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Home EJIL Analysis A Footnote on Secession

A Footnote on Secession

Published on October 26, 2017        Author: 

We have had a very rich debate on secession on the blog in recent weeks, and we will have more posts to follow. For my part, I would agree with much of what Jure Vidmar has said in his post this week, with the proviso that I personally don’t think the argument out of comparative constitutionalism necessarily has much purchase – that argument is contextually specific, and what works constitutionally in Canada or in the UK need not be the position in Spain. The ultimate arbiter of the Spanish constitutional order – the Constitutional Tribunal – has (for good or ill) not gone the Quebec Reference path. I agree in particular that international law has little to say on the secession of Catalonia specifically; Kurdistan is a more difficult question (on which a bit more below). What I would like to do in this post, however, is take a step back and reflect more generally on how secession is regulated by international law – and it is indeed regulated, if not wholly so.

It seems to me most useful to conceptualize international law’s regulation of secession in a three part model. First, there are cases where international law explicitly prohibits secession, when it is being effected through the violation of some fundamental norm of international law, such as the prohibition on the use of force or the prohibition on racial discrimination – this was the case, for example, with the Turkish Republic of Northern Cyprus. Such fundamental illegality is an impediment to the achievement of statehood which otherwise satisfies the relevant factual criteria, and thus bounds effectiveness. Crucially, as the ICJ has confirmed in the Kosovo AO, among these norms is NOT the principle of territorial integrity insofar as it does not govern the relationship between the parent state and an internal secessionist movement; that principle is only relevant if a third state assists a secessionist entity, as with Turkey and the TRNC.

Second, there is a middle ground, a zone of tolerance, where international law is neutral towards secession, neither prohibiting it nor creating a right to it. This neutral zone is what is left over from the classical position towards secession in international law, which was essentially that in order to establish itself as a state against the wishes of its parent, the secessionist entity needed to fight – and win – a war of independence against its parent (e.g. the USA, or most of the states of Latin America).

Finally, in the third part, a zone of entitlement, international law creates a right to secession under external self-determination, or perhaps remedial secession. The argument of Serbia and most of its allies in the Kosovo advisory proceedings was essentially that no zone of tolerance existed between prohibition and entitlement; the argument of Kosovo and its supporters that international law at the very least tolerated the declaration of independence/secession. Serbia could also have argued that even if the territorial integrity principle did not generally prohibit non-state actors from declaring independence, it did so here because Kosovo’s independence was as a matter of fact enabled by an unlawful use of force contrary to the Charter by NATO in 1999. Serbia of course deliberately chose not to do so, and for three basic reasons: it did not want to antagonize the NATO powers, as this argument would inevitably do, the Resolution 1244 regime came after the initial use of force and authorized the presence of international forces in Kosovo, and it was highly unlikely that the Court would want to rule on it in the context of the advisory proceedings.

How do the second and the third component of the three-part model of secession differ? Under the neutrality paradigm an entity would need a great deal of effectiveness in order to successfully attain statehood; it would certainly need to build independent, viable, long-term institutions, free from the interference of the parent state, if it was creating a new state from scratch. Today the requirements for ‘winning’ in a unilateral secessionist claim are much stricter – perhaps even arbitrarily so – compared to the 18th or 19th century practice (see, e.g., Somaliland, whose claim to statehood goes unrecognized despite a significant degree of effectiveness). But a secessionist entity would need less effectiveness if it was in the third part of the model, i.e. if it had the right to secede; East Timor needed less effectiveness than say Abkhazia in order to become a state. Legality thus advances or compensates for effectiveness.

Reading through the debates we had on the blog, it seems to me (but I am happy to be corrected if I am mistaken) that we are all in agreement that Catalonia today falls within the middle, neutral zone of the three-part model. That is, its purported claim to independence is neither prohibited nor advanced by international law. It very much IS prohibited by Spanish law – and I agree with all of the commentators to Marc Weller’s post who said, contra Marc, that it is perfectly appropriate to judge the Catalan attempt at secession by reference to Spanish law. However, that domestic illegality as such has no bearing on international legality; virtually all unilateral secessions violated the municipal laws of the parent state, and this is neither here nor there for the position of an entity in the neutral zone. 

But I was struck by how not even Marc – in an opinion commissioned by one of the secessionist parties – claimed that Catalonia had a right to secede, i.e. that it was in the third part of the model. And rightly so. Even if an entitlement to remedial secession existed in modern international law (and it almost certainly does not, on which more below), Catalonia is factually very far indeed from situations in which such a right might apply.

What then of Kurdistan, whose claim in that regard would historically be much stronger, in light of the extreme oppression that was inflicted on the Kurdish people under the Saddam Hussein regime? I would drop a second footnote here to the Kosovo advisory proceedings; another remarkable thing about that case was just how small a role self-determination and remedial secession played in it. For instance, only two pages out of almost two hundred in the first written contribution of Kosovo in that case concerned self-determination, and even there the main claim was that this was a point that the Court did not need to reach (as it did not).

That said, arguments were certainly joined with regard to remedial secession/self-determination. Of the 43 states (excluding Kosovo) that appeared before the Court in the three rounds of pleadings, 14 asserted that this right existed in principle, 14 denied its existence, and the remaining 25 were silent or neutral. When it comes to the five permanent members of the Security Council, only Russia endorsed remedial self-determination in principle (while rejecting its applicability to Kosovo on the facts; cf. its hypocritical position regarding Crimea), China opposed it, while France, the UK, and the US remained neutral. (For detail/references, see my chapter ‘Arguing the Kosovo Case,’ in M. Milanovic and M. Wood (eds.), The Law and Politics of the ICJ’s Kosovo Advisory Opinion (Oxford University Press, 2015) 21).

If we take the views of the committed states as expressions of their opinio juris, we can only really say that the question of the existence of the right to remedial secession would remain inconclusive if the states appearing before the ICJ were a representative sample of the international community as a whole. The silence of the neutral states cannot be taken as expression of opinio juris one way or the other, but it still speaks volumes, politically if not legally. Coupled however with the fact that no state in the world today clearly obtained its statehood by virtue of a principle of remedial secession, and that those claiming a right exist bear the burden of proving it, the absence of a concordant practice would seem to negate the existence of any such rule.

Even if the right was available, it could be exercised only as an ultima ratio. And this is where Kurdistan’s claim flounders; the government of Iraq today is not Saddam’s, and has no particular desire to systematically oppress the Kurds or deny them internal self-determination. Whatever positive entitlement to secession that they may once have had, that right has lapsed in the intervening years. Kurdistan is thus, like Catalonia, and like Kosovo, in the middle, neutral zone of the tripartite model above,  in which international law has to say the least. It is through politics, not law, that these matters can only be resolved.

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4 Responses

  1. Jens Iverson

    If I were to assign your thoughts here for students, would you recommend this post, the middle section of your chapter (14ff) or is this general three-zone conceptualization developed further somewhere else that you recommend?

    (Good post!)

    My only comment to further this characterization is that putting Catalonia in the “neutral zone” has implications not only for the characteristics of Catalonia and statehood (discussed in the post) but also for the conduct of Spain and other states. If Catalonia had a right to secession under international law, Spain’s conduct would be severely legally limited in a similar way to the limitations on colonial powers with respect to colonies. Here, there are still international and domestic legal restrictions on Spain’s conduct, but there is a much wider scope of legally allowable options, even if many are foolish and shortsighted. I think it’s interesting to consider (with respect to the Kurdish-majority areas of Iraq as well) the scope of what constitutes “a public emergency which threatens the life of the nation” generally needed to derogate from certain human rights obligations. Generally, this term has been related to armed conflict, (CCPR General Comment No. 29: Article 4), but it can have wider application. In the ECtHR, we have (Lawless v Ireland [No 3] para. 28): “Whereas, in the general context of Article 15 (art. 15) of the Convention, the natural and customary meaning of the words “other public emergency threatening the life of the nation” is sufficiently clear; whereas they refer to an exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organised life of the community of which the State is composed;” as well as The Greek Case, Denmark v Greece, Report of the Commission, App No 3321/67, (1969) requiring:
    a) the emergency must already exist or be imminent;

    b) it must affect the whole of the nation;

    c) the organized life of the community must be threatened;

    d) the situation must be such that normal measures permitted under the Convention will not be adequate to address that situation.

    I think there may be a colorable case for a public declaration of emergency as things worsen. But of course, just because that is a limited, temporary option in law, doesn’t mean that it the State isn’t its own worst enemy in practice when responding in a heavy-handed manner.

    Lastly, I think there’s an interesting question about the limits of foreign conduct regarding an entity in a neutral state. If, for example, Russia supported an independence movement and then prematurely recognized an entity before it could objectively be called independent, that would be wrongful – even without the presence of Russian troops as was the case in Crimea, Eastern Ukraine, and elsewhere. UN Charter Art. 2 and ICCPR Art. 20.1 taken together protect a state from foreign subversive interference likely to undermine the sovereignty of a state and risk civil war. While there is discretion, recognition should be conservative, however geo-politically tempting. For example, recognizing the US-supported forces in Syria as the government of Syria would be convenient, but counter-factual and wrongful. The same conservative approach should be applied in Spain and Iraq. This area of the law may need further development and clarification as new methods of foreign interference with sovereign multi-ethnic democracies are deployed and uncovered.

    For those with access, the MPEPIL articles on these matters are pretty good.
    http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1434?prd=EPIL#law-9780199231690-e1434-div1-5
    http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e384
    http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e786?rskey=OJgyyy&result=2&prd=EPIL#

  2. Marko Milanovic Marko Milanovic

    Hi Jens – I agree with all of the points you make above. As for your question, I think either would be fine, and I haven’t developed this more fully elsewhere. Thanks!

  3. […] the solution of the conflict in comparative constitutional rather than international law, while MARKO MILANOVIC takes the case as an opportunity to reflect on the general rules of international law about […]

  4. Xavier Pons

    Dear Marko,

    In the wave of posts on the Catalonian political process, I believe that your one is a very interesting and suggestive contribution focusing on the position of International Law in the face of secessionist tensions. Basically I agree with you and I only want to congratulate you and to contribute to the discussion with some complementary ideas.

    To my mind, the diagram that expresses a “Three-part model of secession” is essentially correct, but it might be better expressed by saying that International Law is, in general terms, neutral when faced with secessionist tensions and that only exceptionally can secessions be prohibited or be admitted as a right. From my perspective, the neutrality of International Law means that it follows the different answers of internal legal systems as regards the multinational character of some States, as regards the scope of their federal or their confederal agreements, or as regards the possibility of constitutionally recognizing the secessions as the exercise of self-government on the part of some of their internal components.

    The phenomenon of secession is not new, and now tensions around pro-independence movements are back on the agenda of several democratic EU Member States. I think that in democratic contexts, these political tensions should be dealt with in a pacific and democratic way, ensuring full observance of the national legal systems and the political and territorial organization set forth therein. Referring to the national legal systems is also, to my mind, the main and primal answer given by International Law.

    In the political and legal debate in Catalonia, the secessionist movement has argued two main principles of International Law: the principle of self-determination and the principle of democracy and human rights. Notwithstanding, on the one hand, it is clear that the principle of the self-determination of peoples as conceived by the United Nations focuses exclusively on those peoples under colonial domination or foreign occupation and, thus, is not applicable to Catalonia or to secessionist tensions within democratic States, as the Canadian Supreme Court established in relation to Quebec (Reference re Secession of Quebec, https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1643/index.do). On the other hand, it is also clear for me that human rights and the emergent principle of democracy in International Law (which has developed from art. 23.1 of the Universal Declaration of Human Rights, which declares “the will of the people shall be the basis of the authority of government”) are intrinsically related with the rule of law. This integral relationship is due to the fact that rule of law is the only guaranty of democracy and human rights. In the case of Catalonia, in accordance with the general principles of International law, the rule of law applicable is the Spanish Constitution and Statute of Catalonia and all of the democratic and internal legal system, which is comparable to the legal systems of the European context. In this sense, I believe that the recent post by Mark Weller (https://www.ejiltalk.org/secession-and-self-determination-in-western-europe-the-case-of-catalonia/) forgot this key dimension when arguing in favour of the legitimacy of the alleged independence. I think that in a democratic context, there is no contradiction between legitimacy and legality; the two are inseparable.

    To my mind, International Law understands secession processes and the creation of new States as pre-legal phenomena. It only embraces them when the creation of these new States is really effective. In other words, no norms and principles have been adopted under the scope of International Law that allow for the unilateral secession of a territory, that is, that consider a unilateral declaration of independence as legal. International Law neither authorizes nor forbids unilateral declarations of independence; they are understood as something alien to it, an internal matter of each State. Consequently, it merely acknowledges, when applicable, the international effects and legal consequences that might arise from specific, existent and effective political realities. If we were talking about a pacific and agreed process of secession, International Law would regulate the consequences of the creation of this new State, and the remaining States would then recognize it or not. If the process is not pacific and agreed upon, other principles of International Law may be applicable such as the principle of non-intervention in other States’ internal affairs, the prohibition of the threat or use of force, or the respect for human rights.

    In this respect, some voices claim that the International Court of Justice Advisory Opinion on Kosovo’s unilateral declaration of independence is a legal foundation of a hypothetical unilateral declaration of independence. In my opinion, this is a completely misguided approach. Be that as it may, it can be understood that there are different groups for whom the right to secede from the State cannot be proscribed. We are talking about territorial communities whose ethnic, religious, linguistic or cultural identity is repeatedly persecuted by the State institutions and offices, or whose members are subject to serious and systematic discrimination in the exercise of their civil and political rights leading to widespread violations of both the individuals’ and the peoples’ basic human rights. In this sense, only on an exceptional basis could International Law acknowledge and support a unilateral secession if justified as a last resort, that is, remedial secession, given a situation of severe violations of human rights and of the principle of self-determination in its internal dimension, as can be argued in the Kosovo case. In addition, also exceptionally, International Law rejects unilateral declarations of independence not on the grounds of their unilateral nature but rather on the grounds of their link to the infringement of basic norms and principles of International Law, as happened with the Turkish Republic of Northern Cyprus or, more recently, in the case of Crimea.

    In this sense, my opinion is that, in fact, International Law faces secessionist tensions with only one perspective: the neutral approach, considering secessionist processes as pre-normative phenomena. If this is the general norm, there are only two very limited exceptions, when International Law rejects unilateral secession and when International Law admits unilateral secession as a right. It is, in graphic terms, a very wide neutral zone and two short and limited zones.

    Returning to the Catalonia case, I believe that in a democratic context, all political aspirations are legitimate and should be channelled ensuring respect for the rule of law on which fair and equal societies are built. Despite the fragile international consensus on the precise meaning of the term rule of law, there is no doubt that in the last few years International Law has witnessed its emergence as a principle or value of a universal nature. Although it might be true that it still does not constitute a legal obligation under International Law, it does from the point of view of the European Union. For me, the most recent steps taken by International Law clearly show the inseparable nature of democracy, human rights and the rule of law. Consequently, any unilateral independence within a democratic context is absolutely inconsistent under International Law.

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