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of a colonial Power over a native State, and in regard to outlying pos-
sessions of such a vassal State . . .
These limitations imposed by the so-called principle of effectiveness,
rooted in the de facto legitimated concentration of power in the state,
still dominate analytical legal positivism in its consideration of such
issues as the circumstances in which the right of self-determination
might now be exercised. Concerning self-determination the general
consensus among international lawyers is, as has been seen above, that
there is no right of secession with respect to a part of a state which has
once taken part in a decolonization process. The way they reach this
conclusion shows the influence of the analytical approach. Crawford
points to how state practice demonstrates the extreme reluctance of
states to recognize or accept unilateral secession outside the colonial
context.20
He points out how no new state formed since 1945 outside the
colonial context has been admitted to the UN over the opposition of
the predecessor state. This remarkable proposition is demonstrated
by the extreme example of Bangladesh, which was not admitted to
the UN until 1974 after its recognition by Pakistan.21
The formulation of the question by Crawford needs to be consid-
ered again. It accepts as conclusive, as a legal value, the standpoint of
existing states, that international law does not require them to accept
their own dismemberment without their consent. Hence Crawford
defines secession as  the process by which a particular group seeks
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88 Philosophy of International Law
to separate itself from the State to which it belongs. The value
judgement-laden character of this proposition is quite clear. Crawford
could simply have spoken of existing states and changing the status
quo. This he distinguishes  from a consensual process by which a
State confers independence upon a particular territory and people by
legislative or other means . . .  language which is equally value-
laden.22 Since international law is supposed to rest on the consent of
states, Crawford is saying that states cannot be taken to have con-
sented to their dismemberment without their consent because they
have not consented to their dismemberment without their consent.
This is obviously bound to be true because the proposition is tauto-
logical. The question remains how the professional mind reaches such
an intellectual impasse.
To paraphrase an argument that has already been used in another
context,23 in the nineteenth century the German international lawyer
August von Bulmerincq, in his Praxis, Theorie und Codification des
Vlkerrechts (1874), was anxious to demonstrate that the precedents
of Italy, Belgium, and Greece are not enough to demonstrate the exist-
ence of a rule of international law that there is a right of peoples to
self-determination. They do not provide precise evidence of who in
general is a subject of the right and how it is to be exercised. Indeed,
this would necessitate a congress of states which would have to
assemble and decide that a particular entity enjoyed the right; these
states would then have to award the right against a particular state,
which of course already existed. The question would then arise
whether a war to enforce this right would be justified. Law consists
of a system of rights guaranteed by force. Von Bulmerincq concludes
that any right to self-determination in those terms would run counter
to a legal order which already guaranteed the integrity of states.
However, this reasoning conceals a hidden major premise, that
there is an international legal order. If there is no such order it will
still be true that international law has not evolved rules to define the
scope and exercise of a right to self-determination. Yet clearly this
would not mean that there remains an existing legal order to be
upheld. The most that a possible legal order could mean is that states
in the possession of territory claim that the principle of effectivity
with respect to their territory has legal character. This is all that ana-
lytical jurisprudence can say. Those groups that wish to dismember
existing states will dispute the claim. The outcome will depend upon
which party is the stronger. In fact, this logical discontinuity of argu-
ment reveals the huge vacuum in the theory of legitimacy  a corpus
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International Legal Personality 89
of argument by lawyers about justification of territorial title to which
reference has already been made.24
What there is in the way of a classical or traditional international
law of territory rests entirely on treaty law, particularly peace treaties
and general treaties defining the European and international system.
What orthodox legal analysis leaves out of account is the significance
and place of treaties in the history of international relations. It is true
that it is virtually impossible to find a substantial territorial change,
which has the object to assure a new human grouping state autonomy,
without an agreement to confirm it. However, agreement in interna-
tional society has been and continues to be  notwithstanding the
Kellogg Briand Pact and the UN Charter, and their supposed effect in
producing the articles on coercion in the Vienna Convention on the
Law of Treaties  marked by intense levels of pressure which usually
take the form of physical violence. An example close to home is marked
by Anglo-Irish relations. By 1918 the UK was offering Ireland devolved
government as a political settlement. Sinn Fin won a majority in elec-
tions 1918 and acted on the basis that Ireland was independent. Violent
conflict ensued. In the summer of 1921 the UK offered a truce and a [ Pobierz całość w formacie PDF ]