Secessionism and Separatism Monthly Series: “Secession and International Law” by Peter Radan

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H-Nationalism is proud to publish here the second post of its “Secessionism and Separatism Monthly Series,” which looks at issues of fragmentation, sovereignty, and self-determination in a multi-disciplinary perspective. Today’s contribution, by Professor Peter Radan (Macquarie University, Sydney), deals with the complex relationship between secession and international law. Please feel free to participate in the discussion by commenting on the piece.

 

Secession and International Law

Whether international law recognises a right to unilateral secession is a matter of considerable dispute. For example, in Reference re: Secession of Quebec, the Supreme Court of Canada recognised that ‘[t]he process of recognition [of states], once considered to be an exercise of pure sovereign discretion, has come to be associated with legal norms’.[i] On the other hand, James Crawford maintains that ‘secession is neither legal nor illegal in international law, but a neutral act the consequences of which are regulated internationally’.[ii] The debate on this question centres round the scope of the right of peoples to self-determination which is one of the few peremptory and non-derogable norms of international law.

If, as Crawford maintains, secession is neither legal nor illegal in international law, the resolution of secessionist disputes is ultimately a question of fact. This sentiment aligns itself with the realist school of thought in international relations theory. For realists, international law merely reflects the interests of the powerful States with the consequence that the success of any secession attempt is ultimately dependent upon the recognition of statehood by powerful states.

The right of self-determination and secession

The key document in the debate over unilateral secession and international law is the Declaration on Friendly Relations adopted by the UN General Assembly in 1970. One of its key provisions deals with ‘the principle of equal rights and self-determination of peoples’ and contains within it the so-called ‘safeguard clause’ which states:

Nothing in the foregoing paragraphs shall 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 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.

The very essence of this clause is that a State’s territorial integrity is assured only if it conducts itself ‘in compliance with the principle of equal rights and self-determination of peoples’. Antonio Cassese refers to this as an obligation of a State to provide to all of its population ‘equal access to government’.[iii] If a State does not so conduct itself its territorial integrity is not guaranteed. The implication flowing from the safeguard clause is summed up by John Dugard who says:

[A] Government that denies equal rights and self-determination to a people … forfeits the right to respect for its territorial integrity. That is, in the final resort, a people so treated may exercise a remedial right of secession’.[iv]

The ICJ’s Kosovo Advisory Opinion

In 2010, in the context of Kosovo’s declaration of independence from Serbia, the International Court of Justice (ICJ) in its Kosovo Advisory Opinion had before it the opportunity to clarify the extent, if any, to which the right of peoples to self-determination contained a legal right of secession. Following Kosovo’s declaration of independence, the UN General Assembly sought an advisory opinion from the ICJ on the following question: ‘Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?’

However, the ICJ did not grasp the opportunity to provide an authoritative statement on the existence and extent of any legal right to secession in international law. In construing the question before it, the court’s majority opinion took a technical and legalistic approach, ruling that the question was narrow and specific. It made a distinction between, on the one hand, the proclamation of a declaration of independence and, on the other hand, whether such a proclamation constituted the exercise of a right conferred by international law. In determining that the question put to it raised only the first point and not the second, the majority opinion said:

[T]he task which the Court is called upon to perform is to determine whether or not the declaration of independence was adopted in violation of international law. The Court is not required by the question … to take a position on whether international law conferred a positive entitlement on Kosovo unilaterally to declare its independence or, a fortiori, on whether international law generally confers an entitlement on entities situated within a State unilaterally to break away from it (Kosovo Advisory Opinion, 2010, p. 30).[v]

However, Judges Yusuf Cancado Trindade, in separate opinions, did acknowledge an implicit ‘remedial’ right of secession that flowed from the provisions of the safeguard clause. For example, Judge Yusuf said:

[T]he … clause … implies that if a State fails to comport itself in accordance with the principle of equal rights and self-determination of peoples, an exceptional situation may arise whereby the ethnically or racially distinct group denied internal self-determination may claim a right of external self-determination or separation from the State which could effectively put into question the State’s territorial unity and sovereignty.[vi]

Conclusion

Whether the right of peoples to self-determination grants a legal right of unilateral secession from an existing independent state is, therefore, still an unresolved issue. It may be that international law is moving slowly towards the recognition of a ‘remedial’ right of secession along the lines suggested by Judges Yusuf and Cancado Trindade in the  Kosovo Advisory Opinion, a right which Dugard regards as ‘not only necessary for justice but also for peace’.[vii] However, in the meantime, as is suggested by Crawford, secession is still, ultimately, a question of fact.

 

[i] Reference re: Secession of Quebec (1998) 161 DLR (4th) 385 at 443.

[ii] J Crawford, The Creation of States in International Law, 2nd Ed (Oxford: Clarendon Press, 2006) 390.

[iii] A Cassese, Self-Determination of Peoples, A Legal Appraisal (Cambridge: Cambridge University Press, 1995) 114.

[iv] J Dugard, The Secession of States and Their Recognition in the Wake of Kosovo (The Hague: AIL-Pocket, 2013) 145-146.

[v] Accordance With International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Advisory Opinion) (2010) 150 ILR 1 at 30.

[vi] Idem.

[vii] J Dugard, The Secession of States and Their Recognition in the Wake of Kosovo (The Hague: AIL-Pocket, 2013) 278.

Thanks for this excellent post on such a complicated topic.  As I read it, I found myself wanting to know more about the history of this predicament.  Is it the case that international law has an underlying current of logic that lends itself to justifying or opposing secession as a remedial right?  As a historian of the 19th-century United States, my primary point of reference for discussing secession is the Confederacy and the American Civil War, which leads in turn to discussing slavery.  But defending slavery is (obviously) not the typical motive behind unilateral secessions.  Are there specific acts of secession or specific secessionist movements that have been particularly influential in shaping current attitudes among leading political power-holders and international legal authorities?  I was curious to learn more about the relationship between past acts of secession and the evolution of international law.  Is it the case that the vast majority of international law as it pertains to this topic is the product of the 20th Century? Or does it reach further into the past?

Peter Radan gives us a lot to think about, as always. Let me raise this question: Does the legal debate over the right to secession hinge on the question of just cause, and does the claim to self-determination always rest on liberal principles of universal human rights? Can there be any legitimate claim for an aspiring illiberal state that wants to, say, subjugate women or cleanse itself of religious dissidents, or some other more draconian scheme by a "people" to create a nation based on self-determination. It seems that international law has more to say about these internal matters at the front end, when aspiring nations are seeking recognition, but after it becomes a matter of domestic policy?

Peter Radan’s excellent post on secession and international law prompts some additional thoughts and questions. The first is how are we to distinguish between normative, legal and political aspects of secession and separatism? Secession may be politically justified, yet international law may declare the action illegal. Likewise, applying normative criteria that are independent of international law and politics suggests some notion of a universal right to secede (whatever that basis might be) but clearly this is very difficult to apply. The United Nations position is, to say the least, ambiguous in respect of who has the right to self-determination and indeed as many scholars have highlighted, this ‘right’ does not normally involve a right to secession from an existing UN state. This right is constructed within the traditional system of states and territorial integrity takes precedence over other considerations, including human rights abuses.

Peter Radan addresses some of these matters by emphasising the importance of a remedial right to secede, citing Dugard’s position as illustrative of this position. While the remedial right is an advance on the absolute nature of territorial integrity, I wonder does it really address the issue. It leads to the paradoxical situation that the more violent a situation is the more likely secession will prove acceptable to the international community. The example of Sudan and the secession of Southern Sudan suggests that repression has to be fairly fierce and the number of deaths very high indeed before a settlement will be supported and considered legitimate (as also proved to be the case with Bangladesh). However, it still gives political priority to the existing state and the formalities of the state system and boundaries and may in fact postpone possible arrangements that would secure the human rights and personal integrity of those affected by the conflict. Moreover, this situation does not lend itself to compromise by either the state or the secessionists. What is does do is secure a claim to secession based on the belief that those who suffer most have some right to secession. While welcome the remedial right in international law has very limited application and is often ineffective.

There is also an important implication in Dugard’s position. If a government denies equal rights and self-determination (within the state?) to a nationality or ethnicity does it really forfeit the right to territorial integrity in international law? There may be a theoretical case for this but in practice this is rarely applied. The active repression of Tibet by China, Kurds by Turkey and Kashmir by India would justify forfeiting the right to territorial integrity, yet few legal experts or indeed political analysts promote such a view. Certainly, the UN has failed consistently to pursue these cases, precisely because they accept that the boundaries of the existing states are not forfeited by the actions of the governments of these states.
There is also a bigger question in respect of the legitimacy of international law in this context. In what way is international law legitimate when applied to secession? In effect one of the parties to a dispute is sitting in judgement of another and has prescribed the rules to adjudicate. The precedents applied in reference re: Secession of Quebec and the Kosovo Advisory Opinion and also in studies of this question are based on declarations, treaties and conventions agreed by existing states without consideration of other interested parties. This may be political reality but it can make the law ‘an ass’ as the British say.

I think that the remedial right of secession is a faute de mieux device of international law: it is an attempt, post factum, to offer a justification for a violent secession (and the consequent violent breach of territorial integrity of a recognized state) by an appeal to the concept of right as a remedy - where this concept is chosen because no other concept s available for this purpose. This procedure is used only in the case of an armed rebellion of a national group against the host state government - a rebellion which leads to the overthrow of the government and an establishment, by force, of an alternative governmental structure on a specific territory. Very rarely, if ever, international lawyers suggest that a national group has or may have a remedial right to secession unless their leaders attempt to set up such an alternative government by force. For example, if an alternative governmental structure is in the process of being set up peacefully (and the host state does not oppose it), international lawyers do not argue that this state-like structure should be recognized on the basis of a remedial right to secession. Thus secession of Norway and of Slovakia are not justified by reference to a remedial right to secession.

In a case of an armed rebellion leading to an alternative governmental structure, the question is of course on which ground to recognize the alternative governmental structure as a new state ? Well, why did these people rebel in the first place? The most common answer is that their rights were not recognized by their host state government and thus they were fighting for their rights and their recognition. From this it is then easy to infer that, once they or their sponsors are successful in setting up an alternative new government, that government/state should be recognized because the previous state/government, against which they rebelled, denied their rights. In fact, in such a case, I cannot see any other normative grounds for the recognition of the new state. But I do not see any need for normative, legal or otherwise, grounds for the recognition of new states, in particular since the normative grounds allegedly in place at the moment, are used selectively and arbitrarily.

This argument for the recognition of the new states arising from armed rebellion does not show that there is any legal (or para-legal) remedial right to secession. It only shows that governments/states appear to need normative grounds to justify their recognition of such states - and for supporting those secessionist movements which they choose to support.

As Brian has pointed out, if we assume that there is such a legal right, a number of stateless peoples whose equal rights to self-determination have allegedly been denied, would have a legal ground for demanding international recognition of their as yet non-existent statehood. But there are no international bodies - no UN or EU bodies - to whom such demands are to be addressed. In view of the ICJ's recent refusal to consider the question of the right to secession (mentioned by Peter Radan), it is not likely that the ICJ itself would be ready to respond to the question 'Do people X have a legal right to secede from their host state?' even if an UN member state were ever to put such a question to the ICJ.

I'd like to thank Peter Radan for his excellent contribution and David Prior, Don Doyle, Brian Girvin and Aleksandar Pavković for their thoughtful comments. Please feel free to continue the debate on this thread. The next post of our Secessionism and Separatism Monthly Series will be published on December 20.