Territorial Separatism in Global Politics

Causes, Outcomes and Resolution

Damien Kingsbury, Costas Laoutides

• Publisher: Routledge
• Year: 2015
• Print ISBN: 9781138797833
• eBook ISBN: 9781317631385
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Military & Maritime History
• Index: Politics & International Relations

This volume examines the various aspects of territorial separatism, focusing on how and why separatist movements arise.

Featuring essays by leading scholars from different disciplinary perspectives, the book aims to situate the question of separatism within the broader socio-political context of the international system, arguing that a set of historical events as well as local, regional, and global dynamics have converged to provide the catalysts that often trigger separatist conflicts. In addition, the book marks progress towards a new conceptual framework for the study of territorial separatism, by linking the survival of communities in international politics with the effective control of territory and the consequent creation of new polities. Separatist conflicts challenge conventional wisdom concerning conflict resolution within the context of international relations by unpacking a number of questions with regard to conflict transformation. Through the use of case studies, including Cyprus, the Rakhine state in Myanmar, the Shia separatism in Iraq, the Uighurs in China and the case of East Timor, the volume addresses key issues including the role of democracy, international law, intervention, post-conflict peacebuilding and the creation of new political entities.

The book will be of much interest to students of Intra-StateConflict, Conflict Resolution, International Law, Security Studies and International Relations.

Part I

Territorial separatism in an interdisciplinary perspective

1 Secession

A much contested concept

Aleksandar Pavković

Definitions and their differences

When reading some scholarly works on secession, one may wonder whether the study of secession is a worthwhile scholarly activity at all. Some legal scholars and political scientists define secession so narrowly as to allow only a few cases of secession stricto sensu in the past century. These scholars seem to imply that since secession is such a rare phenomenon, there is no point in comparative study of secession; what may appear to be a comparative study of secessions is, in their view, a study of different phenomena – for example, dissolution of states, which do not require a comparative study of secessions. Moreover, these definitions suggest that there is no point in searching for general principles for moral or normative justification or assessment of secession. Why worry whether secession is morally justifiable when there are so few of them and it is not likely that there will be more of them in the future? In this chapter I argue that the restrictive definition of secession prevents us from exploring and understanding comparable political processes in different areas of the world, and from attempting to find the norms which could guide or justify a set of similar political actions which have caused considerable harm to large numbers of people (and thus stand in need of moral justification). While the more permissive definition certainly allows us to explore both these political processes and normative frameworks, a few highly permissive definitions of secession, I argue, are too broad to be useful for a comparative study of the secessionist phenomenon.

The definitions of secession discussed in this chapter focus on the withdrawal of territory and sovereignty from an internationally recognized state. This is, indeed, what all definitions of secession have in common: they agree that secession involves the withdrawal or detachment of territory and its population from the jurisdiction of an established state; in this process, it is generally agreed, the established state loses the sovereignty or the capacity to exercise its sovereignty over the detached territory. As we shall see, the definitions of secession to be discussed here differ in their views on:

1 The means which are employed to effect the withdrawal or detachment. The key difference is the use or the threat of use of force or its absence.

2 The effect of the withdrawal on the territorial integrity of the state from which the withdrawal is made. The difference here is between the detachments that breach the state’s territorial integrity and the detachment of territories that are not considered to be part of the state’s bounded territory.

3 The effect on the legal and political identity of the state from which the withdrawal is made. The difference is between those states which retain their previous legal/political identity after the withdrawal and those which change it and/or lose it altogether.

The UN Charter and all subsequent UN resolutions prohibit (1) the use of force in interstate relations, except in self-defense (the UN GA Resolution 1514 (1960) extended this to the cases of the defense of the right to self-determination of colonial peoples) and (2) any breaches of the territorial integrity and political unity of UN member states. The UN documents pointedly neither prohibit nor allow the use of force and the breach of territorial integrity for the purposes of secession (as distinct from decolonization); the word ‘secession’ and its possible cognates is simply absent from the UN documents. In the world in which secessions do happen, it has been left to scholars to debate what is secession and what means, usually prohibited by the UN, are allowed in various attempts at territorial detachment, and, if so, which type of territorial detachment qualifies for such exemptions. One way of addressing the latter question is to find classificatory concepts or categories other than secession and to subsume most territorial detachments under these non-secession categories. Thus, one can argue, as it has been in the case of former Yugoslavia, that the detachments in question were in fact part of the dissolution of a state which leads to the disappearance of states (see points 2 and 3 above). Any violent conflict occurring in the cases of alleged dissolution of states would be categorized as internal and not interstate use of force (see point 1 above). Neither the dissolution nor disappearance of states nor, of course, internal uses of force are barred by the UN Charter and other UN resolutions or conventions. The new UN doctrine of Responsibility to Protect (R2P) prohibits not intrastate wars but only certain types of internal violence against non-combatants. Another way of minimizing the occurrence of secession is to treat some detachments of territory (for example, that of East Timor from Indonesia) as instances of decolonization which do not threaten the territorial integrity of UN member states (point 2 above). Within the UN legal framework, decolonization is not secession but a legally required exercise of the right of self-determination of colonial peoples.

Instead of looking at secession as detachment of territories, let us focus on the phenomenon as a political process and as a political outcome. What do the supporters of secession want to achieve, apart from (or in addition to) the independence of the territory that they claim from the state in which they live at present, the state which we shall (without any prejudice) call their ‘host state’? They want to be ruled or governed by a different group of people – usually those who belong to the same national group as they do. They may also want to have a different apparatus of government, including a different legal order, from that of the host state; the desired difference may be only in the nomenclature, institutional structure and staff of the new apparatus. Moreover, they want to have a different political life, the life from which the political parties and politicians from the host state will be excluded. In short, they want a different ruling elite and a different institutional and political regime. If so, they want to achieve a change of governing elite and a change of institutional political and legal system/regime by detaching the territory on which they live from the host state. Secession can be thus regarded as a process which, if successful, leads to the change of the governing elite and the political/legal regime similar to other processes which lead to such change without the detachment of territory. Viewing secession as a political process of this allows us to raise the following two related questions:

1 How are people mobilized to support or demand such a change?

2 How is the demand for this kind of change related to the demand for the detachment of territory?

It is quite possible that the demand for the detachment of the territory is an instrument for effecting the change of elites and regime, in particular when there is no other way of achieving the latter but by detaching the territory from the host state. In relation to that, one can also ask how one can effect the desired change of elites and regime without detaching the territory or at least without causing the harmful consequences that such a detachment often brings about. Legal scholars or normative theorists do not address questions of this kind; however, political scientists interested in comparative study of secessions do so. As I argue in the last section of the chapter, the difference in the questions they address about secession may, at least to some extent, explain the difference in their definitions of secession.

Definitions of secession: the contest

Restrictive approaches

Crawford’s approach to secession is probably the best known example of a restrictive definition of secession: ‘attempts at secession – which may be defined as the creation of a State by the use or threat of force without the consent of the former sovereign’ (Crawford 2006, p. 375). Many others scholars, including social scientists, restrict secession to the detachment of territory ‘without the consent’ of the host state, i.e., the former sovereign (Anderson 2013). As Radan (2008) and Anderson (2013) note, the definition of secession here is made contingent on a specific process of detachment or withdrawal. There are a variety of reasons for taking such a restrictive approach. For Crawford, the cases in which the sovereign consents to a detachment of a territory are unproblematic from the point of international law and international practice of recognition of states: if and when the host state consents to such a withdrawal of territory, it recognizes the independence of the newly created state and other states are free to, and they do, follow suit. Likewise, the recognition by the host state appears to be necessary for the admission of a newly created state to the UN, the exclusive club of sovereign and independent states. In this sense, detachments of territory and creation of new states on these territories with the consent of the host state (‘former sovereign’) pose no problem for international law and practice and hence are not deemed to be secessions: secessions are only those problematic cases of detachments to which the host state at least initially does not consent. Political scientists such as Heraclides (1991) who offer similar definitions to Crawford’s, probably find the above unproblematic detachments of territory lacking in many features of the ‘abrupt and unilateral’ separations which they prefer to study. The latter ‘abrupt and unilateral’, that is, non-consensual secessions, are characterized by a protracted political conflict often escalating to violence; Heraclides and many other social scientists are primarily interested in the political conflict that is at the core of non-consensual secession. Hence, in their view, only those ‘abrupt and unilateral’ qualify as secessions.

Indeed, the absence of consent of the host state is usually associated with the use or threat of force: in demanding or proclaiming independence, without the consent of the host state, the secessionists perceive any use of force against their emergent state as aggression against which the use of force is justified. In demanding or proclaiming independence, the secessionists are claiming the status of the sovereign state which thereby gains the right of self-defense against those who are challenging its sovereignty. In turn, in withholding consent from a detachment of territory, the host state, as a legal sovereign, is retaining the right to use force on that territory and to prevent its detachment. In granting consent to a detachment, the host state is giving up its sovereignty over the territory and thereby losing any right to use force on that territory. Granting consent to a detachment in this sense makes the detachment so unproblematic as to look like ceding or relinquishing of the territory; hence, one could indeed argue that such voluntary cessation of territory is categorically or conceptually different from its (involuntary) secession (Haverland 2000, p. 255).

Yet as Radan (Pavković with Radan 2007, p. 7) pointed out, divorce is a legal termination of a marriage, whether one or both partners consent to it. Why would the termination by mutual agreement or consent belong to a different category from the termination with only one partner consenting? The analogy of divorce, widely used in discussion of secession, is usually quite misleading (Aronovitch 2000). But in this case the analogy is not meant to tell us anything about secession itself but only about a restrictive approach to defining secession.

The absence of consent is not sufficient to conceptually differentiate a non-consensual detachment of territory leading to the creation of a new state, from a similar detachment which has, at some point prior to or after the formal proclamation of independence, gained the consent of the former host state. By asking whether a state has been created through secession we are not, eo ipso, asking whether its detachment has gained consent of the host state or not. Thus we are not making a conceptual or categorical mistake if we say that Montenegro or Iceland or Norway were created by way of secession (these cases involved a mutual agreement to the detachment of territory). By calling these three cases ‘secessions’, we are thereby not implying that the host state has withheld consent from the creation of the new state. The question of its consent would be, as it were, a question of how the secession took place and not whether it did.

Permissive approaches

Permissive definitions are often advanced in response to the restrictive ones and thus tend to be inclusive. Radan (2008, p. 18) defines secession as ‘the creation of a new state upon territory previously forming part of, or being a colonial entity of, an existing state.’ Anderson (2013, p. 344) defines it similarly as ‘the withdrawal of territory (colonial or non-colonial) from part of an existing state to create a new state.’

Even more inclusive definitions of secessions are found in legal scholarly literature. Haverland has, for example, defined secession as ‘the separation of part of the territory of a State carried out by the resident population with the aim of creating a new independent State or acceding to another existing state’ (2000, p. 254). Accordingly, secession does not need to aim at the creation of a new state: a transfer of territory from one state to another, which is often called ‘irredenta’, also counts as secession (for a comprehensive list of the scholars who endorse this kind of definition see Anderson 2013, p. 371, note 148).

The aim of Haverland’s inclusive definition is to differentiate detachments of territory in which the resident population is involved as an alleged agent of the detachment from those in which the resident population is not so involved. In this way the detachments of this kind are differentiated from various kinds of territorial annexation in which the population is not involved; such as, for example, cases of sovereign purchase of territory, practiced up until the late nineteenth century (e.g., of Alaska from Russia) or of border adjustment. In the latter cases, the former sovereign is relinquishing or ceding territory and the resident population is not an agent of this change.

Against so inclusive a definition one can advance at least the following three reasons. First, in the present state system, regulated by the UN, if a populated territory is withdrawn from the jurisdiction of a state – with or without the involvement of its population – the territory faces only the following two options: either a new state is created on this territory or the territory falls under the jurisdiction of another state. There is no third option allowing this territory to remain outside state jurisdiction: there is no option of terra nullius for territories with permanently resident populations. These two outcomes remain irrespective of the agent which allegedly carried out the withdrawal. In view of this, the agent of the withdrawal appears to be irrelevant to the determination of the legal category – secession or irredenta – to which a particular withdrawal belongs.

Second, the resident populations, the alleged agents of the withdrawal in the case of both secession and irredenta, appear to belong to two different types of agency. In order to withdraw territory from a state and create a new state, the resident population (or rather its representatives) do not need to seek approval or acceptance of any third party. If a resident population is to transfer its territory to another state, it needs to gain prior approval and acceptance of the receiving state. In the latter case the agency is conceptually constrained by a third party: no transfer of the territory (irredenta) can be made if the receiving state does not want to accept it.

Third, the two outcomes – the creation of a new state and the transfer of territory to another state – have hugely different legal and political consequences and are consequently regulated in fundamentally different ways. As Radan (2008, p. 22) notes, secession (as he defines it) involves only two parties while irredenta involves three. From a legal point of view this is a fundamental difference reflected in the different kind of legal prescriptions or reasoning relating to the two types of detachment of territory (Anderson 2013, p. 372). The creation of a new state introduces a new apparatus of government and a new, formally independent player in the international state system. Since the transfer of territory only changes the state jurisdiction over the territory, the only change, apart from the state jurisdiction, is the change of borders. This is the case whether the resident population is an agent of this change or not.

One way of approaching the agent of change issue would be to keep the term ‘transfer of territory,’ to cover any transfer of territor...

Table of contents

• Cover
• Half Title Page
• Title Page
• Copyright Page
• Table of Contents
• Notes on contributors
• List of abbreviations
• Introduction: territorial separatism in context
• PART I Territorial separatism in an interdisciplinary perspective
• PART II Case studies
• Index