Secession and Self-Determination

NOMOS XLV

Stephen Macedo, Allen Buchanan

• Publisher: NYU Press
• Year: 2003
• ISBN:
  9781479885428
• Topic: Politics & International Relations
• Subtopic: Nationalism & Patriotism
• Index: Politics & International Relations

The many questions that surround movements for secession and self-determination are both practically urgent and theoretically perplexing. The United States settled its secession crisis in the 1860s. But the trauma and unfinished business of those events are still with us. Around the world secession and self-determination are the key issues that cause strife and instability.

This volume provides an unusually comprehensive consideration of the many challenges of law and political philosophy that accompany them, and offers theoretical insights that provide guidance for policy. Among the questions considered are: should the international community recognize a right to secede and, if so, what conditions must be satisfied before the right can be asserted? Should secession and its conditions be recognized within domestic constitutions? Secession is the most extreme form of political separation and there are modes of self-determination short of it, including indigenous peoples' self-government and minority language rights. To what degree can these intrastate autonomy arrangements help ameliorate the injustices faced by indigenous groups?

PART I
THE RIGHT TO SECEDE

1
INTERNATIONAL RESPONSES TO SEPARATIST CLAIMS: ARE DEMOCRATIC PRINCIPLES RELEVANT?

DIANE F. ORENTLICHER

Although a perennial feature of global politics, separatist movements had scant prospect of success for nearly half a century after World War II. And so the recent proliferation of new states has shattered settled expectations. In the 1990s, Yugoslavia fractured into five states, the Soviet Union split into fifteen, Eritrea separated from Ethiopia, Czechoslovakia divided into the Czech Republic and Slovakia, and East Timor won independence from Indonesia. The success of breakaway movements from Slovenia to Eritrea has given new impetus to a raft of other separatists across the globe.¹ And small wonder: the surge in state making in the 1990s marked a new departure.² Outside the context of decolonization, international law has long regarded separatist claims with disfavor. To be sure, international law and state practice remain deeply skeptical of separatist movements; few are likely to succeed. Even so, the recent success of several signifies the possibility of a broader realignment of law and policy.

An important barometer of change has been the nature of diplomatic responses to contested separatist claims. The breakup of the former Yugoslavia drew mediation efforts by the European Community (EC), the Conference on Security and Co-operation in Europe, the United Nations, the five-nation Contact Group, and, finally, the United States. These and other mediation efforts have been shaped by and in turn are reshaping international law concerning recognition of new states.³ With relevant principles now in flux, the question today is, What principles should guide international responses to separatist claims?

In this essay I explore an aspect of this question that has recently assumed special importance—the relevance of democratic principles. By focusing on this question, I do not mean to suggest that principles of self-government are the only—or even the most important—values that should be brought to bear in assessing separatist claims. Far from it. For good reason, concerns relating to international security and stability, as well as a core commitment to the territorial integrity of states, have long dominated international law’s bias against separatist movements. That same bias is reinforced by the humanitarian aims of international law, whose antipathy toward ethnic separatism can be captured in a simple syllogism: If national groups enjoyed a presumptive right to statehood, national minorities would inevitably be captured within the boundaries of another nation’s state—and would be vulnerable to repression. Equally important, postwar human rights law is imbued with the values of civic nationalism, which conceives citizenship not in terms of ethnic or national identity but in terms of equal protection of all citizens before a common law and shared institutions of governance.

Even so, recent developments in legal doctrine and state practice make clear, as I contend in the next section, that principles of self-government have already become relevant, both legally and practically, to the resolution of contested separatist claims. Much less clear, however, is the question I address in this essay: What, precisely, are the implications of democratic principles for assessments of separatist claims?

I. THE TRAJECTORY OF “SELF-DETERMINATION” IN INTERNATIONAL LAW

Although this question has at times loomed large in political theory and state practice, it has only lately become a substantial issue of international law. To appreciate the significance of this development, it is helpful briefly to recall how international law has treated separatist claims in the past.

A. The Interwar Period

The law governing separatist movements before World War I can be briefly stated: once a national movement secured independence, other states would acknowledge the established facts of statehood. International law did not, however, regard any type of self-determination claim as legitimate ex ante.

The Paris Peace Conference marked a significant, if limited, departure from the classic view. Although not yet considered a legal right, self-determination was a guiding principle for statesmen who remapped central and eastern Europe following World War I. To the extent consistent with other objectives, they gave effect to the “principle of nationalities”: the boundaries of new and reconfigured states were to be drawn along national lines. The peacemakers also gave limited effect to another conception of self-determination, which supports the resolution of key political questions— including core questions of statehood—through democratic processes. For example, the fate of certain disputed territories, including Upper Silesia and Schleswig, would be determined by internationally supervised plebiscites.

It remained to be seen whether a general principle of law would emerge from the foundation laid at Versailles or whether, instead, the Peace Conference would remain a case-specific exercise of Great Power diplomacy. The answer came quickly. A proposal by Woodrow Wilson to incorporate the principle of self-determination in the Covenant of the League of Nations⁴ was defeated.

If there was any lingering doubt about the legal status of “self-determination,” it was put to rest in the reports of two commissions appointed by the League of Nations in connection with a dispute over the status of the Aaland Islands.⁵ Both bodies concluded that international law did not recognize a right of national self-determination.⁶ But their reports hinted at possible exceptions in circumstances implicating the rights of minorities. Most explicitly, the Commission of Rapporteurs suggested that secession might be available as a “last resort when the State lacks either the will or the power to enact and apply just and effective guarantees” of minority rights.⁷

The Aaland Islands remained in Finland, where their inhabitants now enjoy substantial autonomy. But the concept of remedial secession hinted at by the Commission of Rapporteurs continues to resonate in legal doctrine and political philosophy. As elaborated in the section that follows, in more recent incarnations the notion of a remedial right to secede has expanded to include situations in which a defined subpopulation is persistently excluded from full political participation.

B. Postwar Law: Decolonization

In the postwar period, self-determination was transformed from a principle into a legal right. With this, its meaning also changed. Now self-determination meant the right of colonized peoples freely to determine their political status. For a time, this meant that the postwar right of self-determination would have scant relevance beyond the context of decolonization. But in the view of many commentators, this generalization has long been subject to a key qualification: groups persistently denied meaningful participation in national political processes might be entitled to secede.

This view derives above all from the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations (“Declaration on Friendly Relations”), adopted by the UN General Assembly in 1970.⁸ The declaration made clear that the core meaning of the principle of self-determination enshrined in the UN Charter was the right of “the people of a colony or non-self-governing territory” freely to determine its political status.⁹ Outside the special context of decolonization, established states would enjoy the right to territorial integrity. But the declaration famously hinted that this right might be forfeited if a state’s government did not represent “the whole people belonging to the territory without distinction as to race, creed or colour.”¹⁰

This language has been interpreted implicitly to confer the right of self-determination, exceptionally entailing secession, “only on racial or religious groups living in a sovereign State which are denied access to the political decision-making process; linguistic or national groups do not have a concomitant right” (italics in original).¹¹ But recent iterations of the principle enunciated in the Declaration on Friendly Relations have removed its restrictive terms. Where the 1970 declaration affirms the right of territorial integrity with respect to states whose government represents “the whole people belonging to the territory without distinction as to race, creed, or colour,” UN declarations of 1990s vintage affirm the same right with respect to states “possessed of a Government representing the whole people belonging to the territory without distinction of any kind” (italics added).¹² The Supreme Court of Canada has characterized views to the effect that these instruments support an exceptional right of secession this way: “[W]hen a people is blocked from the meaningful exercise of its right to self-determination internally, it is entitled, as a last resort, to exercise it by secession.”¹³ In this view, secession is a remedy of final recourse that may come into play when it is the sole means by which a substate group can exercise its right of political participation on a basis of equality.

This view rests upon an implied assertion: everyone is entitled to participate, on a basis of full equality, in the political life of his or her nation. When the UN General Assembly adopted the Declaration on Friendly Relations in 1970, this claim was the sort of bromide from which few, if any, states would publicly dissent. But outside the special context of global concern with apartheid and decolonization, states were not prepared to back up this claim with the sanction of legal entitlement. And so any corollary right of secession had much the same force as a resolution proclaiming a definitive determination of the number of angels who could dance on the head of a pin. In this setting, there was scant reason for practitioners of statecraft to wrestle with the vexing questions bound up in a remedial right of secession: What manner of inequality in the exercise of political rights would justify remedial secession? How persistent must the shortcoming be? Are there measures short of secession that must be exhausted before the last-resort remedy can plausibly be claimed?

C. The Democratic Entitlement

But in the last decade of the twentieth century, the implied claim underlying the asserted last-resort remedy of secession—that everyone is entitled to participate, on a basis of equality, in self-government—gathered substantial support.¹⁴ In addition to its external dimension, we were reminded, self-determination has an internal dimension, embodied above all in principles of democratic governance.¹⁵

This aspect of the right to self-determination received unprecedented attention beginning in the 1990s, but its core claim was already established in two widely ratified treaties. Common Article 1 of the International Covenant on Civil and Political Rights¹⁶ and of the International Covenant on Economic, Social and Cultural Rights¹⁷ asserts the right of “[a]ll peoples” to self-determination. The drafting history and text make clear that, while this provision encompasses the familiar right of peoples living under colonial rule to attain independence,¹⁸ it has an internal dimension as well.¹⁹

Even so, rights relating to democratic government did not occupy a significant place in the domain of statecraft until recently. Now they occupy a pride of place. “Democracy,” Thomas Franck wrote in 1992, “is on the way to becoming a global entitlement, one that increasingly will be promoted and protected by collective international processes.”²⁰ The emerging law, Franck argued, “requires democracy to validate governance.”²¹

The evidence supporting Franck’s claim was impressive in 1992 and has become even stronger. In 1994, for example, the UN Security Council authorized a military intervention in Haiti for the express purpose of restoring “the legitimately elected President,” who had been deposed in a coup.²² These and other developments signal an unprecedented commitment by states to principles of democracy.

In the remainder of this essay, I explore the implications of that commitment for separatist movements. First, it might be helpful to highlight two possibilities latent in the preceding account of international law and state practice. One builds upon the plebiscite principle applied by statesmen at the Paris Peace Conference. The future status of several disputed territories, it will be recalled, was put to a vote of the territories’ inhabitants. This conception of self-determination naturally raises vexing issues, which I want to set aside for now. Here I simply wish to note that diplomatic practice has at times affirmed the view that contested territorial claims should be resolved through a particular type of democratic process, balloting.

The second possibility latent in established legal doctrine is that a general right to democratic governance carries with it the right of a national subgroup to secede if this is the only means available to secure its members’ right to self-government. In this view, secession is not a general entitlement for any particular type of collectivity but rather an extraordinary exception to the universal right of self-government. The latter right is conceived in terms that contemplate full realization within established states and not through withdrawal from them—except, that is, as a last-resort remedy.

In sum, then, international law has long disfavored separatist claims. But alongside this general disapproval, international instruments and other relevant sources have long reserved a possible except...