Remedial Secession in International Law:

Theory and (Lack of) Practice

 Jure Vidmar abstract

 It is generally accepted in international legal scholarship that the right of self-determination is limited by the principle of territorial integrity of states. Yet the inverted reading of the elaboration of this principle in the Declaration on Principles of International Law suggests that a state may not avail itself of the principle of territorial integrity if it does not possess a government representing the whole people belonging to its territory.

Such an interpretation has some notable support in judicial writings and even some limited support in jurisprudence. It is suggested that secession may be the last resort for ending oppression. This doctrine is often referred to as remedial secession. The article considers the theory and practice of remedial secession and points out that its theoretical foundations are rather weak.

It concludes that secession is never an entitlement, not even in a situation of severe oppression. Yet it may well be that international recognition is more likely to be granted when oppressed peoples try to create their own state. Thus, although not an entitlement, remedial secession may be given effect through recognition. In the United Nations (un) Charter era, the secessions of Bangladesh and Kosovo and the dissolutions of the Soviet Union and Yugoslavia are sometimes invoked as situations upholding the remedial secession doctrine.

The article analyses these situations and concludes that none of them proves that state practice accepts remedial secession as a legal entitlement. Therefore, the remedial secession doctrine not only has weak theoretical foundations, but also no support in state practice.

 Introduction

 The operation of the right of self-determination is not limited to the process of decolonization.1 Yet, the exercise of this right has different implications in colonial versus non-colonial situations. In the colonial context “the only territorial relationship to be altered was that with the metropolitan power.

 Achieving independence … did not come at the expense of another sovereign state’s territory or that of an adjacent colony.”2 However, in non-colonial situations the right of self-determination collides with the principle of territorial integrity. Since self-determination is not an absolute right, the territorial integrity of states limits its scope of operation.

3 Therefore, outside of the process of decolonization, the exercise Jure Vidmar, “Remedial Secession in International Law: Theory and (Lack of) Practice,” St Antony’s International Review 6, no. 1 (2010): 37–56. Electronic copy available at: http://ssrn.com/abstract=2060318 38 of the right of self-determination does not usually result in the creation of a new state.

 In non-colonial situations, secession can only take place with the approval of the parent state. Such approval may be given by the constitution of the parent state, or in some other form, either prior to the declaration of independence or following an initial unilateral declaration.

4 In either event, due to the requirement of parent-state approval, there cannot be said to be a right to secession as such under international law.5 Yet, the right of states to territorial integrity might not be absolute and unqualified.

 The development of international human rights law has in many respects limited the concept of state sovereignty. In particular, for our purposes here, the theory of so-called remedial secession suggests that gross and systematic human rights violations can lead a state to lose a part of its territory if oppression is directed against a specific people.

6 While the principle of territorial integrity limits the right of selfdetermination, it is precisely the elaboration of this principle in the Declaration on Principles of International Law which gives rise to the remedial secession theory: Nothing in the foregoing paragraphs [concerning the right of self-determination] shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour.

7 An inverted reading of this provision would suggest that a state which does not possess “a government representing the whole people belonging to the territory without any distinction” is not entitled to invoke the principle of territorial integrity when limiting the right of self-determination.
Still, it is questionable whether remedial secession has enough support in legal doctrine and state practice to be considered an actual entitlement under international law.

 This article aims to clarify the theory and practice of remedial secession. It initially considers whether international law provides oppressed peoples with the right to secession without approval of the parent state. It then examines the practice of new state creation in a series of situations which are commonly cited as supportive of the remedial secession doctrine: the secession of East Pakistan, the dissolution of the Soviet Union, the dissolution of the Socialist Federal Republic of Yugoslavia (sfry), and the secession of Kosovo.

The article is generally sceptical about interpreting remedial secession as an entitlement, but nevertheless 39 shows that the concept has some relevance in international law. The Theory of Remedial Secession Perhaps the most prominent judicial pronouncement which underpins the theory of remedial secession is that of the Supreme Court of Canada in the Quebec case.

 In its 1998 judgement, the Court affirmed that there exists no right to unilateral secession in international law. However, this statement was not unqualified: The recognized sources of international law establish that the right to self-determination of a people is normally fulfilled through internal selfdetermination—a people’s pursuit of its political, economic, social and cultural development within a framework of an existing state.

A right to external selfdetermination (which in this case potentially takes the form of the assertion of a right to unilateral secession) arises in only the most extreme of cases and, even then, under carefully defined circumstances.8 Reference to “the most extreme cases,” which may justify a unilateral secession, is to be read against the background of the above-cited provision on self-determination and territorial integrity expressed in the Declaration on Principles of International Law. This provision has been referred to as the “safeguard clause.

” The Supreme Court of Canada seems to have upheld the inverted reading of the safeguard clause by arguing: “The other clear case where a right to external self-determination accrues [apart from colonial situations] is where a people is subject to alien subjugation, domination or exploitation outside a colonial context.”9 The Court, however, held that these circumstances were not met in the case of Quebec,10 and the pronouncement remained an obiter dictum, i.e., a remark by the Court which was not necessary for reaching the decision.


 In the 1997 case of Loizidou v Turkey, before the European Court of Human Rights, Judges Wildhaber and Ryssdal argued: In recent years a consensus has seemed to emerge that peoples may also exercise a right to self-determination if their human rights are consistently and flagrantly violated or if they are without representation at all or are massively underrepresented in an undemocratic and discriminatory way. If this description is correct, then the right to self-determination is a tool which may be used to reestablish international standards of human rights and democracy.

11 The two concurring judges did not make a reference to secession. Yet this omission is not too significant. The right of self-determination is applicable to all peoples and there is no need for this to be specifically af- 40 firmed in a concurring opinion.12 Yet, the exercise of the right of self-determination in the form of secession is another question and the context suggests that this is what Judges Wildhaber and Ryssdal had in mind.

 Their concurring opinion obviously adopts the remedial secession argument and accepts the possibility of secession in situations where peoples are oppressed by and/or not adequately represented within the political structures of their parent states. The support for remedial secession in jurisprudence is therefore limited to an obiter dictum and to a concurring opinion of two judges; no judicial body has accepted secession as an entitlement in any particular case.

The concept nevertheless has some support among writers.13 The main argument of the academic proponents is well-captured by Allen Buchanan: If the state persists in serious injustices toward a group, and the group’s forming its own independent political unit is a remedy of last resort for these injustices, then the group ought to be acknowledged by the international community to have the claim-right to repudiate the authority of the state and to attempt to establish its own independent political unit.

14 The academic proponents of remedial secession thus tend to see secession as a “qualified right” which is triggered by oppression.15 At the same time, it is viewed as an exceptional, last-resort solution.16 However, as James Summers points out, most writers express their support for remedial secession rather cautiously by claiming that such a right “perhaps” or “possibly” exists, or by giving a circular reference to “a number of commentators,” without taking a firm stance on whether this right exists or not.

17 Malcolm Shaw further argues that a theory based on an inverted reading of the safeguard clause is problematic: Such a major change in legal principle cannot be introduced by way of an ambiguous subordinate clause, especially when the principle of territorial integrity has always been accepted and proclaimed as a core principle of international law, and is indeed placed before the qualifying clause in the provision in question.

18 The relevant judicial decisions and academic writings do not, therefore, provide sufficient evidence to suggest that in international legal doctrine, remedial secession is a universally-accepted entitlement of oppressed peoples. But, as will be discussed next, the idea underlying remedial secession—the last resort for ending the oppression of a certain people— can still influence the recognition policies of states.

 The Effects of Remedial Secession through Recognition

 41 The absence of a right to unilateral secession does not imply that such an act is illegal. Indeed, “secession is neither legal nor illegal in international law, but a legally neutral act the consequences of which are regulated internationally.

”19 In the era of the un Charter, it is very unlikely that an attempt at unilateral secession would result in the creation of a new state, but such an outcome is not excluded. In the Quebec case, the Supreme Court of Canada held that: The ultimate success of … a [unilateral] secession would be dependent on recognition by the international community, which is likely to consider the legality and legitimacy of secession having regard to, amongst other facts, the conduct of Quebec and Canada, in determining whether to grant or withhold recognition.

20 This position of the Court suggests that (1) the success of a unilateral secession depends on international recognition; and (2) the conduct of the parent state toward the independence-seeking entity will be taken as a major consideration when states decide on granting recognition.

The judgement therefore implies that remedial secession could be given effect through recognition—indeed, it falls close to Shaw’s argument that “recognition may be more forthcoming where the secession has occurred as a consequence of violations of human rights.

”21 Any argument suggesting that recognition could create states needs to be taken with caution, as it could be problematic in light of the general perception in contemporary international law that recognition is a declaratory and not a constitutive act. This is indeed true in situations where the emergence of a new state is not disputable—when statehood criteria are met and there is no claim to territorial integrity by a parent state. Yet, in cases concerning the recognition of an entity with ambiguous legal status, recognition itself can “have the effect of providing crucial evidence of an entity’s status.

”22 Furthermore, where recognition is granted almost universally to such an entity, it is difficult to separate collective recognition from collective state creation.23 For these reasons it is possible to accept that remedial-secession claims could be realized through recognition. But there is an important limitation on giving effect to remedial secession via recognition. While, in a situation of oppression, states might be able to grant recognition to a secession-seeking entity without offending the territorial integrity of its parent state,24 there are no circumstances that create an international legal obligation to grant such 42 recognition.

25 The actual position of remedial secession in international law may therefore be as follows: that, as a consequence of oppression, the parent state’s right to territorial integrity becomes weaker; foreign states might then decide not to observe this right of the parent state and to recognize the secession-seeking entity; however, remedial secession is not an entitlement of oppressed peoples and oppression creates no obligation for foreign states to grant recognition. It now needs to be considered whether remedial secession has been given any prominence in state practice.


Conclusion Remedial secession, interpreted as the last resort of subjugated peoples for ending oppression, has received some support among writers. However, the foundations of the doctrine remain controversial both in theory and in practice.

Theoretically, it is questionable whether remedial secession can be founded on the inverted reading of the provision on territorial integrity within the Declaration on Principles of International Law. It would appear that “[s]uch a major change in legal principle [concerning the territorial integrity of states] cannot be introduced by way of an ambiguous subordinate clause.

”96 The doctrine has been given some attention in judicial decisions. Yet, no international judicial body has ever upheld the remedial secession argument in relation to a specific attempt at unilateral secession.

Remedial secession was, at best, mentioned as an obiter dictum and, even then, not unequivocally as an entitlement. The idea of remedial secession nevertheless has some merit, not least if it can be given effect through international recognition. Although recognition in contemporary international law is deemed to be a declaratory act, universal collective recognition can have the effect of collective state creation.

 It may be that, where oppressed peoples seek secession, the international community will be more willing to ignore the territo- rial integrity of the parent state and grant recognition to the secession- 51 seeking entity.

Although the explanation that remedial secession could be given effect through the act of recognition may be able to clarify the theoretical status of remedial secession in international law, there is a marked absence of state practice. This article shows that no single instance of non-colonial new state creation in the un Charter era serves as a clear example of remedial secession. The international community of states has never accepted either the right of oppressed peoples to secession or the duty to grant recognition when oppressed peoples are trying to create their own state.
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