According to this type of theory, international law provides a right to secession for people subject to extreme persecution or unable to realise their right to self-determination internally.712 Buchanan demonstrated that secession must be ‘a remedy of last resort for persistent and grave injustices, understood as violations of basic human rights’.713 Accordingly, he argued that ‘cultural groups may instrumentally acquire a moral value for individuals and can, for this reason, be the subject of collective rights’.714 They earn such an instrumental value because individual agents treat them as social goods. Therefore, cultural groups are entitled to cultural protection. He also explained that ‘nations’ are just one of many other cultural groups’ (linguistic, immigrant, religious etc...) and as such, they do not deserve the right to self-determination.715 Thus, he rejected the idea that nations, ‘or for that matter any other cultural group, could have a primary right to secede, that is, a general right to violate the territorial integrity of a State and one that they would have in the absence of past injustice’.716 However, all cultural groups could legitimately secede if (i): there were systematic violations of basic human rights, as with the Kosovars in Kosovo (ii): serious and persisting violations of intrastate power-sharing or autonomy agreements by the State, as occurred in Chechnya, as well as, the brutal secessionist conflicts that have occurred in Sudan, Eritrea and Kosovo.717 In these cases, secession would be acceptable only if there were no other solutions, and that secession is the remedy of last resort. However, even if Buchanan added the later condition to his account, there is still not a general primary right to self-determination, there are just general remedial rights to self-determination and secession.
In addition, it is important to mention that Buchanan’s remedial theory ‘only concerned the grounds for a unilateral right to secede’.718 He presumably acknowledged that consensual secessions results from negotiations, agreement, and deliberation between the different
712 ibid. See also, Buchheit, Secession, The Legitimacy of Self-Determination (n 29) 220-223.
713 Buchanan, Uncoupling Secession from Nationalism and Intrastate Autonomy from Secession (n 685) 83.
714 Buchanan, Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law (n 601) 410-415. See also, Buchanan, 'Self-Determination, Secession, and the Rule of International Law' (n 700) 1-15.
715 A Buchanan, 'What Is So Special About Nations?' In J Couture, K Nielsen and M Seymour (ed) Rethinking Nationalism, 22 Canadian Journal of Philosophy (UCP, Calgary 1998) 283-309.
716 Seymour, 'Secession as a Remedial Right' (n 211).
717 Buchanan argued that 'what these otherwise disparate cases have in common is the following sequence of events: Pressures from a minority group eventually result in the state agreeing to an intrastate autonomy arrangement; the state breaks the agreement; in response to the broken autonomy agreement autonomists become secessionists; and then the state violently attempts to suppress the secession'. See, Buchanan, Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law (n 601) 357.
718 Seymour, 'Secession as a Remedial Right' (n 211).
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parties, are morally acceptable. In what follows, this chapter will be concerned only with unilateral secession as opposed to consensual secession reached between a seceding people and the parent State.
On the other hand, Buchanan has drawn parallels between the remedial right to secession and the remedial right to revolution. The latter is originally based on Locke’s theory, according to
‘which the people have the right to overthrow the government if their fundamental rights are violated, and more peaceful means have been to no avail’.719 Revolution as a last resort is also reflected in legal sources, most notably in the UDHR: ‘Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that should be protected by the rule of human rights law’.720 However, conversely from revolution Buchanan argued that, ‘the object of right to secede is not to overthrow the government, but only to sever the government’s control over that portion of the territory’.721
It is true that Remedial Right Only theories postulates that if a group 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. Buchanan would add that there has to be no other option. Accordingly, the ‘general right’ to secession exists only where the group in question has suffered injustices. However Buchanan pointed out that outside of such extreme conditions, there can be ‘special rights’ to secede if (1) ‘the State grants a right to secede (as with the secession of Norway from Sweden in 1905), or if (2) the constitution of the State includes a right to secede (as does the 1993 Ethiopian Constitution), or perhaps if (3) the agreement by which the State was initially created out of previously independent political units included the implicit or explicit assumption that secession at a later point was permissible (as some American Southerners
719 ‘Strictly speaking, it may be incorrect to say that Locke affirms a right to revolution, if by revolution is meant an attempt to overthrow the existing political authority. Locke’s point is that, if the government acts in ways that are not within the scope of the authority granted to it by the people’s consent, then governmental authority ceases to exist. In that sense, instead of a Lockean right to revolution it would be more accurate to speak of the right of the people to constitute a new governmental authority.’ See, A Buchanan, ‘The international institutional dimension of secession,’ in Percy B Lehning (ed), Theories of Secession (Routledge, London and New York 2005) 229.
720 ‘Universal Declaration of Human Rights' (n 276).
721 Buchanan, 'Theories of Secession' (n 600).
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argued was true of the States of the Union)’.722 Thus, Buchanan concluded that, ‘if any of these three conditions obtain, we can speak of a special right to secede.723
The doctrine of remedial secession is based on general principle of law that applied to the right to self-determination of peoples. In this regard, Ryngaert and Griffioen have argued that
‘what if a State persistently denies a people the fundamental right of internal self-determination? What if a people does not have free choice but is repressed and suffers from gross violations of basic human rights, and all possible remedies for a peaceful solution to the conflict have been exhausted? Should that people not be allowed a ‘self-help remedy’ in the form of external self-determination?’724 Tomuschat also argued in favour of ‘ubi jus ibi remedium’ applying to international law, arguing that, and ‘if international law is to remain faithful to its own premises, it must give victims a remedy enabling them to live in dignity’.725 It is also submitted that, a remedial theory is primarily based on legal, philosophical, moral and human rights approaches. In this regard, a remedial right to protect human rights, right to self-determination is compliant with the premises of international legal order.726 Thus, if there is people’s right to self-determination, and that right has been violated, there must be a remedy. In other words, if people’s right to internal self-determination is violated, the right to remedial secession might arise as a remedy to the injustice. In this way, by effecting remedial secession, people may realise to their right to self-determination externally.
Over the past few decades, ‘growing attention has been turned to the treatment dispensed by States to the populations concerned’.727 This has become a matter of concern in contemporary international law’.728 Throughout the last decades, the UN General Assembly passed several resolutions reminding States to protect and empower their inhabitants, and prevent them from criminal activities against their population. In this connection, two illustrations will be recalled.
722 ibid.
723 ibid.
724 C Ryngaert and C Griffioen, 'The Relevance of the Right to Self-Determination in the Kosovo Matter: In Partial Response to the Agora Papers' (2009) 8 Chinese Journal of International law 573.
725 C Tomuschat, 'Self-Determination in a Post-Colonial World’, in Christian Tomuschat (ed), Modern Law of Self-Determination (Springer, 1993) 9.
726 See, 'Separate Opinion of Judge A.A. Cancado Trindade in Kosovo Case', 523.
727 ibid.
728 ibid.
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First: the ‘safeguard clause‘ in the UN General Assembly Resolution 2625, considered as an important pillar is used by remedial secession theory proponents to prove the theory’s basis in customary international law. The Declaration states in paragraph 5 (7): that,
[Nothing in the foregoing paragraphs shall be construed as authorising or encouraging any action, which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent. States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour].729
The Declaration addresses, inter alia, self-determination. Proponents of the remedial secession doctrine claim that an inverted reading of the ‘safeguard clause’730 of Principle V gives rise to the doctrine.731 Accordingly, Hannum pointed out that 'the requirement of representativeness suggests internal democracy’.732 However, Murswiek argued that, the doctrine of remedial secession authorised secession as a potential option, although in certain exceptional circumstances.733 Likewise, Cassese emphasised that ‘impairment of territorial integrity is not totally excluded, it is logically admitted’.734 He argued that ‘a State whose government represents the whole people of its territory without distinction of any kind, that is to say, on a basis of equality, and in particular without discrimination on grounds of race, creed or colour, complies with the principle of self-determination in respect of all of its people and is entitled to be protected of its territorial integrity’.735 In other words, the people of such a State exercise the right of self-determination through their participation in the government of the State on a basis of equality.736 Thus, according to the remedial secession doctrine, if the State failed to comply with principles of equal rights and self-determination and denies a people its right to internal self-determination, such State loses the safeguard from dismemberment of its territory and the particulars people may choose secession as a
729 ‘Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States' (n 23) Emphasis added.
730 Safeguard clause, first articulated in principle 5, paragraph 7 of the Friendly Relations Declaration. The United Nations World Conference on Human Rights held in Vienna in 1993 also reaffirmed it, in slightly different language. See, Crawford, The Creation of States in International Law (n 3) 118.
731 Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States (n 23) (Emphasis added).
732 Hannum, 'Rethinking Self-Determination' (n 151).
733 Murswiek, 'The Issue of a Right to Secession-Reconsidered' (n 161) 27.
734 Cassese, Self-Determination of People, A legal Reappraisal (n 25) 119.
735 ibid.
736 ibid.
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remedy to injustice. Hence, ‘the government of a State which commits grave and systematic violations of human rights ceases to represent the people or population victimised.’737 This understanding has been reaffirmed, in even stronger terms, in the second World Conference on Human Rights held in Vienna, by the 1993 Vienna Declaration and Programme of Action (para 2).738 In fact, the Declaration went further than the 1970 Declaration of Principles, in proscribing discrimination ‘of any kind’.739 In particular, ‘the entitlement to self-determination of the victimised population emerged, as the willing victimisers could no longer rely upon the claim to territorial integrity’.740
Accordingly, Simpson argued that the Declarations make ‘territorial integrity a rebuttable presumption, which can be invoked only by States who act in accordance with the principle of equal rights and self-determination’.741 Therefore, the right to self-determination arises as a remedy when the State's actions extinguish that presumption. Simpson agreed that 'assertion of the right of secession would be a remedy of last resort for peoples and groups’.742 In the same way, Tomuschat asserted that, 'secession can only be a step of last resort and should not be granted lightly as remedy’.743 Buchanan does not derive a right to secession from the
‘safeguard clause’ but uses a similar logic to the suggested ‘rebuttable presumption’ in the clause. He argued that ‘there is a presumption that existing States that are accorded legitimacy under international law have valid claim to their territories, but such claim can be overridden or extinguished in the face of persistent patterns of serious injustice toward groups within a State’.744 The validity of a State's claim to territory ‘cannot be supported if the
737 'Separate Opinion of Judge Cancado in Kosovo Case' (n 726).
738 The Declaration states that, [In accordance with the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, this shall not be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples and thus possessed of a government representing the whole people belonging to the territory without distinction of any kind]. See, Vienna Declaration, and Programme of Action (n 93). In addition, other UN bodies have also referred to the right to remedial secession, See for example, the General Recommendation XXI adopted in 1996 by the Committee on the Elimination of Racial Discrimination. See, Report of the Committee on the Elimination of Racial Discrimination (n 609) Emphasis added.
739 ‘Separate Opinion of Judge Cancado in Kosovo Case' (n 726).
740 ibid.
741 Simpson, 'The Diffusion of Sovereignty: Self-Determination in the Post-Colonial Age' (n 249).
742 ibid.
743 Tomuschat, 'Self-determination in a Post-Colonial World' (n 725) 10.
744 Buchanan, 'Uncoupling Secession from Nationalism and Intrastate Autonomy from Secession' (n 685) 85.
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remedy that can assure that the fundamental rights of the group will be respected is secession’.745
In addition, Dugard and Raic have argued that the Declaration was intended to be addressed to third States.746 The name of the Declaration and the notion of co-operation between States in accordance with the UN Charter suggest that addresses are the ‘States’, especially third States not directly engaged. For that reason, they argued that, ‘safeguard clause’ formula is directed to the States: ‘it may be argued a contrario that third States would be entitled to support a people which attempts to secede, even if such support eventually leads to infringement of the territorial integrity of the target State’.747
Judge Trindade argued in his Separate Opinions in the Kosovo matter that, recent developments in international law and international practice (of States and of international organisations) ‘provide support for the exercise of self-determination by peoples, under permanent adversity or systematic repression, beyond the traditional confines of the historical process of decolonisation’.748 For example, the UNSC resolution 1244 condemned all acts of violence against and repression of, the population in Kosovo.749 It was clear that the Serbs were responsible for serious human rights violations against the Kosovars, which led to NATO’s 1999 intervention and eventually Kosovo’s Declaration of Independence. A significant number of States addressed remedial secession in their ICJ written and oral pleadings, such as Germany and Netherlands.750 They based their theory on the UNGA resolution 2625s ‘safeguard clause’ which if read a contrario imposes the requirements for a State to respect a right to self-determination in order to invoke territorial integrity. The Dutch argued that the right to ‘external self-determination must meet two conditions: 1. substantive condition–serious breach of obligation to respect self-determination by the State 2.
Procedural condition–all effective remedies must have been exhausted’.751 In the Aaland
745 ibid.
746 J Dugard and D Raic, ‘The Role of Recognition in the Law and Practice of Secession’, in Marcelo G Kohen (ed) Secession: International Law Perspectives (CUP 2006) 109-125.
747 ibid.
748 'Separate Opinion of Judge Cancado Trindade in Kosovo Case' (n 726).
749 UNSC Rec 1244 (10 June 1999) UN Doc 1244/1999.
750 In States ‘Opinio Juris’ on secession Both Germany and Netherlands based their theory on the UNGA resolution (2625) ‘safeguard clause’, which if read a contrario provides condition for a state to respect right to self-determination in order to invoke territorial integrity.’ See, “The Written Statement of Netherlands (17 April 2009) The Hague” <http://www.icj-cij.org/docket/files/141/15652.pdf> accessed 10 February 2014. Also,
“Written Statement of Germany, (12 April 2009) The Hague” <http://www.icj-cij.org/docket/files/141/15624.pdf> accessed 10 February 2014.
751 'The Written Statement of Netherlands' (n 750).
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Island Case, the Committee of Rapporteurs, states that, ‘The separation of a minority from the State of which it forms a part and its incorporation in another State can only be considered as an altogether exceptional solution, a last resort when the State lacks either the will or the power to enact and apply just and effective guarantees’.752 The Report does not exclude the possibility of secession as a remedy from State abuses. Dugard and Raic argued that, ‘The commission denied the existence of any absolute entitlement to secession by a minority, but it did not rule out a right of secession under all circumstances’.753 Crawford concluded that ‘both reports admit the possibility that the principle will apply to territories that are so badly misgoverned that they are in effect alienated from their ‘parent’ State’.754 Another decision referred to ground remedial secession theory is ‘The African Commission Report on Katanga’.755 Dugard and Raic pointed out that ‘The Commission was of the opinion that in the case of serious violations of human rights and a denial of internal determination, the Katangese people would be entitled to exercise a form of self-determination which would lead to disruption of the territorial integrity of Zaire’.756 Thus, one must concede that this decision is primarily based on Remedial Right theory. In Sudan, where for years the government engaged in a consistent policy of ethnic war, remedial criteria would conclude that the South had the moral right to secede. However, these circumstances did not create a right to independence under international law.757 By contrast, in the Quebec case, where the Canadian government has granted vast autonomy and procedural equality and self-determination, the remedial approach would lead to the conclusion that Quebec has no moral claim to any sort of hard, external self-determination.
The government in Canada relied on the safeguard clause, without committing itself to the idea of remedial secession: the safeguard clause protected law-abiding States against
752 ‘Aland Island Case', (n 169).
753 Dugard and Raic, 'The Role of Recognition in the Law and Practice of Secession (n 746) 107.
754 Crawford, The Creation of States in International Law (n 3) 111.
755 The African Commission inter alia concluded that: ‘In the absence of concrete evidence of violations of human rights to the point that the territorial integrity of Zaire should be called to question and in the absence of evidence that the people of Katanga are denied the right to participate in Government as guaranteed by Article 13(1) of the African Charter, the Commission holds the view that Katanga is obliged to exercise a variant of self-determination that is compatible with the sovereignty and territorial integrity of Zaire.’ See, Katangese Peoples, Congress v Zaire, (1995) African Commission on Human and Peoples Rights, Comm. No 75/92.
756 Dugard and Raic, ‘The Role of Recognition in the Law and Practice of Secession (n 746) 108.
756 Dugard and Raic, ‘The Role of Recognition in the Law and Practice of Secession (n 746) 108.