Status of Settlers Implanted by Illegal Regimes Under International Law
British Yearbook of International Law (2009)
69 Pages Posted: 8 Oct 2008 Last revised: 15 Apr 2015
Date Written: October 7, 2008
This article concerns settlers introduced into a territory under a territorial regime that is illegal under international law. Such regimes usually take one of two forms. One is of entities which effectively operate as States and claim statehood on the basis of acts unlawful under international law; the other is established States which act as sovereigns over areas outside their recognized national territories, in violation of international law. The article focuses on one specific phenomenon associated with illegal regimes, namely the introduction or implantation of large settler populations into the territory under dispute.
Illegal regimes often transfer of their own populations or populations loyal to them into the territory, and subsequently grant these populations residence or nationality in the territory. This is done in order to change the demographic composition of the territory under dispute and thereby solidify the regime.
The article examines this phenomenon at a specific moment, namely when the illegal regime is replaced by a lawful one. The legal power of the lawful, post-transition regime to reverse the acts of the illegal regime by removal of settlers may be limited in various ways. There may be an obligation to give effect to whatever status the illegal regime conferred upon the settlers, on the basis of the law of occupation or of the law of non-recognition. Expulsion may also be limited by the operation of human rights law and standards applicable to long-term residents, in regardless of the original impermissibility of their arrival in the territory.
The article studies in depth six cases of transition from an illegal regime to a lawful one. In five of them the process of transition to a legal regime has been completed: the transition from Ian Smith's regime in Rhodesia to independent Zimbabwe (1980), Namibia's transition from South African administration to Independence (1990), the restoration of the independence of the Baltic States following the annexation by the Soviet Union (1991), South Africa's transition from apartheid to democracy and the elimination of the TBVC States (Transkei, Bophuthatswana, Venda and Ciskei) (1994), and East Timor's independence following Indonesian annexation (2002). The sixth case is the prospective reunification of the Republic of Cyprus with the Turkish Republic of Northern Cyprus (TRNC), which has yet to take place but has been negotiated in detail.
Part 2 sets out the historical and legal circumstances of each of the cases examined. Part 3 focuses on potential constraints on expulsion of settlers based on the status of the settlers. Part 4 focuses on constraints on expulsion of settlers arising from substantive human rights law. Part 5 concludes by comparing the practice in the various cases investigated by reference to the parameters established earlier.
Keywords: illegal regime, transitional justice, nationality, residence, human rights, law of occupation, non-recognition, right to private life, right to family life, Baltic States, East Timor, Namibia, South Africa, TRNC, Cyprus, Annan Plan
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