Síntesis de modelos semilla

It was demonstrated that the right of self-determination could be considered the political and legal processes through which a people gain and maintain control over their economy, culture, and society. With the foundation of the UN, self-determination of peoples became an established principle of international law. The right has been conceived as a tool for the preservation of peace and promotion of human rights. However, the concept has been characterised as disruptive because of the principle's mismanagement. Different international instruments and State practice demonstrate that, under some proper conditions, international law recognises secession and legitimates it as a mode of exercising the right to self-determination.

In addition, it was explained that there is no international legal definition of ‘peoples’, who are entitled to the right of self-determination. The term has been used to describe a population who shares the following characteristics: (1) a common historical tradition; (2) self-identity as a distinctive cultural group; (3) a shared language; (4) a shared religion; and (5) a traditional territorial connection. The right can also be applied also for a people, which are not only deprived of its human rights, but also living under a non-representative or undemocratic government. They base themselves on paragraph 7 of General Assembly Resolution 2625 (XXV) on Friendly Relations among States. Rather, a several denial of the group’s human rights is usually required, which means domination, subjugation and exploitation or the violation of human rights identity. Moreover, in case of secession, it was suggested that, the people do not have any alternative in order to preserve its values and that the interests of secession override the interests of the dominant State. However, whatever the definition, minorities do not appear to have the right to self-determination in the form of secession.

Moreover, it was explained in this chapter that once States have obtained statehood, it is difficult to lose it, even in the absence of the traditional criteria. Statehood criteria only apply to newly created States and not existing ones.⁶⁶² Accordingly, the traditional criteria are

662 Somalia is a clear example, ‘which continues to be a state and retains its UN memberships, although its government does not exercise effective control over its territory’. See A Aust, Handbook of International Law, (2^nd edn, CUP 2010) 16. Also, R McCorquodale, ‘The Creation and Recognition of States’ in R Piotrowicz and M Tsamenyi in S Blay (ed), Public International Law: An Australian Perspective (2^nd edn, OUP 2005)184-203.

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criticised for being essentially based on the principle of effectiveness,⁶⁶³ as international law in the nineteenth century was ready to recognise statehood to any entity fulfilling the traditional criteria and showing sufficient strength of its existence. However, in essence, in contemporary international law, effectiveness is no longer the only principle governing the law of statehood, but there are some additional criteria also considered. They set legality-based standards for entities wishing to become States and thus look beyond mere effectiveness as adhered to by the traditional criteria. Nevertheless, this does not mean that traditional criteria are no longer important, but rather that the additional set of criteria may prevent effective entities from acquiring statehood.

It was further argued that, recognition doesn’t mean only that the recognised entity has met the required qualifications, but also that the recognising State will enter into relations with the recognised State and let that State enjoy the usual legal consequences of recognition such as privileges and immunities within the domestic legal order. It has been suggested also that in certain circumstances recognition may have constitutive effects. However, it has been claimed that the decision to recognise or not generally depends on political views rather than legal grounds. In this regard, most writers support the declaratory theory under which the international personality of a State is determined by the objective criteria of international law only. Thus, even if a State is not recognised, it will have international rights and duties opposable to the international community.

Additionally, it was argued that in international law, any attempt at unilateral secession with no agreement with the existing State, is without legal foundation. On the other hand, international law does not prohibit unilateral secession; international instruments contain neither explicit prohibiting nor explicit recognition of such a right. Secession in this regard may simply mean that secession lies in an international law-free zone. Moreover, the ICJ did not express the opinion that there is no permission of secession or no legal entitlement to secession in international (customary) law. Different from secession, a right (entitlement) to secession is a legal category that could be an object of (international) law and thus the question of legality of secession could be posed. Similarly, the right to unilateral secession could be justified in certain circumstances. If ‘the people in question have suffered grievous wrongs at the hand of the parent State from which it wishes to secede, consisting of either a serious violation or denial of the right of internal self-determination and serious violations of

663 See, Crawford, The Creation of States in International Law (n 3) 97.

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the fundamental human rights of the people concerned. In addition, there must be no (further) realistic and effective remedies for the peaceful settlement of the conflict.

In addition to this discussion, it was argued that outside the colonial context, State practice is extremely reluctant to recognise unilateral secession. No state created by unilateral secession has been admitted to the UN without the consent of its parent State. At the same time, there is no material customary rule of international law, which can decide the balance process between the right of self-determination and the principle of territorial integrity of a State.

Moreover, in extreme circumstances when a people are blocked from the meaningful exercise of its right to self-determination, the right to secession should be recognised. This means, a multinational States must respect secessionist demands, if they are truly clear and within the framework of legality. Finally, Buchannan divides all right to secession theories in two groups: Remedial Right Only and Primary Right theories. These issues will be further considered in the next chapter while discussion theories of secession.

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Chapter Three: Theories of Secession and the Evolution of the Theory of Remedial Earned Sovereignty as a Remedial Approach to the External

Right of Self-Determination

3.1. Introduction

In accordance with the right of self-determination, all peoples have the right to decide freely and without external political influence on their political status and to structure their economic, social, and cultural development.⁶⁶⁴ It is thus unquestionable that ‘peoples are able to set down the conditions for relations within their community, that is, exercise the right to self-determination internally’.⁶⁶⁵ On the other hand, there should be no doubt that peoples have the right to be free from subjugation, exploitation and foreign rule and ‘to be able to restructure themselves and the national entity they have set up with validity to the outside, for example by breaking up or secession of individual parts’.⁶⁶⁶

For Dahlitz, the issue of secession arises ‘whenever a significant proportion of the population of a given territory, being part of a State, express the wish by word or by deed to become a sovereign State in itself or to join with and become part of another sovereign State’.⁶⁶⁷ Kohen argued that, secession is the ‘creation of a new independent entity through the separation of part of the territory and population of an existing State, without the consent of the latter’.⁶⁶⁸ However, when a new State is formed from part of the territory of another State with its consent, it is a situation of ‘devolution’ rather than ‘secession’.⁶⁶⁹ Thus, in recent years, the lack of the consent of the Predecessor State has become the key element that characterises a strict notion of secession.

The creation of States has traditionally been perceived as a matter of fact. The traditional view was, when a secessionist movement when not under foreign control, it was simply an internal affair. According to this view, international law neither encourages secessionism nor

664 ‘The International Covenant of Civil and Political Rights’ (n 19).

665 Krüger, The Nagorno-Karabakh Conflict: A Legal Analysis (n 589) 54.

666 ‘Helsinki Final Act, principle VIII, para 2’ (n 154). Questions relating to Security in Europe, which regards the right of self-determination of peoples in its internal and external dimension.

667 Dahlitz, Secession and International Law (n 14) 6.

668 Kohen, 'Secession: International Law Perspectives' (n 577) 3.

669 ibid.

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prohibits it.⁶⁷⁰ Thus, secession was a matter of fact: Kohen argued that, ‘if the secessionist forces were able to impose the existence of a new State, then the international legal system was to record the fact of the existence of this new entity’.⁶⁷¹ In recent times, the other cases of some new States, which emerged after the collapse of the Soviet Union and SFRY, did not benefit from international legal support.⁶⁷² These States came into being as a matter of fact, a situation which international law, neither sanctions nor prevents. In other words, Corten comes to conclude that, ‘international law’s ‘neutrality’ in this respect is less and less evident, since the mechanisms to protect States from disruption are even stronger today than before’.⁶⁷³ Franck claimed that, ‘it cannot seriously be argued today that international law prohibits secession. It cannot seriously be denied that international law permits secession.

There is a privilege of secession recognised in international law and the law imposes no duty on any people not to secede’.⁶⁷⁴ Thus, Peter argued that, the silence of international law concerning secession may simply mean that secession lies in an ‘international law-free zone’.⁶⁷⁵ In addition, Cassese agreed that, while State practice and the majority view of States remained opposed to secession; secession 'is a fact of life, outside the realm of law’.⁶⁷⁶ At the same time, it has even approved exceptions under certain circumstances and conditions, when the external right to self-determination can prevail over the principle of territorial integrity. This particularly, Cassese argued, affects constellations⁶⁷⁷ of colonialisation, which has been considered in the previous chapter. The question is rather whether an exception outside the colonial context applies for the benefit of secessionist movements. Seen in terms of international law, this is the decisive point for the legality or legitimacy of the breakaway of the entity from its parent State. In this regard, the Canadian Supreme Court concluded ‘it was clear that international law does not specifically grant component parts of sovereign States the legal right to secede unilaterally from their parent State’.⁶⁷⁸ However, the Court admitted that under certain circumstances secession is

670 ibid 5.

671 ibid.

672 Dugard and Raic agreed that one will search “in vain” for international rules on secession; international instruments contain neither explicit prohibition of unilateral secession nor explicit recognition of such a right.

673 O Corten, ‘Are there gaps in the international law of secession?’ In Marcelo G Kohen (ed), Secession:

International Law Perspectives (CUP 2006) 231.

674 Thomas Franck as quoted in S Lalonde, 'Quebec’s Boundaries in the Event of Secession' (2003) 3 Macquarie Law Journal 129.

675 A Peters, “Does Kosovo Lie in the Lotus-Land of Freedom?” (2011) 24 Leiden J Int'l L 95.

676 Cassese, Self-Determination of People, A Legal Reappraisal (n 25) 123.

677 ibid 129.

678 ‘Reference Re Secession of Quebec', (n 21) para 265.

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implicitly allowed under the right of self-determination of peoples’.⁶⁷⁹ Thus, international law is in fact neutral with respect to secession, and in certain circumstances, Lalonde argued, it might well adapt to recognise effective political realities’.⁶⁸⁰ Therefore, in the Quebec case, many commentators have argued that ‘the consequences of a unilateral declaration of independence, if successful, might eventually be regulated internationally’.⁶⁸¹

It is true that, scholars had long been deeply divided on the issue of self-determination and independence. The demands of secessionist movements, such as in Quebec, Scotland, Kosovo, East Timor, and in Southern Sudan, raise important philosophic issues about the State. Among the most important of these are questions about legitimacy and the authority of the State over territory and its population. Secessionist demands, Copp argued, also raise questions about the moral status of secession, and raise deep questions about democracy and liberalism, since the population might reveal in a democratic plebiscite that its support for secession takes priority over its desire for justice.⁶⁸² On the one hand, it is understood that the right of people to self-determination should normally be exercised internally within the framework of an existing sovereign State. Rather, secessionists have always insisted that they met the conditions that giving rise to external self-determination, understood as a right to independence.

The right to self-determination is enshrined in the UN Charter and based on democratic and liberal values. However, until recently, the international community has interpreted this principle very restrictively; it has amounted to little more that the right to be free from European colonialism.⁶⁸³ However, reviewing ethno-nationalist conflicts around the world, and the collapse of the USSR and SFRY, have given rise to a new thinking about the right to self-determination in political theory.

Many political philosophers working in this area have turned their attention to secession.

There has been a wide range of positions-for and against the right of secession. Even so, there

679 ibid.

680 Lalonde, 'Quebec’s Boundaries in the Event of Secession' (n 674).

681 According to Crawford, ‘secession is ‘neither legal nor illegal in international law, but a legally neutral act the consequences of which are, or may be, regulated internationally’. See, Crawford, The Creation of States in International Law (n 372) 268.

19 Thomas Franck, ‘Supplément au dossier: Rapports of Experts de l’amicus curiae’, Tab 3, in the matter of the Reference re Secession of Quebec, as quoted in Lalonde, 'Quebec’s Boundaries in the Event of Secession' (n 674).

682 D Copp, 'International Law and Morality in the Theory of Secession' (1998) 2 The Journal of Ethics 219.

683 M Freeman, 'The Right to Self-Determination in International Political: Six Theories in Search of a Policy' (1999) 25 Rev Int’l S 355.

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has still been no systematic account of the various normative theories of secession. Nor has there been a systematic assessment of the comparative strengths and the weaknesses of the theoretical options. In addition, contemporary scholarship on international law does not contain opposing views on whether or under what conditions there is a legal right to secede.

This chapter reviews theories of secession, and identifies what they have in common and where they differ, bringing together some of the most respected scholars in their field. It will consider the conditions under which a group within an existing community may, with justification, separate from the larger group in order to establish its own self-governing community. In other words, what arguments justify their pleas for secession? The chapter deals with problems of normative and liberal theories, special rights to secede, conditions of groups and ask if constitutions should include a right to secede. It begins the task with the controversial moral debate on secession, evaluating under what grounds and under what conditions may secession be morally justified, if at all. It also evaluates how international law should deal with secession. One of the crucial issues here is whether the international law of self-determination authorises any right to secession as a remedy to violation of the right to self-determination of peoples.

Normative theories of secession provided by Allen Buchanan and Lea Brilmayer will be taken as representative examples of just-cause theories. In this regard, both general unilateral theories of secession provided by Buchanan, primary right theories, and remedial right only theories, will be examined. Primary right theories stipulate that nations also have a general primary right to unilaterally secede in the absence of past injustice if there were a special right to do so. Remedial Right Only theories suggest on the contrary that unilateral secession can only be justified if important harms have been to the seceding nation. Buchanan in his recent work on secession stipulated that, international law should recognise the remedial right to secede but not a general right to self-determination that includes the right to secede for all people or nations. Hence, from the standpoint of international law, Buchanan argued that ‘the unilateral right to secede, the right to secede without consent or constitutional authorisation, should be understood as a remedial right only, a last resort response to serious injustice’.⁶⁸⁴ Based on this argument, the chapter will argue that, for all peoples in international law, the right to secede, the right to unilateral secession without the consent of the parent State is

684 Buchanan, Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law (n 601) 331.

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without legal foundation, and should be understood as a remedial right only, a last resort to remedy the harm.

As with the territorial claim theory provided by Brilmayer, she has suggested a new framework, focused on the relative legitimacy of competing territorial claims, as the best way to resolve secessionist disputes. Her imaginative solution to a long-standing tension between the right of States to preserve their territorial integrity and the right of peoples to self-determination will be analysed. The chapter also discusses, the ‘Plebiscite approach’, which attempts to discuss various arguments regarding the notion whether all people have a right to self-determination as a matter of right, regardless of their current political status. Beran’s liberal democratic theories will also be examined. He argued that, liberal nationalist theories might support the right to national self-determination if the victims of serious and persistent human rights violations constitute a nation.

The chapter will turn then to discuss the legal aspects of secession, especially as it relates to the constitutional laws of sovereign States. The chapter will address the theoretical justifications for constitutional secession. Should the right of secession be constitutionalised?

If so, what should be the nature of such a right? To answer these theoretical questions, assessment of arguments both for and against constitutionalising secession will be made.

Having evaluated the conceptual field, the chapter will then turn to propose a fresh balanced theory of an external right to self-determination, that of ‘Remedial Earned Sovereignty’, as a remedial approach to the right of self-determination. This will be robustly interrogated, evaluating both advantages and disadvantages, and drawing some cautious policy implications. Thus, this chapter will be arguing both politics and legal theories of secession, as multidisciplinary approaches seems to be the most effective way to approach secession and self-determination.

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