The importance of secession as a form of accession to statehood
In the international community, made up of international subjects of differing nature, States play, in any case, an indisputable leading role, as they are the only entities endowed with sovereignty and it is on their foundational nature that the creation, functioning and potentiality of international organisations depend. The political history of humanity is also, therefore, the history of States, of their creation, their development in different spheres, their international relations – whether peaceful or troubled – as well as their transformations and even their disappearance. If each historical period is a universal, regional or local atlas, the first picture shows the States existing at that time. Thus, the image of 1914 differs notably from that of six years later, the First World War having ended and the Austro-Hungarian, Russian and Ottoman empires having been diminished or completely dismembered; just as the image of this interwar period bears very little relation to the one we see in 1960 or 1975, at the outset or towards the end of the decolonisation process, respectively.
Although States are created in many different ways, be it through merger or separation, secession or decolonisation, some ways are more traumatic than others as regards national coexistence and also, of course, in terms of international peace and security, because of the tension or conflict they generate. World history over the last one hundred years has been regularly punctuated by decolonising, separatist and secessionist tensions, unlike other periods, some of which were characterised by the opposite phenomenon, that is, by the creation and expansion of continental and colonial empires. Decolonisation has undoubtedly been the characteristic phenomenon in the creation of States since 1945, just as union, in some cases (Italy, Germany), and secession, in others (Ottoman Balkans), were during the preceding 70 years.
In the same way, the history of Spain over the last century is made up of different stages and episodes of social conflicts, wars, dictatorships, periods of democracy, etc. In all of them, the centrifugal movements of certain sectors of Basque and Catalan society have played a more or less significant role: in the turbulent early years of the twentieth century, during the short-lived Second Republic (1931–1939), throughout the Spanish Civil War (1936–1939) and in the latest decade of the lengthy period of social peace and democracy that Spain has experienced since 1977. Although Catalan nationalism, in particular, is of unquestionable interest from the point of view of domestic policy concerning constitutional law, it cannot be separated from a phenomenon that is international in scope and should also be regulated and analysed from the perspective of international law.
In order to understand the importance of secession as a form of State creation, it is necessary to distinguish between secession as a political phenomenon and secession as a legal problem. With regard to the former, it is remarkable how this phenomenon, despite the relatively small percentage of States it gives rise to, has still managed to generate so much social and political tension in the States that undergo these secessionist processes, and engender so many threats to peaceful coexistence between States and even a significant proportion of the domestic and international armed conflicts of the last one hundred years.
In fact, although we will clarify the distinction between different forms of State creation later on, and always bearing in mind that certain situations are difficult to classify, of the 156 State creation processes that took place between 1877 (Romania’s independence from the Ottoman Empire through secession) and 2011 (secession of South Sudan from the former integral state of Sudan)1, most of them (67%) occurred in a colonial context, either due to termination of League of Nations mandates (five cases)2, ceasing to be a protectorate in situations of colonial rule (16 cases, including Morocco and Brunei) or directly through the independence of former colonies (83 cases). Of the remaining cases, one ceased to be a protectorate in a non-colonial context (Andorra), four are unions (such as Yemen or Tanzania), 21 are separations with or without dissolution of the pre-existing State (such as Senegal and Mali in the former case, or Iceland in the latter) and 25 are secessions, representing 16% of the total.
Their relative importance is therefore comparable to separations – characterised by the consent of the parent State – and much lower than the independences produced in the colonial context. However, there are periods in which secession has enjoyed a certain prominence. Between 1877 and 1949, for instance, it accounts for 63.6% of the cases of accession to statehood (14 out of 22), as a consequence of the decline of the Russian, Ottoman and Austro-Hungarian empires after the Balkan wars of 1912 and 1913, the First World War and the Russian Civil War (Romania in 1877, Serbia in 1882, Bulgaria in 1908, Albania in 1912, Finland, Estonia, Latvia, Lithuania, Poland, Czechoslovakia and North Yemen in 1918 and Mongolia in 1921), plus a few other cases (Panama in 1903 and Ireland in 1922). From then on, there is no successful secessionist process until Bangladesh in 1971; just one case out of a total of 64 new States, during a period (1949 to 1971) characterised by the overwhelming predominance of decolonisation (with 56 cases; 87.5%). This scenario continues until 1990, with no independence by secession and 22 in the colonial context (out of 23; 95.7%). Since 1991, however, there have been nine successful secessions, mainly as a result of the dismemberment of the Socialist Federal Republic of Yugoslavia following the wars waged between 1991 and 1995 (Slovenia, Croatia, Macedonia, and Bosnia and Herzegovina), the Baltic republics’ recovery of statehood without the initial approval of Moscow in the Soviet Union dismemberment process (Estonia, Latvia and Lithuania in 1991) – before the separations of 11 other new States agreed in the Treaty of Belovheza of 8 December 1991 –, and the end of the civil wars in Ethiopia (Eritrea in 1993), Indonesia (East Timor in 2002) and Sudan (South Sudan in 2011), which account for 30.3% of the States created in a period characterised by separations (15 cases out of 33; 45.5%), by the processes indicated earlier, and others such as the dissolution of Czechoslovakia and the separation of Montenegro.
1 See Appendix for a list of States created between 1877 and 2011.
2 We are referring to the territories that were detached from the Ottoman Empire as a result of the peace treaties (Treaty of Sèvres of 1920 and Treaty of Lausanne of 1923) imposed on it at the end of the First World War and converted by the League of Nations into type A mandates entrusted to France (Syria and Lebanon) and the United Kingdom (Iraq, Jordan and Palestine, which effectively became the State of Israel, and not, for the time being, that of Arab Palestine). In their origins they are examples of secession of territories, since they were imposed on this militarily defeated power, despite the fact that when these nations became independent, between 1932 and 1948, they did so in a quasi-colonial context, in that even though they were not strictly colonies, they nevertheless depended on colonial empires and shared many of the characteristics of actual colonies.
Secessionism does have, however, a significance in national and international political life that the previous figures and percentages do not reflect, and there are three reasons for this. The first is that all the secessionist processes that have eventually resulted in accession to statehood have – as is typically the case in this form of State creation – gone against the will of the parent State and been fraught with the social and political tensions and humanitarian and economic consequences that usually derive from territorial partitions, generally with resultant minorities that are systematically discriminated against by the new State, either because of their affinity with the State they originate from (the Russians of Estonia, for instance) or because they do not share the mobilised identity of the new majority (e.g. the Albanians of Macedonia).
The second reason is that most of these ultimately successful secessions since Ireland in 1922 have been preceded by serious public disturbances, insurrectionary situations or armed conflicts of varying duration and severity depending on the regional insecurity and casualties involved. The pre-1922 secessions were mainly a consequence of successive Ottoman defeats in the Balkan or Russian wars in the context of the First World War and the civil conflict following the Bolshevik revolution, and therefore they stemmed more from international efforts to undermine the dominance of these waning powers than from nationalist movements. However, in the aforementioned case of Ireland, as well as in Bangladesh, Slovenia, Croatia, Bosnia and Herzegovina, Eritrea, East Timor and South Sudan, secession was preceded by armed confrontations of differing duration and severity and resolved by generally decisive international pressure imposed in one form or another by the international community, be it simply political or, in some cases, embodied in peace agreements. This is the case, for example, of South Sudan3, a territory that had belonged partly (before Sudan gained independence in 1956) to the British Protectorate of Uganda and even to the Congo Free State, and which, once Anglo-Egyptian domination had been resolved, was forcibly integrated, despite the existing ethnic and religious differences among its population, into the new Sudanese state. The subsequent discrimination of the southern Sudanese minority (Christian and animist) by the Muslim and Arabised majority in the north led to the First Sudanese Civil War (1955–1972), a conflict that resumed and worsened with the establishment of an Islamist regime in 1982 and the Second Civil War (1983–2005). The Comprehensive Peace Agreement (Naivasha, 2005) was promoted by the African Union (AU), with the help of the UN and the mediation of countries in the region such as South Africa, putting an end to a conflict that had caused two million deaths in its final stage alone. The southern territory became, with the new Interim Constitution of 2005, an autonomous region with self-determining powers that it used in the referendum of 2011, the result of which was practically unanimous acceptance of the independence option. The new State, officially known as the Republic of South Sudan, was made possible by a referendum provided for in the constitutional agreement that formed part of the peace agreement; it was not a product of the initiative and desire of Omar Hassan al-Bashir’s government, but instead was imposed by the existing conflict and diplomatic circumstances. In other words, it was an inevitable acceptance on the part of the parent State to end a long and bloody domestic armed conflict in which Al-Bashir4 was unable to prevail.
And third, those 25 cases of creation by secession do not show the true significance of secessionism in the international arena, since many secessionist processes that have undermined international peace and security for decades are missing from that list, either because they were thwarted or because even though they gave rise to de facto entities, they have not received international support. We are referring to such major armed conflicts as those of Biafra, Katanga, Chechnya, Bougainville, Abkhazia, South Ossetia and Nagorno-Karabakh, or to situations of tension and violence, even terrorism and rebellion, such as in Northern Ireland, the Basque Country, Cabinda, Tamil Ealam and Mindanao. Equally, no one can doubt the importance of secessionism in the political and legal debate surrounding such contrastingly peaceful matters as the Canadian Supreme Court’s decision on the right to self-determination of Quebec (1998), Kosovo’s declaration of independence (2008) and the subsequent ICJ advisory opinion (2010), the Scottish independence referendum (2014), and the secession of Crimea and its integration into Russia (2014), to cite just a few of the milestones that have given rise to a substantial amount of international debate as well as specialist literature in recent years. In this context, much of the political agenda in Spain since 2006 has been conditioned by the Catalan question, but even more so since the first referendum, illegally called in 2014, which precipitated the confrontation between the authorities and institutions of the Spanish State and those of the Autonomous Community of Catalonia. The political and legal tension between the two reached its climax in 2017 with the second illegal referendum and the subsequent declaration of independence.
3 Regarding this process, see Lokosang, Laila. South Sudan: The Case for Independence & Learning from Mistakes. Xlibris, 2010.
4 See Christopher, Anthony J. “Secession and South Sudan: An African Precedent for the Future?”. South African Geographical Journal, vol. 93, no. 2, 2011, pp. 125–132.
The map of issues related to secessionism speaks volumes about the importance of this phenomenon, although it must be said that they vary greatly in nature and significance. Thus, in the Americas, aside from the irredentist claims of certain islands and Central American border zones5, most of the claims are limited to the sphere of indigenous populations, albeit in a social and legal context specific to these peoples that we will refer to later on. Nevertheless, there are some cases of secessionist movements, the most important being, because of its international impact, the Quebec question, which is clearly a secessionist claim by a minority, specifically the linguistically and culturally French population that formed part of France’s colonial possessions until the end of the eighteenth century, before becoming part of Great Britain’s Canadian colony. Although the second half of the twentieth century saw a continuous political struggle led by pro-independence parties, with inconclusive illegal referendums, its leap into the international arena took place in 1998 when the Supreme Court of Canada was challenged on the international laws relating to a hypothetical international right of secession for Quebec, which would eventually lead to Parliament passing the Clarity Act in 2000. But Quebec is not the only case. In 1998, the island of Nevis – the smallest of the islands that make up the Caribbean State officially known as the Federation of Saint Kitts and Nevis – held a referendum, provided for in its Constitution, in which 62% of voters opted for independence; as a two-thirds (66%) majority is required ...
