To break free from tyranny and oppression: proposing a model for a remedial right to secession in the wake of the Kosovo advisory opinion.

• Author: Brewer, Evan M.

ABSTRACT

Too often states have invoked territorial integrity and nonintervention in defending abuses perpetrated against peoples within their borders. This practice must be stopped by embracing a robust remedial right to secession. Remedial secession takes place when an oppressed people creates an independent state by seceding from a state that denies its right to self-determination. It has been speculatively posited as an "extreme circumstances" possibility, but remedies to denials of the right to self-determination have not been clearly determined beyond the decolonization context. In the post-colonial era, international law has recognized the importance of fundamental human rights to such a great degree that the right to remedial secession now warrants assessment as a possible entitlement. The Kosovo Declaration of Independence and its adjudication before the ICJ showcased the tension between self-determination and territorial integrity, demonstrating that territorial integrity must not protect those committing egregious violations of human rights. This Note then proposes that the remedial right to secede should vest in a group that: (1) constitutes a "people," (2) has been systematically oppressed, (3) has been denied self-determination within the existing state, (4) freely chooses to secede, and (5) respects the rights to self-determination of other minorities. This proposal offers a last-resort way for a victimized people that has been denied its rights under international law to exercise self-determination.

TABLE OF CONTENTS I. INTRODUCTION: THE TENSION BETWEEN SELFDETERMINATION AND TERRITORIAL INTEGRITY COMPLICATES WHETHER AN OPPRESSED PEOPLE MAY SECEDE II. THE RIGHT TO SELF-DETERMINATION PERMITS SECESSIO ONLY IN EXTRAORDINARY CIRCUMSTANCES A. General Assembly Declarations Establish Self-Determination as a Decolonizing Principle B. The Namibia and Western Sahara Advisory Opinions Illustrate the Application of Self-Determination C. After Decolonization, the Right to Self-Determination Is Universal, but Lacks Remedial Mechanisms III. SELF-DETERMINATION IS A FUNDAMENTAL HUMAN RIGHT THAT SYSTEMATIC OPPRESSION VIOLATES; SUCH VIOLATIONS MUST HAVE REMEDIES, EVEN AGAINST INVOCATIONS OF TERRITORIAL INTEGRITY A. Judge Cancado Trindade Champions Remedial Secession as Valid Exercise of Right to Self-Determination 1. International Law Recognizes Fundamental Human Rights as International Rights on Par with Those of States 2. The Inviolability of Fundamental Rights of Peoples Constitutes an Absolute Limit on Sovereignty, Reorienting the Hierarchy of International Law 3. A State that Violates a People's Fundamental Rights May Forfeit Its Sovereign Privilege over Them, Creating a Right to Secession B. Judge Koroma Finds Remedial Secession to Threaten Territorial Integrity and the Stability of International Law 1. Unilateral Acts to Form New States Breach Territorial Integrity and Violate International Law C. A Human Rights-Based Interpretation Permits Remedial Secession in Kosovo, While a State Sovereignty-Based Interpretation Rejects Secession IV. DRAFTING A REMEDIAL RIGHT TO SECESSION TO PROTECT THE RIGHTS OF OPPRESSED PEOPLES A. Asserting a Positive Right to Secession as a Last-Resort Mechanism to Exercise the Right to Self-Determination for Oppressed Peoples B. Kosovo's Claim to the Remedial Right Would Succeed Unless It Violated the Self-Determination of Minorities Within Its Borders C. Possible Separate Security Council and ICJ Pathways to Implement the Remedial Right V. CONCLUSION I. INTRODUCTION: THE TENSION BETWEEN SELF-DETERMINATION AND TERRITORIAL INTEGRITY COMPLICATES WHETHER AN OPPRESSED PEOPLE MAY SECEDE

During the past century, the right to self-determination has figured prominently in the law concerning independence movements and the emergence of new states. (1) The right to self-determination, generally, entitles a community to participate in determining its own form of government. (2) The right developed from the principle of noninterference--a principle reflecting a state's right to determine its own government without external interference (3)--to encompass the succession of colonial regimes with self-governing states. (4) In this conception, the right to self-determination crystallized as a foundational international rule, recognized as a jus cogens norm. (5)

The principle of self-determination occasionally operates in tension with territorial integrity. (6) The principle of territorial integrity entitles a nation to exercise sovereignty over the area within its borders, without unwanted incursions by other states. (7) Where a minority group within a state is oppressed, it may only be able to participate in determining its mode of government--and thereby exercise its right to self-determination--by forming a new state. This act would change the national boundaries of the existing state and conflict with the principle of territorial integrity. Consequently, whether the right to self-determination includes a right to secession is less clear. This confusion should be resolved by embracing a remedial right to secession to ensure that a minority may exercise its right to self-determination where its surrounding state violates its fundamental rights.

The tension between self-determination and territorial integrity is at the heart of the debate surrounding Kosovo's statehood. On July 22, 2010, the ICJ responded to the General Assembly's request to determine whether Kosovo's Declaration of Independence violated international laws with the advisory opinion, Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo. (9) In determining the legality of Kosovo's claimed right to break away from Serbia and be an autonomous state, Kosovo would allow the ICJ to determine the scope of the right to self determination beyond the traditional decolonization context. (10) Traditional claims to self-determination grant a people independence from an existing state to terminate colonial or foreign occupation. (11) As Kosovo was not occupied by a colonial or foreign power, it tested the law of self-determination as applied to an oppressed minority within a state. (12) The Court's majority, however, refused to consider whether the Kosovo situation manifested a right to self-determination or a right to remedial secession based on its particular historical context. (13) Though the majority opinion did not address the rights to self-determination and secession, the separate and dissenting opinions engage these issues and provide an excellent vantage to assess the right, as it should be applied in the post-colonial world. (14)

Territorial integrity should not be able to provide impunity to states committing human rights abuses, as states possess fundamental obligations to respect the rights of different peoples within their borders. (15) A state that abuses a people within its borders should lose its legitimacy as a state with respect to that group. (16) The modern era of international human rights law must not permit massive violations of its order under the fig leaf of territorial integrity.

This advocacy recognizes and finds unpersuasive the counterargument that permitting remedial secession would erode the principle of territorial integrity, jeopardize the foundations of international law, and encourage separatists worldwide. (17) This concern highlights the real risks of moral hazard and of the refashioning of international law such that noncompliant states cease to be legitimate. Nevertheless, this concern fails to outweigh the need to protect the right to self-determination.

Territorial integrity is contingent on compliance with the principle of self-determination and equality, but international law does not make clear the consequences or available remedy if a state denies self-determination and equality to a people within its borders. (18) International law must address the consequences and remedies incumbent on such a violation to ensure that the human rights in the right to self-determination receive effective protection under international law. Resolving this uncertain area will combat the use of territorial integrity for impunity, while demonstrating the commitment of international law to defending the rights of minority peoples worldwide. A right that cannot be exercised is no right at all.

Part I introduces the contested terrain between secession and territorial integrity, particularly in the context of the Kosovo Declaration of Independence and the International Court of Justice (ICJ) advisory opinion addressing the legality of Kosovo's declaration. Part II frames the right to self-determination by surveying the development of the right in international law, highlighting the tension between self-determination and territorial integrity. Part III contrasts the positions of Judges Antonio Augusto Cancado Trindade and Abdul G. Koroma in their separate and dissenting opinions, respectively, to Kosovo. Judge Cancado Trindade interpreted the right to external self-determination expansively, reasoning that if a state fails to respect the rights of a people within its borders, it forfeits its right to territorial integrity over that people. (19) Judge Koroma dissented, stressing that territorial integrity constitutes a fundamental principle of international law, such that self-determination may not be invoked to justify acts conflicting with territorial integrity. (20) Building on the strength of Judge Cancado Trindade's reasoning, Part IV proposes a remedial right to secede as a component of the right to self-determination. This right should be available when the existing state has foreclosed all other means of exercise of the right to self-determination. Under this rule, an entity would have a right to secede when it (1) constitutes a "people" under applicable law, (2) is governed unequally or subjected to systematic oppression, (3) is denied the internal...