The doctrine of remedial secession has been one of the controversial subjects among international scholars.
The reason for this is not far-fetched but it is inextricably tied to some political undertone associated with it. It is often argued that both law and politics are so inextricably interwoven that a separation of one from the other is simply not possible; yet its legal aspects (particularly within the legal systems of foreign States) is such that cannot be ignored.
The right to remedial secession has been viewed as a logical manifestation of the right to self-determination. Self-determination can either be expressed internally or externally. Internal self-determination is conducted within the territorial boundaries of the state in the form of civil and non-violent protest against arbitral decisions and actions of government. But where the government has shown deaf ears to the plight of the people coupled with the series of human right abuse, neglecting their welfare, the option available in international law is for such group of people to disassociate itself from the parent country through a constitutional guaranteed process (i.e. a referendum).
However, before such separation can be accorded the relevant legal recognition as an independent state; it must have all the attributes of a State properly so called as stipulated in Article 1 of the Montevideo Convention on Rights and Duties of State 1933, which provides that a state must have an effective and independent government, population and a defined territory. Any ethnic group that evinces an intention to dislodge or dismember itself from the host nation then it must comply with the procedures to justify their breakaway.
The doctrine of remedial secession has a legal status in international law. However, the exercise of such legal status by a people is subject to certain condition and such people can only exercise such right in extreme circumstances, which extreme or egregious violation of their fundamental human right, discrimination, disproportionate allocation of social amenities and above all the total annihilation and deprivation of their cultural heritage. In this article the author proposes to substantiate and expatiate on the doctrine of remedial secession in international practice. By this view the author examines the case of Biafra and other groups and exposes the legality of remedial secession as a binding rule of customary international law.
SUBSTANTIATING THE DOCTRINE OF REMEDIAL SECESSION
Remedial Secession proponents pinpoint certain institutional practice, States practice and Opinion Juris of the state that reflect the existence of right to remedial secession as lex lata norm. Besides heavily reliance on the theories of the ‘safeguard clause’ as a proof of the existence of customary rule, the most reference institutional practice related to secessions before the 2008 Aaland Island dispute, Katanga Independence case of the African Commission on Human And Peoples Right, The Quebec hypothetical secession considered by the supreme court of Canada. The Kosovo secession from Serbia in 2008 has poured fresh discussion on the right to secede from existing state. Shortly after the Kosovo incidence (and the following recognitions) the UN General Assembly passed a resolution (sponsored by Serbia) that initiated advisory proceedings in the ICJ, Many participating States expressed their Opinion Juris on the right to self-determination and the right to remedial secession.
International law scholars like Hannum, Tancredi, and Simpson have expatiated on the legal justification why in international practice and supranational bodies have refused to recognize separatist group from breaking away from their parent state under the guise of remedial secession and the right to self-determination. They concluded that a right to remedial secession does not yet exist in international law and submitted that international law as it stands; neither recognizes a general or remedial right to secede in oppressive context.
The Canadian Supreme Court has considered that it remains unclear whether remedial secession proposition actually reflects an established international law standard. Franck argues that Self Determination is now properly transforming itself from an emerging right into democratic governance. Hannum agrees that democratic governance is an emerging norm under customary international law. James Crawford maintained that the expansion of rights designed specifically to minorities and indigenous peoples to maintain their identity and participate effectively in the political process offers new opportunities for redressing minority grievances without secession. Responding to authoritarian or discriminatory governments requires establishment of democratic institutions, real guarantees of non-discrimination, and the assurance that people have a meaningful degree of control over their affairs. He concluded that the right to self-determination is only operational within the context of decolonization. Therefore, outside the colonial context, the principle of self-determination is not recognized as giving right to a separatist group to secede from their parent state. Self Determination outside the colonial context is primarily a process by which the peoples of the various states determine their political future without external interference.
From the foregoing, it suffices to reasonably deduce the following:
1. The Neutrality of International Law on Secession: International law does not grant sub-state entities or separatist group a general right to secede from the parent State, nor does it prohibits secession. Exceptions to this supposed neutrality arise from the international legal principles of Territorial Integrity and Self-Determination. Territorial Integrity and Self Determination are legally ambiguous terms. While territorial integrity prohibits secession because it dismembers and amputates the inviolability of international borders and the territory of a state, self-determination only allows for the creation of new states in the context of decolonization. Outside the colonial context secession of a cultural or minority group is illegal and constitutes a violation of the territorial integrity of the parent state. In fact it portrays a serious danger and upsets the delicate constitutional balance of the state.
Sovereignty and Territorial Integrity have been classified as the major characteristics of a state or what I call the structural backbone or the vertebral column of statehood will be violated and desecrated. Max Huber the sole Arbitrator in the 1928 Island of Palmers case noted that sovereignty in relation to a territory and every other state in the international community connotes a portion of the globe over which a state exercises independence of action and political control to the exclusion of every other state. The Declaration on Friendly Relation among states contains a provision referred to as the safeguard clause which reiterate the principle of territorial integrity of states, but places a number of conditions on that affirmation. The declaration implicitly authorises the violation of territorial integrity if states are not in compliance with the principle of equal rights and self-determination of peoples as described [in the declaration] and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed, or colour.
This provision postulates an expansive interpretation of the right to self-determination of peoples. It suggests that people cannot exercise their right to self-determination internally their government oppresses them or does not represent, and then they may exercise that right internally through secession. separation of a minority from the state of which it forms part; may only be considered as an altogether exceptional solution, a last resort when the state lacks the will or the power to enact and apply just and effective guarantees.
2. The politics in Recognition: Recognition of embryonic state under international law predisposes the willingness of the recognising state to adopt all the rights and duties arising from the recognised state. Thus, there is no conventional rule guiding the recognition of state in international law. However, recognition is under international politics and practice has been regarded as a political act that produces a legal consequence. If the parents state refuses to accord recognition there is a real likelihood that such emerging political entity may not mature into statehood. The constitutive theory of recognition is premised on the argument that the act of recognition by other states constitutes the entity being recognised into statehood. To the proponents of this view, ‘new states are established in the international community as fullfledged subjects of international law by virtue of the will and consent of already existing states.
Explaining this theory Lauterpacht stated that the constitutive theory generally culminates in two assertions. The first is that prior to recognition the community in question possesses neither the rights nor the obligations which international law associates with full statehood; the second is that recognition is a matter of absolute political discretion as distinguished from a legal duty owed to the community concerned. Thus, this explanation is in line with Anzilotti’s view that subjects of international law comes into existence simultaneously with, but not before the conclusion of the first agreement as expressed by the treaty of recognition or its equivalent. He argued that such recognition is reciprocal and constitutive of the entity into a state. The formidable flaw of this theory is that it is a substitute for a state of lawlessness in that an entity possessing the full capacity of statehood but which has not, if recognition was to be truly constitutive, been constituted into a state by reason of recognition, would the pending recognition, be above international law and accordingly be free from the regulation, obligation and sanction of international law.
One basic fact to be recorded with recognition is that it merely signifies that the state which recognises it accepts the personality of the other with all the rights and duties determined by international law. Recognition is unconditional and irrevocable. The state parties to the Montevideo Convention on Rights and Duties of States , have elected the precise obligation not to recognise territorial acquisition or special advantages which have been obtained by force whether it consist in the employment of arms, in threatening diplomatic representation, or in any other effective coercive measure. The corollary of this provisional rule any form or kind of recognition that was brought about by violating a sacrosanct principle of general international law will stand the risk of losing the right of becoming a state. The prohibition clause is recorded under article 2(4) of the United Nations Charter, that states that every state have a general obligation in their international relations with other state in the international community to refrain from the threat or use of force against the territorial integrity and political independence of another state.
Another point to note on the politics associated with recognition as a challenge to international law development on friendly relations among states is the internal politics been played amongst the five members of the United Nations. These five world powers have political strength and power to veto a bill from the U.N. General assembly and can also accord and withhold or withdraw recognition. The author is a keen observer on the politics surrounding the international community. And has provided certain remedies that will ameliorate the problem of neutrality and the politics behind recognition of new state, so that a third world war does not occur. Thus international organisations, states and the entire international community must rise up to fight this challenge that threatens world peace and co-operation amongst states.
SECESSION AND THE BIAFRAN EXPERIENCE
The case of the People’s Republic of Biafra in Nigeria, is one amongst many examples of a failed secession attempt. In the case Biafra one will think that they ought to have seceded from Nigeria during the civil war. Thus, reason for the continuous failure of the Biaran State is because Biafra did not have the indices of a state. Although Biafra had a government, Biafra neither had, nor did it make any attempts to establish, an effective government. Oversimplifying the events that preceded Biafra’s ill-fated attempt at secession, there were electoral irregularities, followed by a national coup led by a military faction largely of Eastern Ibo origin, and a counter-coup, staged by Northern military officers. During that critical period, Biafra hardly had a history as a territory that sought some form of democratic autonomy. More controversial and perhaps less telling but nonetheless relevant is the absence of other key characteristics of a nascent state, namely, a permanent population and a defined territory. While it had a permanent population, many of whom resided outside Biafra and scattered in different cities in Nigeria made their secessionist claim unfertile. In fact, it was not all clear whether the Biafra sought independence from Nigeria for the former Eastern Region or for the Ibos who were scattered in other regions of the Country.
THE CASE OF QUEBEC AND KOSOVO DECLARATION
In the Quebec case, the Supreme Court of Canada adopted a conservative construction of “external self-determination” as a right that may be exercised under limited conditions only. Thus, no precedent for a right to secede was established in judicial practice. Though, exceptions to this neutrality may arise from the interplay of the principles of territorial integrity and self-determination. The principle of self-determination allows a people to choose its own political status and to determine its own form of economic, cultural and social development. It is recognised in a number of fundamental international instruments, such as the UN Charter, the Declaration on Principles of International Law, the Declaration on the Granting of Independence to Colonial Countries and Peoples, the International Covenant on Civil and Political Rights, the CSCE Helsinki Final Act, The African Charter on Human and Peoples’ Rights, the CSCE, Charter of Paris for a New Europe, and the Vienna Declaration and Programme of Action. Moreover, it was affirmed by the International Court of Justice in the Namibia, Western Sahara and East Timor cases, where its erga-omnes character was confirmed.
At the same time the above mentioned documents recognise the principle of territorial integrity, which may be in contradiction with the principle of self-determination. For instance, paragraph 6 of the Declaration on the Granting of Independence to Colonial Countries and Peoples stipulates that “any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations”. The complete implementation of the principle of self-determination undermines the principle of territorial integrity. In other words, only legal secession would not undermine territorial integrity of the parent state. There are several circumstances when secession may be regarded as legal: (1) it shall concern people in territories that are subject to decolonization; (2) it shall be envisaged by the national legislation of the parent state concerned; (3) the territory inhabited by a certain people should be occupied or annexed after 1945; (4) the secessionists shall be “a people”; (5) their parent state shall flagrantly violate their human rights and (6) no other effective remedies under national or international law may exist, if any of these conditions are met.
A right to unilateral secession can be defined as a right of a minority-people to separate a part of the territory of the parent State on the basis of their right to self-determination. However, as it follows from the Declaration on Principles of International Law, on the Kosovo Advisory Opinion (International Court of Justice) and the Quebec case (Supreme Court of Canada), in modern international law unilateral secession of “sub-states” is neither prohibited nor allowed. However, secession is only recognizable in thoroughly extreme circumstances, such as where there is an outright attack by the parent State, threatening the very existence of the people in question. Otherwise, all efforts should be taken in order to settle the tension between the parent State and the ethnic community concerned within the framework of the existing State.
1. International law should guide secession along a non-threatening path: Although international law is neutral on the issue of secession, it is the author’s submission that the dynamics of secession represents a process which potentially collides with international rules at a higher level, designed to protect the common interests of the inter-governmental community. Therefore, if secession threatens the established order or the sovereignty and territorial integrity of a state (which is an important aspect of the international legal order), then it is highly recommended that international law should develop rules that will guide the process along a non-threatening path.
2. The necessity of consent and constitutionality: Remedial Secession ought to be effected through the consent of the parent state and through constitutional means. However, this can only be implemented where the government of the parent state recognises the right to self-determination of peoples and has provided the basic social amenities necessary to guarantee the survival of the people. The Canadian Supreme Court in the Quebec case while admitting the right of external self-determination where a people is denied any meaningful exercise of its right to self-determination internally concluded that:
A State whose government represents the whole of the people Or peoples resident within its territory, on a basis of equality And without discrimination, and respects the principles of Self-determination in its internal arrangements, is entitled to Maintain its territorial integrity recognized by other states.
Therefore for secession to legally occur it must pass through the municipal legislation and constitutional means of the parent state. Remedial secession should enjoy the consent of the parent state and failure to obtain such consent is prima facie unlawful and constitutes a violation of the principle of Non-Intervention.
The principle of Non-Intervention is a peremptory norm and its violation poses a threat to the independence, freedom national unity and normal political, economic, social, and cultural development of countries, particularly those which have freed themselves from the shackles of colonialism. In the process of decolonisation, the content of the principle of self-determination of nations was the right of peoples inhabiting a colonial territory to freely determine its political status going as far as creating its own state. Outside the colonial context, the content of the principle of self-determination is different because it is applied to events that occur within the boundaries of states whose status as sovereign territorial entities is protected by another principle, the principle of territorial integrity. No act of international law provides grounds, outside the colonial context, for a unilateral secession as an element of the principle of self-determination of nations. Secession by a national community inhabiting a multinational state is, as a rule, legally admissible only with the consent of the authorities of the state (take, for example, the secessions of Montenegro and South Sudan). States established as a result of peaceful secession enjoy universal recognition by members of the international community and are members of the United Nations.
The philosophy behind this reasoning is based on the rule that unilateral secession would involve the separation of a minority cultural group from the state without any negotiation or consultation with the government of the state. Thus, the Supreme Court of Canada ruled that a literal reading of the Canadian Constitution leads to the conclusion that unilateral secession would be unconstitutional, and thus not permitted. In arriving at this conclusion, the Court relied on four fundamental constitutional principles:
• Democracy which seeks to promote participation in effective representative selfgovernment, which respects and responds to all voices in a marketplace of ideas.
• Constitutionalism and the Rule of Law protects individuals from state action because (a)the Constitution guarantees fundamental rights to all Canadian citizens, and (b) the rule of law forces governments to act in accordance with the law and empowers equality of all persons before the law.
• Federalism attempts to unify the nation by allowing the federal government to have authority over the common interests of its citizens, while acknowledging their differences.
• Protection for Minorities is a principle that guides other values and is unique to Canada because other democracies, such as the United States and Britain, promote assimilation.
The SCC reasoned that because of the complexity and importance of these values, no province can choose to unilaterally secede without addressing each principle and how their separation will affect each principle. In the light of the above the United Nations Security Council has adopted several resolutions in respect of consent and constitutional requirement on secession. (i) The Security Council Resolution 216 (1965) and Resolution 217 (1965) concerning Southern Rhodesia; (ii) Security Council Resolution 541 (1983), concerning the Northern Cyprus; and (iii) Resolution 787 (1992) concerning the Republicka Srpska. The ICJ in its advisory opinion in the unilateral declaration of independence in respect of Kosovo specifically noted that the act of making declaration of independence is governed by domestic law. Under international law there is no prohibition of declaration of independence according to state practice. This prohibition is implicit in the principle of territorial integrity.
3. Secession must occur without military intervention from foreign state: First, military presence in the international border and territory of a neighbouring state without prior consent from that state constitute armed intervention and armed intervention is synonymous with aggression is violates article 2(4) of the United Nations Charter which is a Peremptory Norm for which no derogation is permissible both under municipal and international law, and as such, is contrary to the basic principles on which peaceful international cooperation between states should is built.
No state should intervene directly or indirectly in the internal or external affairs of another without the consent of the host state and with the use of military personnel in acquiring statehood. Thus, even the protection of one’s own citizen does not provide the legal justification to use force. Intervention by invitation does not also provide any legal grounds to employ military activities for the purpose of effecting secession. The Helsinki Final Act has stipulated that the participating states shall respect the territorial integrity of each of the participating states.
In view of the above, the author concedes that this rule fully corresponds to the provision of Chapter III (“Occupied Territories”) Title III of the Fourth Convention relative to the Protection of Civilian Persons in Time of War adopted in Geneva on 12 August, 1949, and Chapter III of the Regulation concerning the laws and customs of war on land annexed to the IV Convention adopted in The Hague on 18 October 1907. In light of these regulations, a territory is considered occupied if it is under effective control of foreign armed forces, while its occupation starts with “the authority of the legitimate power having in fact passed into the hands of the occupant” (Article 43 of the Hague Regulations).
War-time occupation exists irrespective of the issue of the legality of the use of force and irrespective of the proclamation of martial law, the occurrence of armed resistance and the declaration of the occupation itself. Two factors constitute war-time occupation: 1) effective military and administrative control over the territory of another state; 2) the lack of consent of the territorial head to the presence of armed forces in its territory.
4. The International Community should rise-up to the challenge: The members of the international community should elect to uphold the precise obligation not to recognize territorial acquisition that was brought about by means contrary to conventional principles of international law. In this way any separatist group within the existing framework of a state even if it qualifies as a people will not use the excuse of exercising their right to self-determination as a legal justification to violate and dismember the existing territorial boundary of a state.
Members of the United Nations and members of the Security Council can uphold this tide and responsibility. In the face of seeming challenge on unlawful annexation which threatens the national unity of another state is a serious breach of peremptory norms of international law (iuris-cogentis) resulting in legal obligations erga-omnes.
The position of members of the international community vis-à-vis these breaches is clearly determined by law: they are under both negative and positive obligations.
The fundamental negative obligation is the prohibition to recognise factual situations that occurred as a result of a breach of peremptory norms. Modern international customary law imposes an obligation on states not to recognise illegal situations. This institution goes back to the so called Stimson Doctrine expressed by the US government in connection with the annexation of Manchuria. After WW II it found its confirmation in the practice of the main bodies of the United Nations in the form of a position expressed by the Security Council on South Rhodesia, the Republic of North Cyprus or the Serbian Republic, and most recently in the form of the above-mentioned UN General Assembly Resolution of 27 March, 2014, on the territorial integrity of Ukraine.
The customary nature of the obligation not to recognise illegal situations was reaffirmed and specified more precisely in the Articles on Responsibility of States for Internationally Wrongful Acts of 2001. Article 41(2) of this Act reaffirms the prohibition to recognise as lawful a situation created by a serious breach of an obligation arising under a peremptory norm of general international law, as well as a prohibition to render aid or assistance in maintaining that situation.
5. The violation must be extreme: According to judge Yusuf in his separate opinion on the Kosovo case. To determine whether a specific situation constitutes an exceptional case which may legitimize a claim to external self-determination certain criteria’s will have to be considered:
(i) There must egregious and gross discrimination against a people its persecution due to its racial or ethnic characteristics.
(ii) There must be denial of autonomous political structures and access to government against a people.
(iii) Such deprivation and violation must have fostered a decision by the United Nations Security Council to intervene on behalf of the afflicted people in salvaging their plight and,
(iv) All possible remedies for the realization of internal self-determination must have been exhausted before the issue is removed from the domestic jurisdiction of the state which had hitherto exercise sovereignty over the territory inhabited by the people making the claim.
These are the criteria for assessing the exceptional circumstances which might confer legitimacy on demand for external self-determination by a people denied meaningful exercise of its right to internal self-determination.
These criteria are very important for a people demanding separation from their parent state to prove in order to qualify them to unilaterally secede as remedy for the abuse of their right. Because international law does not turn a blind eye to the plight of a group, particularly in cases where the states not only denies them the exercise of their internal right to self-determination, persecution, and violation of international humanitarian law. Under such circumstances the right of peoples to self-determination may support a claim to separate statehood.
6. Statehood Requirement: In certain circumstances, the right of peoples to self-determination may support a claim to separation from the parent state, provided it meets with the conditions prescribed by international law. Pursuant to Article 1 of the Montevideo Convention on Rights and Duties of States 1933, has made elaborate provision for certain characteristics of a state. Thus, a state is a corporate entity that have ‘a population, defined territory, possessed of an independent self-government and has the capacity to enter into legal relations’. It is pertinent to note that any sub-state entity that intends to declare independence or to secede from their parent state under the umbrella of remedial secession must possess these essential ingredients of a state.
Any group of people or new political entity that fails to possess this ingredients and essential requirements of a state, the implication is that such group maybe deprived from been recognized as a sovereign independent state in the international community.
(7) Secession must be democratically elected: The population of the seceding territory must democratically approve of the secession, either through a referendum or a plebiscite. Thus, if the people votes contrary to the secession, then it cannot be asserted that there has been any violation of their fundamental rights.
(8) Secession must respect the principle of uti-possidetis: The principle posits that colonial boundaries are maintained on independence. The principle is of the view that colonial boundaries were not for the purpose of territorial rights but simply for administrative conveniences. In the Frontier Dispute case the ICJ affirmed that the principle is a general rule, which is logically connected with the phenomenon of obtaining of independence, wherever it occurs. It maintains the existing colonial boundaries inherited from the colonial powers.
Lastly, in the case of Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea the ICJ noted that the principle of uti-possidetis has kept its place among the most important legal principles regarding the territorial title and boundary delimitation at the moment of decolonization.