The Right of Secession in International Law Reconsidered

• Author: Enyeribe Oguh
• Position: Enyeribe Oguh is a PhD candidate of International Criminal Law at the University of York, England
• Pages: 198-243

© 2018 Enyeribe Oguh and Dublin University Law Society

THE RIGHT OF SECESSION IN INTERNATIONAL

LAW RECONSIDERED

ENYERIBE OGUH

Introduction

‘Union founded upon submission is the Union of slave.’

1

This essay undertakes a critical review of the right of secession in

international law. In many states around the world, various ethnic-

nationalities and peoples have been attempting to vindicate a right to

determine their own destinies of late. Diane Orentlicher observes that

‘[t]he volcanic fury of ethnic assertion has been global’.

2

Whereas this fury

has recently shown itself in states like South Sudan, the UK, Ukraine,

Nigeria, Mali, and Spain, elsewhere the fury of ethnic assertion continues

to simmer below the surface. Thus, Benedict Anderson declares that the

demise of nationalism ‘so long prophesied is not remotely in sight. Indeed,

nation-ness is the most universally legitimate value in the political life of

our time.’

3

However, in most instances states have resisted secessionist

attempts by ethnic-nationalities and in turn have asserted the right to the

traditional principle of territorial sovereignty – one of the mainstays of

the UN Charter.

4

This therefore raises two crucial questions: (i) whether

there exists a right of secession; and if so, (ii) whether states may ever be

justified in resisting secessionist attempts.

In essence, this paper contends that the basis for a right of secession

should be the legal right of self-determination of peoples, ‘according to

 Enyeribe Oguh is a PhD candidate of International Criminal Law at the University of York,

England. I am indebted to Prof Matt Matravers for his comments on the initial draft of this

article. I am also grateful to Ms Keire Murphy and the anonymous reviewers for their helpful

comments. I bear full responsibility for the contents herein. [eso511@york.ac.uk].

1

Joseph Lymann, quoted in Samuel Eliot Morrison, The Life and Letters of Harrison Gray

Otis: Federalist 1765-1848 (Boston, 1913), Volume II, 188; See also Kenneth M Stamp, ‘The

Concept of a Perpetual Union’ (1978) 65(1) JAH 11.

2

Diane F Orentlicher, ‘Separation Anxiety: International Responses to Ethno-Separatist

Claims’ (1998) 23(1) Yale J Int L 2.

3

Benedict Anderson, Imagined Communities: Reflections on the Origin and Spread of

Nationalism (Verso 1991) 3.

4

Leo Gross, ‘The Peace of Westphalia, 1648-1948’ (1948) 42(20) AJIL 20.

199 The Right of Secession Reconsidered [Vol 21]

which every nation or people has a right to determine its own destiny’.

5

It

argues that in a modern society people should not have to be compelled to

belong to any state or system. This was the idea behind US President

Woodrow Wilson’s 14-Point Plan, which helped to redraw the map of

Europe in line with national and ethnic boundaries after World War I even

though that ideal was not extended to the colonial territories of the

victorious powers.

6

Given the complexities of the 21st century and the

importance of international stability, the right of self-determination may

require other benchmarks or what this paper calls ‘pillars of rights’ to

create a strong claim-right for secession.

As the world changes, it is natural to expect institutions to adapt

accordingly. Yet reforms and innovations in the international law on

secession have been slow-moving with the last major shift seen during the

great decolonisation era of the 1940s to the 1960s. Thanks to the

establishment of the UN system in 1945 and a series of General Assembly

(UNGA) resolutions,

7

‘the principle of self-determination became the most

dynamic concept in international relations’

8

and enabled many formerly

colonised regions to achieve political independence as sovereign states.

That said, it has now become necessary for international law to develop a

consistent strategy to enable states to address the numerous unsettled

claims to the right to secede.

At present, the regulation of secession comprises a morass of

treaties, conventions, declarations, International Court of Justice (ICJ)

decisions, and advisory opinions that purport to protect the right of self-

determination of peoples while stymieing the same right with vague

provisos. A review of state practices also reveals contradictory

endorsements and denunciations of secessions from Slovenia to Eritrea,

from Kosovo to Crimea. Moreover, while some states like the People’s

5

See Lea Brilmayer, ‘Secession and Self-Determination: A Territorial Interpretation’ (1991)

16 Yale J Int L 179.

6

Lea Brilmayer, ‘Secession and Self-Determination: A Territorial Interpretation’ (1991) 16

Yale J Int L 179, 180.

7

See UNGA Resolution 1514 (XV) ‘Declaration on the Granting of Independence to

Colonial Countries and Peoples’ (14 December 1960); UNGA, Resolution 1541 (XV),

‘Principles which should guide members in determining whether or not an obligation exists

to transmit the information called for under Article 73e of the Charter’ (adopted 15

December 1960); and UNGA Resolution 2625 (XXV), ‘Declaration on Principles of

International Law concerning Friendly Relations and Co-operation among States in

accordance with the Charter of the United Nations’ (24 October 1970).

8

Thomas M Franck, ‘The Emerging Right to Democratic Governance’ (1992) 86(1) Am J Int

L 46, 54.

200 Trinity College Law Review [Vol 21]

200

Republic of China (PRC) explicitly prohibit secession,

9

in others like the

United States the right is voided through judicial reinterpretations of their

domestic constitutions.

10

Against this backdrop, this paper aims to provide a conceptual

framework that clarifies the current law on secession and sets out

strategies by which the right of secession can be lawfully affirmed without

precipitating the disintegration or destabilisation of existing states. To this

end the paper is divided into three sections. Section I will show the subtle

distinctions in the notion of secession as well as what it means to have a

right of secession in international law. Section II sets out and analyses four

conditions that can trigger the right of secession. These benchmarks

include (A) the legal right of self-determination; (B) the moral right of

remedial secession; (C) the constitutional right of secession; and (D)

international political recognition. In section III, the paper examines and

tries to resolve the tension between the right of territorial sovereignty and

the right of secession. In addition, it tackles the question of whether and

when, if ever, force can be justifiable for the defence of a legitimate right.

I. The Right of Secession: Preliminary Clarifications

In its advisory opinion on Kosovo,

11

the ICJ examined two key questions:

(i) whether a unilateral declaration of independence violates international

law; and (ii) if there is a right or positive entitlement in law by which a

people can unilaterally assert their independence.

12

However, the court

chose to restrict its opinion to the first question and found that a unilateral

declaration of independence does not breach international law.

13

This

section and the next will be concerned largely with the second question

considered by the ICJ: whether or not there is a positive right of unilateral

9

See Articles 1 – 10 of the Anti-secession laws of the People’s Republic of China passed in

2005.

10

See Texas v White (1868) 74 US 700, per Chase CJ, 726; see also Luther v Borden (1849) 48

US 1; Pavković Aleksandar and Peter Radan, Creating New States: Theory and Practice of

Secession (Ashgate 2007) 222.

11

Following controversy regarding Kosovo’s unilateral declaration of independence from

Serbia in 2008, the UN General Assembly on 8 October 2008 adopted Resolution A/RES/63/3

in which in accordance with article 96 of the UN Charter it requested the ICJ to clarify the

question: ‘is the unilateral declaration of independence by the Provisional Institutions of

Self-Government of Kosovo in accordance with international law?’

12

In accordance with International Law of the Unilateral Declaration of Independence in

Respect of Kosovo, Advisory Opinion [2010] ICJ Rep 403:425, [56] (July 22) [hereafter

Kosovo Advisory Opinion].

13

ibid, 452 [122], 453 [123].