However, when the administering power was beginning to leave the stage, the arbitrary nature of the borders was an important factor and one that fuelled secessionist claims. Attempts at secession were made in both cases. In the Katanga case, the regime of the province Katanga declared its independence from the newly established Republic of Congo in Congo, Democratic Republic of the.
In the case of Biafra, the Ibo population endeavoured to secede from Nigeria and to establish its own State by declaring independence on 30 May Both attempts failed, mainly because the secessionist movements were not, or not sufficiently, endorsed by the international community. And it was a question about the Biafra incident that led UN Secretary-General U Thant to clarify the position of the United Nations in his famous dictum in the press conference of The continuing dispute about the referendum to be held in Western Sahara therefore appears as a dispute about the right to self-determination in the setting of decolonization, and not about the secession of Western Sahara, be it from Spain, Morocco, or Mauritania.
It is difficult to explain the development of the State of Eritrea in terms of secession. In , Ethiopia dissolved the federation by annexing Eritrea Annexation. The Eritrean liberation movement fought a long civil war against Ethiopian forces and ultimately helped overthrow the military government of Ethiopia in National Liberation Movements ; Armed Conflict, Non-International.
Nevertheless, although not a secession stricto sensu —Ethiopia agreed to Eritrea becoming a State—elements of secession appear, from a formal perspective, in that a new State emerged from the clutches of an existing sovereign State. Bangladesh initially constituted the eastern part of Pakistan, which, since decolonization, was geographically separated from the western part of Pakistan by the territory of India.
When a mainly eastern Pakistani party, the Awami League, won the majority of seats in the election for the parliamentary assembly of Pakistan in , the government of Pakistan refused to accept the result and launched a military operation in the eastern part of Pakistan. In the ensuing civil war, India intervened in support of the Awami League.
The Indian—Pakistani war that followed was ended by the surrender of Pakistan on 17 December Even before the defeat, India had recognized eastern Pakistan as the sovereign State of Bangladesh, which had formally been proclaimed in April Recognition by several States followed. While the case, which was also set in a post-decolonization context, is an incidence of secession, it also demonstrates the significance, from a political point of view, of foreign sponsorship and military support for the chances of success of secessionist movements.
Secession of Quebec from Canada has been looming for a long time. The famous opinion of the Supreme Court of Canada Reference re Secession of Quebec on whether Quebec had a right to secede from Canada was only one episode in a mainly political incident, but from a legal point of view, it was the most interesting one. It opined that, under Canadian constitutional law, if the population of Quebec expressed its will to secede by a clear majority, this would entail an obligation to negotiate in good faith the change of the Canadian Constitution necessary for a withdrawal of Quebec, without any outcome of these negotiations being pre-determined by constitutional law paras 32—, in particular para.
It held that international law, on the other hand, does not grant Quebec the right to secede unilaterally from Canada paras —46, in particular para. Since the Supreme Court gave its opinion in , the population of Quebec has not expressed the clear wish to secede, which, according to the opinion, would be required under Canadian constitutional law.
In both cases, a State from which power had radiated out to the neighbouring States and beyond, came to an end. As a result, a number of States came—or came back—into existence, and each would merit a separate, extensive analysis under the subject of secession. To put it briefly here, the dismemberment of the Soviet Union enabled the satellite States of Eastern Europe, which had remained formally sovereign during Soviet rule, to shake off Russian influence and orient themselves towards the European Union.
The Baltic States, which had been annexed by the Soviet Union in , re-asserted their sovereignty. However, Georgia, which joined in , notified its withdrawal on 18 August This break up of the Soviet Union as a whole is not to be seen as a series of secessions. It is clear, however, that the States which emerged from, or survived, the process have been consolidated to such an extent that, at least from their perspective, future structural changes would have to be assessed in terms of secession, as in the case of Chechnya, South Ossetia , and Abkhazia.
It is noteworthy that part one of the preamble of the Constitution of the Socialist Federal Republic of Yugoslavia of 21 February contained a right of the constituent republics to secede, but such a right was not given to provinces such as Kosovo Constitution of the Socialist Federal Republic of Yugoslavia [adopted 21 February ], in WB Simons, The Constitutions of the Communist World [Sijthof and Noordhoff Alphen aan den Rijn ] — Later on, Montenegro dissolved the newly constituted union with Serbia with the consent of the latter based on Art.
While the dissolution of the Socialist Federal Republic of Yugoslavia, like that of the Soviet Union, was a factual rearrangement rather than a series of secessions—or at least, in the case of Montenegro, an agreed solution—the case of Kosovo is different. How did the declaration of independence of Kosovo of 17 February and the ensuing recognition by 60 States as of June come about? The most recent events may be summed up as follows. In the Socialist Federal Republic of Yugoslavia, Kosovo only enjoyed the status of an autonomous province, not that of a republic.
As such, it had no constitutional right to secede from the federation. But even this limited status was rescinded by the Milosevic regime in During the early s, the Kosovars resisted pressure from the Serbian government by peaceful means, eventually building up a shadow administration in Kosovo. The situation was militarized, however, when Serbia resorted to ethnic cleansing in Kosovo. There followed almost ten years of international administration and countless attempts at finding an agreeable solution International Administration of Territories.
Kosovo proclaimed its independence soon afterwards. However, the status of Kosovo remains controversial, as some States have recognized it as a State and others have refused to do so.
In the face of an attempt at secession, States try to avoid creating a precedent. As evidenced by the analysis of State practice , virtually no case is considered to amount to secession. Each and every case is qualified as special and unique—even Kosovo, which, although from an impartial point of view plainly constituting secession, perhaps even an example of remedial secession, is still seen as singular, due to the long-standing presence of an international administration.
This may well be the case, because international law is perceived to be an impediment in this case. Practice as a creative element of international law, namely of customary international law , is therefore construed in a way that inhibits its consolidation into, and the creation of, a legal standard. In other words, a non-principled, pragmatic approach is preferred in the domain of secession.
This case-by-case approach usually comes down to upholding the territorial integrity of existing States—though not always, for when a State no longer exists, as with the Soviet Union or the Socialist Federal Republic of Yugoslavia, nothing can be upheld—and, in extremis , it may mean that independence becomes an option if all other alternatives fail.
The approach also means that it is not non-compliance with legal standards that is decisive for the success or failure of an attempt at secession, but rather non-legal factors, such as diplomatic abilities, or the ability to raise international support, or influence the media. All these factors can undoubtedly be seen at work in the most recent secession episode in South Ossetia and Abkhazia in Georgia, although the latest facts of this situation are not well enough established, so that any verdict would be premature.
It is important to note, however, that even after secession the pre-existing State—the one from which the part seceded—does not become irrelevant. On the contrary, it continues to play an important role, notably in two regards. Another problem is that, given the absence of terrae nullius — territories unoccupied and unacquired — seceding entities can obtain the second feature of the Montevideo Convention only by infringing two peremptory norms of international law, namely the prohibition on the use of force and territorial integrity.
As we briefly mentioned before, self-determination today is a concept that has gained full legal normative status. A whole series of treaties, declarations, and judicial decisions contribute to make self-determination a norm of international law. But all these references, however important and visionary, fail to be precise in defining the scope and application of the right, and taken outside their context become rather misleading especially if compared to how they translated in reality.
Their own disputes with minorities from Chechnya, Tibet, or Xinjiang were powerful reasons to endorse Timorese independence, only when a clear differentiation between the case and their domestic ones was made. In spite of this, the result of the decolonisation process was not that of granting full independence to the Sahrawi Arab Democratic Republic founded by the Polisario liberation movement in , but a deadlock stemming from failed tentatives to either accomplish annexation — by both Mauritania and Morocco — or establish a referendum.
The aforementioned international instruments suggest that, in principle, self-determination extends beyond the colonial context — at least in its internal form. This remains true irrespective of the huge limitation on secession that the principle of territorial integrity entails. A more controversial question is whether secession would be lawful in circumstances where a state denies the internal form of the right to a people — violating their fundamental human rights.
The global context is assisting an evolution in conflict dynamics, shifting from being primarily state-to-state towards being within states: self-determination, in large-scale conflicts, has often been one of the main issues.
An interesting spillover happened just few months later in the regions of South Ossetia and Abkhazia, when a Georgian unwise military offensive in its autonomous regions — protected by Russian peacekeepers — was carried out. The parallelism is particularly relevant, since both autonomous regions share some common constitutional and historical grounds with Kosovo.
Besides, it is evident that Russia, to justify recognition, has undertaken the way of remedial secession theory — albeit stressing some supposed uniqueness that differentiate Abkhazia and South Ossetia from Kosovo. There is a fragile balance between the principles of territorial integrity and self-determination, and careful considerations are needed before applying them to international affairs. Dismissing self-determination in too simplistic terms — as it was often done before Kosovo, to preserve territorial integrity — generated great and widespread unfairness.
In spite of its being a well-established norm of international law, self-determination, outside the decolonisation context, has been largely sacrificed in favour of territorial integrity; in addition, even within decolonisation, many of the existing borders still do not consider ethnic or tribal realities especially in Africa.
Can the Kurds and the Catalan rely on international law norms in order to assert the right to independence from Iraq and from Spain, respectively? Assuming that both Kurds and the Catalan constitute peoples, they each have the right to self-determination.
The relevant question is then one of determining how these peoples ought to be able to exercise the right to self-determination. Neither of these peoples is currently colonized, and if accepting the view that international law embraces the right to external self-determination only for colonized peoples, then one would conclude that the Kurds and the Catalan have the right to internal self-determination only.
Kurds suffered years of oppression under the Saddam Hussein regime, when they had no meaningful rights to internal self-determination. It will be argued that, there is minimal and conflicting evidence in regard to the application of this principle in practice, requiring urgent consolidation from the International Court of Justice. When applied politically this relates to the power of the people of a nation to decide how it is governed. The principle of self-determination is one that has undergone many changes in its political and legal meaning over the last century.
The first international legal case to be heard regarding self-determination was the Aaland Islands case of The archipelago brought the case to the Council of the League of Nations to enquire whether the citizens of Aaland could assert their self-determination and return from Finland to the Kingdom of Sweden. The Charter of the United Nations came into force in , in which Article 1 includes reference to self-determination.
However, the lack of definition and detail as to what self-determination entails provided in the Charter left little ability for the right to be applied, particularly in relation to secession. Between and fifty-five states had become independent through the application of self-determination, displaying the value of the principle in this context. Yet, as countries increasingly utilised the principle and became post-colonial states, the international community became increasingly wary of the ramifications of self-determination amounting to secession being considered a right in a post-colonial world.
Self-determination began to be referred to once more not as a right but simply as a principle, implying its limited applicability outside of colonial situations. Remedial secession began to be seriously discussed in the s, as an increase in ethnic conflicts made academic commentators consider that there was a need to provide those who face an extreme denial of internal self-determination with the ability to exercise a right external self-determination. Other than recognising that self-determination has an erga omnes character, [27] as stated earlier there has been no actual ICJ judgements to provide definitive guidelines on self-determination in contexts outside of colonialism.
In recognition, it appears states have taken into account this criterion for remedial secession in their justification, most notably both the US and UK referred to human rights abuses and the exhaustion of negotiations with Serbia.
The evidence of the application of remedial secession in practice is limited and inconsistent at best, only further muddying the waters in regard to whether or not the right can be considered to exist. It appears that there is still a reluctance to actually apply the principle, due to the lack of clarity surrounding its implications on the principle of territorial integrity.
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