Abstract
International law is more inclined to accept and advance remedial right approaches to secession. Yet, as these approaches may produce undue discriminations and perverse incentives, an ideal primary right to secede is defended for the sake of international peace and justice. Recognition of such a right under general international law is nevertheless a non-realistic utopia, since States are the principal lawmakers and many of them are neither liberal nor democratic. Therefore, this chapter revisits several ideas to improve remedialism in international law while pointing out that more utopic regulations can be pursued through international treaties among liberal-democratic subjects.
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Notes
- 1.
Therefore, Kelsen sustains the primacy of international (public) law and thus State sovereignty in a relative sense. Kelsen, H. Principles of International Law, § V.B.8. See also Kelsen, H. Peace Through Law, § 8. Kelsen, H. Teoría General del Estado, § 20.D.
- 2.
In this sense “the principle of the sovereign equality” is enshrined in Article 2 of the UN Charter as well as in other relevant documents.
- 3.
Self-determination of peoples could be handled as a concept and these different senses as conceptions. This would allow the concept to embrace many conceptions, while still being the same concept. It would also allow the conceptions to keep on changing and evolving with no need to change or abandon the concept. On the distinction between concept and conception, see § 5.4.
- 4.
Cassese, A. Self-Determination of Peoples, chs. 2, 12.
- 5.
Zayas, A.M. “Promotion of a Democratic and Equitable International Order”, § 15. Jus cogens refers to peremptory norms of general international law. In other words, a norm that can be modified only by another norm of international law of the same nature, thus unalterable and inalienable by international treaty. See Article 53 of the Vienna Convention on the Law of Treaties of 1969.
- 6.
In the ICJ’s view, the assertion that “the right of peoples to self-determination, as it evolved from the Charter and from United Nations practice, has an erga omnes character, is irreproachable”. ICJ Opinion on East Timor of 1995 (par. 29). In legal jargon, erga omnes means applicable to or with effects on everyone, on everybody (in international law, applicable to all States or subjects of international law). Normally, a distinction is drawn with the phrase inter partes, which means between parties only.
- 7.
Cassese, A. Self-Determination of Peoples, p. 101.
- 8.
Intervention in favour of democracy has not prevailed over the principle of non-intervention. Remiro, A.; et al. Derecho Internacional, p. 213; largely based on the ICJ case concerning military and paramilitary activities in and against Nicaragua (1986).
- 9.
See § 5.4.
- 10.
Inter alia, General Assembly Resolutions 49/30 of 7 December 1994; 50/133 of 20 December 1995; 54/36 of 29 November 1999; 55/96 of 4 December 2000; 59/201 of 20 December 2004; 62/7 of 8 November 2007; and 64/12 of 9 November 2009.
- 11.
Along these lines, see Remiro, A.; et al., Derecho Internacional, pp. 213, 216. Resolution A/RES/62/7 reads: “Reaffirming also that, while democracies share common features, there is no single model of democracy and that democracy does not belong to any country or region, and reaffirming further the necessity of due respect for sovereignty, the right to self-determination and territorial integrity”.
- 12.
Article 21 of the Universal Declaration of Human Rights and Article 25 of the International Covenant on Civil and Political Rights.
- 13.
Cassese, A. Self-Determination of Peoples, p. 103.
- 14.
Tamir, Y. Liberal Nationalism, p. 71.
- 15.
In similar vein, Zayas, A.M. “Promotion of a Democratic and Equitable International Order”, §§ 23, 32.
- 16.
Rawls, J. The Law of Peoples, § 4.1. See § 2.2.
- 17.
See ch. 11.
- 18.
The Conference on Security and Cooperation in Europe, predecessor of the OSCE, was, at first, more cautious about enshrining the principle of democracy, since its purpose was to promote east-west cooperation. When the communist regimes disappeared, promotion of democracy became more clearly one of its objectives.
- 19.
See ch. 7.
- 20.
See Bossacoma, P. Sovereignty in Europe.
- 21.
Cassese, A. Self-Determination of Peoples, pp. 11–33. Belser, E.M.; Fang-Bär, A. “Self-Determination and Secession”, in Belser, E.M.; et al. (ed.) States Falling Apart? pp. 49–55.
- 22.
Despite socialism defining itself as an internationalist ideology, socialist revolutions and States often defined themselves in national terms. See § 2.5.
- 23.
Lenin considered that recognition of the right to self-determination of nations was also advantageous for the dominant nation, since it helped to democratize it, to make it freer and to rid it of reactionary ideas and policies. “Can a nation be free if it oppresses other nations? It cannot”. Lenin, V.I. “The Right of Nations to Self-Determination”, p. 413.
- 24.
Ibid., pp. 425–30, 450.
- 25.
See Articles 1.2, 4 and 6 of the Soviet Constitution of 1918. For more on the evolution of the Soviet constitutional right to self-determination and to secession, see § 8.1.
- 26.
See Buchheit, L.C. Secession, pp. 124–6. Remiro, A.; et al. Derecho Internacional, p. 165. Cassese, A. Self-Determination of Peoples, pp. 16–18. Connor, W. “Nationalism and Political Illegitimacy”, pp. 36–7.
- 27.
In other words, federal and international integration must set out from recognition of the various national identities (whether State, sub-State or supranational), from the abstract principle of equality between them and also from their right to self-determination as an expression of this recognition.
- 28.
Buchheit, L.C. Secession, p. 63.
- 29.
Moore, M. The Ethics of Nationalism, p. 143. See Moore, M. (ed.) National Self-Determination and Secession, p. 3. Medina, M. El derecho de secesión…, p. 81.
- 30.
In similar vein, Musgrave, T.D. Self-Determination and National Minorities, pp. 23–4.
- 31.
Buchheit, L.C. Secession, p. 64.
- 32.
Cassese, A. Self-Determination of Peoples, p. 27. Musgrave, T.D. Self-Determination and National Minorities, pp. 26–31.
- 33.
Musgrave, T.D. Self-Determination and National Minorities, pp. 23–4. Buchheit, L.C. Secession, pp. 113–16. Cassese, A. Self-Determination of Peoples, pp. 20–1.
- 34.
Tamir, Y. Liberal Nationalism, p. 142. Buchheit, L.C. Secession, pp. 114–15.
- 35.
Buchheit, L.C. Secession, pp. 64–73. Mancini, S. “Secession and Self-Determination”, p. 488.
- 36.
Cassese, A. Self-Determination of Peoples, pp. 21–3.
- 37.
The rule of law and the doctrine of precedent are usually more present and relevant in legal and expert bodies than in political bodies.
- 38.
In the following decades, though, the principle of self-determination gained weight in American foreign policy with the effect of a firmer position against colonialism and a growing refusal of the more flagrant forms of imperialism. Buchheit, L.C. Secession, p. 117.
- 39.
Tamir, Y. Liberal Nationalism, pp. 142–5.
- 40.
See Cassese, A. Self-Determination of Peoples, pp. 23–33, 360. Buchheit, L.C. Secession, pp. 66–70.
- 41.
Upper Silesia, Allenstein, Marienwerder, Schleswig, Saarland, Klagenfurt, Teschen, Sopron. Nevertheless, obligations imposed by the international society on aggressors should not be confused with the general practice. Even to the present, “there is insufficient practice to warrant the view that a transfer is invalid simply because there is no sufficient provision for expression of opinion by the inhabitants”. Brownlie, I.; Crawford, J. Brownlie’s Principles of Public International Law, pp. 243–4.
- 42.
See Marshall Brown, P. The Aaland Islands Question, pp. 268–72. Buchheit, L.C. Secession, pp. 70–3. Musgrave, T.D. Self-Determination and National Minorities, pp. 32–7. Cassese, A. Self-Determination of Peoples, pp. 27–31. Dugard, J.; Raič, D. “The Role of Recognition…”, p. 107. Hannikainen, L. “La autonomía territorial de las Islas Åland…”, p. 73. Scharf, M.P. “Earned Sovereignty”, p. 381. Connolly, C. “Independence in Europe…”, pp. 68–70. Belser, E.M.; Fang-Bär, A. “Self-Determination and Secession”, in Belser, E.M.; et al. (ed.) States Falling Apart? pp. 54–5.
- 43.
Medina, M. El derecho de secesión…, p. 160.
- 44.
Article 1.2 of the UN Charter: “The Purposes of the United Nations are: (…) 2. To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace”.
- 45.
Cassese, A. Self-Determination of Peoples, pp. 37–50.
- 46.
Remiro, A.; et al. Derecho Internacional, p. 168. The UN started with 51 Member States in 1945 and it rapidly started to grow (reaching 193 Members in 2011). See http://www.un.org/en/sections/member-states/growth-united-nations-membership-1945-present/index.html.
- 47.
Article 1 of both Covenants read: “1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. 2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic cooperation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence. 3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations”.
- 48.
The trust territories referred to in Chapter 12 of the UN Charter were territories under the trusteeship of the League of Nations which did not gain independence before 1945 and the colonies of the powers defeated in World War II. By contrast, the non-self-governing territories referred to in Chapter 11 were the colonies not subject to the trusteeship system (the colonies of the victorious powers in World War II).
- 49.
Cassese, A. Self-Determination of Peoples, pp. 57–61. Article 27 of the International Covenant on Civil and Political Rights reads: “In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language”.
- 50.
For the differences between national and ethnic minorities, see § 3.2.
- 51.
Cassese, A. Self-Determination of Peoples, ch. 7, especially pp. 159–60.
- 52.
See Kelsen, H. Principles of International Law, § IV.A.3.
- 53.
Cassese, A. Self-Determination of Peoples, pp. 69–70.
- 54.
Some believe that Resolution 2625 is more contained than Resolution 1514, because the former aims to preserve the stability of the new territorial boundaries. To curb excessive fragmentation, territorial integrity occupies a preeminent position in Resolution 2625. Medina, M. El derecho de secesión…, pp. 31, 156–7.
- 55.
See § 5.5.
- 56.
See UN General Assembly Resolution 26/25 (XXV) of 1970.
- 57.
Remiro, A.; et al. Derecho Internacional, p. 170.
- 58.
The ICJ expressly recognized uti possidetis as a general principle of international law in the 1986 Frontier Dispute case (Burkina Faso/Mali): “the Chamber cannot disregard the principle of uti possidetis juris, the application of which gives rise to this respect for intangibility of frontiers. Although there is no need, for the purposes of the present case, to show that this is a firmly established principle of international law where decolonization is concerned, the Chamber nonetheless wishes to emphasize its general scope”. Although case law and academia tend to link the birth of application of the uti possidetis principle to the decolonization of the Spanish empire in America (see Frontier Dispute, pars. 21–3), more detailed analysis shows that the criteria followed seemed flexible enough. The new States were not formed following the four viceroyalties (New Spain, New Granada, Peru and Río de la Plata), but following heterogeneous colonial boundaries (viceroyalties, captaincies general, audiencias or mere provinces). Even some provinces became part of a new State (Chiapas became part of Mexico, Jaen became part of Peru, etc.). In the Viceroyalty of Río de Plata, the constituent congress of 1825 decreed that the provinces had full liberty to place their destiny wherever they believed most convenient for their interests and their happiness. Remiro, A.; et al. Derecho Internacional, p. 196. Perhaps the uti possidetis principle was forged latter on in Latin American diplomacy as an international law response to stop the fragmentation of these new States. See Medina, M. El derecho de secesión…, pp. 15, 23, 150–1.
- 59.
See Cassese, A. Self-Determination of Peoples, pp. 72–9, 187.
- 60.
ICJ Opinion on Namibia of 1971, par. 52.
- 61.
ICJ Opinion on Western Sahara of 1975, par. 55.
- 62.
Connolly, C. “Independence in Europe…”, pp. 70–2.
- 63.
- 64.
For a defence of the natural frontiers of nations, see Mazzini, G. Scritti, pp. 467–8 and Mancini, P.S. Della nazionalità, pp. 31–3, 43. These Italian authors have been and can be criticized because territorial frontiers are human creations and, therefore, can also be undone by humans. Yet, Mazzini, likewise Mancini, warned that without a national or patriotic consciousness natural frontiers have no soul: “the land on which your steps tread, and the boundaries that Nature has set between your and others’ lands, and the sweet language that sounds inside you are nothing but the visible form of the Homeland; yet if the soul of the Homeland does not beat in this sanctuary of your life called consciousness, that form will remain like a corpse, with no movement and no breath of creation, and you are a crowd without a name, and not a Nation; individuals, not a People”. Mazzini, G. Scritti, p. 462.
- 65.
See § 2.6.
- 66.
“The most obvious deficiency of existing international law regarding unilateral secession is the apparent restriction to classic decolonization. Presumably what justifies secession by overseas colonies from metropolitan power is that the colonized are subject to exploitation and unjust domination, not the fact that a body of salt water separates them and their oppressors. But if this is so, then the narrow scope of the existing legal right of self-determination is inappropriate”. Buchanan, A. Justice, Legitimacy and Self-Determination, p. 339. In similar vein, Buchheit, L.C. Secession, pp. 216–23. Beitz, C.R. Political Theory and International Relations, p. 112. See §§ 2.6 and 4.3.
- 67.
See § 5.5.
- 68.
UN General Assembly Resolution 1514 (XV) of 1960 “Declares that: 1. The subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, is contrary to the Charter of the United Nations and is an impediment to the promotion of world peace and cooperation”.
- 69.
Cassese, A. Self-Determination of Peoples, p. 92.
- 70.
In practice, many Western States (headed by the USA) had not recognized de jure Soviet sovereignty over the Baltic republics. Arguably, these republics avoided to invoke the right to secede recognized by the Soviet Constitution, since the Soviet legislation implementing this constitutional right was highly restrictive. See ch. 8.
- 71.
See § 4.2.
- 72.
See § 5.2. In the Katangese Peoples’ Congress v. Zaire case, the African Commission on Human and Peoples’ Rights also links violation of human rights and rights of political participation to emergence of a right to external self-determination. Dugard, J.; Raič, D. “The Role of Recognition…”, pp. 107–8.
- 73.
See ch. 1. Ferreres, V.; Bossacoma, P. “Case Studies on Forms of Self-Determination”.
- 74.
Musgrave, T.D. Self-Determination and National Minorities, pp. 211, 237.
- 75.
Reference re Secession of Quebec, par. 135: “Clearly, such a circumstance parallels the other two recognized situations in that the ability of a people to exercise its right to self-determination internally is somehow being totally frustrated. While it remains unclear whether this third proposition actually reflects an established international law standard, it is unnecessary for present purposes to make that determination. Even assuming that the third circumstance is sufficient to create a right to unilateral secession under international law, the current Quebec context cannot be said to approach such a threshold”.
- 76.
Cassese, A. Self-Determination of Peoples, pp. 248–55, 350–3.
- 77.
See Buchheit, L.C. Secession, pp. 88–97. Dugard, J.; Raič, D. “The Role of Recognition…”, pp. 102–5. Scharf, M.P. “Earned Sovereignty”, pp. 381–2. Belser, E.M.; Fang-Bär, A. “Self-Determination and Secession”, in Belser, E.M.; et al. (ed.) States Falling Apart? pp. 64–5.
- 78.
See Cassese, A. Self-Determination of Peoples, pp. 108–33.
- 79.
Buchanan, A. Justice, Legitimacy and Self-Determination, pp. 339–40.
- 80.
Hedley Bull defines society of States or international society as a group of States with certain common interests, values, rules and institutions. According to him, States not only follow the rules of prudence and expediency, but also pay attention to the imperatives of morality and law. However, following these imperatives does not automatically mean the end of the system of States and its replacement by the universal community of mankind, but, instead, acceptance of the demands of coexistence and cooperation within a society of States. Bull, H. The Anarchical Society, pp. 23–50. Rawls refers to an international society of States: “The Law of Peoples hopes to say how a world Society of liberal and decent Peoples might be possible”. Rawls, J. The Law of Peoples, Introduction, p. 6. The legal order is decentralized, but with a considerable level of voluntary compliance with international law as well as a long list of ways to promote compliance and penalize non-compliance. Beitz, C.R. Political Theory and International Relations, Part 1.
- 81.
In 1947, the Sixth Committee of the UN General Assembly issued some principles on continuity and succession of States in relation to membership of the UN: “1. That, as a general rule, it is in conformity with legal principles to presume that a State which is a Member of the Organization of the United Nations does not cease to be a Member simply because its Constitution or its frontier have been subjected to changes, and that the extinction of the State as a legal personality recognized in the international order must be shown before its rights and obligations can be considered thereby to have ceased to exist. 2. That when a new State is created, whatever may be the territory and populations which it comprises and whether or not they formed part of a State Member of the United Nations, it cannot under the system of the Charter claim that status of a Member of the United Nations unless it has been formally admitted as such in conformity with the provisions of the Charter. 3. Beyond that, each case must be judged according to its merits”.
Almost all the States emerging from a secession of a UN Member States have had to apply to (re)join, except Syria when it seceded from the United Arab Republic (union with Egypt). In this case, both Egypt and Syria were automatically counted as members of the UN. Although the initial reaction of President Nasser was to oppose militarily Syrian separation, it ended up being accepted by acquiescence. Buchheit, L.C. Secession, p. 99.
- 82.
The procedure for becoming a new member of the UN is based on Article 4.2 of the UN Charter: “The admission of any such state to membership in the United Nations will be effected by a decision of the General Assembly upon the recommendation of the Security Council”. See http://www.un.org/en/sections/member-states/about-un-membership/index.html.
- 83.
“Since 1945 no State which has been created by unilateral secession has been admitted to the United Nations against the declared wishes of the government of the predecessor State”. Crawford, J. The Creation of States…, p. 390. See ch. 12.
- 84.
Member States of the UN are generally considered States even if they do not enjoy broad recognition as individual States. Dugard, J.; Raič, D. “The Role of Recognition…”, pp. 99–101. See ch. 7.
- 85.
See Kelsen, H. Principles of International Law, § III.D.4.h. The same interpretation applied regarding the League of Nations. Note that, under Article 4.1 of the Charter, the first substantive requirement in order to be a member of the UN is to be a State. In contrast, see Raič, D. Statehood and the Law of Self-Determination, pp. 39–48. Crawford, J. The Creation of States…, pp. 544–5.
- 86.
Press Conference of 4 January 1970 held in Dakar, Senegal.
- 87.
Remember that the League of Nationsand, in particular, the USSR opposed admission of micro-States as members of the UN. Buchheit, L.C. Secession, p. 233. Raič, D. Statehood and the Law of Self-Determination, p. 44. The formal reason seemed to be their lack of independence—an essential requirement for statehood. Socialism largely considered the independence of micro-States (and of small States in general) somewhat fictitious, since they were subject to other States, imperial powers or the forces of capitalism. See § 2.7. Another reason would be that it implied an additional vote for the Western bloc. When the Venice Commission had the opportunity to rule on constitutionalization of the right to secede of the municipalities of Liechtenstein, it concluded that, although it is undesirable to split a micro-State even further, such a constitutional right to secede is not in violation of international law. Opinion on the Amendments to the Constitution of Liechtenstein Proposed by the Princely House of Liechtenstein, 2002, par. 39.
- 88.
The goddess “derives her name Natio a nas-centibus, from those being born, because she protects married women who are in labour”. Cicero, The Nature of the Gods, book 3, § 47.
- 89.
Habermas, J. “Citizenship and National Identity” (1990), Appendix II to Between Facts and Norms, p. 494. In similar vein, Calhoun, C. Nations Matter, pp. 1–2, 28.
- 90.
De Re Publica reads: “populus autem non omnis hominum coetus quoquo modo congregatus, sed coetus multitudinis juris consensu et utilitatis comunione sociatus” (book 1, XXV). According to Mira, the Romans seemed to draw a distinction between: (1) populus, (2) civitas and res publica, and (3) gens and natio. While civitas and res publica referred more to the State or Commonwealth, gens referred directly to generation, origin and descent, and natio is formed from the root of nascor-natus sum (i.e. the idea of birth). Both gens and nation could apply to a tribe, lineage or race of people. Gens could be applied to an aristocratic lineage (the gens Julia) or to a whole “people” (“in illa … gente Aegyptiorum”, as Cicero wrote in De Re Publica), whereas gentes, in the plural, was used more or less generally for all non-Roman peoples (all the foreign peoples and tribes the Romans found as the Empire expanded were “exterae nationes et gentes”). Ad Nationes was the name of a gate built by Augustus and dedicated to all the known peoples. Natio referred also to a tribe or a foreign country, especially if it was barbarian, but could also occasionally apply to “civilized” peoples (“eruditissima Graecorum natio”, as Cicero expressed in De Oratore). Later, when the Empire gained strength and Roman citizenship was progressively extended to all its provinces, the ablative natione started also to mean place of origin or of birth. “Natione Afer” or “natione Hispanus” did not mean African or Spanish national, but simply born in Africa or in Spain. Mira, J.F. Crítica de la nació pura, pp. 83–6.
- 91.
In particular, Article 3 of the 1789 French Déclaration des Droits de l’Homme et du Citoyen proclaimed that “the principle of all sovereignty resides essentially in the Nation”.
- 92.
See Kant, “The Metaphysics of Morals”, in Political Writings, pp. 164–5. Hegel, The Philosophy of History, p. 419.
- 93.
Renan, E. Qu’est-ce qu’une nation? pp. 28–31.
- 94.
Mill, J.S. Considerations on Representative Government, ch. XVI.
- 95.
See Musgrave, T.D. Self-Determination and National Minorities, ch. 7.
- 96.
To draw a distinction between concept and conception in philosophy and law, see Rawls, J. A Theory of Justice, p. 5. Dworkin, R. Law’s Empire, pp. 90–6. Maccormick, N. Questioning Sovereignty, p. 32.
- 97.
Reference re Secession of Quebec, par. 124. The Court argues: “The right to self-determination has developed largely as a human right, and is generally used in documents that simultaneously contain references to ‘nation’ and ‘State’. The juxtaposition of these terms is indicative that the reference to ‘people’ does not necessarily mean the entirety of a State’s population. To restrict the definition of the term to the population of existing States would render the granting of a right to self-determination largely duplicative, given the parallel emphasis within the majority of the source documents on the need to protect the territorial integrity of existing States, and would frustrate its remedial purpose”.
- 98.
Article 3 of the Declaration stipulates: “Indigenous 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”.
- 99.
Remiro, A.; et al. Derecho Internacional, p. 172.
- 100.
See Anderson, B. Imagined Communities.
- 101.
Ibid.
- 102.
See ch. 3.
- 103.
Keating, M. “Rethinking Sovereignty”, pp. 14–15.
- 104.
- 105.
Zayas, A.M. “Promotion of a Democratic and Equitable International Order”, §§ 6, 17, 51, 78.
- 106.
Based on Rawls, J. The Law of Peoples, § 5.2. See also Buchanan, A. Justice, Legitimacy, and Self-Determination, pp. 76–82.
- 107.
Buchheit, L.C. Secession, pp. 114.
- 108.
“Perpetual Peace”, pp. 99–102. “The Metaphysics of Morals”, p. 174. Both texts in: Kant, Political Writings. This Kantian prediction could be inspired by Cicero, when in De Re Publica (note 46 to Book 3) he claimed that well-regulated States (civitate optima) engage in war only for faith or for safety (pro fide aut pro salute).
- 109.
Rawls, J. The Law of Peoples, Introduction and § 5.4. Some liberal democracies have promoted, cooperated with or collaborated in some internal military uprisings.
- 110.
Ireland seceded through war from one of the most advanced States of the time in terms of liberalism, representation and rule of law. Other secession wars to take into consideration could be the Belgian Revolution of 1830, the American Civil War, the Algerian War of Independence and other decolonization wars. In 1934, under the republican Constitution of 1931, the Spanish democratically elected government prevented through military intervention the implementation of the Catalan State proclamation by a democratically elected Catalan government.
- 111.
See § 2.3.
- 112.
See § 4.6.
- 113.
In relation to breaking the constitutional pact, the analogy with termination of a contract due to non-compliance by one of the parties points to the following: when one party breaches a relevant clause of a contract, the other normally has the right to rescind it. The problem with this analogy is that in private law issues the parties usually do not have self-jurisdiction and have to turn to courts or to arbitration to solve their disputes. But neither the internal nor international courts seem adequate to perform this function regarding secession. In relation to both internal and international courts, the central State has much more power and influence than minority nations. In particular, the regulations and composition of international courts are decided directly or indirectly by States (with no participation of minority nations), which calls into question their objectivity and impartiality regarding issues of secession. The international legal order is still a primitive and decentralized legal system, in which self-jurisdiction and effectiveness prevail in many cases. International arbitration and blue-ribbon panels could be a better option if minority nations are allowed a similar role to States (for instance, in the appointment).
- 114.
Bauböck, R. “Why Stay Together?”.
- 115.
Costa, J. “On Theories of Secession”.
- 116.
Buchanan, A. Justice, Legitimacy and Self-Determination, chs. 8–9, particularly pp. 357–9.
- 117.
Vilaweb, “Buchanan: ‘Si l’estat no vol negociar més autonomia, la independència unilateral és una causa justa’”, 3 October 2018. See Sanjaume-Calvet, M. “The Morality of Secession”, in Cuadras-Morató, X. (ed.) Catalonia, pp. 82–106.
- 118.
Vilaweb. “Allen Buchanan: Catalonia should ask the UN to mediate if Spain shows disdain for the referendum”, 2 July 2013. This blue-ribbon ad hoc group of respected statesmen and jurists is one proposal to tackle the above-mentioned problem of the absence of an impartial referee.
- 119.
Buchanan, A. Justice, Legitimacy and Self-Determination, chs. 8–9, particularly pp. 349–50.
- 120.
For Seymour, the principle of territorial integrity could be legitimately pleaded only when the right to internal self-determination of minority nations is recognized and the spirit of the constitutional pact is satisfied. Seymour, M. “Les peuples et le droit à l’autodétermination”, in Gagnon, A.; Requejo, F. (ed.) Nations en quête de reconnaissance, pp. 51–68.
- 121.
Seymour, M. “Secession as a Remedial Right”, pp. 395–423. In this regard, see Couture, J.; Nielsen, K.; Seymour, M. (ed.) Rethinking Nationalism, pp. 45, 646–53. In contrast, see in this volume Buchanan, A. “What’s So Special About Nations?”, pp. 283–309.
- 122.
- 123.
Furthermore, Seymour considers that Resolution 26/25 (XXV) of 1970 accepts secession in response to systematic violations of human rights, political under-representation or breaches of internal self-determination. See, however, § 5.3.
- 124.
See Buchanan, A. “Theories of Secession”, § III. Buchanan, A. Justice, Legitimacy and Self-Determination, § 8.III. Seymour, M. “Secession as a Remedial Right”, pp. 395–423.
- 125.
Patten, A. Equal Recognition, pp. 235–40, 268.
- 126.
Reference re Secession of Quebec, pars. 103, 134–7.
- 127.
See ICJ Advisory Opinion on Kosovo, par. 69.
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Bossacoma Busquets, P. (2020). Self-Determination of Peoples. In: Morality and Legality of Secession. Federalism and Internal Conflicts. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-26589-2_5
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