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