the claim and the actions of the Russian government violated international law, would future oppression and violence be avoided? Would President Putin change his policies? In spite of Coleman's carefully crafted argument, the sum of these political challenges leaves the reader with a less optimistic view of the court's potential. In Putin's March 18th speech, he acknowledged the weak stature of institutions:
Colleagues. Like a mirror, the situation in Ukraine reflects what is going on and what has been happening in the world over the past several decades. After the dissolution of bipolarity on the planet, we no longer have stability. Key international institutions are not getting any stronger; on the contrary, in many cases, they are sadly degrading. (14)
But perhaps this is precisely why Coleman is making his case. He inspires us to think about the potential for the court to act as a "legal guardian" for the international community. (15) If states used the ICJ's advisory jurisdiction to determine legal questions at the request of the UN General Assembly or Security Council, political negotiations could move forward between the parties with the aid of relevant UN organs. (16) Even if the ICJ is not able to assist in the resolution of the particular conflict at issue, by clarifying legal issues it could improve the capacity of the international community to resolve future conflicts. (17) If we use our legal imagination, perhaps we can envision an ICJ Advisory Opinion regarding the legality of Crimea's secession that would aid in stabilizing the future in an increasingly vulnerable region.
SJD candidate, Faculty of Law, University of Toronto.
(1) "Crimean Referendum: What does the ballot paper say?", BBC News, March 10, 2014, online: <http: // www.bbc.com / news / world-europe-26514797>.
(2) Bridget Kendall, "Crimea Crisis: Russian President Putin's Annotated Speech", BBC News, March 19,2014, online: <http://www.bbc.com/news/world-europe-26652058> [Kendall],
(3) Andrew K. Coleman, Resolving Claims to Self-Determination: Is there a role for the International Court of Justice?, (London and New York: Routledge, 2013) [Coleman].
(4) Coleman, supra note 3 at 18.
(5) Reference re Succession of Quebec  2 SCR 217.
(6) Accordance with International Laio of Unilateral Declaration of Independence in Respect of Kosovo, (Advisory Opinion),  ICJ Rep 403.
(7) Coleman, supra note 3 at 82-83.
(8) Ibid, at 141.
(9) Ibid, at 6-7.
(10) Ibid, at 3.
(11) Ibid, at 11.
(12) Coleman, supra note 3 at 16, citing Article 34(1) of the ICJ Statute: United Nations, Statute of the International Court of Justice, 18 April 1946, online: <http:// www.refworld.org/docid/3deb4b9c0.html> [accessed 23 March 2014].
(13) Ibid, at 17, citing Article 36 of the ICJ Statute.
(14) Kendall, supra, note 2.
(15) Coleman, supra note 3 at 315.
(16) Coleman, supra note 3 at 316.
(17) Ibid, at 291.
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|Title Annotation:||Resolving Claims to Self-Determination: Is There a Role for the International Court of Justice?|
|Author:||Orange, Jennifer A.|
|Publication:||Journal of International Law & International Relations|
|Article Type:||Book review|
|Date:||Jan 1, 2014|
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