Secession: A Proposal for a New Legal Framework
German Yearbook of International Law, Forthcoming
28 Pages Posted: 22 Oct 2016
Date Written: October 21, 2016
International law grants “peoples” the right to self-determination. The notion of self-determination stems back to the end of World War I and Woodrow Wilson’s idea that minority groups ought to become capable of determining their future political fate. Self-determination served as the driving ideology behind the decolonization movement post World War II, allowing colonized peoples the right to become free of colonizer oppression through the creation of their own independent states. Post-decolonization, the contours of the right to self-determination under international law became more uncertain. It is unclear whether the right applies equally in the non-decolonization context, and even if it does, it is uncertain whether non-colonial peoples have purely the right to internal self-determination and autonomy within their mother state, or if such non-colonial peoples can rely on external self-determination, to claim independence through remedial secession. Various non-colonial peoples have claimed the right to self-determination and secession; if international law recognized a positive right of external self-determination leading to remedial secession, this would obviously conflict with the norm of territorial integrity, preserving the territory of each existing state. This tension in international law, between preserving the territorial integrity of states while also bestowing group rights on peoples, persists today. The International Court of Justice (ICJ) did not provide much clarity on this subject in its 2010 Advisory Opinion regarding the independence of Kosovo. Other secessionist conflicts remain legally unsolvable, in light of uncertainty regarding the right to self-determination and secession. One such conflict, which provides an excellent illustration of applying the currently existing international law to a complex secessionist struggle, is Nagorno-Karabakh, a small region in the Caucasus, which is de jure a part of Azerbaijan, but which has been occupied by Armenia since 1994. This Article will examine the Nagorno-Karabakh conflict through the lens of self-determination and secession, in order to demonstrate that presently existing international law on these issues is inadequate and to argue for the development of a new framework on secession.
Keywords: secession, self-determination, Nagorno-Karabakh, international law, human rights, minority rights
JEL Classification: K33
Suggested Citation: Suggested Citation