Remedial Secession: What the Law Should Have Done, from Katanga to Kosovo

• Publication year: 2011
• Citation: Vol. 40 No. 1

Remedial Secession: What the Law Should Have Done, from Katanga to Kosovo

Thomas W. Simon^*

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Table of Contents

I. Introduction...............................................................................107

II. International Law, Secession, and Kosovo..........................108

A. Background on the Kosovo Decision.......................................108
B. Legal Analysis..........................................................................110
C. Relational Factors....................................................................110

1. Case Studies.......................................................................117

a. Baltic States.................................................................117
b. Chechnya .....................................................................118
c. Biafra........................................................................... 118

D. Internal Self-Determination.....................................................119

1. International Law and Internal Self-Determination..........119

a. Treaties........................................................................120
b. Customary Law...........................................................124
c. Judicial Opinions........................................................126

2. Case Studies.......................................................................129

a. Bosnian Serbs..............................................................129
b. Biafra...........................................................................130

E. Group Harms............................................................................131

1. Case Studies.......................................................................136

a. Quebec.........................................................................136
b. Biafra...........................................................................137

2. Cases Before and After Kosovo.........................................138

a. Bangladesh ..................................................................139
b. South Ossetia and Abkhazia........................................141

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III. Competing Models of Secession..............................................142

A. Remedial Model........................................................................143
B. Functional Model.....................................................................146

1. Slovakia..............................................................................147

C. Cultural Preservation Model....................................................152

1. Quebec...............................................................................153

D. Economic Harms Model...........................................................156

1. Katanga..............................................................................156
2. Biafra.................................................................................157

IV. Legal Forums for Secessionist Claims..................................158

A. The Human Rights Committee..................................................162

1. Reporting...........................................................................163
2. Complaints.........................................................................164
3. Arbitration and Advisory Opinions....................................165
4. Remedies............................................................................165

B. Committee on the Eradication of Racial Discrimination.........166

V. Conclusion...................................................................................172

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At present, there are about 26 ongoing armed self-determination conflicts. Some are simmering at a lower level of irregular or terrorist violence; others amount to more regular internal armed conflicts, with secessionist groups maintaining control over significant swathes of territory to the exclusion of the central government. In addition to these active conflicts, it is estimated that there are another 55 or so campaigns for self-determination, which may turn violent if left unaddressed, with another 15 conflicts considered provisionally settled but at risk of reignition.¹

I. Introduction

Imagine a world that includes the following independent countries: Biafra, Chechnya, Katanga, Kosovo, Quebec, and South Ossetia. All of these territories have made bids to become independent states. All but one of these failed in their quests, and the status of the one exception, Kosovo, remains controversial. Understandably, states oppose groups that attempt to break away from their parent state. International law reflects this negative stance on secession movements. Colonialism provides a legally recognized exception to maintaining territorial integrity. International law has come to recognize the right of colonial peoples to create independent states, that is, a right to external self-determination. Only recently have courts even entertained secessionist claims.

While courts such as the International Court of Justice and the Supreme Court of Canada have only recently (and reluctantly) entertained the legality of secession, jurists and other scholars have put forth a number of secession models for courts to adopt. Some jurists use functionality as a criterion for secession: If a territory can function as an independent state, then international law should recognize the seceding state.² Other jurists emphasize cultural preservation: If a territory has a culture distinct from its parent state, then international law should recognize the right of a seceding territory to preserve its culture.³ Still other jurists focus on the economic gulf between territorial units of a state: If one province basically subsidizes

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the rest of a state, then international law should recognize the right of that province to secede.⁴

The final model, which has recently received the greatest attention from courts and jurists, treats secession as a remedy for injustices. If a parent state has thwarted attempts at internal self-determination and inflicted grave harms on a group residing in a distinct territory within its borders, then international law should recognize a right to secede. This Article proposes and defends this Remedial Model of secession.⁵

Kosovo's recent unilateral declaration of independence (UDL)⁶ provides an excellent opportunity to reconsider grounds for secession and to test the Remedial Model. The International Court of Justice (ICJ), however, fell back on the rather unimpressive conclusion that Kosovo's declaration did not violate international law.⁷ What follows is not a doctrinal analysis of the ICJ's decision. Rather, the analysis consists of making a normative proposal of what the ICJ should have said. The power of this approach will become more evident through comparisons of Kosovo's claims to those of other secessionist movements, historical and current.

Part II describes background information on Kosovo before presenting the elements of a Remedial Model. Throughout this Part, the Model is tested against actual secessionist claims, past and current. Part III, then, compares the Remedial Model to other ones found in the literature, including previous versions of the Remedial Model. Part IV takes on the challenge of how to implement the Remedial Model, other than through the ICJ. This Article concludes with a case for elevating the role of human rights treaty bodies, particularly the Committee for the Elimination of Racial Discrimination (CERD), regarding secession claims.

II. International Law, Secession, and Kosovo

A. Background on the Kosovo Decision

On February 17, 2008, Kosovo's parliament took the bold step of declaring Kosovo's independence.⁸ Serbia submitted a request to the United

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Nations General Assembly to have the ICJ issue an advisory opinion, and the General Assembly obliged, asking the following question: "Is the [UDL] by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?"⁹ The ICJ answered that "general international law contains no applicable prohibition of declarations of independence."¹⁰ The ICJ explicitly dodged the question as to whether international law sanctions a remedial right to secession.¹¹ Indeed, as Judge Bruno Simma bemoaned in his dissent, the ICJ missed a rare opportunity to present a much more sweeping analysis.¹² While some have called the ICJ decision judicious, if not momentous, many jurists have found it disappointing.¹³ Effectively, and somewhat facetiously, the ICJ's decision means that the decision by the City Council of Killington, Vermont in 2005 and 2006 to secede from Vermont and join New Hampshire did not violate international law.¹⁴ More charitably, Curtis Doebbler, a law professor, wrote one of the first academic reactions to the decision, predicting that "it is unlikely to be remembered as one of the Court's better attempts to articulate and clarify the law."¹⁵ Another failing of the opinion is that the ICJ examined the factual circumstances only going back to 1999.¹⁶ The analysis developed below fills in the gaps and directly addresses these important issues.¹⁷

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B. Legal Analysis

The following is an outline of how a court or some international decision maker (such as the human rights treaty bodies, especially CERD¹⁸ or the Human Rights Committee (HRC)) should have and should approach secession claims.¹⁹ A court should engage in a three-step inquiry. In the first stage, it should evaluate the relationship between the two parties—the claimant entity and the parent state. That finding is a prerequisite to all subsequent analyses because the court must first establish that a secessionist relationship exists between the parties before it. The next two stages of the analysis assess the harms perpetrated by the parent state against the seceding territory and its people. In...