On State Secession from International Law Perspectives

This thesis deals with the issue of secession in an innovative manner: unlike the conventional approach which invariably focuses on whether there is a right to secession, discussion in this thesis centers on how secessionist conflicts can be effectively settled. For this sake, a multi-dimensional perspective is adopted here: in addition to exploring the legal color of secession, secession is further considered in the context of self-determination conflicts and analyzed in combination with the use of force and other forms of external involvement. The inherent complexity of a secessionist conflict necessitates adopting such a multi-dimensional perspective.

In this chapter the legal color of secession is explored according to Article 38(1) of the Statute of the International Court of Justice, so international conventions, international custom, the general principles of law recognized by civilized nations, and subsidiary means for the determination of rules of law including judicial decisions and the teachings of the most highly qualified publicists of the various nations are taken into consideration. Through this thorough exploration of international legal sources, it is revealed that lex generalis, such as international legal principles, is not in a position to offer a satisfactory solution to secessionist conflicts: the high degree of ambiguity embodied in legal principles invariably leaves them open to numerous and contradicting interpretations. A satisfactory solution to secessionist conflicts is much more concerned with lex specialis, namely an agreement between conflicting parties. In order to formulate such an agreement, the influence of state recognition cannot be ignored: premature recognition disturbs the formulation of an agreement between the conflicting parties and thus negatively affects the solution. Since another major obstacle to the formulation of an agreement between conflicting parties is the divergence of opinion between opponents and proponents of remedial secession, it is meaningful to consider moderating the disagreement between them by replacing a remedial right to secession with a right to a remedy.

In this chapter secession is considered in the context of self-determination conflicts. This chapter begins with a review of the historical evolution of self-determination. The historical review has demonstrated that, despite its entry into the international legal system, the inherent uncertainty about self-determination remains glaring: the holder and the content of the right to self-determination remain controversial, the territorial perspective and the human rights perspective of self-determination are not always clearly distinguished, tension might arise between the principle of self-determination and the principle of territorial sovereignty, and the right to self-determination is open to abuse particularly in the sense of remedial secession. Therefore, it is clear that a wide gap exists between theory and reality in respect of self-determination, and this gap itself contributes to secessionist self-determination conflicts. For the sake of conflict settlement, it is necessary to close the gap between theory and reality by improving the inadequate legal framework, which should entail the following points: reasonably defining the holder of a right to self-determination, distinguishing the territorial perspective and the human rights perspective of self-determination, correctly understanding the interrelation between territorial sovereignty and self-determination, and preventing abuse of the right to self-determination. When secessionists and non-secessionists can conclude an agreement, all these points can be well-managed, so external actors should make positive contributions to the conclusion of such agreements for the sake of the effective settlement of secessionist conflicts.

In this chapter secession is analyzed in combination with the use of force. Force is often resorted to by secessionists, parent states and external actors involved in secessionist conflicts. The complexity of this issue renders a legal judgment on the use of force rather difficult: for instance, when external actors fight against the authorities in favor of secessionists, from the secessionists’ perspective, such external involvement represents the furtherance of self-determination and human rights, but from the perspective of non-secessionists, the military support for the secessionist rebellion is detrimental to their right to self-determination over territorial interests and human rights as both have been severely violated by the secessionist violence; worse yet, well-intended external involvement can be maliciously exploited by a conflicting party for political ends, and external actors can also conceal their self-interested motives in the name of upholding noble values of international law. How this theoretical and practical conundrum can be properly addressed through the interpretation of international law is the crux of the matter. A detailed discussion about the general prohibition of the use of force and likely exceptions, including the responsibility to protect and the choice between legality and legitimacy, as well as how to escape from the vicious circle of the use of force, will help bring about a reasonable solution to the highly controversial issue of the use of force in secessionist conflicts. Four cases regarding the use of force in secessionist conflicts, namely Katanga, Bangladesh, Kosovo and Crimea, are analyzed for a better understanding of this issue.

In this chapter other forms of external involvement in the settlement of secessionist conflicts are brought to a comprehensive discussion, for the sake of improvement. In order to avoid counterproductive or detrimental external involvement, external actors must first have a clear picture of the legal issues that are included in a secessionist conflict. This forms the indispensable basis for the standardization of external involvement in secessionist conflicts, which should be characterized by finding a balance between various conflicting interests. In balancing various conflicting interests the UN should play a pivotal role, which requires the Security Council and other UN bodies to exercise their power in a more rational manner. Besides, some specific external actions also deserve special attention: mediation, recognition, response to de facto secession and media coverage of secessionist conflicts, all of which can hamper effective conflict settlement if not managed well. Therefore, it is well-advised to render the exercise of mediating power by external actors more rational through standardization, including emphasizing the observation of legally non-binding UN instruments, replacing unsuitable mediators and eschewing artificial deadlines. The issue of recognition should be handled more cautiously: the significance of non-recognition should be recognized; a wish should not be mistakenly recognized as a legal right; the detrimental effects caused by unilateral secession should also be recognized. As for a reasonable response to de facto secession, it is necessary to bear in mind the Latin maxim nullus commodum capere potest de injuria sua propria which can be deemed an aspect of the legal principle of good faith, and the significance of a fair distribution of territorial interests between secessionists and non-secessionists. The influence of the mass media on the settlement of a secessionist conflict should no longer be overlooked either: distorted media coverage will render the public ill-informed, but the public must be well-informed for effective conflict settlement to take place, so it is necessary to take a close look at how distorted media coverage can affect external involvement in conflict settlement.