Mr. President, Members of the Court, I am a devoted but disgruntled South Australian. “I hereby declare the independence of South Australia.” What has happened? Precisely nothing.

Have I committed an internationally wrongful act in your presence? Of course not. Have I committed an ineffective act? Very likely. I have no representative capacity and no one will rally to my call.

But does international law only condemn declarations of independence when made by representative bodies and not, for example, by military movements? Does international law only condemn declarations of independence when they are likely to be effective? It simply does not make any sense to say that unilateral declarations of independence are per se unlawful.

The reason is simple. A declaration issued by persons within a State is a collection of words writ in water; it is the sound of one hand clapping.

What matters is what is done subsequently, especially the reaction of the international community. That reaction may take time to reveal itself. But here the basic position is clear.

There has been no condemnation by the General Assembly or the Security Council; there have been a substantial number of with the Bantustans, Southern Rhodesia, Manchukuo or the TRNC. In such cases the number of recognitions can be counted on the fingers of one hand, whether or not it is clapping.

This is all in sharp contrast to cases where there has been a fundamental breach of international law in the circumstances surrounding the attempt to create a new State

In this context it must be stressed that international law has an institution with the function of determining claims to statehood

That institution is recognition by other States, leading in due course to diplomatic relations and admission to international organizations. A substantial measure of recognition is strong evidence of statehood, just as its absence is virtually conclusive the other way.

Professor James Crawford (no relation) laying it on the line at the ICJ on behalf of HMG, arguing the case for recognising Kosovo’s independence.

See also the smooth and elegantly simple approach taken before him by Daniel Bethlehem (FCO Legal Adviser).

You may or may not like their line of argument. But for sure it’s top class work.