Skip to main content

Through remedial lens: Curious case of unilateral declaration of secession


Arkaprava Dass, Adnan Yousuf*
In 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 light of this incident, the debate around non-colonial unilateral declaration of secession through the exercise of self-determination has again come into focus.
This Article attempts to answer if 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 under international law, and the exercise of such declarations in the context of self-determination, particularly through the means of remedial secession.
Second, it gives an account of the international jurisprudence on secession and self-determination. Third, it addresses the clash between the principle of uti possidetis and unilateral declarations of secession. Lastly, it evaluates the lack of a definite framework for unilateral declarations of independence under international law.

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 widespread discrimination and 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 with secession in the context of its prohibition, a middle zone, 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 remedial secession 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 a clear 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 frustration of internal self-determination would the right to break away materialize.

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 on grounds of being 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 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, which it duly needs to address.

*Fourth year students, Faculty of Law, Jamia Millia Islamia, New Delhi

Comments

TRENDING

Zakir Naik tumult, Catholic Church power abuse: will Anwar Ibrahim save Malaysia?

Anwar Ibrahim By Jay Ihsan*  Anwar Ibrahim, a hardcore reformist who took a punch to his eye in 1998 from then inspector-general of police, Rahim Noor, has finally been given the mandate by Malaysians to serve as the nation's 10th prime minister. Anwar knows too well the burden of staying true to both trust and faith the people have in him requires every once of commitment and dedication. The question is will he be apologetic for his transgressions enroute to "rebuilding" Malaysia? In his overzealousness to get the job done, Anwar, 75, needs to safeguard every bit of gumption to address prickling issues plaguing the safety of the nation especially those involving communal sensitivities. For one, dare Anwar get rid of terrorist hate preacher and fugitive Zakir Naik for inciting religious unrest in Malaysia? In November 2016, India’s counter-terrorism agency filed an official complaint against Naik, holding him responsible for promoting religious hatred and unlawful activi

Although sporting genius, Wasim Akram was mascot of cricket globalisation era

By Harsh Thakor*  Since Independence India and Pakistan produced a galaxy of cricketing stars that permeated cricketing artistry of legendary heights. Amongst this bunch.Wasim Akram manifested pure cricketing genius to the greatest height.I speculate how India’s fortunes would have changed had partition not taken place and Wasim playing for India. Wasim Akram explored realms untranscended in bowling wizardry, like a painter devising new art forms or a scientist experimenting. He simply re-defined the art of reverse swing, reversing the ball in and out. There were bowlers quicker, more accurate and with better records, but none equalled Wasim in an all-round package. He was more lethal with a new and old ball than any fast bowler ever. Wasim could produce balls that were surreal, with his reverse swing, defying laws of bio mechanics He was simply the epitome of versatility, possessing a repertoire of six different deliveries within an over itself, disguising deliveries in the manner of

Qatar World Cup has a strong Bangladesh connection: stadium construction, t-shirts

By Mashrur Siddique Bhuiyan*  The FIFA World Cup fever has unquestionably cut through the minds of mass people all over the world. Stadiums in Qatar are buzzing with football fans and athletes representing their countries at the “Greatest Show on Earth". The magic of the FIFA World Cup is so enormous that even being unable to participate does not matter much to the fans who support different nations. This is one of the highest viewed events in the world, with the 2018 event viewed by about 3.6 billion people worldwide. But this crowd is not aware of the contribution of migrant workers who helped build the very stadiums where the matches are playing in. Qatar won the bid in 2010 to host the FIFA World Cup 2022, which got the oxymoron of celebration and controversy. This also created the potential for Qatar to Showcase its monumental economic achievements and unique culture on the global stage. The motto for Qatar’s bid team in 2010 was ‘Expect Amazing’ and migrant workers across th

Floods: As ax falls on most vulnerable, Pak seeks debt cancellation, climate justice

By Tanupriya Singh  Even as the floodwaters have receded, the people of Pakistan are still trying to grapple with the death and devastation the floods have left in their wake. The floods that swept across the country between June and September have killed more than 1,700 people, injured more than 12,800, and displaced millions as of November 18. The scale of the destruction in Pakistan was still making itself apparent as the world headed to the United Nations climate conference COP27 in Sharm el-Sheikh, Egypt, in November.  Pakistan was one of two countries invited to co-chair the summit. It also served as chair of the Group of 77 (G77) and China for 2022, playing a critical role in ensuring that the establishment of a loss and damage fund was finally on the summit’s agenda, after decades of resistance by the Global North. “The dystopia has already come to our doorstep,” Pakistan’s Minister for Climate Change Sherry Rehman told Reuters. By the first week of September, pleas for h

Implementing misleading govt order to pollute Hyderabad's 100 year old reservoirs

Senior activists* represent to the Telangana Governor on GO Ms 69 dated 12.4.2022 issued by the Municipal Administration and Urban Development (MA&UD), Government of Telangana: ‘...restrictions imposed under para 3 of said GO Ms 111 dated 8.3.1996 are removed...’: *** Ref: GO Ms 111 dated 8.3.1996: ‘To prohibit polluting industries, major hotels, residential colonies or other establishments that generate pollution in the catchment of the lakes upto 10kms from full tank level as per list in Annexure-I...’ We come to your office with grievance that GO Ms 69 dated 12.4.2022 issued by Government of Telangana not only contains false information issued ‘By Order and in the name of the Governor of Telangana’ , without any scientific or expert reports, but also that implementation of the said GO is detrimental and can be catastrophic to the Hyderabad city as two 100 year old reservoirs Osman Sagar and Himayath Sagar were constructed as dams on river Moosa and river Esa, with the first and

Why foreign diplomats must maintain diplomatic etiquette, protocol in Bangladesh

By Kamal Uddin Mazumder*  Foreign governments and organizations are not allowed to dictate how a sovereign country like Bangladesh should run its politics. The 12th national parliamentary elections are drawing near, and the election wind has started to blow in Dhaka. The political parties have already begun to plan their voting strategy through a variety of events. However, this time, the diplomatic community in Dhaka is very active. A number of Western ambassadors frequently meet with government departments, political party representatives, the Election Commission (EC), and members of civil society in Dhaka. At numerous forums, they discuss upcoming elections' management, fairness, and impartiality -- issues that are unquestionably domestic to Bangladesh and in no way fall under the purview of diplomacy. Additionally, it has been noted that diplomats have made public remarks on these subjects in front of the media. It raises the question of how much authority diplomatic protocol h

Bangladesh's ties with Myanmar, Nepal, China need connectivity with India's NE states

By Samara Ashrat*  On 26th November, India's External Affairs Minister S Jaishankar said that India is trying to improve trade and connectivity with Bangladesh and Myanmar on his two-day visit to India's Northeast region. He emphasized the importance of linking Northeastern India to the rest of the nation and reiterated Delhi is working to improve connectivity and infrastructure in the region. By taking the G20 presidency India will try to showcase the true spirit of the Northeast to the world, with its tourism benefits. But, the umbilical cord between the Indian mainland and North Eastern Region is Chicken's Neck or Siliguri corridor which brings Bangladesh into the Indian equation of northeastern development. Not only that, Bangladesh has very close relations with West Bengal, Assam, Meghalaya, and Tripura in terms of language, culture, and history. These factors make Bangladesh an inextricable element of the development of the northeastern states. Tourism Sector and Con

A classic, 'Gandhi' ignores merciless cruelty unleashed on militant freedom fighters

By Harsh Thakor  The movie ‘Gandhi’ produced by Richard Attenborough, which was released 40 years ago on November 30th, 1982, was classic in it's own right. Ironical that it took an Englishman to embark upon the making of a film on this legendary figure. I can't visualize a better pictorial portrayal of Gandhi's life or an actor getting in the skin of the character an exuding the mannerisms as actor Ben Kingsley. Episodes are crafted and grafted surgically, illustrating how Gandhi wove fragmented bits into a cohesive force, to confront he British empire. Most boldly the movie unfolds how British colonialism subjugated the Indian people to barbaric cruelty. With great mastery the cinematography captures the vast Indian landscapes and essence of livelihood of Indians under colonial rule. The movie most illustratively shows the crystallisation of anti-colonial fervour from the embryonic stage and how it fermented into an integrated movement. In a most subtle manner it illustr

25 years of CHT peace accord: A glorious chapter of conflict resolution in Bangladesh

By Kamal Uddin Mazumder*  Conflicts between the Bangladesh army and Shanti Bahini persisted in the Chittagong Hill Tracts for more than two decades. On December 2, 1997, Parbatya Chattagram Jana Samhati Samiti (PCJSS) and the Bangladeshi government signed the CHT Accord, putting an end to the violent armed conflict and improving the life of a lot of the people there. It has been made possible through just seven meetings under the worthy leadership of Sheikh Hasina. The historic peace agreement created an atmosphere of peace in the mountainous region. An atmosphere of peace has been established by ending the armed conflict. The geographical features and ethnic diversity of Chittagong Hill Tracts (CHT) are distinctive. The 13,184 square kilometer territory is bordered by Myanmar and the Indian state of Mizoram on the East and Tripura on the North. With its 1.6 million people, it entails great importance to Bangladesh for its geopolitical location. Due to the conflict-prone Northeast Indi

Galileo-Catholic church affair: must history repeat at Malaysia’s St Francis Xavier church?

By Jay Ihsan*  Christianity is the enemy of liberation and civilization -August Bebel Christianity taught men that love is worth more than intelligence -Jacques Maritain Real Christianity can be summed up in two commands: Love God and love people. - Joyce Meyer Pious XI was too neutral to mention the gas chambers; decent people like my own family were turned into devils by crude Christianity - Lionel Blue Religious doctrines cannot escape the liberty of thoughts and expression. To each their own, so it is said. From all things nice to all things that make one cringe - religion is polarised and in this regard, Christianity has over time faced the wrath of bigotry espoused by those "bequeathed" to protect it. Take Pope Francis for example. He had a secret meeting with giant pharma Pfizer chief executive officer Albert Bourla last year while the world struggled to make sense of the word "lockdown" and suffer adverse effects of the Corona virus vaccines produced by Pfiz