Secession

by

Theodore Christakis

• LAST REVIEWED: 23 March 2012
• LAST MODIFIED: 23 March 2012
• DOI: 10.1093/obo/9780199796953-0044

Introduction

The term secession designates the unilateral withdrawal from a state of part of its territory and population with the will to create a new state. It is commonly admitted today that, outside the context of decolonization and situations of military occupation, there is no “right” to create an independent state. “External self-determination” was granted to colonized peoples only on the basis of the “salt-water” test. But this does not mean that secession is prohibited. The real criterion for the emergence of a new state, outside the colonial context, is the principle of effectiveness: if a secessionist entity succeeds in fulfilling the conditions of statehood, a new state is born. This traditional view, according to which “secession is not a question of law, but a question of fact,” leads to an impression of perfect “legal neutrality” on the matter of secession. This could be misleading for the following reasons. First, in case of violation of peremptory norms (e.g., external aggression), international law denies the quality of “state” to a secessionist entity, notwithstanding its “effectiveness.” The maxim ex iniuria ius nor oritur defines the external limits of acceptance of the principle of effectiveness. Second, even though secession is not “prohibited,” international law disfavors it and creates a presumption against its effectiveness and in favor of the territorial integrity of the parent state. Indeed, the final consent or, at least, the “resignation” of the parent state and the abandonment of its efforts to reassert its authority seem crucial in permitting the secessionist entity to “normalize” its situation by demonstrating the “ultimate success” of the secession. The traditional reluctance (with the exception of Kosovo) of third states to recognize such entities as states pending a strong opposition of the old sovereign authority, leads to the existence of many “de facto” unrecognized entities, which is problematic for international law. Third, it has often been suggested that, even though there is no “general” right to secession outside the colonial context, there is nonetheless a “qualified” right to “remedial secession” in case of gross violations of human rights of individuals belonging to a specific group. Both legal scholars and national states remain strongly opposed concerning the existence of such a right. Finally, the principle of uti possidetis juris also interacts strongly with the principle of effectiveness. Its applicability outside the colonial context has also created considerable debate in international legal scholarship.

General Overviews

A researcher wishing to study the question of state secession could feel quite helpless in front of the enormous amount of literature dedicated to this subject, especially given the fact that this topic is treated not only by international lawyers, but also by international relations specialists, sociologists, philosophers, anthropologists, ethnologists, and historians. Even if one focuses on international law sources, the task is not easy. An additional methodological problem is that some of the books and articles published on secession and self-determination, instead of suggesting new approaches or delving into underresearched topics (such as the problem of Premature Recognition), often follow similar paths. The eight books recommended here constitute a very good point of departure for a general and pluralistic overview of the different aspects of the topic. Crawford 2006 is an essential text concerning the creation of states both within and outside the colonial context. Cassese 1995 demonstrates how closely interwoven the law and politics of self-determination are when it comes to secession. Scrutinizing international legal instruments and state practice, Christakis 1999 and Tancredi 2001 propose two positivistic approaches to the rules governing secession. Both authors seem to agree that international law governs and regulates the phenomenon of secession (certain aspects at least), but they differ on the consequences in case of violation of these rules. Contrary to both these authors, Raič 2002 suggests that “the law of self-determination” is valuable in order to understand secession outside the colonial context. Kohen 2006 and also Dahlitz 2003 offer valuable insights on many different aspects of the topic. The conflicting views of many of the contributors to these two volumes (on subjects such as the parameters of the principle of effectiveness, the applicability of the principle of territorial integrity, the role of recognition or remedial secession) constitute one of the best reflections of the division of international legal scholarship and illustrate the complexity of the topic. This is also evident in the contradictory legal opinions submitted to the Supreme Court of Canada by experts during the proceedings concerning the legality of secessionist attempts by Quebec (1996–1998) and published in English in Bayefski 2000.

• Bayefski, Anne, ed. Self-Determination in International Law: Quebec and Lessons Learned. The Hague: Kluwer Law International, 2000.

  Publishes the expert opinions associated with the Supreme Court of Canada’s decision on the Quebec Secession Reference. Includes opinions by James Crawford, Luzius Wildhaber, George Abi Saab, Thomas Franck, R. Higgins, Alain Pellet, Malcolm Shaw, Christian Tomuschat, and Christine Chinkin.

• Cassese, Antonio. Self-Determination of Peoples: A Legal Reappraisal. Cambridge, UK: Cambridge University Press, 1995.

  Traces how the political ideal of self-determination became an international legal standard and tries to identify the “lacunae, ambiguities and loopholes” of the present law.

• Christakis, Theodore. Le droit à l’autodétermination en dehors des situations de décolonisation. Paris: La Documentation Française, 1999.

  A very “positivist” approach to the problem of secession with a focus on the “principle of effectiveness” and the exact interactions between the law and the facts in the process of creation of states. Detailed analysis of international legal instruments and state practice.

• Crawford, James. The Creation of States in International Law 2d rev. ed. Oxford: Clarendon, 2006.

  A real “classic” in this field. Although the scope of the book is much broader than secession, this study serves as a point of reference for the concept of statehood in international law, the principle of effectiveness, the condition of legality, and recognition. Originally published in 1979.

• Dahlitz, Julie. Secession and International Law: Conflict Avoidance—Regional Appraisals. The Hague: Asser, 2003.

  Another collection of essays by well-known contributors. Focuses on relevant principles and rules and on the issues of the legality of secession. Enquires if some criteria could allow for uniform judgment of similar cases while authorizing variations in treatment due to factual differences in order to dispel resentment.

• Kohen, Marcelo G., ed. Secession: International Law Perspectives. Cambridge, UK: Cambridge University Press, 2006.

  DOI: 10.1017/CBO9780511494215

  One of the best collections of legal studies on secession. Discusses in detail almost all applicable rules of international law (self-determination, external intervention, recognition, effectiveness, state succession, the problem of gaps) and includes a scrutiny of practices throughout the world.

• Raič, David. Statehood and the Law of Self-Determination Leiden, The Netherlands: Martinus Nijhoff, 2002.

  Argues that the law of self-determination is particularly relevant for explaining the international community’s position regarding the general recognition, or the general denial, of statehood of different territorial entities under contemporary international law.

• Tancredi, Antonello. La secessione nel diritto internazionale Padua, Italy: CEDAM, 2001.

  An overview of the topic, with a very interesting analysis, using several case studies, of the debate between the theory of “legal neutrality” and the theory according to which international law regulates secession.