The Right of Secession in International Law Reconsidered

AuthorEnyeribe Oguh
PositionEnyeribe Oguh is a PhD candidate of International Criminal Law at the University of York, England
© 2018 Enyeribe Oguh and Dublin University Law Society
‘Union founded upon submission is the Union of slave.’
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’.
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.’
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.
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. [].
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.
Diane F Orentlicher, ‘Separation Anxiety: International Responses to Ethno-Separatist
Claims’ (1998) 23(1) Yale J Int L 2.
Benedict Anderson, Imagined Communities: Reflections on the Origin and Spread of
Nationalism (Verso 1991) 3.
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.
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.
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,
‘the principle of self-determination became the most
dynamic concept in international relations’
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
See Lea Brilmayer, ‘Secession and Self-Determination: A Territorial Interpretation’ (1991)
16 Yale J Int L 179.
Lea Brilmayer, ‘Secession and Self-Determination: A Territorial Interpretation’ (1991) 16
Yale J Int L 179, 180.
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).
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]
Republic of China (PRC) explicitly prohibit secession,
in others like the
United States the right is voided through judicial reinterpretations of their
domestic constitutions.
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,
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.
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.
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
See Articles 1 10 of the Anti-secession laws of the People’s Republic of China passed in
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.
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?’
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].
ibid, 452 [122], 453 [123].

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