JusT Cogens

Two Ways to Secede in Life

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By Shyamni Chokshi

Last Sunday’s Catalan independence vote was one of two such ballots in the last fortnight. The stateless ‘Kurds,’ an ethnic group spread out across the Middle East, conducted their own referendum in Iraq. Both nations’ central governments argue that their constitutions do not allow any part or group within the country to legally secede. While a general right of secession has been quite precluded under international law, there are precedents that could allow these nations to form legally.

One possible path to independence is through the right to self-determination. This right was first mentioned as a mere ‘principle’ in the United Nations Charter, but evolved into a customary international norm through the post-World War 2 decolonisation process. While many argue that the right to self-determination is limited to former colonies, the vague wording of international and regional declarations on the matter open it up to interpretation.

For example, the Declaration on the Granting of Independence to Colonial Countries and Peoples, adopted by the United Nations General Assembly in 1960, was the first to state that,

all peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

Articles 1.1 of both the Covenant on Economic, Social and Cultural Rights and the Covenant on Civil and Political Rights contain the same statement. The reference to the rights of “all peoples” to self-determination, which opens the door for potential legal secession.

The Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States was adopted in 1970, and remains the most authoritative statement on the meaning of self-determination. It reiterates the rights of “all peoples” to self-determination, and while no definition of “peoples” is offered, it reaffirms that self-determination may be achieved through independence, free association or integration and “the emergence into any other political status freely determined by a people.”

Opposing self-determination is the principle of territorial integrity, which is seen as a central tenet of international law. While previous instances, such as the ICJ judgments on Namibia (1971) and Western Sahara (1975), have confirmed the right to self-determination, there is also a great deal of customary international law that supports a state staying in one piece.

Furthermore, self-determination can be divided into two types: internal and external. Internal self-determination is when the issue of independence is settled within a country with the consent of both or all parties, such as the 2014 Scottish independence referendum.

External self-determination is a little more complicated. This is usually done by the local people without consent of the country they are looking to secede from, with the support of the international community. However, for external self-determination to be realised, it should fall into one of the following categories:

  1. Internal self-determination has been pursued, but failed (a very high bar);
  2. The people in question are being occupied, e.g. India during British colonisation;
  3. The people are in a trust territory, e.g. British Palestine mandate;
  4. The people are in a non-self-governing territory; or
  5. The people are subject to ‘alien subjugation, domination or exploitation.’

If none of the above are satisfied, the chances of external self-determination are very slim. Another possibility would be if the people wishing to secede were formally excluded from participating in their state’s government. However, with both the current and preceding President of Iraq being Kurdish, and the Catalonian state directly represented in the Spanish upper house, this path is closed to both parties.

If self-determination alone does not work, there may yet be another way – through a recognition of statehood from the international community.

Recently, through the dissolution of the former Soviet Union and Yugoslavia and subsequent creation of states such as Croatia, Lithuania and Serbia, the right of secession may be on its way to becoming customary international law. These states’ successful formation and achievement of independence is partly due to international recognition.

In 1991, many Baltic states conducted illegal, unbinding referendums on independence, just as Catalonia and Kurdistan have done, and declared their sovereignty. There was no outright support for these secessionist movements until the Russian President, Boris Yeltsin, endorsed Latvian and Estonian independence in August 1991. This was followed by swift international recognition of the sovereignty of these Baltic states which lent them legitimacy in the international arena.

While the failure of the international community to support the secession movements prior to their de facto success undermined them, the international response to Baltic independence movements, and recognition of newly formed states such as Bangladesh and Kosovo can be interpreted as the beginning of a pattern of state practice endorsing secession movements.

So listen up Catalans and Kurds, like most things in life, if you want to secede you need powerful friends.

Shyamni Chokshi is a Law & Society and Political Science & International Relations student at UWA and hates when people ask her to tell them her majors – it’s such a mouthful, man.

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