Through the Remedial Lens: The Curious Case of Unilateral Declaration of Secession

The twentieth century had seen an unprecedented number of " remedial secessions  " due to the emergence of countries from colonial rule. However, the subject remains of relevance in former colonies not the lest because they have disputed borders and experience what have come to be known as border disputes in national and international law. Apart from that claims to succession are also made by groups who see themselves as oppressed. The author points to some inherent tensions in international law on the subject and explains the basis of such claims. 

[dropcap]I[/dropcap]N October 2019, dissident political leaders from the state of Manipur in India unilaterally declared independence from the country fearing the extinction of their culture and destruction of history. They further called for the de jure recognition of their government by the United Nations in London. In the light of this recent incident, the debate around non-colonial unilateral declaration of secession through the exercise of self-determination has again come into focus.

This Article seeks to answer whether International law allows for the unilateral declaration of secession by states. In doing so, it first sheds light on the idea of unilateral declarations of secession, and the exercise of such declarations in the context of the exercise of self-determination, particularly through the means of remedial secession. Second, it gives an account of international jurisprudence on secession and self-determination. Third, it addresses the clash between the principle of uti possidetis uri and unilateral declarations of secession. Lastly, it evaluates the lack of a definite framework for unilateral declarations of independence under international.

Unilateral declaration of independence in exercise of self-determination

Unilateral declaration of independence  is a formal process resulting in the establishment of a sub national entity as a state within an existing country, as a sovereign, without the assent of the country from which it is seceding. The right to self-determination as enshrined in Article 1 of both the International Covenant on Civil and Political Rights ("ICCPR") as well as the International Covenant on Economic, Social and Cultural Rights ("ICESCR") entitles minority groups that qualify as "peoples" the ability to determine their future – whether economic, cultural, social or political. Such determination, when exercised within borders in order to gain adequate representation manifests itself in the form of internal self-determination. A non-colonial declaration to secede however pertains to the exercise of external self-determination by a people. The application of this right stems from a lack of effective exercise of internal self-determination. It vests in oppressed peoples, who are subject to massive discrimination and heinous human rights abuses by the mother state.

A unilateral declaration to secede by a people through the exercise of this right occurs in the event of collective denial of civil and political rights and perpetration of egregious abuses. International law deals categorizes secession either as a prohibition, a middle zone where it is accepted, and as a right. Secession as an entitlement manifests itself under the right of "remedial secession". It denotes the right of non-colonial people to external self-determination when the mother state refuses their participatory rights and systematically violates their fundamental rights.

The theory finds a mention in the 1993 Report of the Rapporteur to the U.N. Sub-Commission against the Discrimination and the Protection of Minorities. It has also been referred to in the General Recommendation XXI adopted in 1996 by the Committee on the Elimination of Racial Discrimination as an exceptional right of last resort triggered by oppression.  Even in the absence of judicial acceptance of secession as an entitlement, the formation of an independent political unit as a remedy to tackle the injustices perpetrated by a state has been acknowledged under international law. Through remedial secession, the right of unilateral secession has been construed as an emergency exit. Its exercise has been observed in internationally recognized cases of secessions in Bangladesh, Croatia, Macedonia, Bosnia- Herzegovina and Slovenia, evidencing substantial opinio juris on the lawfulness of unilateral secession under international law.

Secession and Self-Determination: International Appraisal

In the Aaland Islands case, the Second Commission of Rapporteurs convened under the auspices of the League of Nations in its report confirmed that the Aalanders had a right to cultural and political autonomy, which needed to be respected within Finnish borders. It stated that a right of external self-determination would only materialize if the parent state acts in violation of the rights of the people seeking self-determination, thus laying a foundation for remedial secession. Then in the Quebec Case, dealt with by the Canadian Supreme Court, the question of secession and the right to self-determination was considered in the context of the proposed separation of Quebec. The court embraced the precedent in the Aaland Islands case, distinguishing the right to internal and external self-determination. In making such a distinction, the Court recognized external self-determination as potentially taking the form of secession, arising "in only the most extreme of cases under carefully defined circumstances." The Court noted that only in the event of the frustration of internal self-determination would the right to break away materialize. This is again indicative of the acknowledgement of external self-determination, which paves the way for the exercise of remedial secession.

Further, in its Kosovo Advisory Opinion, the International Court of Justice ("ICJ") stated that a general right to secede based on the right to self-determination was a subject on which radically different views existed, which suggests a lack of opinio juris. However, the court also seemed to come to a conclusion that there is significant support for the idea that international law is neutral on secession, thereby suggesting that unilateral declarations of secession as per se not being contrary to international law. The Court also rejected the argument that declarations of independence were prohibited under international law because they were implicitly contrary to the principle of territorial integrity of states. It noted that that there was nothing illegal in the declarations of independence as such. The only illegality could be found in cases where such declarations resulted or were linked to other illegal acts such as the unlawful use of force.

Secession and Territory: Uti Possidetis

Despite what remedial secession offers in the context of self-determination as a right, its practice is admittedly hindered by the principle of uti possidetis. Also known as the principle of intangibility of frontiers inherited from colonization, uti possidetis mandates the retention of colonial borders by newly created states upon their decolonization. The rationale behind its formation was to provide definitive boundaries to newly formed states and preserve territorial sovereignty. The principle has been held as a doctrine of customary international law by the ICJ in the Frontier Dispute case with evidence of its application in Latin America, Africa and Asia.

Invariably, in protecting the inviolability of boundaries, the principle finds itself at cross purposes with the declaration of secession under the right to self-determination. The Badinter Arbitration Commission, designated by the European Community has upheld the uti possidetis principle to the extent of saying that 'the right to self-determination must not involve changes to existing frontiers'. Such a restriction would per se jeopardize the potential scope of a unilateral declaration of secession by a people. Additionally, even though the Canadian Supreme Court in Quebec accepted a right to external self-determination, it explicitly rejected a right to unilateral secession under international law, therefore bringing into question the permissibility of such a declaration. Further, a declaration of secession finds no direct mention in the drafting of ICCPR under the right to self-determination which runs consistent with states' sensibilities with respect to their territorial integrity, therefore creating further doubts with regards to the legitimacy of the invocation of remedial secession.

Conclusion

Through uti possidetis, territorial integrity demonstrates an incongruity with the right to unilateral declaration of independence through remedial secession. Despite not being considered as 'hard law', remedial secession has found unequivocal acknowledgement from states as a right. It therefore finds its place as a developing norm being availed on a case to case basis. The position of International law on remedial secession remains unclear. Whether territorial integrity makes way for the jus cogens norm of self-determination or overrides the same is an enduring conundrum which does not find an absolute answer within the current framework of International law. Marc Weller considers unilateral secession in an "obvious tension with the claim to territorial integrity", while Antonio Cassese has argued that the right to external self-determination would apply even outside the colonial context, in light of the Friendly Relations Declaration, with the denial of the possibility of reaching a peaceful settlement within the state structure. However, most scholars agree that International law either tolerates or establishes a positive right to secession under carefully defined circumstances of remedial secession, which would have to be arrived at through negotiations with the mother state. International law in this regard grapples with the task of distinguishing between what is not prohibited and what is legal.