The right of self-determination has been constructed as the right of peoples to determine their own destiny and form of government. For instance, ‘self-determination can be based on a people’s desire to be free of colonial rule. Self-determination may be exercised, inter alia, through the establishment of a sovereign independent State, by integration, or by association with another State.’574
The right to external self-determination is an aspect that has been causing much controversy in legal theory. The right in its external manifestation was an important feature in the context of decolonisation, that is, self-determination in most cases realised through the formation of an independent State. Raic argued that, this manifestation of self-determination, ‘has led to statements that once independence was achieved by dependent territory, the right was consumed’. For instance, self-determination was regarded as a right which operated only under certain specific circumstances and therefore had an inherently temporary nature’.575 Thus, McCorquodale argued that, external self-determination ‘was applied most frequently to colonial situations as it concerns the territory of the State, its division, enlargement or change and the State’s consequent international (external) relations with other States’.576 Hence, the creation of independent sovereign States by colonial people has been considered as an exercise of external self-determination. Conversely, self-determination outside the context of decolonisation has an internal nature that consists of a people’s right to freely pursue their economic, social, and cultural development, ideally through democratic governance.
574 Okoronkwo, ‘Self-Determination and the Legality of Biafra’s Secession under International Law’ (n 124).
575 In 1967, in the context of the debates leading up to the adoption of General Assembly Resolution 2625 in 1970, the representative of Burma stated: [t]he sum total of the experience gained by the United Nations in the implementation of the principle [of self-determination] had clearly and incontrovertibly established its meaning and its purpose, namely that it was relevant only to colonialism and was to be specifically applied in the promotion of the independence of peoples under colonial domination. See, ‘UN Doc. A/AC 125/SR 68, (4 December 1967)’. See also, Raic, Developments in International Law: Statehood and the Law of Self-Determination (n 137) 226.
576 McCorquodale, 'Self-Determination: A Human Rights Approach’ (n 124) 863.
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In fact, the emergence of a new State to the detriment of an older sovereign entity disrupts the composition of international society and challenges the very foundations of its main actors.
During the eighteenth and nineteenth centuries, the creation of new States in the Americas, the idea of and consequently, the term ‘decolonisation did not exist.’577 Consequently, ‘the process of what was the first phenomenon of independence of colonies from their European metropolises took the form of secession.’578 In other words, no new States were created because of the existence of any right to independence under international law. Kohen argued, their existence ‘came into being as a matter of fact and recognition by the other members of more limited community of States of the time.’579 However, during the UN era, this approach has drastically been changed. During the second half of the twentieth century,
‘decolonisation, the most important means of creating new States, was not viewed by the international legal order as a case of secession.’ One of the reasons for this was summarised in the Declaration of Principles of International Law embodied in UNGA Resolution 2625 (XXV): 'the territory of the colony or other non-self-governing territory has, under the Charter, a status separate and distinct from the territory of the State administering it.’580 Moreover, another reason lies in the emergence of the principles of self-determination as a right of all peoples. For the first time in history, ‘international law continued a rule granting a right to some communities, those that qualified as 'peoples' to create their own independent States. However, despite this completely new phenomenon, secession remained, actually or potentially, as another important way to create States in the contemporary world.’581
Secession under international law refers to ‘separation of a portion of an existing State, whereby the separating entity seeks either to become a new State or to join yet another State, and whereby the original State remains in existence without the breaking off territory.’582 Historically, successful secessions around the world have been rare, because secession seems inherently at odds with the principles of State sovereignty and territorial integrity, which have been core values of international law for centuries.583 This is without prejudice to any different legal consequences, which might arise from State secession. It has been seen in the
577 M Kohen, Introduction to Secession: International Law Perspectives (CUP 2006) 1.
578 ibid.
579 ibid.
580 ‘UNGA Res 2625 (XXV) (24 October 1970) UN Doc (A/8082) 1970’ (n 23).
581 Kohen, Introduction to Secession: International Law Perspectives (n 577) 1-2.
582 Dunoff, Ranter, and Wippman, International Law Norms Actors Process (n 533) 122.
583 Describing the few successful secessions in international law, which include the secession of Bangladesh from Pakistan in 1971, of Eritrea from Ethiopia in 1993, and of the three Baltic States from the former Soviet Union in 1990. See, ibid. Also Scharf, ‘Earned Sovereignty: Juridical Underpinnings’ (n 217).
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preceding section that, positions of States have varied. Some accepted the right of secession of minorities that is a distinct people or fraction of a people in a State, while others have been denied. The only textual reference to a justification of the partial or total disruption of the territorial integrity of an existing State can be found in paragraph 7 of the principle of determination of General Assembly Resolution 2625 (XXV). ‘The full right of self-determination takes precedence if the government does not represent ‘the whole people belonging to the territory without distinction as to race, creed or colour.’584 In fact, Paragraph 7 is one of the most important provisions of the Declaration because it makes ‘a bold attempt to reconcile the conflict between the principles of self-determination and territorial integrity of States’.585 The Paragraph has been generally described as a ‘safeguard clause’.586 However, Simpson argued that ‘paragraph 7 made the principle of territorial integrity ‘a rebuttable presumption that can only be invoked by States that act in accordance with the principle of self-determination’.587 Thus, Nanda argued that, ‘The logical reading of the Declaration is that a State must possess a government representing the whole people for it to be entitled to the protection of its territorial integrity against secession’.588 Moreover, ‘the Declaration does not provide authorisation to infringe the territory of a State, which in particular has a government reflecting the entire population of the territory. Thus, no secession claim can be derived from this clause, even in the event of the most severe human rights violations.’589
In fact, the international community has viewed secession unfavourably, it being contrary to the territorial integrity of sovereign States. Some scholars have argued that ‘territorial integrity’ merely safeguards the inviolability of international borders but does not regulate an internal affair such as secession. While others claim that territorial integrity prohibits
584 ‘Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States. UNGA Res 2625 (XXV) (24 October 1970) UN Doc (A/8082) 1970’ (n 23 ).
585 Okoronkwo, ‘Self-Determination and the Legality of Biafra’s Secession under International Law’ (n 124).
586 See, J Crawford, ‘State Practice and International Law in Relation to Unilateral Secession (85 BYIL 1998) 113.
587 Simpson, ‘The Diffusion of Sovereignty: Self-Determination in the Post-Colonial Age’ (n 249).
588 V P Nada, ‘Revisiting Self-Determination as an International Law Concept: A Major Challenge in the Post-Cold War Era’ (1997) 3 J Int’l & Comp L 443.
589 Krüger argued that ‘this also applies in the event of political discriminations. A different result could only be arrived at by an argumentum e contrario, which is not covered by the purposes of the Declaration however. A secession claim for minorities who feel politically marginalised would represent a considerable factor of instability and uncertainty for numerous States and regions worldwide. See, H Krüger, The Nagorno-Karabakh Conflict: A Legal Analysis (Springer 2010) 84.
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secession because secession dismembers the territory of the State.590 However, it cannot be said that secession is illegal per se. In essence, international law justified secession as a remedy of last resort for persistent and serious injustices. For instance, the ICJ found that Kosovo’s Declaration of Independence was not in violation of international law.591 The Court noted that ‘there is no applicable rule of international law under which such declarations can be disallowed. The Court did not say that Kosovo had a right to secede from Serbia. Further, the Court did not rule on the legal consequences of this Unilateral Declaration of Independence UDI. It explicitly refused to say whether or not Kosovo has the status of a State, and did not tell States, whether they should recognise Kosovo as a State’.592 While some of the UNSC, resolutions have declared certain acts of secession illegal;593 the act of secession itself is not regulated by any international legal rules. Thus, the absence of an international rule prohibiting secession does not create a positive right to secession, which would oblige citizens or States to recognise it or conform to it. In other words, there is no conclusive body of legal principles or State practice to clarify application of the right secession, which remains acutely controversial. Crawford demonstrated that ‘this is partly due to the dilemma that this would cause indeed, it is difficult to imagine how a seceding entity could manage to act contrary to international law while not being considered an international legal subject’.594 A frequent question is under what circumstances a minority group seeking to separate from its mother State has the legal right to do so.
For a group to be entitled to exercise its collective right to self-determination, it must qualify as a ‘people’.595 In other words, groups with a common identity and link to a defined territory are allowed to determine their political future in a democratic fashion. Hence, once the determination has been made that a specific group qualifies as a people and thus has the right to self-determination, the relevant inquiry, for the purposes of secession, becomes whether the right to self-determination carries with it a right of secession or to create independence. In
590 S Dion, ‘Secession and the virtues of clarity’ [2011] Macdonald-Laurier Institute for Public Policy 1–12
<http://www.macdonaldlaurier.ca/files/pdf/Secession_and_the_Virtues_of_Clarity.pdf>accessed 23 September 2013.
591 D Akande, ‘ICJ finds that Kosovo’s Declaration of Independence not in Violation of International Law’, 2010 <http://www.ejiltalk.org/icj-finds-that-kosovos-declaration-of-independence-not-in-violation-of-international-law/>accessed 20 September, 2013.
592 ibid.
593 See for example, ‘UNSC Res 169 (24 November 1961) UN Doc [S/ 5002] 1961.’And ‘UNSC Res 216 (12 November 1965) UN Doc [1258] 1965.’
594 Crawford, The Creation of States in International Law (n 3) 389.
595 Although the term ‘people’ is ambiguous and vague under international law, it typically refers to “people who live within the same State… or people organised into a State. See, Scharf, ‘Earned Sovereignty: Juridical Underpinnings’ (n 217).
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other words, as mentioned above, the right to self-determination can take different forms, such as self-government, autonomy, or free association, that are less intrusive on state sovereignty than secession is.
Above all, it can be concluded that, the principle of self-determination lends itself to restrictive or expansive interpretations. ‘Some argue that self-determination only allows for the creation of new States in the context of decolonisation’. Many others assert that, the right to self-determination legally entitles peoples subject to extreme persecution to remedy their situation through secession.596 While most scholars agree that, the definition of the ‘People’
with collective rights to self-determination is unclear.597 Here, to say under international law every ‘people’ is entitled to self-determination leaves unanswered two problems still very much in flux, namely, what is a ‘people’ and what does ‘self-determination’ mean? Secession according to the idea of a remedial rightwas argued by Buchheit to mean that it ‘assumes that international law provides a right to secession for people subject to extreme persecution or unable to internally realise their right to self-determination.’598 This theory Roethke argued, postulates that if a groups falls victim to ‘serious breaches of fundamental human and civil rights’ through the ‘abuse of power,’ then international law recognises the right of the afflicted group to secede from the offending State’.599 In some cases however, Buchanan argued that, ‘the grosser injustices are perpetrated, not against the citizenry at large, but against a particular group, concentrated in a region of the State’. Consider, for example, Iraq's genocide policies against Kurds in northern Iraq. Secession may be justified, and may be feasible, as a response to selective tyranny, when revolution is not a practical prospect.600
596 See for example, Franck, ‘Postmodern Tribalism and the Right to Secession' (n 159) 13.
597 Murswiek, 'The Issue of a Right to Secession - Reconsidered (161) 101-114. See also, ‘Reference re Secession of Quebec' (n 21).
598 Buchheit, Secession, The Legitimacy of Self-Determination (n 29) 220-23.
599 P Roethke, ‘The Right to Secede Under International Law: The Case of Somaliland” [2011] Fall J Int’l Service 36.
600 A Buchanan, ‘Theories of Secession’ (1997) 26 Philosophy & Public Affairs 31.
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2.6.2. The aversion of States and the international community to secession