On the Way to Statehood

Secession and Globalization

Peter Radan, Aleksandar Pavkovic, Aleksandar Pavkovic

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351913690
• Edition: 1
• Topic: Politica e relazioni internazionali
• Subtopic: Politica

The present international order is characterized by the rapid globalization of economic activity, by systematic attempts to coordinate state responses to the outbreaks of violence and by unilateral military interventions against sovereign states either by the USA or by one of its regional allies. This collection explores the changes that the current international order has brought to the theory and practice of recognition of secessionist claims and to the conditions for secessionist mobilization. The volume examines how independence movements achieve legitimacy amongst both their target populations and outside states, and how the forces of increasing economic globalization and political interdependence impact on secessionist mobilization. It addresses how the outside states recognize the independence of new states and whether the claims to independent statehood can be justified within normative theories of secession and international law. These issues are explored both through comparative analysis within legal, international relations and political science frameworks and through an examination of several recent attempts at secession.

Chapter 1
Secession: A Word in Search of a Meaning

Peter Radan

Introduction

In what Allen Buchanan suggests is ‘the age of secession’,¹ the contemporary world is less threatened by conflicts between states than by the breakdown of order within states. States today are more concerned with internal, rather than external, threats to their security and territorial integrity.² These internal threats to states have in recent years, in particular, generated a plethora of studies by lawyers, political theorists, economists and historians dealing with secession. However, there is little consensus amongst them on a precise definition of secession. This lack of consensus often leads to problems with interpreting the relevant literature as scholars are not always talking about the same thing. From a legal perspective the definition of secession is important. For example, whether there exists, or should exist, a legal right of secession, cannot be adequately addressed in the absence of a generally acceptable definition of secession.

The word ‘secession’ is often viewed negatively. States are generally, and understandably, opposed to secession. Thus, in 1978, Lee C. Buchheit observed:

It is understandable that a community of States and a legal system that purports only to regulate the rights and duties of States would react adversely to any threat to the present State-centered order. … The present reluctance to accommodate the claims of secessionist groups … seems to be motivated by a fear on the part of most independent states that such [accommodation] would constitute an unmanageable threat to intra-State harmony and consequently have an adverse effect upon the stability of the international system.³

In more recent times the negative approach to secession is exemplified by the comment in 1992 by Boutros Boutros-Ghali, the then Secretary-General of the United nations (UN), that ‘if every ethnic, religious or linguistic group claimed statehood, there would be no limit to fragmentation, and peace, security and economic well-being for all would become ever more difficult to achieve’.⁴ Thus, a positive reaction to secession Raises fears of an endless number of secessions leading to anarchy.⁵

This general hostility to secession has led to definitions of secession that are beset with what, it will be argued, are irrelevant elements. The purpose of this chapter is to suggest and, through an analysis of these other definitions, justify an alternative definition.

Secession Defined

The word ‘secession’ has its roots in the latin words ‘se’ meaning ‘apart’ and ‘cedere’ meaning ‘to go’. Secession is thus associated with leaving or withdrawing from some place. Broadly speaking, secession can be viewed as withdrawing from an association or organisation. In the context of international law and municipal constitutional law, this chapter suggests that secession should be defined as follows:

Secession is the creation of a new state upon territory previously forming part of, or being a colonial entity of, an existing state.

This definition expresses quite clearly what is at the heart of secession, namely, the creation of a new state — a state being defined as a territorial entity which has ‘plenary competence to perform acts, make treaties, and so on, in the international plane’⁶ — upon territory which previously was not, of itself, a state.

For ease of understanding in the discussion that follows, the term ‘host state’ refers to the ‘existing state’ referred to in the definition, and the term ‘seceded state’ refers to the ‘new state’ created as a result of secession.

Implicit in this definition is that secession is a process. As Marcelo G. Kohen observes:

Secession is not an instant fact. It always implies a complex series of claims and decisions, negotiations and/or struggle, which may — or may not — lead to the creation of a new State.⁷

Thus, a seceded state is the outcome of a process. Secession cannot be said to have occurred until the process has been completed by the creation of a new state. The process can generally be said to start when representatives of a population settled on a territory (territorial community) proclaim a new state on that territory.⁸ In most cases they do so by means of a declaration of independence. In some, but not all, cases in which independence is so proclaimed, other states formally recognise the independence of the proclaimed state. When a sufficient degree of recognition has been achieved the proclaimed state becomes, at that time, a state in reality. The outcome of the process has been achieved and the process of secession is complete.

In international law the classic requirements of statehood are set out in Article 1 of the so-called Montevideo Convention of 1933,⁹ which stipulates that a state should possess the following attributes: (a) a permanent population, (b) a defined territory, (c) a government, and (d) a capacity to enter into relations with other states.¹⁰ A territorial entity that does not satisfy these requirements is not a state. In the wake of the break-up of the Socialist Federal Republic of Yugoslavia (Yugoslavia) and the Union of Soviet Socialist Republics in 1991, it has been suggested¹¹ that, even if a territorial entity satisfies these requirements and therefore can be said to be a state, in order to be accorded recognition as a state, it must also satisfy international standards relating to human rights and self-determination, as set out in the Guidelines for Recognition issued by the European Community (EC) in late 1991.¹²

In international law the function of recognition is a controversial issue with two major schools of thought. According to the declaratory theory, recognition plays no role in the creation of a state. A territorial entity that meets the requirements of statehood is a state, irrespective of its recognition by other states, with recognition being simply the formal acknowledgment of that fact. According to the constitutive theory, recognition of a state creates that state, thereby constituting a further requirement of statehood.¹³

Whatever the merits of these competing theories, it is widely accepted that, in the context of secession at least, recognition of the seceded state by other states has at least some part to play in its creation.¹⁴ That this is so is effectively conceded by secessionists themselves. Historically, international recognition of statehood has been the major foreign policy goal of any secessionist movement.¹⁵ The recognition of independence of the Spanish American States by the United States of America (US) in 1822 has been described as ‘the greatest assistance rendered by any foreign power to the independence of latin America’.¹⁶ The recognition by india, a significant regional power, of Bangladesh in 1971 was crucial to the success of the latter’s secession from Pakistan.¹⁷ Conversely, the failure to gain international recognition has been a major contributing factor to the failure of various attempts at secession. This is confirmed by a number of examples, including, the failure of the southern Confederacy to gain, in particular, British recognition of its attempted secession from the Us in the 1860s¹⁸ and the failure of Katanga to gain the recognition of any other state of its attempted secession from Congo in the 1960s.¹⁹ In cases where recognition is given by an insignificant number of states, notwithstanding such recognition, the attempted secession will fail. Illustrative examples here include the attempted secession of Biafra from nigeria in the late 1960s²⁰ and the, still unresolved, attempt at secession of the Turkish republic of northern Cyprus from Cyprus in 1983.²¹

A very effective means by which recognition can achieve its constitutive function in the context of secession is by admission of the proclaimed state to membership of the UN. As membership to the UN is limited to states, admission to it is persuasive evidence of the new member being a state.²² Alternatively, recognition by a significant collection of regional and/or other states will achieve the same result, as was evidenced by the widespread recognition of Bangladesh before its admission to the UN in 1974,²³ and by the recognition of slovenia and Croatia by the EC on 15 January 1992²⁴ and soon thereafter by various other states ,²⁵ all prior to their admission to the UN on 22 May 1992.²⁶

Other Definitions of Secession

Prominent scholars of secession have proffered definitions of secession that are, in one way or another, narrower in scope than the one propounded by this chapter. However, these other definitions are also outcome-based, in that at the heart of them is embedded the notion that secession is concerned with the process of the creation of a new state. The most prominent of these definitions is that of James Crawford, who, in his seminal work, The Creation of States in International Law, defines secession as

… the creation of a state by the use or threat of force without the consent of the former sovereign.²⁷

The differences between Crawford’s narrow definition and the broad definition advanced in this chapter are that, for Crawford:

(i)secession does not include all cases of state creation resulting from the process of decolonisation;

(ii)secession requires the opposition of the host state;²⁸

(iii)secession requires the use or threat of force by the secessionist movement. ²⁹

Each of these differences leads to a narrowing of the definition of secession from that proffered by in this chapter, thereby excluding from the definition of secession many instances of state creation that fall within the definition of secession proffered by this chapter. Thus, by asserting that the opposition of the host state and the use or threat of force by the secessionist movement are necessary elements of the definition of secession, Crawford argues that, outside the context of decolonisation, Bangladesh constitutes the only case of secession since 1945.³⁰

Secession and Irredentism

Before proceeding with a discussion of whether definitions of secession such as those proposed by Crawford and others are appropriate, it is necessary to explain the differences between secession and the distinct, but related, process of irredentism.

Irredentism, which derives from the Italian word irredenta, meaning unredeemed, is defined by Thomas Ambrosio as ‘attempts by existing states to annex territory of another state that their co-nationals inhabit’.³¹ Irredentism is far less common than secession. Prominent examples of irredentism include the ‘constitutional’ irredentist claim by the Republic of Ireland to Northern Ireland as set out, prior to 1999, in Articles 2 and 3...