Politics

Secession: What does international law say?

By Darius White

If you have lived in Western Europe for the last five years, secessionist movements will have become a part of your daily life. In Scotland, a referendum on independence was held in September 2014 and Nicola Sturgeon has said that, if Britain chose to leave the EU, demand for a second independence referendum could become ‘unstoppable’. In Catalonia, a pro-independence coalition controls the parliament after the most recent elections, and Catalan president Carles Puidgemot has recently declared a period of ‘pre-independence’. We are familiar with the standing of these movements with domestic law. But what does international law say about secession?
International law are the rules that govern the international realm. They have been arrived at through centuries of testing between nations as to what rules would best regulate this sphere. International law governs entities such as diplomacy, trade, aircraft, shipping, and investment. It applies not only to states but to organizations and individuals. In the past, secessionist movements have benefited from operating within the law, as this makes it easier for new nations to be ‘recognized’ by the international community. We can expect Scottish and Catalan secessionists to try to make a case that they have a right to secession.

So how will they try to make their case? There are several sources that can give us ideas about the legality of their proposals. The UN Charter, for instance, states in Article 2(1) that one of the purposes of the UN is to develop ‘friendly relations among nations based on respect for the principles of equal rights and self-determination’. However, self-determination is different from secession. Self-determination is the right of a peoples to choose how they are governed. Secession is the right of a peoples to separate from their parent state. We will probably see the members of the UN be respectful towards the decisions of these movements, but not actively supportive.

There are other sources as well that might be more relevant. In 1960, the UN General Assembly issued a statement about the right to independence of colonized people. The Declaration on the Granting of Independence to Colonial Countries and Peoples stated that: ‘All peoples have a right to self-determination; by virtue of that they freely determine their political status’. While statements made by the General Assembly are not legally binding, they are nevertheless respected by UN members as the General Assembly reflects the views of 193 states.

Finally, we may look to past cases of secession to see what the international community decided. For example, in 1980s-90s a secessionist government was in power in the Canadian region of Quebec. At one point, the Québécois government conducted a referendum without the authorization of the Canadian government. The Canadian Supreme Court pondered on whether unilateral secession (a peoples separating without consent from the parent state) was legal under international law. They reached the conclusion that unilateral secession was only legal in the context of colonialism, foreign occupation or when self-determination is being denied.

In conclusion, we may expect to see these pro-independence governments trying to make their case using these sources or others that they have a right to secession. International law is deeply political and entities have been able to make their case successfully by interpreting a Treaty a certain way. Given this fact, let us hope that they don’t make a decision based on purely political motives as secession is a permanent move.

 

[1] I want to thank Dr Edwin Egede for the sources in this article. The contents of paragraphs 3, 4 and 5 are based on his lecture notes in Introduction to International Relations.

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