Contested States In World Politics

Chapter 2: Origins of Contested Statehood

On This Chapter

Abstract

Conceptions of self-determination

The meaning of secession

International responses to secession

Other origins of contested statehood

Conclusion

Notes

The excursion into international law in the first chapter may tempt one to proffer a straightforward explanation for contested statehood: the entities were conceived and born in sin. As the products of illegal actions under international law – aggression, occupation and racial discrimination – the putative states may not join the community of confirmed states. This certainly applies to several contested states, but by no means all. In fact unilateral secession, which can be driven by factors wholly unrelated to the above offences, is the single most common origin among our selection of contested states. Given its prevalence, secession justifies considerable attention in this chapter. Thereafter other origins of contested statehood are identified. Our starting point, however, is the notion of self-determination – the holy grail of all contested states, regardless of origin. They all justify their claims to statehood in the name of this principle of international law and canon of world politics. What is meant by self-determination and what is its relationship with the controversial notion of secession?

Conceptions of self-determination

The idea of self-determination, which in its simplest form means to determine one’s own fate, has its political roots in both nationalism and liberalism. The nationalist idea is that the state should coincide with a community displaying a sentiment of national or group identity, linked to a shared territory, language or religion. Such a people or ethnic group has a right to detach themselves from multinational states or empires and form their own independent national states. The right of the citizens to rule themselves – which in practice means choosing their own government – is in turn an old liberal principle articulated in, among others, the English Bill  of Rights (1689), the American Declaration of Independence (1776) and the French Declaration of the Rights of Man and of the Citizen (1789). In combination these two strands of thought helped to shape what has for over a century been both a prominent theme in international political discourse and a powerful force in world politics: the notion of self-determination.¹

In the early 20^th century American President Woodrow Wilson was the most eminent advocate of self-determination. His Fourteen Point ‘program of the world’s peace’, announced in the US Congress in 1918, is commonly regarded as the blueprint for modern self-determination. However, that term did not appear in Wilson’s peace plan; his plea for free and unmolested ‘opportunity of autonomous development’ for subject populations nonetheless captured the essence of what he subsequently began calling self-determination. Wilson had mainly the East European ‘nationalities’ of the Ottoman, Russian, German and Austro-Hungarian empires in mind for autonomous development.² In championing self-determination the American leader embraced both the normative principle of nationalism (every nation is entitled to its own state) and the liberal principle that the people in such a national state should be free to choose their own political leadership.³ Despite Wilson’s role as a founding father of the League of Nations established in 1919, its Covenant made no mention of self-determination.

After the First World War self-determination found expression in especially the newly liberated territories of Europe and Asia. The former nonEuropean colonies of Germany were conspicuously excluded from an entitlement to self-determination, most of them being taken over by new foreign masters. Bolshevik Russia practised self-determination by relinquishing control over adjacent small nationalities in Finland and the Baltic states (but in some cases reasserted authority in the name of proletarian self-determination within the Soviet Union).⁴

On the whole the world community seemed unenthusiastic about any wide-ranging application of Wilson’s notion of self-determination. It would have required the fragmentation of scores of multinational states to create true nation-states. And dozens of new states may in turn have intensified international rivalry and fomented instability. Furthermore, self-determination through territorial dismemberment overlooked other means of domestic conflict settlement and peaceful coexistence.⁵ In an entry in his diary in December 1918, Wilson’s Secretary of State Robert Lansing recorded his concerns about the contagious effects of self-determination:

The more I think about the President’s declaration as to the right of ‘self-determination’, the more convinced I am of the danger of putting such ideas into the minds of certain races. It is bound to be the basis of impossible demands. What effect will it have on the Irish, the Indians, the Egyptians, and the nationalists among the Boers? Will it not breed – rebellion? The phrase is simply loaded with dynamite. It will raise hopes which can never be realized. It will, I fear, cost thousands of lives … What calamity that the phrase was ever uttered! What misery it will cause!⁶

While the radicalism of Wilsonian self-determination severely restricted its practical application in the inter-war years, its propagation of the democratic prescription of government by and for the people inspired oppressed communities far and wide. Coupled to this notion was the conviction that people ought to be treated equally, ‘and that since some peoples have the benefit of statehood, others should be entitled as well’.⁷

The norm of self-determination, Okafor observed, is on the one hand normalizing and stabilizing by justifying sovereign statehood for an entire population of a state. On the other hand, it is revolutionary and destabilizing when invoked to challenge the structures of statehood and to protect sub-state groups.⁸ Its dualism – both supporting and challenging statehood – helps to explain self-determination’s contentiousness and indeterminacy in international law and world politics.⁹ Thus the Badinter Commission, tasked with assisting the EU in formulating policies towards the unravelling of Yugoslavia, noted that ‘international law as it currently stands does not spell out all the implications of the right to self-determination’.¹⁰

The Charter of the United Nations contains a few references to selfdetermination. One of the purposes of the UN (articles 1 and 55) is the development of friendly relations between nations ‘based on respect for the principle of equal rights and self-determination of peoples’. There are also implicit references to the application of self-determination in nonself-governing territories (articles 73 and 76). Through the UN Charter the principle of self-determination found its way into international law and its legal status has been affirmed in state practice.¹¹ As the International Court of Justice ruled in 1995, the right of self-determination was an essential principle of international law and an erga omnes obligation.¹² Enshrined in the international legal and also moral order, self-determination ‘shines like a beacon in the night’, Pegg wrote, pointing the way to aspirant statefounders across the world.¹³

Several major international declarations and conventions adopted since the 1960s have given further content to the principle, especially regarding the ‘self’ in self-determination and the forms of ‘determination’. The UN General Assembly initially set the tone, steering the notion of self-determination ‘away from the realms of Wilsonian idealism towards minorities’, and applying it to so-called saltwater colonialism.¹⁴ We are dealing here with what has been called the classical theory of self-determination, defining a people in terms of territorial criteria. Self-determination occurs within the confines of an existing state or territorial unit, preserving its territorial integrity. Where statehood has been conferred, the entire people occupying that territory already enjoy sovereign independence – rendering secession a logical impossibility.¹⁵

The 1960 UN Declaration on the Granting of Independence to Colonial Territories and Peoples acknowledged the right of all peoples to self-determination, in terms of which they freely determine their political status and freely pursue their economic, social and cultural development. Any attempt to disrupt the national unity or territorial integrity of a country was deemed irreconcilable with the principles enshrined in the UN Charter. The Declaration clearly limited self-determination to the right of the majority in an internationally recognized political entity – in this case colonies – to determine their political status. That status could take the form of independence, integration or association with another state, providing it was a voluntary choice by the people of the territory concerned and expressed through ‘informed and democratic processes’.¹⁶ The international normative and legal framework of the time clearly favoured self-determination à la independence, as the frenzy of state-making through decolonization in the 1950s and 1960s testifies.

Both UN human rights covenants of 1966 – on Civil and Political Rights and on Economic, Social and Cultural Rights, respectively – reaffirmed the rights of all ‘peoples’ to self-determination, using the same words as the 1960 anti-colonial declaration. Even so, the two covenants suggest that the right of self-determination extended beyond the colonial situation and included the right to free, fair and open participation in democratic processes of governance.¹⁷

The Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States, adopted by the UN General Assembly in 1970, essentially reiterated what the preceding documents laid down on self-determination. It is worth underlining the statement that ‘[t]he establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by the people constitute modes of implementing the right to self-determination by that people’. Independent statehood was therefore not the only form of self-determination; apart from association and integration, the door was left open for a variety of other (unnamed) political arrangements freely chosen by a people.

The 1970 Declaration added an important safety clause that would protect certain states against claims to self-determination involving territorial fragmentation: these were existing states that complied with the principle of equal rights and self-determination (as set out in this and earlier UN declarations) ‘and thus possessed of a government representing the whole people belonging to that territory without distinction as to race, creed or color’. Apart from people subjected to colonial rule, those living under racist regimes by implication had a right of self-determination too.¹⁸ In the latter regard the drafters of the Declaration had white-ruled South Africa and Rhodesia in their sights, where the black majorities were denied self-determination.

As regards secession, the Declaration on Principles of International Law stipulated that ‘[e]very State shall refrain from any action aimed at the partial or total disruption of the national unity and territorial integrity of any other State or country’. This echoes the language of traditional international law, which opposed the break-up of an established state in the name of the self-determination of sub-national groups. Their right to secede from their existing state was not conceded. Even so the Declaration left secessionists with some room for maneuver. According to Okafor, secession was deemed illegitimate ‘unless in the case of the secession of a sub-unit from a state that does not behave in accordance with the tenets of “democratic” governance’.¹⁹ This more permissive view of secessionist selfdetermination gained considerable ground in subsequent years. As Tappe put it, international law underwent ‘a process of metamorphosis’, marked by a gradual acceptance of some right of secessionist self-determination.²⁰ Some theorists dubbed it the romantic theory of self-determination (as distinct from the classical theory mentioned above), defining the ‘self’ as ‘a group linked by a common history and culture and bound to a national ideal that the nation should be autonomous, united and distinct in its recognized homeland’.²¹

With its Helsinki Declaration of 1975, the Conference on Security and Cooperation in Europe followed the new trend among international organizations and judicial institutions to reconceptualize the right of self-determination in the context of a post-colonial world. By then decolonization had largely run its course in Africa and Asia. Elaborating the principles underlying relations between the more than 30 participating states, the Helsinki Declaration proclaimed that all peoples always have the right, in full freedom, to determine when and as they wish, their internal and external political status, without external interference, and to pursue as they wish their political, economic, social and cultural development.²²

Instead of being confined to the right of colonial peoples to independence, self-determination was clearly evolving into a right of all peoples to be involved in decisions affecting their future.²³ Nearly two decades later the Vienna Declaration and Programme of Action, adopted at the UN’s World Conference on Human Rights in 1993, reaffirmed that all ‘peoples’ have a right of self-determination, by virtue of which ‘they freely determine their political status, and freely pursue their economic, social and cultural development’. At that stage, as Falk famously remarked, it was already ‘too late to put the genie of self-determination back in its colonialist bottle’.²⁴ UN adviser Nicholas Kittrie highlighted the post-colonial appeal of self-determination when he posed the rhetorical question: ‘Who is to tell the Bosnians, the Palestinians, Kurds, Druze, Scots, Basques, Quebecois and Bretons that they are not a people and are not entitled to self-determination?’²⁵

These reformulations of self-determination have nonetheless been open to divergent interpretations. In terms of one construction, self-determination embodies nothing more than a procedural right: ‘entities have a right to see their position taken into account whenever their futures are being decided’. It may not involve a right to secede or even to autonomy, ‘but it does amount to a right to be taken seriously’. Self-determination should therefore be treated not as an enforceable right ‘but rather as a more open-textured principle’.²⁶ A more permissive reading of the Helsinki Declaration and other international documents issued since the early 1970s holds that if a state consistently violates the individual and collective rights of ethnic minorities, such groups may invoke the right of self-determination. It would allow them to demand internal reforms such as autonomy or minority protection or to seek external remedies like merging with an existing state, joining a confederation with one or more other states, or independent statehood.²⁷ According to the widely quoted Capotorti definition, a minority is a numerically inferior and non-dominant group whose members display ethnic, religious or linguistic features different from those of the rest of the population of a state, and who maintain a sense of solidarity aimed at preserving their culture, traditions, language and religion. Minorities were of course at the heart of the Wilsonian conception of self-determination.²⁸ Ardent secessionists will obviously favour the latter interpretation – as in the case of Eritrea’s divorce from Ethiopia – over the view that counsels disgruntled communities to embrace a procedural norm that hopefully entitles them to be consulted by those in power.

Implicit in the preceding discussion is that self-determination has internal and external dimensions. The former involves the choice of a suitable form of government, whereas the external component refers to the selection of an international status.²⁹

For most of the 20^th century the essence of external self-determination was the right of a people to be free of alien or colonial rule and to decide freely under what sovereignty they wished to live. The choice of international status was typically that of independent statehood. It was given effect after both world wars in former colonial empires, including those of the Turks, British and French. Other forms of external self-determination, like confederating or associating with existing states, were also recognized in international law but seldom implemented.

Internal self-determination, enshrined in the international conventions cited, refers to the right of a people to freely choose their own rulers and form of government and to freely pursue their economic, social and cultural development – meaning without foreign interference and in accordance with democratic procedures. A Unesco conference in 1989 adopted the so-called Kirby definition of a ‘people’ eligible for internal self-determination.

It is a group of individuals displaying some or all of the following features: a shared historical tradition; racial or ethnic identity; cultural homogeneity; linguistic unity; religious or ideological affinity; territorial attachment, and a common economic existence.³⁰ (Note the striking similarity with the Capotorti definition of a minority cited earlier.) In the UN, Liechtenstein has since the end of the Cold War been a prominent exponent of internal self-determination à la autonomy. ‘It allows for a degree of self-expression which can be sufficient to reflect a community’s sense of identity’, Prince Hans-Adam II told the General Assembly in 1993, without threatening the territorial integrity of established states.³¹

The international legal and political discourse reveals a clear preference for internal over external self-determination. Whereas the latter compromises the territorial unity of an established state, internal self-determination is confined to the restructuring of political power within a state.³² Internal self-determination finds expression in a variety of constitutional arrangements that accommodate population diversity in a democratic manner while preserving the territorial integrity of the state. Since our interest is at this stage confined to external self-determination – which allows for the establishment of independent states – we need not delve any deeper into internal self-determination; many of the domestic options are examined in Chapter 3 as alternatives to sovereign statehood.

In sum, self-determination has over the years acquired many different ‘faces’. These include the right to be liberated from colonial domination (Ghana, Nigeria, Indonesia and dozens of others); the right to remain a dependent territory (Puerto Rico); the right to dissolve an established state peacefully to create new states (the former Soviet Union and Czechoslovakia); the disputed right to unilateral secession (Bangladesh and Eritrea); the right of divided states to reunite (Vietnam and Germany); the right of limited autonomy (the Basque region and Catalonia); minority rights (recognized in several international conventions), and the right of internal self-determination (the freedom to choose a government).³³

We now turn to the third and fourth of these ‘faces’, acknowledging that the principle of self-determination is still ‘pervading the consciousness of numerous subjected communities’ around the world and ‘has become a constant force for secession and for its legitimization’.³⁴

The meaning of secession

The word ‘secession’ has featured more than once in our discussion of self-determination. So close is the connection between the two that they have been portrayed as Siamese twins.³⁵

Derived from the Latin word ‘secedere’ (literally, to go apart), secession is the act of withdrawing from, say, a political alliance, religious body or federation. A group of Presbyterians who broke away from the Church of Scotland around 1733 constituted themselves as the Secession Church. The first political use of the (English) term is found in a statement by Thomas Jefferson in 1825 that the American colonies had seceded from the union with Britain. A new secessionist crisis broke out in 1860–1 when 11 Southern states withdrew from the Union to establish the Confederacy. This move caused the American Civil War, also known as the War of Secession.³⁶

The type of political secession that interests us is ‘the formal withdrawal from an established, internationally recognized state by a constituent unit to create a new sovereign state’.³⁷ While secession is in most instances used as a mode of gaining independent statehood, some communities secede from one state in order to become part of another; consider the case of Transylvanians wishing to exit Romania to join Hungary. Such secessionistirredentist claims fall outside our inquiry. Either way, secession involves a claim to territory but is not designed to overthrow an existing government. Instead, secessionists want to restrict the jurisdiction of the (original) state so that it does not extend to their group and the territory they occupy.³⁸

Involving the territorial fragmentation of an established state in order to create a new one (or more states) on the original national territory, secession can occur with or without the consent of the government of the existing state. These respective routes to statehood, both of which are acknowledged in international law,³⁹ may hold vastly different implications for the emerging states. Consensual secession means that the present government and the secessionists agree to the break-up of the existing state and its replacement with two or more sovereign entities. Such a mutually agreed divorce can also be regarded as an act of state partition. To avoid confusion, ‘partition’ is the preferred term for consensual dismemberment, while ‘secession’ will wherever possible be confined in this study to a unilateral (nonconsensual) break-away from an existing state. Because the parties involved agree to partition, international recognition of the new states should be unproblematic. Restricting ourselves to 20^th century examples of partition, reference can be made to Panama’s break with Colombia in 1903, Norway’s divorce from Sweden in 1905, Finland’s detachment from the Russian Empire after World War I, Iceland’s separation from Denmark in 1944, Senegal’s departure from the Mali Federation in 1960, the dissolution of the United Arab Republic in 1961 into the constituent states of Egypt and Syria, and Singapore’s withdrawal from the Federation of Malaysia in 1965. More recent examples are the so-called velvet divorce between the two former component units of Czechoslovakia in 1993 and Montenegro’s withdrawal from the Union of Serbia and Montenegro in 2006.

Some national constitutions have at times incorporated a right of ‘secession’. The 1931 Constitution of China recognized a right of secession for all national minorities. The 1975 Constitution of the People’s Republic of China (PRC) by contrast alluded to the ‘inalienable parts’ of the national territory. The Constitution of the Union of Burma (1947) also acknowledged a right of secession, but the procedural requirements were virtually impossible to meet and the regional states most likely to opt out were pointedly excluded from the right of self-determination. Burma’s 1974 Constitution omitted any such rights. The 1977 Constitution of the Soviet Union enshrined ‘the right of free secession’ for all union republics, providing specific rules of procedure were honoured. The Yugoslav Constitution likewise granted component units the right to exit the federation, but this could only be done with the consent of all six republics and the autonomous provinces.⁴⁰

At least three states still make formal provision for territorial fragmentation. Ethiopia’s constitution (1994) provides that ‘every nation, nationality and people in Ethiopia has an unconditional right to self-determination, including the right to secession’. The prescribed procedure is that the legislative body of the group involved must approve secession by a twothirds majority and the group has to accept withdrawal from Ethiopia by means of a majority vote in a referendum. Partition may also take place in Sudan under the terms of the Comprehensive Peace Agreement concluded between the central government and the Sudan People’s Liberation Movement in January 2005. The people of southern Sudan have the right to decide by referendum, within six years, whether they wish to remain part of the existing state or become independent. The possibility of negotiated divorce exists also in Canada. In 2000 its Parliament adopted the Clarity Act setting out the procedures to be followed when a province no longer wishes to be part of Canada. The same year Quebec’s National Assembly enacted a declaration affirming the province’s freedom to determine its own future.⁴¹

There is a rationale behind an opt-out provision: ‘this demonstrates a government’s confidence that it will adopt policies that will not lead to a ruinous exit’. For their part prospective partitionists, realizing they have meaningful leverage over the national government, need not fear marginalization.⁴² And should the authorities fail to accommodate particular communities, the latter would have good reason to exercise their right of separation from the state.⁴³

Because secession means that a group or region exits an existing state against the wishes of the national government, those breaking away typically issue a unilateral declaration of independence to announce their secession and founding of a new state.⁴⁴ Four elements are needed to reach that point. First, there has to be a distinct community (in terms of objective features such as culture, language, religion or race as well as a shared sense of distinctiveness), smaller than the national population, which threatens to withdraw from the state. The second requirement is a geographical territory on which the community intends establishing its own state. Third, leadership is necessary to present demands for secession and organize actions. Finally, discontent with its prevailing circumstances motivates the community to demand change.⁴⁵ Perhaps timing could be added as another variable. Common sense would suggest that secessionists would prefer to launch a break-away bid when the central state’s internal power is weak (especially under conditions of serious domestic strife) and its external standing low (due to the domestic situation). Usually, however, secession is resisted by the central authorities who may resort to force to keep the state intact. Their use of force may of course be a response in kind to the actions of the secessionists.⁴⁶ Hence Crawford’s definition of secession as ‘the creation of a State by the use or threat of force and without the consent of the former sovereign’.⁴⁷

Examples of successful secession – with the separatists eventually prevailing in the hostilities (or the national government abandoning its forcible repression of the break-away bid) and receiving de jure international recognition of their statehood – are scarce. The only cases over the last 40 years are Bangladesh, Eritrea, East Timor and the constituent units of the former Yugoslavia. Unsuccessful attempts at secession are more numerous, among them Tibet (China), Kashmir (India), Katanga/Shaba (Congo), Biafra (Nigeria), Karen and Shan States (Burma), Bougainville (Papua New Guinea), Chechnya (Russia) and Republika Srpska (Bosnia and Herzegovina).⁴⁸ Entities whose unilateral proclamations of independent statehood are still being contested internationally include Abkhazia, South Ossetia, Nagorno Karabagh, Transdniestria and Somaliland.

A special type of (non-consensual) secession occurs when a foreign power excises a slice of territory from an established state and creates a new client or puppet state in the severed area. It is an action typically accompanied by armed conflict and the military occupation of the area in contention; such instances of state-making may well be part of war-making. Examples include Manchukuo between 1932 and 1945, Slovakia and Croatia during Nazi occupation, and the Turkish Republic of Northern Cyprus. As we noted in Chapter 1, states created through an illegal act of aggression face virtually insurmountable problems in gaining formal international recognition.

Finally, secession – like self-determination – remains an ambiguous and controversial notion. It can be interpreted variously ‘as self-emancipation from tyranny and as a challenge to the integrity of the polity’. The history of the United States, paradoxically, exemplifies both. Its Declaration of Independence justified secession on the grounds that ‘when a long Train of Abuses and Usurpations…evinces a Design to reduce them [a people] under absolute Despotism, it is their Right, it is their Duty, to throw off such Government, and to provide new Guards for their future Security’.⁴⁹ The Civil War, in turn, was fought primarily to suppress the Southern states’ secession.⁵⁰ In the case of contemporary states born of secession, the world community mostly supports the presumption that their emergence is not a justified act of liberation from oppression but an unwarranted assault on the territorial integrity of one of their peers.

International responses to secession

Secessionists, then, face daunting odds when trying to generate international support for their cause. We explore the parameters within which this attempt is made, beginning with two seminal interpretations of the international law of secession.

The first is provided by the African Commission on Human and People’s Rights, which in 1996 gave its verdict in a secessionist dispute between the central government of Zaire and one of the constituent units of the state, Katanga/Shaba (the very entity that broke away in the early 1960s). The leader of the Katangese Peoples’ Congress requested the Commission to recognize the independence of Katanga and help effect the withdrawal of Zaire from Katanga. The Katangese claimed that Zaire had violated article 20 of the 1981 African Charter on Human and Peoples’ Rights. The clause inter alia guarantees the right of self-determination to both ‘colonized and oppressed peoples’ – hence the claims to a right of secession. Citing the absence of concrete evidence of human rights violations to the extent that ‘the territorial integrity of Zaire should be called into question’, and the absence of evidence that the people of Katanga were denied the right to participate in government (enshrined in article 13(1) of the African Charter), the Commission held that ‘Katanga is obliged to exercise a variant of self-determination that is compatible with the sovereignty and territorial integrity of Zaire’.⁵¹ The Commission’s findings nonetheless suggested that article 20 of the African Charter allows, in the context of regional international law applicable to Africa, ‘a limited treaty-based entitlement to secession in some highly exceptional cases’.⁵²

In 1998 the Supreme Court of Canada gave its opinion on Quebec’s right of unilateral secession under Canadian constitutional law and international law. The Court maintained that ‘international law expects that the right to self-determination will be exercised by peoples within the framework of existing sovereign states and consistent with the maintenance of the territorial integrity of those states. Where this is not possible, in the exceptional circumstance…a right of secession may arise’. The latter would apply ‘where a people are oppressed, as for example under foreign military occupation; or where a definable group is denied meaningful access to government to pursue their political, economic, social and cultural development’. The Court, not surprisingly, found that such exceptional circumstances ‘are manifestly inapplicable to Quebec under existing conditions’.⁵³

In summary, the African Commission on Human and Peoples’ Rights and the Canadian Supreme Court affirmed the existence, in two non-colonial settings, of ‘a limited international legal entitlement to secede’. It applies only in the highly exceptional circumstances of an oppressed people (living under an undemocratic regime that is not representative and commits flagrant human rights abuses) and a people denied effective participation in the political and economic life of the state. It should be emphasized that neither case acknowledged a general right of secession in every conceivable situation for any disaffected sub-national group.⁵⁴ The traditional presumption against secession continues to prevail in international law.⁵⁵

In the practice of states a right of secession is contested even more strongly than in law. As UN Secretary-General Boutros Boutros-Ghali warned in An Agenda for Peace (1992), ‘if every ethnic, religious or linguistic group claimed statehood, there would be no limit to fragmentation, and peace, security and economic well-being for all would become ever more difficult to achieve’.⁵⁶

Among political theorists views on the justifiability of secession are more diverse than in either law or politics: anti-secessionists oppose a right of secession, except under stringent conditions; pro-secessionists support it, subject to certain conditions; and others support or oppose secession based on a balance of factors.⁵⁷ These views have found expression in theories variously labelled as liberal versus communitarian,⁵⁸ remedial right only versus primary right,⁵⁹ and just-cause versus choice theories.⁶⁰ Another theoretician has reinterpreted and applied the principles of jus ad bellum to secession.⁶¹

The following set of prerequisites for secession draws on a host of scholarly writings falling into the above categories. Many of the aspects deal with the intolerability of the status quo and the dim prospects of any meaningful improvement in the fate of an aggrieved group. As such these are the ‘push’ factors driving the disaffected community to sever their links with an existing state and declare their area a separate state under their exclusive control.⁶²

• Secession should have a just cause, meaning that the injustice beingremedied or prevented is grave enough to justify secession from a parent state. Among such causes are genocide, cultural extinction (also called ethnocide), oppression (which could take such forms as exploitation, marginalization, powerlessness and harassment), deliberate and systematic discrimination (including ‘discriminatory redistribution’ by the state), forcible assimilation, illegal occupation and annexation of territory by a foreign power, and the wanton breach of the terms of a constitutive (federal) pact. Secession could thus be driven by considerations like the need for physical survival, the preservation of a cultural inheritance and a quest for rectificatory justice (reappropriation by legitimate owners of property seized illegally). The former Yugoslav republics of Slovenia, Croatia, Macedonia and Bosnia and Herzegovina seceded on the basis of their being denied the proper exercise of their right of democratic self-government and, in some instances, subjection to aggression and crimes against humanity. The three Baltic republics reclaimed their independence from Russia on the grounds of rectificatory justice, but since Moscow concurred we are dealing here with partition, not secession.
• Where secession is motivated by a need for cultural self-preservation, the culture in question must be seriously threatened; less drastic means of preserving the culture than secession must be inadequate or unavailable; and the particular culture must meet minimal standards of moral decency (unlike the Nazi and Khmer Rouge cultures).
• Secession is a final resort solution, followed only when it is abundantly evident that all other peaceful and amicable options (including federalism, autonomy and minority rights) cannot remedy or prevent injustice.
• Secession is the only way in which the minority concerned can exerciseits right of self-determination in a democratic fashion.
• The internal and external legitimacy of the central government has been widely questioned due to its authoritarian and repressive nature.
• Independent statehood can only be achieved through a legitimate authority, which calls for a secessionist leadership that is manifestly representative of the population of the break-away territory.
• Evidence of extensive, genuine support among members of the dis-affected group for breaking away is required.
• The group should have historic claims to the territory on which it intendsforming its state and constitutes a numerical majority in that area.
• The new state has to be constituted on a democratic basis, guarantee individual and minority rights on its soil, accept appropriate international obligations, respect applicable international conventions, and recognize the territorial integrity of other states.
• The putative state should have a relatively effective central government that has provided order over a significant period (say at least three years) in terms of functioning police, military and judicial systems. This is a particularly relevant consideration where the aspiring state has broken away from a country that has slid into anarchy and chaos, as Somaliland did from Somalia. An effective government may also help to keep international terrorists at bay since the latter are known to prey on fragile states.
• The emerging state has reasonable prospects of survival and economic prosperity, instead of becoming another basket case.
• The bid for independence has a fair chance of success in terms of inter-national recognition of the new state. Otherwise, the choice of secession would be unjustified, condemning a people to fight a lost cause.
• The principle of proportionality should be upheld, meaning that the anticipated costs of secession are not disproportionate to the benefits (both material and moral).
• The remainder state’s economy will not be substantially weakened by the envisaged break-up.
• The minimization if not prevention of violence during the process of dismemberment must be of major concern to the secessionists. There should also be reasonable prospects that the fragmentation of the existing state will enhance the chances of lasting peace between and within the new and old states.
• A final consideration is that international recognition is more likely if secession leads to the complete dissolution of the predecessor state, rather than only a partial disruption of its territorial integrity. There is then no longer an existing state whose consent is needed for any political reconfiguration. Such dissolution, causing the de facto and de jure disappearance of a pre-existing state, occurred in the former Soviet Union, Czechoslovakia and Yugoslavia.

Although a secessionist entity might improve its chances of international recognition by meeting the criteria just listed, there is no guarantee that the world community will oblige. As we know only too well, recognition is a matter of political discretion, not a legal or moral duty. The original state’s role is critical in this respect. Whenever that state persists in its opposition to the secession of one or more of its regions, Crawford found, break-away bids attracted virtually no foreign support or recognition. Indeed, no new state created since 1945 outside the colonial context has gained membership of the UN in the face of the predecessor state’s opposition, with the qualified exception of the former Yugoslav republics. This experience led Crawford to conclude that state practice since the Second World War reveals clearly ‘the extreme reluctance of states to recognize or accept unilateral secession outside the colonial context’ – a practice that has been ‘powerfully reinforced’ in the post-Cold War era. True, international law allows for the acknowledgment of political realities once the independence of a seceding entity is firmly established and in relation to the territory under its effective control.⁶³ De facto recognition is indeed what contested states enjoy, but the first prize of collective de jure recognition and UN membership eludes them.

For separatists bent on creating their own states, consensual partition offers a far better route than confrontational secession because it avoids bloodshed and virtually guarantees confirmed statehood. Various procedures could be laid down for such a separation. These include weighted majorities in referendums on the proposed divorce, and waiting periods. Separatists could also be subjected to special costs, such as compensating the remainder state for investments lost due to the break-up and paying an exit fee or ‘secession tax’.⁶⁴ Carefully designed procedural hurdles ‘can make secession sufficiently difficult to avoid unacceptable risk of premature exit or strategic bargaining by minorities, while still making secession possible under appropriate conditions’.⁶⁵ Hedging the right to break away can be done through a state’s constitution, as in the case of Ethiopia, by ordinary laws or even through a formal agreement, as in the peace accord concluded between the Sudanese government and southern rebels in 2005.

Other origins of contested statehood

Among our ten contemporary case studies, the four Eurasian entities of Nagorno Karabagh, South Ossetia, Abkhazia and Transdniestria as well as Kosovo have secessionist origins. Somaliland is the product of secessioncum-reversion, having broken away from Somalia to return to its former sovereign status. The Turkish Republic of Northern Cyprus (TRNC) has never been recognized as a state in international law because it was supposedly created through Turkey’s illegal use of force in 1974. While troops from mainland Turkey were still occupying Northern Cyprus when the TRNC was proclaimed in 1983, one should not overlook the secessionist element in the unilateral declaration of independence. As such the TRNC was the product of the dual transgressions of aggression-cum-occupation and secession.

Taiwan is a hold-out against the communist revolution that had swept Nationalist rule aside in mainland China in 1949. For the PRC, Taiwan is nothing more than a rebellious province of China destined to be unified with the mainland. The Republic of China (ROC), by contrast, does not regard itself as a sub-unit of China but as a sovereign entity with a long history of confirmed statehood.

Western Sahara went through a process of self-decolonization by declaring itself independent after Spain withdrew from the territory. A large number of states, mainly in Africa, recognized the statehood of the Sahrawi Arab Democratic Republic (SADR). The problem, though, is that the bulk of the territory of Western Sahara remains under Moroccan occupation and the SADR’s government languishes in exile.

The government of Palestine had remained in exile for the first six years after the unilateral declaration of statehood in 1988. In 1994 the leadership of the Palestine Liberation Organization returned to the Palestinian territories and established a government there. Although Palestine’s right of statehood was universally recognized and it maintained diplomatic ties with scores of states, it still lacked the final baptism of full UN membership. Meanwhile the translation of Palestine’s acknowledged right of statehood into a functioning state enjoying domestic sovereignty (à la Krasner) remained fraught with controversy, not least because of Israel’s occupation of Palestinian land.

Conclusion

The pursuit of self-determination since the First World War has produced scores of new states. Most of them emerged from the liquidation of colonial empires and others from the territorial fragmentation of existing states. Virtually all the entities thus created were readily admitted to the ranks of confirmed states as their statehood was generally recognized. Nearly two dozen others with aspirations of statehood have over the last 90 years or so failed to gain international recognition – even though they too invoked the right of self-determination to justify their quest for sovereign independence.

The contested statehood of the wannabe states mentioned in our inquiry reveals different causes, but secession is the single most common one. Those whose ‘birth defects’ related to aggression, occupation or racial discrimination have singularly failed to persuade the world community of their right of statehood. Even secessionist entities claiming grave injustice in their predecessor states have by and large been denied de jure recognition. The ingrained presumption against secession that pervades international law and world politics, together with the opposition of original states to break-away bids, create a decidedly hostile external environment for new states born of secession. Secession, therefore, is a likely route to contested statehood.

Notes

1. Maurice Cranston (ed.), A Glossary of Political Terms, The Bodley Head, London, p.92; Roger Scruton, A Dictionary of Political Thought, Macmillan, London, 1982, pp.40, 421; Erin Jenne, ‘National self-determination: A deadly mobilizing device’, and Hurst Hannum, ‘Self-determination in the twenty-first century’, both in Hannum & Eileen F Babbitt (eds), Negotiating Self-Determination, Lexington Books, Lanham, 2006, pp.11, 28 and 61 respectively.
2. 8 January 1918: President Woodrow Wilson’s Fourteen Points, http://www.lib. byu.edu/-rdh/wwi/1918/14points.html.
3. Maurice Cranston, pp.91–2; William Saffire, Saffire’s Political Dictionary, Ballantine Books, New York, 1978; Richard Falk, ‘Self-determination under international law: The coherence of the doctrine versus the incoherence of experience’, in Wolfgang Danspeckgruber (ed.), The Self-Determination of Peoples: Community, Nation, and State in an Interdependent World, Lynne Rienner, Boulder, 2002, p.39; Stefan Wolff, Disputed Territories: The Transnational Dynamics of Ethnic Conflict Settlement, Berghahn Books, New York, 2003, p.23; Allen Buchanan, Secession: The Morality of Political Divorce from Fort Sumter to Lithuania and Quebec, Westview Press, Boulder, 1991, p.48; Margaret Moore, ‘Introduction: The self-determination principle and the ethics of secession’, in Moore (ed), National Self-Determination and Secession, Oxford University Press, Oxford, 1998, pp.2–3.
4. George Barrie, Self-Determination in Modern International Law, Occasional Papers, Konrad Adenauer-Stiftung, Johannesburg, 1995, p.4; Paul Johnson, Modern Times: A History of the World from the 1920s to the 1990s, Orion Books, London, 1992, pp.41, 74–7.
5. Jan Klabbers, ‘The right to be taken seriously: Self-determination in international law’, Human Rights Quarterly, Vol. 28(1), February 2006, p.187.
6. Quoted by Vernon Bogdanor, ‘Forms of autonomy and the protection of minorities’, Daedalus, Vol. 126(2), Spring 1997, p.86 and Ved P Nanda, ‘Selfdetermination and secession under international law’, Denver Journal of International Law and Policy, Vol. 29(4), Summer-Fall 2001, p.307.
7. Richard Falk, ‘Self-determination under international law’, p.31.
8. Obiora C Okafor, Re-Defining Legitimate Statehood: International Law and State Fragmentation in Africa, Martinus Nijhoff, The Hague, 2000, p.60. 9 Jan Klabbers, p.188.
9. Quoted by Jan Klabbers, p.198.
10. Malcolm N Shaw, International Law, 5th edition, Cambridge University Press, Cambridge, 2003, p.226; Emilio J Cárdenas & María F Cañás, ‘The limits of selfdetermination’, in Wolfgang Danspeckgruber (ed.), The Self-Determination of Peoples, p.101.
11. Peter Radan, The Break-Up of Yugoslavia and International Law, Routledge, London, 2002, p.9.
12. Scott Pegg, International Society and the De Facto State, Ashgate Publishing, Aldershot, 1998, p.143.
13. Joshua Castellino, ‘Order and justice: National minorities and the right to secession’, International Journal on Minority and Group Rights, Vol. 6(4), 1999, pp.393–4. 15 Peter Radan, pp.10, 17, 20.
14. Viva O Bartkus, The Dynamic of Secession, Cambridge University Press, Cambridge, 1999, p.71; George Barrie, p.6.
15. Steven Wheatley, Democracy, Minorities and International Law, Cambridge University Press, Cambridge, 2005, pp.79–80.
16. George Barrie, pp.10-11; Malcolm N Shaw, p.228; Steven Wheatley, p.93.
17. Obiora C Okafor, Re-Defining Legitimate Statehood, pp.60, 190.
18. TN Tappe, cited by Obiora C Okafor, Re-Defining Legitimate Statehood, p.61.
19. Peter Radan, p.12.
20. Quoted by George Barrie, p.13.
21. Jan Klabbers, p.189.
22. Richard Falk, p.38.
23. Quoted by Karen Mingst, Essentials of International Relations, 4th edition, WW Norton, New York, 2007, p.132.
24. Jan Klabbers, pp.189, 199.
25. Donald L Horowitz, ‘The cracked foundations of the right to secede’, Journal of Democracy, Vol. 14(2), April 2003, pp.6–8; George Barrie, pp.13, 28–9.
26. Joshua Castellino, pp.401, 410.
27. Stefan Wolff, Disputed Territories, p.23.
28. Unrepresented Nations and Peoples Organization (UNPO), The Implementation of the Right to Self-Determination as a Contribution to Conflict Prevention, Report of the international conference of experts held in Barcelona from 21 to 27 November 1998, http://www.unpo:org/news_detail.php?arg=01&par=446, pp.2–19; George Barrie, pp.13, 23; James Crawford, International Law as an Open System, Cameron May, London, 2002, p.18.
29. UN General Assembly, 48th session, 25 October 1993, Official Records, p.2.
30. Joshua Castellino, p.394.
31. Frederic L Kirgis, ‘The degrees of self-determination in the United Nations era’, American Journal of International Law, Vol. 88(2), April 1994, p.307. Also see Antonio Cassese, Self-Determination of Peoples: A Legal Appraisal, Cambridge University Press, Cambridge, 1995, pp.316–17.
32. Viva O Bartkus, p.113.
33. Jan Klabbers, p.205.
34. Chambers Twentieth Century Dictionary, Chambers, Edinburgh, 1974; Collins Concise Dictionary, Collins, Glasgow, 2004; Donald W Livingston, ‘What is secession?’, Vermont Commons Blog, November 2005, http://www.vtcommons.org/ node/232, p.2.
35. Viva O Bartkus, p.3.
36. Allen Buchanan, Secession: The Morality of Political Divorce from fort Sumter to Lithuania and Quebec,, p.10; Alexis Heraclides, ‘Secession, self-determination and non-intervention: In quest of normative symbiosis’, Journal of International Affairs, Vol. 45(2), Winter 1992, p.400.
37. Steven Wheatley, pp.85–6.
38. Quoted by Jorri Duursma, Fragmentation and the International Relations of MicroStates: Self-Determination and Statehood, Cambridge University Press, Cambridge, 1996, p.90; Alexis Heraclides, p.407.
39. Ved P Nanda, pp.318–19.
40. Jeffrey Herbst, ‘Responding to state failure in Africa’, International Security, Vol. 21(3), Winter 1996, p.134.
41. Rainer Bauböck, ‘Why stay together? A pluralist approach to secession and federation’, in Will Kymlicka & Wayne Norman (eds), Citizenship in Diverse Societies, Oxford University Press, Oxford, 2000, p.379.
42. James Crawford, State Practice and International Law in Relation to Unilateral Secession, Report to Government of Canada concerning unilateral secession by Quebec, 19 February 1997, Tamilnation.org, http://www.tamilnation.org/selfdetermination/97crawford.htm, p.4.
43. Viva O Bartkus, pp.10–11, 14.
44. Metta Spencer, ‘When states divide’, in Spencer (ed.), Separatism: Democracy and Disintegration, Rowman & Littlefield, Lanham, 1998, pp.18–19; Eileen F Babbitt, ‘Self-determination as a component of conflict intractability: Implications for negotiation’, in Hurst Hannum & Babbitt (eds), pp.116–18.
45. James Crawford, The Creation of States in International Law, Clarendon Press, Oxford, 1979, p.247.
46. James Crawford, State Practice and International Law in Relation to Unilateral Secession, pp.15–16.
47. Quoted by Viva O Bartkus, p.12.
48. Michael Freeman, ‘The priority of function over structure: A new approach to secession’, in Percy B Lehning (ed.), Theories of Secession, Routledge, London, 1998, p.12.
49. Quoted by Obiora C Okafor, ‘Entitlement, process, and legitimacy in the emergent international law of secession’, International Journal on Minority and Group Rights, Vol. 9(1), 2002, p.50.
50. Obiora C Okafor, ‘Entitlement, process, and legitimacy in the emergent international law of secession’, p.70.
51. Quoted by Ved P Nanda, pp.315–17; Obiora C Okafor, ‘Entitlement, process, and legitimacy in the emergent international law of secession’, pp.47–8.
52. Obiora C Okafor, ‘Entitlement, process, and legitimacy in the emergent international law of secession’, pp.51, 54; Ved P Nanda, p.325.
53. James Crawford, International Law as an Open System, p.233.
54. UN Document A/47/277 (1992), para. 17.
55. Percy B Lehning, ‘Theories of secession: An introduction’, in Lehning (ed.), p.2.
56. Percy B Lehning, ‘Theories of secession: An introduction’, pp.2–7.
57. Allen Buchanan, ‘The international institutional dimension of secession’, in Percy B Lehning (ed.), pp.230–6; Allen Buchanan, ‘Secession’, in Edward N Zalta (ed.), The Stanford Encyclopedia of Philosophy, 2003, http://plato.stanford.edu/ entries/secession; Allen Buchanan, ‘Uncoupling secession from nationalism and intrastate autonomy from secession’, in Hurst Hannum & Eileen F Babbitt (eds), Negotiating Self-Determination, pp.82–92.
58. Yuchao Zhu & Dongyan Blachford, ‘Ethnic disputes in international politics: Manifestations and conceptualizations’, Nationalism and Ethnic Politics, Vol. 12(1), Spring 2006, p.36; Margaret Moore, pp.5–6; Bruno Coppieters, ‘Introduction’, in Coppieters & Richard Sakwa (eds), Contextualizing Secession: Normative Studies in Comparative Perspective, Oxford University Press, Oxford, 2003, pp.6–7.
59. Bruno Coppieters, ‘Secession and war: A moral analysis of the Russian-Chechen conflict’, Central Asian Survey, Vol. 22(4), December 2003, pp.380–2.
60. Donald L Horowitz, pp.6–12; Morton H Halperin et al, Self-determination in the New World Order, Carnegie Endowment for International Peace, Washington DC, 1992, pp.76–80; Alexis Heraclides, pp.410–15; Iris M Young, ‘Polity and group difference: A critique of the ideal of universal citizenship’, Ethics, Vol. 99, January 1989, p.261; Frederic L Kirgis, p.308; Ralph R Premdas, ‘Secessionist movements in comparative perspective’, in Premdas & AB Anderson (eds), Secessionist Movements in Comparative Perspective, Pinter Publishers, London, 1990 p.15; William Safran, ‘Non-separatist policies regarding ethnic minorities: Positive approaches and ambiguous consequences’, International Political Science Review, Vol. 15(1), 1994, p.63; Allen Buchanan, ‘Self-determination and the right to secede’, Journal of International Affairs, Vol. 45(2), Winter 1992, pp.353–8; Allen Buchanan, Secession: The Morality of Political Divorce from Fort Sumter to Lithuania and Quebec, 40–5, 61–8; Viva O Bartkus, pp.80–91, 117–18, 223–7; Gertrude E Schroeder, ‘On the economic viability of new nation-states’, Journal of International Affairs, Vol. 45(2), Winter 1992, pp.549–74; Metta Spencer, ‘Conclusion’, in Spencer (ed.), Separatism, pp.308–9; Will Kymlicka & Wayne Norman, ‘Citizenship in culturally diverse societies: Issues, contexts, concepts’, in Kymlicka & Norman (eds), Citizenship in Diverse Societies, p.26; John McGarry & Brendan O’Leary, ‘Introduction: The macro-political regulation of ethnic conflict’, in McGarry & O’Leary (eds), The Politics of Ethnic Conflict Regulation: Case Studies of Protracted Ethnic Conflicts, Routledge, London, 1993, p.19; Unrepresented Nations and Peoples Organization, The Implementation of the Right to Self-determination, pp.19–21; Oliver P Richmond, ‘States of sovereignty, sovereign states, and ethnic claims for international status’, Review of International Studies, Vol. 28(2), April 2002, p.394; Peter Radan, p.248; Steven Wheatley, pp.88–9; The Nagorno Karabagh Crisis: A Blueprint for Resolution, A memorandum prepared by the Public International Law and Policy Group, May 2000, p.31; James Crawford, State Practice and International Law in Relation to Unilateral Secession, p.9; Jorri Duursma, p.96.
61. James Crawford, State Practice and International Law in Relation to Unilateral Secession, pp.5, 17–21.
62. Allen Buchanan, Secession: The Morality of Political Divorce from Fort Sumter to Lithuania and Quebec, 132–5.
63. Allen Buchanan, ‘Secession’, p.2.

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