Creating New States: Theory and Practice of Secession

A few plebiscites were carried out only in several contested multinational and recognizing the independence to the colonies of the UK, France, Belgium, border areas, such as Silesia and Carinthia, to determine to which state these border Netherlands, Spain and Portugal in Africa, Asia, the Pacific region and Latin America.

The legal right of self-determination, as elaborated in these resolutions, was thus Following the collapse, in , of the communist political system, the principal legal instrument in the dismantling of the European states' overseas instituted by the Communist Party of Russia in Russia and Eastern Europe, the empires.

Although stated in the universal terms, the UN has so far recognized that three multinational states created in the post-World War I period - the USSR, right only for the peoples in the overseas colonies of European states.

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Their dissolution is discussed in Chapters 4 and 5. Major theatres of decolonization include the two American Until the establishment of the UN in , the right of self-determination was continents during the late eighteenth and early nineteenth centuries and Afiica recognized neither as a political nor a legal right. Prior 1 2 and 55, first recognized 'the principle of equal rights and self-determination to the middle of the twentieth century, creation of new states out of former of peoples' as a universal principle on which rclations among states and peoples colonial entities was often only achieved by the use of force.

Thus in the late should be based. Then, in , the Declaration. In the early nineteenth century many states formerly under the colonial rule 2. All peoples have the right to self-determination; by virtue of that right they of Spain and Portugal in Central and Southern America also attained their freely determine their political status [ Immediate steps shall be taken, in Trust and Non-Self-Governing Territories some cases decolonization proceeded relatively peacefully, and often over or all other territories which have not yet attained independence, to transfer a period of time.

Examples here include the states of Canada, Australia and all powers to the peoples of these territories, without any conditions or New Zealand that obtained their independence from the UK. However, towards the European states' rule over their overseas colonies. International with secession from independent states, the international comniunitv has opinion became increasingly hostile to the continuation of colonialism.

This is illustrated by the comment This was clearly demonstrated with the recognition of the principle of self- of the then Secretary-General of the United Nation: From to would become ever more difficult to achieve' Boutros-Ghali , 9. Thus, 1' over 90 of these colonial entities attained independence. Out of these, whilst decolonization was relatively uncontroversial, secession from an over 80 per cent did so in the period commencing in , the year that the remains, a contestetl and sensitive political United Nations General Assembly adopted the Declaration on the Granting of Independence to Colonial Countries and Peoples Resolution aimed at facilitating the end of colonialism.

The United Nations took the view that decolonization should proceed as rapidly as possible, the justification for the process being the right of peoples UN Charter and its General Assembly resolutions concerning the right of self- to self-determination. In many cases decolonization proceeded peacefully, ermination do not endorse any detachment or withdrawal of territory from an but in others involved the use of force. Indeed, in international law, the sting sovereign and independent state. In particular, the UN documents do not use of force in this context was justified.

One of the key features of this ognize the right to detach a territory of such a state against its will and by the era of decolonization was the general insistence that, in accordance with the ce of arms. On the contrary, the UN Charter, in article 2 4 , protects the territory principle of uti possidetis juris Radan , , newly independent eign states by proclaiming that: These borders cut across territorial divisions based All Members shall refrain in their international relations from the threat or use of force upon the ethnic origins or culture of peoples living in the new states.

Creating New States: Theory and Practice of Secession - Aleksandar Pavković - Google Книги

As against the territorial integrity or political independence of any state [. The In that decolonization involves the creation of new states out of territory resolution notes that any 'subjection of a people to alien subjugation, domination controlled by an existing state by withdrawing that territory from its and exploitation' constitutes a violation of the principle of equal rights and self- jurisdiction, decolonization may be regarded as a form of secession. The Declaration further stipulates that a state's territorial integrity for the purposes of this book, the discussion and analysis of secession is is assured only under certain circumstances.

The Declaration requires states not to confined to secession of territory forming part of an existing state and does engage in particular forms of discrimination or oppressive conduct against groups not include decolonization. We justify this approach on two major grounds. First, the process of decolonization is almost complete in that there are only The Declaration's guarantee of the territorial integrity of states appears to a handful of colonial entities left, all of them being very small, often island, prohibit secession from a sovereign state.

However, the conditional nature of territories. Thus, in practical terms, decolonization is no longer the significant the guarantee, gives rise to the question of whether a right of secession arises in political and legal issue that it was in the past. Second, decolonization, situations where a group or groups within a state are denied their rights to self- especially in the post-World War I1 era, was treated by the international determination by the state's discriminatory or oppressive conduct against them.

This question will be further explored in Chapter 8 in the discussion of the legal Decolonization was seen as a positive goal to be achieved as soon as possible. Violence, at the time of writing this book, is still a feature of most right of self-tleterminatioii? To take a small sample, secessionist conflicts in. This is oilly olie ieasoli why the slates were enabled to exercise that right by establishing independent states dominated phenomenon of violence in secession demands a systematic study.

In Part I we shall discuss four cases of secession which generated violent conflict In contrast, the UN Charter and the UN resolutions discussed above assign the nd, by comparing them to four cases which did not, we shall attempt to identify right of self-determination to a people who 'belong' to a territory see box 'The at least some of the causes of violent conflict in the former cases.

Even before any meaning of "people" in relation to self-determination' in Chapter 8. Neither the UN fittempts at secession were made in these four cases, secessionist groups or parties Charter nor LrN resolutions determine who constitutes a people or how to distinguish ublicly aired their grievances against the host state or majority population, the onc pcoplc from another.

For the purpose of granting independence to former ress of which, they argued, required the creation of a separate state. In all of these colonies, it was assumed that the whole population of any one European colony es, individuals and groups disagreed over the need for a new state: The borders of these colonies were mostly demarcated, in the reatened their group's existence and created avoidable conflict among different nineteenth century, by the European colonial powers.

Thus by demarcating the national groups. Thus both the need for a new state and the right to establish it were borders among their colonies in the nineteen century, the European colonial powers subject to disagreement and public contention - petitions, public protests, rallies determined who - which 'people'- will, in the twentieth century exercise the right and the like. Public contention is not always peaceful. During any form of public of self-determination in those colonies. But, apart from the state authorities, who command right to self-determine, that is, to secede from the host state.

These disagreements police and military forces, various other groups also arm and incite their followers sometimes led and are still leading to violent conflict. As we shall see in Chapter 5, to violence against members of other groups or state forces. Moreover, the state several minorities in federal units of the SFRY and of the USSR, denied the majority authorities may order force to be used against demonstrators who otherwise display national groups in these units the right to 'determine'their that is, minorities' political no violent intentions.

Although not all public manifestation of secessionist intent status. In spile of this, in the EU's constitutional judges, in the Arbitration have resulted in violence, most attempts in the twentieth century to publicly promote Commission on Yugoslavia chaired by Robert Badinter proclaimed that in the case secession and to organize a political movement in support of secession resulted in an ofYugoslavia SFRY the sole holder of the right of self-determination was the whole outbreak of violence of some form. In their view, as the borders of the European complementary ways.

First, in Chapter 2, we shall examine the context in which overseas colonies determined who the holder of the right of self-determination is in secessionist movements arise and how they gather support amongst the members each colony, so the borders of a federal unit determined who the people entitled to of the national or interest groups which they target. Second, in Chapters 3 to 5 the right of self-determination within that federal unit is.

According to the Badinter we shall examine eight case studies of peaceful and of violent secessions. We shall Commission, like the European colonial powers in the nineteenth century, the examine two cases of secessions - of Norway and of Slovakia - and one case of founders of federal states for example, the Communist leaders of the USSR and an attempted secession - of Quebec - which did not involve violent conflict and SFRY by creating the borders of the federal units determined who the holder of the two cases of secession - Biafra6 and Bangladesh - and one attempt at secession - right of self-determination in these units is.

The Badinter Commission's view of self- Chechnya- which were preceded or followed by protracted violent conflict involving determination failed firstly, to resolve the disagreements over borders and territories of new states arising from the SFRY and secondly, to prevent the subsequent wars in nationally mixed territories. This view has also been a subject to a continuing debate 6 The case of Biafra is considered as an unsuccessful secession primarily because its among legal scholars which we shall further explore in Chapter 8. In contrast, There is no space in this bookto attempt a systematic study of secession processes the secessions of Slovenia and Croatia were violent and triggered not only further, of this kind.

Instead, we shall approach the problem of how to explain secessions i n mostly violent, secessions from the host state, the SFRY, but also violent attempts two complementary ways. First, in Part I we shall attempt to identity those teatures at secession from the seceding states of Croatia and Bosnia and Herzegovina as in our eight cases of secession and attempts at secession which may provide a ptri-tiai well as from the non-seceding remnant of the SFRY which consisted at the time of explanation of why these particular secessions or attempts at secession took place.

In comparing these two - violent and non-violent - sets Second, in Part 11, Chapter 6, we shall analyse several recent social science theories of secessions, we shall attempt to identify the factors, absent from the former set which offer explanations of how and why secessions take place and attempt to apply but present in the latter, which may, at least partially, explain why secessions and them to our eight cases studies.

These social science theories attempt to explain attempts at secession from the SFRY led to protracted war and violence. In order to find a comprehensive answer to that question, one secessions or attempts at secession we have discussed in Part 1. In short, in order to find out why violence occurs in some secession we shall distinguish between the general social and cultural conditions which processes and not in others one would need to attempt to explain, at least in part, facilitate the formation and growth of secessionist movement from the 'triggering how secessions take place in general.

For this purpose one would need a theory of conditions' for secession- the conditions which led to or 'triggered' the declarations how secessions are carried out. But, as we shall see in Chapter 6, there is at present of independence or other overt attempts to secede. An explanation of why secessions no generally accepted theory which would explain how secessions, in general, are are attempted is thus bound to refer to both the general social and cultural conditions carried out.

In any case, our comparative study of violent and non-violent secessions under which a secessionist movement developed and to the conditions which led its in Part I does not aim to provide a comprehensive and systematic answer to the leaders to declare independence. However, it may help us. It is primarily social scientists who are interested in explaining how and why to understand why violence broke out in some cases of secession in the past and why secessions take place. Their theories and explanations are also of interest to policy violence may accompany some attempts at secession in the future.

Social science theories of secession may be of some use to the Why and how do secessions happen? In all of these cases, there was a growing political develop. But policy makers and their advisers also need to justtfy their policies - for movement in support of independence, the leaders of the movement proclaimed the example, secessionist leaders need to justify their attempts to secede, the host state independence or were about to do so from the host state and they attempted to gain policy makers need to justify their policies towards secessionist movements and recognition of their independence from other states.

As we shall see in Chapter 2, policy makers in other states need to justify their policies towards both secessionist these are common characteristics of all other secessions or attempts at secession. As we shall see, they are not the only ones who But do these three common elements explain how secessions, in general, take would be interested in the question ofjustification of secession. And do they give us some indication as to why secessions are attempted in some states and not in others, that is, why people on certain territories attempt to Is an attempt to secede the right thing to do?

Normative justification of secede? In asking these questions, we would expect to find a pattern or set of factors secessions in secession processes which explains why and how such attempts are made, a pattern or set of conditions which is in some sense necessaly for all attempts at secession. A sovereign and independent state can bring some benefits to members of its majority In order to find out what factors or conditions are necessary for such attempts one population which a previous host state could not.

In addition, the creation of that state by secession cight cases of secessions examined in Part I and we outline an alternative approach from the host state may also conform to generally acceptable principles such as lo the assessment of secession which does not assume any right to secede. In consequence, attempts at secession may be justified by reference either to potential benefits of secession to the secessionist population or to general norms or principle or both.

However, if one is arguing that a Are secessions legal? How does the law regulate secessions? Therefore, in order to show that an attempt at secession is right, it may be secession. Only a'few state constitutions, such as those of St Kitts and Nevis and sufficientto show that it conforms to a general principle or norm, applicable in other of Ethiopia, explicitly proclaim the right of secession and determine the conditions cases of secessions. However, as our Appendix shows, In Part I, Chapter 2 we briefly outline a variety of justifications of secession since a large number of secessions and seceded states were formally - and which are offered in attempts to gain support for secession among members of thus legally - recognized by the UN, the European Union EU and their member the target 'secessionist' groups as well as among outsiders.

In discussing our eight states. Also a number of host states -the USSR, Czechoslovakia and Indonesia, for cases of secessions or attempts at secession, we briefly outline specific justifications example - legally recognized secessions of their own federal or administrative units. As we shall see, these This indicates that secessions can be legal and that they are being, at least in part, justifications refer both to benefits resulting from secessions and to general norms or regulated by law. Where is the source of the legality of secessions? Some of the general norms that are used to justify secession are further In Chapter 8, we explore the existence of a legal right of secession from the elaborated and defended -in a variety of theories of secession advanced, since the perspectives of the domestic law of a host state and international law.

The area of s, by political philosophers and theorists in scholarly works published in the domestic law which is explored in Chapter 8 is restricted to the judgments of the English-speaking world. These theories are discussed in Part 11, Chapter 7. In contrast to explanatory theories, their theories are called 'normative was constitutionally illegal. In other words, if the host state or its federal units have theories'. If any just state should conform to general norms and principles, the states not agreed to secession, through some constitutionally prescribed process, a secession created by secession from other states should conform to them too.

Nomiative of a unit or part of that state has no basis in domestic law. Beyond indicating that theories of secessions aim to elaborate and defend general and consistent criteria a legal secession requires amendment of the host state's constitution, none of the for the justification of secessions; and in most cases, they defend a general right judicial decisions provided detailed rulings on procedures by which such secessions to secede, as a right which is held by any group of individuals irrespective of their national belonging. However, the essence of these decisions is that secession can From a large number of contemporary normative theories of secession, for the occur if it is consensual.

Here international law arguably provides a basis for an implicit and limited principle, the right to live in a functioning and protective state, is intended to remedy right of secession based upon the right of peoples to self-determination. The principal wrongs or hanns which host states or their governments often inflict on specific source for that right is found in the Declaration on Friendly Relations adopted by groups of their citizens.

If a host state has systematically abused some interests or the UN General Assembly in As we shall see in Chapter 8, such a right only rights of a group living on a territory, this principle allows the group to secede from arises in cases of a state that discriminate or oppress a group of groups of persons the abusive or non-functioning host state. The second principle, the right or liberty living within that state. If which can be legal, provided that it satisfies the above very broad criteria.

Furthermore, a smaller group within a host state or a state seceding from it, decides, through an secession can be subject to a normative assessment by reference to political or moral appropriate democratic procedure to secede for any reason whatsoever, it should be principles.

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But who carries out these acts of withdrawal and creation of new states? His conclusion that 'separate national states' are still tlie basic organizational units of the present international system suggests that creation of new states from the existing ones through secession is likely to continue. The reader Nationalism 1? Smith Oxford, Oxford University presents a great variety of views on nationalism, nations, nation- states and the role of nationalist ideologies in the system of sovereign states and other topics related to nationalism. The issue of sovereignty and statehood in the contemporary world is discussed in the special issue of the Political Studies , Vol.

Wallace discuss the history and conceptual development of sovereignty, the practice of sovereign statehood in contemporary politics, the relation of sovereignty and self-determination and the practice of sharing sovereignty in the supranational organizations such as the EU. Krasner's Sovereignty, Organized Hypocrisy , Princeton, Princeton University Press offers an alternative and controversial analysis of sovereignty and its practice in the modem world. Grant , The Recognition of States, Law and Practice in Debate and Evolution Westport CT, Praeger is a discussion of the principles and their application to the issue of recognition of states with a particular emphasis on the states that emerged fiom the break-up of Yugoslavia.

Although opinion polls were suggesting that there Who. Be that as it may, this was a case of mutually agreed secession carried out by a political coalition which had no popular mandate to do so. Neither the Movement for a Democratic Slovakia nor Civic Democratic Party and their coalition allies campaigned on a platform envisaging dissolution of the common state and, as noted above.

After the dissolution, the absence of a popular mandate did not create any political backlash against these parties; their electorates in each republic appeared to have acquiesced in the dissolution in spite of being denied a vote on it. Neither did the absence of a referendum impede the swift international recognition of the independence of both states. Its territory within the present boundaries of 1, thousand square kilometres is three times the size of France. The remaining residents are immigrants from non-English and non-French speaking countries.

More than 80 per cent of the population lives in the urban centres near the St. Lawrence river, the largest of which is Montreal with 3. Most Amerindians and Inuit form a majority population in sparsely populated northern Quebec Quebec Immigration, After the defeat of the French royal army Canadagol-l By the Constitutional Act of the British Crown guaranteed the use of French in the elected assembly and of French civil law in the Lower Canada the southern part of present-day Quebec , 6 In July , one month after the election, 86 per cent of respondents in Slovakia were thus protecting existing French property rights and the role of the French Catholic in favour of the referendum.

The eventual dissolution evoked positive feelings among 27 per church. The British take-over of these provinces, in French Canadian nationalist cent, ambivalence or mixed feelings among 21 per cent and indifference among 15 per cent discourse, came to be called 'the British Conquest'.

Within the same discourse, the of respondents. Negative feelings were recorded among 37 per cent of respondents Butorova , The phrase is based on the analogy with the Quiet was the beginning of the active h c o p h o n e resistance to the 'British Conquest' Revolution in Quebec in the s see below ; it was attributed to a Quebec separatist. Act passed in by the Imperial Parliament in London. The Act established co-exist as equals.

Quebec is an independent francoph lne nation-state the Dominion of Canada as a 'Confederation' of the provinces of Ontario, New in North America. It guaranteed the use of French in addition to English in both the federal and Quebec legislature and courts, the use of the French civil code, as well as the maintenance of separate denominational schools in the province of Quebec. This pattern of employment reflected an obvious cultural division of labour in which the Quebec francophones mostly Until the s, the majority of francophones in Quebec were farmers living on occupied the lower rungs of the labour hierarchy - farmers and industrial workers family farms.

Living in small francophone communities in which the francophone -while the higher rungs -managers, civil servants and entrepreneurs - were mostly Catholic clergy and teachers played a central role, they had little if any contact with occupied by members of thc minority anglophone population McRoberts , the anglophone population or with agents of the Canadian state.

The beginnings of But it was the federal government's involvement new self-confidence and pride McRoberts The primary instrument of Canada in on the side of the British in the Boer war in South Africa that led to for building such a modem technological society was to be the state of Quebec, and the establishment, in , of the first modem francophone nationalist organization for this purpose Quebec needed to expand its competencies and to take over various - the Ligue Nationaliste Canaditenne. A francophone politician, Henri Bourassa, functions performed by the federal government of Canada.

The 'Quiet Revolution' led a mass campaign against Canadian involvement in British imperial wars and his in Quebec consisted, in part, of the replacement of traditional francophone Catholic- followers established the Ligue to propagate the economic, political and military based nationalism with a modernizing neo-nationalist ideology whose political goals independence of Canada from Britain and the 'widest possible autonomy [of Quebec] were encapsulated in the slogan: In Canada, own house - where 'chez nous' referred to Quebec.

Bourassa believed, two equal nations -the French- and English-Canadians - should In keeping with this ideology, in the s the Quebec government took over be together building a common homeland, independent from Britain or any other responsibility for the provision of education, health and social services, previously power. In spite of the large-scale involvement of the state in Mass demonstrations against the law in Montreal resulted in street fighting amongst the economy, the dominance of anglophones in the upper rcaches of business and opposing groups, and in March federal troops killed several demonstrators while finance management was not broken.

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By the end of the francophones had not, as suppressing an anti-conscription riot in Quebec City. Under these circumstances, the yet, become the maitres of Quebec McRoberts , In order to achieve this, idea of political separation of the francophones in Quebec from the anglophones neo-nationalists argued, it was necessary, firstly, to ensure the exclusive dominance in Canada appeared to gain new credibility.

In the late nineteenth century, a few of French in education and everyday communication and, secondly, to gain the conservative Catholic thinkers - such as Jules-Paul Tardival in his Pour ma patrie recognition from the federal government of Quebec's special status as an equal partner - had already elaborated this idea. In the followers of an influential to anglophone Canada or the 'Rest of Canada'. The first goal was to be achieved by nationalist ideologue, Father Lionel Groulx, argued that the political independence requiring the children of immigrants in Quebec to learn French as their first language of Quebec was inevitable Lintau at a1 , The second was to be achieved by a revision of the constitution opposing visions of Quebec.

In one, Quebec is the francophone homeland with of Canada recognizing Quebec as a 'distinct society' and accordingly allocating to 'the widest possible autonomy compatible with maintenance of a federal link' with Quebec appropriate legislative powers. Not-wq, Slovakia and Quebec 83 s and early 19'70s failed to achieve these goals, to many neo-nationalists the In spite of its rejection at the referendum, a 'new arrangement' of this kind secession of Quebec appeared to be a more effective way of making the Quebecois was reached in His new party promised to proclaim the independence - or member.

In another attempt at a new arrangement, in the Charlottetown Accord of sovereignty - of Quebec once it gained power. Tnis accord was rejected by Quebec voiers as weii as against the federal army andgovernment targets. In October ,theFLQ kidnapped the anglophone voters in five other provinces. The anglophone voters in Canada thus the British trade representative and a francophone cabinet minister. In response, appear to have rejected any special status for Quebec. As demanded by the Quebec within Canada, the PQ, upon its return to government in Quebec in , put, ludnappers, the FLQ manifesto was published and broadcast, but the Quebec cabinet in , to the Quebec electorate the following referendum question: There was no support among the francophone for a new economic and political partnership, within the scope of the Bill respecting population for the FLQ and its campaign of violence and from no francophone the future of Quebec In the second referendum on Quebec's independence The difference between the Yes and No votes was only of 54, The promise of independence appeared to gain a rather limited support too: The majority of the francophone business and financial elite - which by this in the Quebec elections, PQ gained only 30 per cent of the votes cast.

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In time dominated the banking and business establishment of Quebec - supported the PQ abandoned this promise and committed itself to holding a referendum No vote. Partly as a result of this, its vote in the election rose to 41 to say that only 'money and ethnic votes' won in the referendum for the No camp. But its referendum on federal parliament, recognizing Quebec as distinct society and granted, by law, all independence had to wait until when the PQ government asked for a mandate provinces, including Quebec, a veto on constitutional matters.

But it also asked the to negotiate 'a new arrangement with the rest of Canada, based on the equality of Supreme Court of Canada to rule on the legality or constitutionality of a unilateral nations'. This new arrangement, according to the wording of the referendum question, secession of Quebec, thus attempting to specify a legal or constitutional framework would include 'the exclusive power [of Quebec] to make its laws, administer its taxes for any future attempts of Quebec to secede.

For its part, the PQ vowed to repeat a and establish relations abroad - in other words, sovereignty - and The avoidance of the word 'independence' and the insistence of an economic association with Legalizing Quebec S secession: The Supreme Court of Canada Canada in the referendum question was intended to reassure voters that the gaining of sovereignty for Quebec would not mean a sudden rapture with the rest Canada.

In its judgement on the legality of secession of Quebec, the Supreme Court In the first referendum on Quebec's independence Only 48 requires that it be carried within the framework of principles of constitutionalism, per cent of francophone voters and only 5 per cent of non-francophones voted Yes federalism, democracy, the rule of law and protection of minorities.

A successful referendum introduces 8 As the FLQ was made illegal and its activists imprisoned or exiled, it ceased to 9 This time, however, the PQ won 60 per cent of the francophone vote from 48 per cent function in Foumier , in the referendum. These negotiations need to address the interests of Aboriginal peoples and minorities, the issue of borders of the seceding in the three cases above we can observe the following: There were no territorially concentrated groups which opposed the secession agreement on the secession of Quebec see Chapter 8.

Creating New States

However, the Court ruied cf NCT.: In consequence, the following issues were left unresolved: Second, if the secessionists fail to negotiate in good Democratic Movement and Coexistence which gained 7. The Hungarian minority representatives voiced fears that in an legally entitled to use force against their illegal acts to take over the sovereign powers independent Slovakia, in particular under MeEiar's party, their minority rights would in Quebec?

Third, in a case of an illegal secession, are the Aboriginal groups who be denied or restricted; these rights primarily concerned to the use of the Hungarian oppose the secession of the territories which they claim as theirs, legally entitled to language in education, media and in public administration. Thus all Hungarian resist by force these illegal secessionist authorities?

In , the federal government rights Stein , , Although MeEiar and his party repeatedly refused to enacted the Clarity Act, which gives the federal House of Commons the power respond to any of the Hungarian minority's demands, the Slovak government made no attempt to suppress the Hungarian or any other party's opposition to secession. The minimum resistance to secession.

Moreover, no support for this kind of resistance was coming requirement for the latter is set at 50 per cent of the vote of all eligible voters plus from neighbouring Hungary. As a result, the political conflict with the Hungarian one. In spite of its requirement that the views of all political parties and other minority party was not trailsformed into violent conflict.

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As in the case of Nonvay, Canadian institutions and of Aboriginal peoples be taken into account, the Clarity in Slovakia condition 4 was not present: In response, in In Quebec, both conditions 3 and 4 are present. The organizations of Cree , the Quebec government enacted Bill 99 which asserts the right of the Quebec Amerindians and Inuit oppose the secession of their traditional territories located National Assembly to determine all issues arising from a referendum in Quebec within Quebec from Canada without their communities' consent and have, through and denies that right to any other government or parliament.

The Bill also sets the several referenda, expressed preference for remaining in Canada Makivik Factum, majority required in a referendum at 50 per cent of votes cast plus one and prohibits ; Cree Factum, As such the principle would be too permissive and therefore, given the fundamental importance attached to the principle of territorial integrity of states, not likely to be adopted by the international community in the foreseeable future.

In Chapter 8, the legality of secession is elaborated upon from the perspective of both national and international law. The principal focus here is on international law, as in the great majority of national jurisdictions there does not appear to exist a fundamental legal problem if secession occurs within the parameters of a mutually agreed setting. The authors state that:. This argument, in fact, points to the conversion of a right of self-determination which is implemented within the state internal self-determination into a right of self-determination which is implemented without the state external self-determination.

One may share the view that a right of unilateral secession does exist under international law when a state seriously violates either the right of internal self-determination of a people within its jurisdiction, or the human rights of the members of that people; and when this people must be deemed to have exhausted all realistic remedies to implement its right of internal self-determination. It should be kept in mind that the authoritative Friendly Relations Declaration [55] — aimed at interpreting fundamental principles of international law in accordance with the Charter of the United Nations — is formulated in terms of obligations and rights of states in their mutual relations and did not aim to address the issue of the existence of a right to unilateral secession of peoples, let alone aim to codify it.

Therefore, a convincing argument for the existence of such a right would require more, and would at least need to include references to state practice such as international recognition of claims to such a right under circumstances referred to in the resolutions. Moreover, it would also require some elaboration of the circumstances under which a state must be deemed to comply with the right of internal self-determination. This argument is difficult to accept. After repeated massacres of Ibos with respect to which the central Nigerian government did not intervene, it is certainly understandable that the Ibos were mistrustful of the central Nigerian government, feeling little incentive to cooperate with it as a result.

It is even questionable whether, under these conditions, the Ibos were still legally obliged to cooperate. Regarding the case of Bangladesh, the authors argue that the military government attempted to establish a central government which would represent the Bengali population, but the Bengali leaders kept on instigating a con federal framework which would have minimised the competencies of the central government and thus, so they argue, made it less representative.

It is not clear how these could be regarded as constructive efforts to create a representative central government. It is also unclear why a confederal government would be, by definition, less representative as opposed to less powerful than, for instance, a federal government.

In sum, even for an introductory study into the creation of states through secession, this part of the study generates more questions than answers. As a result, the authors state that in a world order that is based on the concept of territorial sovereignty, attempts at secession will not vanish.

Although a number of aspects of this study have been flagged and briefly commented upon in the sections above, some final remarks must be made. The broadness of its scope has significant consequences, because it has led the authors to include cases in their study which are not qualified as examples of attempts at secession under international law. The main problems of the definition used are, therefore, threefold: First, the assertion that separation must lead to the establishment of an independent state in order to qualify as secession cannot be maintained.

The concept of external self-determination is a mode of implementation of the right of self-determination of peoples through: Secession is, in addition to dissolution and union or merger, a means by which external self-determination may be exercised. As a result, secession may lead to different forms of territorial status freely chosen by the people concerned, in addition to independent statehood.

The formal transfer of territory only applies to situations in which the state as such would freely renounce its title to part of its territory by agreement with another state volenti non fit injuria , whereas union or merger is concerned with situations in which the people or their government inhabiting a particular territory formerly belonging to the parent state choose to integrate this territory into another state.

Secession as a legal qualification of a given set of facts is concerned with the unilateral withdrawal of territory from the parent state, which implies the opposition not necessarily violent in character by the parent state to the secession. Those cases in which the parent state gives its either explicit or tacit and either prior or subsequent consent with regard to the separation as in the case of Slovenia , are generally legally qualified as cases of devolution as a result of which an exclusive title to the territory in question is transferred by the parent state rather than secession in which case the exclusive title to the territory is claimed by the secessionists, as in the case of Croatia, Chechnya and Abkhazia.

These arguments, however, ignore the fact that international law attaches different legal consequences to different forms of state creation. It is difficult to consider these consequences as irrelevant to the establishment of the seceded entity as a state under international law. It is precisely because of these kinds of fundamental legal consequences that different cases, even if they have the same type of outcome, are qualified and treated differently under international law. A final point of criticism regarding the definition used is that it does not make a distinction between territories which form part of the territory of the parent state de jure and those which do not.

In this respect reference can be made to the regaining of independence by the Baltic States in —91, the independence of which was generally and legally regarded as the restoration of the legal status quo ante , not as unilateral secession. Also, in this case the qualification has important legal consequences, for instance, with respect to the legal force of treaties concluded by the Baltic States prior to their de facto incorporation in the USSR.

In sum, if the authors would have used another more limited definition of secession, several cases could not have been included in their survey, a result of which being that they might have had to change some of their conclusions. Perhaps some readers would be disappointed by the fact that this study does not introduce a single model of explanation of all secessions nor a single model able to predict violence in attempts at secession. In order to do this, in particular with regard to future secessions, scholars would need to be able to foretell future events, which they still cannot.

An eBook version of this title already exists in your shopping cart. If you would like to replace it with a different purchasing option please remove the current eBook option from your cart. Add to Wish List. Description Reviews Authors Subjects. Description Secession is the creation of a new independent state out of an existing state. The Bookshelf application offers access: